Gencorp

GENCORP Gencorp, General Tire Division and United Rubber, Cork, Linoleum and Plastic Workers of Amer- ica, AFL-CIO-CLC. Case 14-CA-18643 May 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On August 17, 1987, Administrative Law Judge Walter H. Maloney issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions2 as modified and to adopt the recom- mended Order as modified. ' 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) The Respondent contends that the Board should reject the judge's credi- bility resolutions in this case because the judge failed to articulate his rea- sons for arriving at certain of his resolutions The Board has held consist- ently that when "credibility resolutions are not based primarily upon de- meanor the Board itself may proceed to an independent evaluation of credibility " J N Ceazan Co, 246 NLRB 637, 638 fn 6 (1979), and cases cited there We have carefully examined the record and have con- sidered all the evidence in this case in light of both of the above stand- ards and find no basis under either one for reversing the judge's credibil- ity findings See Appleway Chevrolet, 265 NLRB 226 fn 1 (1982) The Re- spondent also alleges that the judge displayed prejudice against the Re- spondent at the hearing and in his decision After careful review of the record and the judge's decision we are satisfied that this allegation is without merit The Respondent contends that the judge erred in relying on certain of its statements to find background antiunion animus because these state- ments were protected under Sec 8(c) of the Act We reject this argu- ment as the Board has consistently held that conduct that may not be found violative of the Act may still be used to show antiunion animus See, e g, General Battery Corp, 241 NLRB 1166, 1169 (1979) We correct the following inadvertent errors in the judge's decision (1) In sec 1,13, 1, par 1, the judge stated that, at the conclusion of its orienta- tion procedure, the Respondent gave new hires a test that included the question, "What are the company's views on unions?" Uncontradicted testimony indicated that this test had not been used by the Respondent for at least 6 years prior to the hearing (2) In the fourth sentence of sec I,B,2, par 1, the judge inadvertently switched the names of Supervisor Combs and employee Davidson In fact, Combs asked Davidson the question set out there In the last sentence of that paragraph, the judge also erroneously stated that "Davidson replied that Combs knew what [Plant Manager] Rippy was talking about" (emphasis added) In fact, Da- vidson stated that he knew what Rippy was talking about (3) Contrary to the judge's statement in sec I,B,4, fn 31, while Department Manager Henderson testified that he did not consider employee Tate a "neutral witness," he did not testify that this was because of Tate's union activities or his filing charges (4) Contrary to the judge's comments in sec I,B,5, par 1, only Haman Resources Director Preston told Tate "I don't think I should have to tell you why" when Tate asked why the Respondent would not hire his son 2 We find it unnecessary to pass on the judge's conclusion in sec I,C,2(a), that the Respondent created an impression of surveillance of its employees' union activities by Combs' comments to Davidson because 717 The judge found, inter alia, that the Respondent violated Section 8(a)(3) and (1) of the Act by disci- plining employee Hershell Tate on December 3, 1986, for allegedly overstaying a break and violat- ed Section 8(a)(1), (3), and (4) by discharging Tate on February 4, 1987. We agree with the judge that Tate's discipline and later discharge violated Sec- tion 8(a)(3) and (1) of the Act, but we reverse the judge's finding that Tate's discharge violated Sec- tion 8(a)(4). The determination of whether Tate's discipline and discharge violated the Act is governed by the standard set out in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Under Wright Line, the General Counsel has the initial burden to prove that union or other activity protected by the Act was a motivating factor in the employer's decision to take an adverse action against an employee. In this case, the judge found a background of antiunion animus on the part of the Respondent. The judge also found that Tate himself had been the subject of an 8(a)(1) vio- lation early in 1986 when, in the context of telling Tate that the Respondent would not hire his son, Human Resources Director Preston told Tate that Tate was "negative" toward General Tire and was "one of those 17 people" who was negative toward everything the Respondent did. The judge found that this reference to "one of those 17 people" had a union connotation. The judge thus found that by any such finding would be cumulative in light of other findings, which we adopt, that the Respondent created the impression of surveillance of its employees' union activities We note, however, that the judge inad- vertently omitted from his recommended Order language reflecting these latter findings and we shall modify his Order accordingly We agree with the judge that the Respondent violated the Act when Combs, while distributing a STAR bonus incentive check, stated to em- ployee Kash, "Sign this and not a card " In doing so, we note that the judge linked Combs' statement to other clearly unlawful statements by the Respondent threatening the STAR program and to the Respondent's general antiunion animus In adopting the judge's conclusion that the Respondent violated the Act by disparately applying its no-solicitation rule to employee Simmons, we note that the judge erred in stating that Supervisor Rogers gave Sim- mons a formal unsatisfactory performance notice for soliciting in viola- tion of the Respondent's rule Simmons received verbal counseling and a iiotation in his citation record, which, this record shows, is not consid- ered formal discipline We nonetheless find that the Respondent dispar- ately applied its no-solicitation rule and violated the Act by citing Sim- mons while posting on the company bulletin board an antiunion petition that employee Buchanan had circulated on company time in violation of company rules In agreeing with the judge that the Respondent's supervisor, Hogue, violated the Act in a discussion with employee May, we find that Hogue did so by showing May a union leaflet and stating "This is not going to get it" during a discussion of May's prospects of being made a supervisor with the Company In adopting the conclusion that the Respondent violated Sec 8(a)(1) of the Act through unlawful interrogations, Chairman Stephens finds it un- necessary to rely on the August 10 incident involving employee Gordon West and his supervisor, Kevin Loucks 294 NLRB No. 57 718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD December 3, 1986, the date of the first alleged in- stance of unlawful discipline, the Respondent was aware of Tate's union activities. The judge also credited testimony by employee McDonough, which indicates that on the day after Tate's De- cember 3 discipline, Supervisor Holt told McDon- ough that she was just timing the break of one of her employees.3 Further, Tate's February 1987 sus- pension pending discharge occurred on the same day that Tate solicited union support from an em- ployee who, the judge found, then informed Holt, Tate's supervisor. Lastly, both Tate's discipline and discharge occurred during the period of time that the Respondent was conducting an antiunion cam- paign in which it committed several unfair labor practices. Given these factors,4 we find that the General Counsel met her initial burden to show that the December 1986 and February 1987 actions against Tate were discriminatorily motivated. Under Wright Line, the burden then shifted to the Respondent to show that it would have taken the same action even in the absence of the protect- ed activity. The Respondent contends that the judge ignored evidence that Tate had a history of exceeding the time allotted for his breaks and that the Respondent legitimately disciplined and then discharged Tate for exceeding breaktimes in ac- cordance with its four-step disciplinary procedure. We find that the Respondent failed to rebut the prima facie case. In regard to the December 3 dis- cipline, the judge, as noted, credited testimony by employee McDonough that Holt was just timing the break of one of her employees. We infer that this employee was Tate,5 and that this testimony supports the judge's finding that Holt had singled out Tate because of his union activities. With re- spect to Tate's discharge, the judge credited Tate's testimony, corroborated by McDonough, that Tate did not in fact exceed his breaktime on February 2, 1987. The judge also credited testimony by former General Tire employee Brien that General Tire Su- pervisor Mezo had told him that Tate had been dis- charged because an employee had complained to management that Tate had tried to give him a union card. In addition, the judge found that Holt used a stopwatch to time employee breaks in order to "catch" her employees, that she had not timed any breaks between December 3, 1986, and Febru- ary 2, 1987, and that she had not offered any clear s In sec II,C,5, par 3, the judge incorrectly stated that Holt's conver- sation. with McDonough took place "during the period [in February] when Tate was under suspension pending discharge " The record shows that this conversation took place on December 4, 1986 a See, e g , Transportation. Management Corp, 256 NLRB 101, enf denied 647 F 2d 130 (1st Cir 1982), reversed 462 U S 393 (1983) 5 We note that employee Ellis was disciplined along with Tate but we find Holt's reference was to Tate reason why she resumed timing breaks on Febru- ary 2, 1987. All of this evidence undermines the Respondent's assertion that it discharged Tate for a legitimate reason, and supports the judge's finding that the Respondent discharged Tate because of his union activities. Thus, notwithstanding Tate's earli- er history of exceeding breaktimes, we agree with the judge's conclusion that Tate's December 1986 discipline and his February 1987 discharge violated Section 8(a)(3) and (1) of the Act.6 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Gencorp, General Tire Division, Mt. Vernon, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(h). "(h) Giving employees the impression that their union activities are under surveillance." 2. Substitute the following for paragraph 2(a). "(a) Offer to Hershell Tate full and immediate reinstatement to his former job or if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or to other rights previously enjoyed, and make him whole for any loss of pay or benefits which he may have suffered by reason of the discrimination against him, in the manner described in the remedy section." 3. Substitute the following for paragraph 2(d). "(d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply." 4. Substitute the attached notice for that of the administrative law judge. 6 We reverse the judge's finding that the Respondent also violated Sec 8(a)(4) by disciplining and discharging Tate because we do not find a suf- ficient nexus between the discipline and discharge and Tate's filing of an unfair labor practice charge We also reverse the judge's finding that the Respondent's January 7, 1987 discipline of employee McDonough violat- ed Sec 8(a)(4) of the Act because this violation was not alleged in the complaint and was not litigated at the hearing In his recommended Order, the judge provided that employee Tate be reinstated to "his former or substantially equivalent employment " We shall modify the Order and notice to provide that the Respondent only offer Tate "substantially equivalent employment" only if his former job no longer exists The judge granted the General Counsel's request for a visitatorial clause Under the circumstances of this case, we find it unnecessary to include that clause, Cherokee Marine Terminal, 287 NLRB 1080 (1988) GENCORP APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT coercively interrogate employees concerning their union activities or the union ac- tivities of other employees. WE WILL NOT threaten to discontinue or to reduce incentive bonus benefits or any other bene- fits, and WE WILL NOT threaten to impose harsher conditions of employment respecting break or any other term or condition of employment, in reprisal for union activities of employees. WE WILL NOT promise promotions or other in- ducements to employees if they abandon their sup- port for the Union. WE WILL NOT disparately enforce the provisions of the no-solicitation rule in order to encourage an- tiunion activity and to discourage prounion activi- ty. WE WILL NOT threaten employees with layoffs if the plant becomes unionized. WE WILL NOT impose a gag rule on employees in reprisal for their union activities. WE WILL NOT tell employees that members of their families will not be hired because of union ac- tivities on the part of the employees. WE WILL NOT give employees the impression that their union activities are under surveillance. WE WILL NOT discharge or discipline employees or otherwise discriminate against them in their hire or tenure for the purpose of discouraging member- ship in or activities on behalf of United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer full and immediate reinstatement to Hershell Tate to his former job or, if that job no longer exists, to a substantially equivalent position, 719 and we will make him whole for any loss of earn- ings he may have suffered by reason of the discrim- ination practiced against him, with interest. WE WILL expunge from our personnel files any entries that reflect the unlawful discipline of em- ployees Gerald (Andy) May and Michael McDon- ough, and the unlawful discipline and discharge of Hershell Tate, and WE WILL notify each of them in writing that this has been done and that evidence of this unlawful conduct will not be used as a basis for future per- sonnel actions against them. GENCORP, GENERAL TIRE DIVISION Keltner'Locke, Esq., for the General Counsel. Harold R. Weinrich and Shawn E. Smith, Esqs., of Wash- ington, D.C, for the Respondent. John Sellers, Field Representative, of Fountain Valley, California, for the Charging Party. DECISION FINDINGS OF FACT STATEMENT OF THE CASE WALER H. MALONEY, JR., Administrative Law Judge. This case came on for hearing before me at St. Louis, Missouri, upon an unfair labor practice complaint,' issued by the Regional Director for Region 14 which al- leges that Respondent Gencorp, General Tire Division,2 violated Section 8(a)(1), (3), and (4) of the Act. More particularly, the complaint alleges that the Respondent committed a host of independent violations of Section 8(a)(1) of the Act, including coercive interrogations, in- ducements such as offers of supervisory positions in ex- change for abandoning union activity, surveillance of union activities and creating the impression of surveil- lance of union activities, and threats of reprisal, including harsher working conditions and loss of incentive benefits, The principal docket entries in this case are as follows Charge herein filed against the Respondent by United Rubber, Cork, Linoleum and Plastic Workers.of America, AFL-CIO-CLC (Union or URW), on October 16, 1986, and an amended charge filed on November 20, 1986, complaint issued against Respondent by the Acting Regional Director, Region 14, on November 26, 1986, Respondent's answer filed on December 9, 1986, amended complaint issued by Regional Director for Region 14, on January 7, 1987, second amended charge filed on Janu- ary 14, 1987, third amended charge filed on January 30, 1987, and fourth amended charge filed on February 4, 1987, second amended complaint issued on March 6, 1987, Respondent's answer to amended complaint filed on March 16, 1987, hearing held in St Louis, Missouri, on April 21-i 24 and May 18-20, 1987, briefs filed with me by the General Counsel and the Respondent on or before August 3, 1987 2 Respondent admits , and I find, that it is an Illinois corporation which maintains an office and factory at Mt Vernon, Illinois, where it is en- gaged in the manufacture of automobile and truck tires During 1986 Re- spondent, in the course and conduct of this business, purchased and re- ceived at its Mt Vernon, Illinois factory directly from points and places outside the State of Illinois goods and materials valued in excess of $50,000 Accordingly, the Respondent is an employer engaged in com- merce within the meaning of Sections 2(2), (6), and (7) of the Act The Union is a labor organization within the meaning of Sec 2(7) of the Act 720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD if an organizing drive were successful. The amended complaint also alleges that the Respondent !disparately enforced its no-solicitation rule against union activities, prohibited union sympathizer Gerald (Andy) May from engaging in conversation with other employees, gave dis- criminatorily motivated disciplinary warnings to union sympathizer Michael McDonough relating to missing work on account of jury duty, and placed union sympa- thizer Hershell Tate on probation and ultimately dis- charged him on the pretext that he was late in returning to his duty station from breaks. Inasmuch as charges had been filed by or on behalf of McDonough and Tate, the actions taken against them by the Respondent were also alleged as violations of Section 8(a)(4) of the Act. Re- spondent denies the commission of any independent vio- lations of Section 8(a)(1) of the Act, denies placing any special restrictions on May, and asserts that the discipli- nary actions which were taken against McDonough and Tate were for cause. Upon these contentions the issues were drawn.3 B The Unfair Labor Practices Alleged Respondent operates a large factory at Mt. Vernon, Il- linois, where it manufactures both truck and automobile tires. This factory is one of four such plants located throughout the United States and is the only one which has not been organized by the Charging Party in this case.4 The Mt. Vernon plant was opened in 1973 and began full production in 1974. It now employs about 1000 production and maintenance employees and oper- ates around the clock, 7 days a week. 1. General antiunion activity The Union herein has made sporadic attempts over the years to organize this plant but no representation election has ever been held. Respondent makes no bones about its hostility to union organization. In the company hand- book furnished to each employee, Respondent has elabo- rated at length about what it calls its "union-free philoso- phy." Among the statements describing this philosophy are the following Our plant is union free. We do our best to make sure our folks never feel that they need to pay dues to any outsider to represent them. We resent the ad- verse relationships which sometimes exist in a unionized environment. We encourage our people to speak up so that their questions are answered and problems resolved. Our track record is such that at Mt. Vernon this can be accomplished without any union grievance procedure. Unions have attempted to convince our people that paying dues and subjecting them to the possi- bility of assessments and fines is somehow in their best interest. We do not believe that it is in any em- ployee's best interest. Over the years, our employ- ,3 Certain errors in the transcript have been noted and corrected 4 A unionized plant located at Mayfield, Kentucky, is mentioned prominently in the record in this case ees have agreed with us and have refused to sign authorization cards. We have never had. a union election at Mt. Vernon and hope we never will. In addition, we never want to risk the possibility of strikes which sometimes happen in a unionized facil- ity., In short, we feel that unionization is in no one's best interest at Mt Vernon. In its orientation procedure for new employees, the Re- spondent concludes the exercise by giving new hires a test to see if they have absorbed the information that has been provided to them during a 3-day period of lectures and conferences. One of the 25 questions posed in this questionnaire is: "11. What are the company's views on unions?" Each new employee is asked to fill out the answer in his own words and in his own handwriting. Notwithstanding the Respondent's union-free philoso- phy, the Charging Party has from time to time made overtures toward organizing production and maintenance employees at Mt. Vernon. In recent years these periodic efforts have been conducted under the supervision of Field Representative John Sellers, assisted on occasion by John Winchester, an employee at Respondent's May- field, Kentucky plant and a union official at that loca- tion. The three discriminatees named in the complaint- Gerald (Andy) May, Michael McDonough, and Hershell Tate-all testified that they had supported previous ef- forts of. the Union to "test the waters" at Mt. Vernon. When Sellers and Winchester came to Mt. Vernon in August 1986 to solicit interest in union organization, James B. Rippy, Respondent's plant manager, held sever- al meetings at the plant cafeteria which were attended by most of the production and maintenance employees. At these meetings Rippy warned them that the Union was trying to organize again, stating: We have had several complaints from employees that they [Sellers and Winchester] are going around to our folks houses trying to get them to sign union cards We don't know what their pitch is this time but I would assume a lot of it is the standard stuff from the past plus, I understand, Mr. Winchester has been severely knocking our STAR systems and I have gone over that previously with most of the employees in this plant. I also understand that we have a couple of employees accompanying these gentlemen and I am sure you can guess who they are-two of the 18 we talk about constantly. Rippy went on to tell employees that they did not have to talk to union organizers, reminded them of the Com- pany's antiunion stance, and told them that the Company did not want its employees to sign cards even though they had the right to do so. "Don't let anyone push you around or bully you, and if you need help to stop it, ask 5 STAR is an acronym for Saving Time And Resources It is a month- ly incentive bonus plan inaugurated in June 1985 for unit and nonunit em- ployees alike The Company determines how much has been saved during each month by elimination of waste, reduction of expenses, and increases in production in comparison with a base period Most of the difference is paid to employees in monthly bonus checks distributed by their supervisors GENCORP for it and we will see that you are left alone. That goes 11 for the plant or at your,home." Rippy boasted that the Respondent operated the best industrial plant in the area, that it had developed a coop- erative atmosphere and had paid employees over $2 mil- lion through the STAR program. He spoke of other im- provements and procedures which it had implemented in the plant, such as voting on holidays and overtime, and claimed that "half of the people in a 50-mile radius would like to change places with you." He reminded em- ployees that there had not been a layoff in 5 years and there had been no strikes, comparing their situation fa- vorably with events at the unionized Mayfield plant. He closed by saying. So, don't let them pull your leg, badger you or paint you a rosy picture. Every time they tell you something will happen good if you vote union or sign a union card , ask them to put it in writing and sign their name. We do that constantly. Let's don't let any outside third party salesman endanger what we have or our reputation as the most efficient, highest quality, lowest cost plant in General Tire. That's what job security is all about) Later on in 1986, the Company held what it called "white hat" meetings with groups of selected employ- ees, at which time it pursued its antiunion effort further. At least one "white hat" group was told that it had been selected to attend the meeting because management re- garded them as strongly antiunion. "White hat" meetings were addressed either by Rippy or Human Resources Director James B. Preston, or both. The employees invit- ed to these meetings were told that management divided the plant into three groups, as illustrated by a graph or chart setting forth these divisions. Rippy placed the figure "17" and the word "strong" on one side of the chart, the figure "60" in the middle and the figure "23" and the word "strong" on the other side of the chart, in- dicating that 17 percent of the employees were prounion, 23 percent were antiunion, while the balance were in the middle. A partial text of the Rippy-Preston remarks is as follows: We have asked a cross section of our plant to come to this meeting to talk about the union activi- ty that we are having and ask your assistance. There is a small group of people in the plant that, each year when a new union organizer comes to town, tries to get a campaign started Each year we go through the same thing. We have meetings with people and try to give correct information so that they can make a judgment for or against signing a union card. We do not want you to sign a union card. However, you do have a right to sign one. There is a difference this year. The difference this year is that we have our STAR system. Meet- ings held to pass out the correct information will have a negative effect on our STAR system. In 6 The term "white hat" was derived from the practice in old western movies of dressing "good guys" in white hats and "bad guys" in black hats 721 order to avoid this, Mr. Rippy and I have decided to get everyone in the plant involved. We are asking each employee to speak out. We are not tell- ing you what to say or giving you any propagan- da-just speak out what is on your mind. We are sure that the facts will speak for themselves. We don't think that we need a union. We think the ma- jority of our people feel that we don't need a union We want the majority to speak up. The problem in a union campaign is that the ma- jority stays silent and the few that have an ax to grind talk about unions all the time. They try to make you think that the majority wants a union. That has never been the case here. We have never had an election. We have never even had a petition, and it only takes 30%. So, we are asking each person to speak up so we don't have to have all the meetings necessary in a union campaign. Speak what is on your mind whatever it is. To be quite honest with you, neither Mr. Rippy or I are too concerned about losing an election. We think the people in our plant do not want a union. We are concerned about having an election. The reason we don't want to have an election is that elections cost money. We feel like an election would cost our plant about $300,000. That is be- cause it usually takes a plant this size 3-5 months to go to an election, and during that time, a series of informative meetings are held. A company pays em- ployees to go to meetings, as well as time and one- half to replace them while they are in meetings. The cost would be approximately $300,000. In addi- tion, as I stated before, meetings are non-productive hours and will cost our STAR system. So, we want to avoid having an election and we are asking each person in the plant to speak out. We'll let the num- bers and the facts take care of themselves... . Look around your community. Look what has happened. Remember the railroad car shop that was here? Your parents probably remember They em- ployed 2000-3000 people. The serious labor condi- tion that they had at that plant was a major cause for that plant shutting down. It took 18 years before anyone else came back to town because of Mt Ver- non's reputation in labor relations. Look around you now Look at the Stove Foundry-gone, Precision is down to a very small number of people. World Color says they are going to move a big portion of their operation out; and General Radiator began going down hill right after a devastating strike. It's gone. General Tire is the backbone of this commu- nity. The community can depend on us to work; they can depend on us to pay well, and, they can depend on us to be here. This is the way we want to keep it. Look at our plant. Look at our STAR system. Look at your involvement in the decisions in this plant. Our STAR system in the last 15 months has paid an average of 79 cents an hour to employees besides your wages and this is only one factor. The big factor is that all of our people are involved in a lot of the decision making affecting 722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD their lives. This is the kind of plant we want to run. What we are asking you to do now is to go out and speak your mind We are not giving you propagan- da We are not telling you what to say, we are not asking you how you feel. Go out and speak up however you feel Don't let the little 2% of the people in this plant dominate the rest of the people in the plant. In the early spring of 1987, Respondent began to en- courage its employees to wear hats and T-shirts in fur- therance of its "Just Say No" campaign . Supervisors and personnel office employees distributed these items for employees' use.7 Respondent also distributed decals bear- ing the same message , a "do not enter" traffic sign sur- rounding the letters "URW" above the legend "Just Say No. In March, Preston distributed mimeographed an- tiunion letters to employees . One of them, captioned "Now is the time to speak out. `Just say No,"' was a series of questions and answers , in which the Respondent stated that the Union was getting desperate because it had never been able to secure enough authorization card signatures to get an election and stating further that it was engaged in making empty promises . The letter sug- gested that there might not really be any merit to the Union's claim that authorization cards would remain confidential and stated that the cards might not be to get an election but to obtain recognition based upon a card check Another communication forwarded on the same day by Preston to supervisors provided them with ad- dresses to which employees might write in order to re- trieve authorization cards which might have been signed in haste or without adequate reflection . At this same point in time , employee Joanne Buchanan circulated a petition, dated March 4, to various unit employees as they were working at their duty stations . The petition read : "We, the undersigned employees of the General Tire plant in Mt. Vernon, Illinois, do not wish to be rep- resented by the URW, and we do not want this union in our plant!! WE SAY NO." After collecting about 125 sig- natures, she turned the petition in to Preston, who posted it on the Company bulletin board because he wanted to disabuse employees of any idea that a large number of their fellow workers were prounion.8 B. Individual Instances of Alleged 8(a)(1) Conduct I credit the uncontradicted testimony of forklift me- chanic David Davidson that, sometime late in August 1986, his department manager, Harold Combs, spoke to Davidson concerning a conversation which Combs had held with Rippy . Davidson is a union supporter and, from time to time, has accompanied union organizers in 7 In April 1987, Rippy approached May at May's machine and asked the latter if he would wear a "Company" T-shirt In March 1987, Super- visor Roger Daniels pulled an antiunion hat out of a box and asked em- ployee David Davidson if Davidson would like to wear one Davidson declined 8 Preston also wrote Buchanan an "inter-office memo" telling Buchan- an that she was in violation of the Respondent's no-solicitation rule by circulating the petition to employees on working time He asked her not to do it again This memo was not a standard unsatisfactory performance notice form which the Respondent routinely uses for disciplinary warn- ings making house calls soliciting support for the organizing effort. Combs ieported to Davidson that Rippy had said that Davidson's attitude had changed. Davidson asked Combs what Rippy meant by that statement Combs re- ported that Rippy had stated that Davidson used to like General Tire and was proud of the Company but that he had changed. Davidson replied that he was still proud of General Tire 90-95 percent of the time but that 5 per- cent could still stand improvement . Combs again asked what Rippy meant and Davidson replied that Combs knew what Rippy was talking about, adding that while he could spell out Rippy's meaning to Combs, he de- clined to do so. Electrical technician David Kash testified that, follow- ing an unemployment compensation commission hearing in late. August 1986, he drove to the Ramada Inn at Mt. Vernon for the purpose of conferring with Sellers.9 He did not get to see Sellers. However, while waiting in the parking lot for Sellers's arrival, he assertedly saw the Re- spondent's chief of plant security, George Sands, being driven to the Ramada parking lot in a brown Bronco. The vehicle bearing Sands drove around the lot once and then left. Sands testified that he had not come to the Ramada on that occasion and did not engage in the ac- tivity reported by Kash. I believe that Kash's testimony was simply a case of mistaken identity and credit Sands' dental. 10 Normally STAR checks are handed out each month by first line supervisors. However, in early fall of 1986, Department Manager Combs distributed STAR checks to employees under his supervision. Upon arriving at Kash's work station, Combs handed Kash a check and said, "Sign this and not a card."' i I credit the testimony of Gordon Scott West, a week- end employee, that on Sunday, August 10, his supervi- sor, Kevin Loucks, struck up a conversation with him in the course of which Loucks said to West that he had heard union organizers were making house calls with some of the Respondent's maintenance men. Loucks did not know the identity of the maintenance men in ques- tion He went on to tell West about his father's disap- pointing experience with a labor organization as well as his own unhappiness with a union at another plant. He then asked West how he felt about unions. West replied that unions have their good points and their bad ones and that, at the present, he was against them 12 A few days later West was approached by Supervisor Tom Strang, who was holding his hand on his heart. Strang told West that West had hurt him by sitting with Andy May and employee Lonnie Garrison during breaks. West said that he did not know who Garrison 8 There is no dispute that it was common knowledge that Sellers made his headquarters at the Ramada Inn during his visits to Mt Vernon 10 Having credited Sands' denial , I will recommend that par 5(E) of the amended complaint be dismissed 11 Combs did not testify Under well-settled rules of evidence, I con- clude that, had the Respondent summoned Combs as a witness, he would have corroborated Kash's statement As it is, Kash's testimony in this regard is uncontradicted 12 Loucks admits to most of the conversation related by West, denying the interrogation into West's sentiments and the statement about a mainte- nance employee assisting in union house calls GENCORP was, so Loucks informed him that Garrison was being transferred into the truck tire operation in a couple of weeks. Loucks went on to say that West had more brains than both May and Garrison put together and that he should know better than to let them lead him around by the arm. West objected, saying that no one led him around by the arm. i 3 On another occasion Sam Lewis, who is in charge of coordinating certain aspects of the Respondent's STAR committee effort, spoke with West about certain committee meetings which were taking place relative to fighting the Union. The reference was to the "white hat" meetings noted above. West asked Lewis why he had not been included. Lewis replied that he thought it was because West had been associating with Andy May, expressing the opinion that the Compa- ny had West labeled as a union supporter because of this association. West also testified that Rippy made a speech to week- end employees in the cafeteria in the presence of about 200-250 people. i 4 After making derogatory remarks concerning the personalities of the union organizers who had recently come to Mt. Vernon, Rippy went on to state that it would cost the Company between $200,000 and $300,000 to fight the Union in an organizing cam- paign and that employees would lose a day's work be- cause of the election. Rippy stated on at least one occa- sion that, if the plant became organized and there was a layoff, the weekend crew would be the first to be affect- ed. He added that there were just 17 troublemakers who were causing all of the union trouble and urged the em- ployees in the audience not to be among them. On or about September 6, Preston walked up to West at his machine, told West that he was a disappointment, and then walked away. West wrote Preston a letter, asking him what he meant by this statement, and sent a copy of the letter to Rippy. He received no reply. i s Sometime in September, Benway asked West to wear the "Just Say No" T-shirt that she was distributing to employees. When West appeared reluctant to do so, she urged him to wear it at least once. When he was hired back in 1984, Jay Simmons, a tire repairman in the final finish department, was asked by Bill Henderson, the manager of that department, whether he had signed a union card. Simmons said no. Henderson told him that the Mt. Vernon plant was getting $24 mil- lion in additional investment from the Company and that it was in much better shape than the Mayfield plant, which he characterized as "dying." To use Henderson's phrase, the Company was putting its money where its mouth is. Simmons heard Rippy say at a "white hat" meeting which he attended in September that a union election would be costly in legal fees and lost production time in the amount of $300,000, and this expense would devas- 13 Strang did not testify during these proceedings, so West's version of this conversation stands uncontradicted in the record 14 Rippy did not testify during these proceedings is Preston admits that this conversation took place and that he did not explain to West what he meant by the statement that he was disappointed in him Preston explained at the hearing that, earlier in the day, Rippy had found West away from his machine during working hours and had mentioned this fact to Preston Preston's remark to West was in reference to this event, but he admittedly did not make this fact clear to West 723 tate the STAR program. This statement was made at a weekend meeting. Rippy told those in attendance that they had been selected to attend because they were con- sidered "strong employees." When outlining the senti- ment in the plant,,Rippy said that 17 percent were con- sidered prounion. Simmons asked Preston if he thought that 17 percent were actually prounion. Rippy replied to the question, saying that we do not have near that figure. "We have more like 17 shit heads They are the same 17 who, year after year, continue to organize." Rippy told the assembled employees to remember that weekend em- ployees had less seniority than others so they would be the first to be affected by any layoffs. i s Not long after the Union attempted to revive an orga- nizing drive in 1986, Henderson handed out STAR bonus checks to the employees working under his super- vision. He spoke to each of them as he did so. Hender- son handed Simmons a check and asked him, as he did so, "Would you rather sign this every month or sign a union card once?"i7 In mid-December, Simmons took his break one day with a group of employees including Curtis Leland. Karl Mezo and David Rogers, both supervisors in the palletiz- ing section, were also present. Leland said that he did not think that it was fair that Mike McDonough and Hershel] Tate were the only ones whose breaks were being timed. Mezo observed that, if the Company went union, everybody would have their breaks timed and all that he would have to do would be to wear a suit and tie to work and stand outside the breakroom with a stop watch. Rogers agreed that this was the way things worked in union shops, according to Henderson, who had previously worked in one. Rogers said that, in union shops, they time your breaks from the second you leave the assembly line until the time you return. In January 1987, Simmons was working as a repairman on a weekend shift when Rogers asked him to come to the office to speak with him and Employee Relations Su- pervisor Benway. i 8 Before this occasion, Simmons had been active in soliciting cards for the Union, and Rogers told him that the Company had a "high suspicion" that he was soliciting. Benway said that this information had been brought to her attention about an hour earlier. Rogers read a rule from the Company manual against so- liciting on the job. Later on that day, Rogers told Simmons that he had given him a writeup for soliciting. Simmons asked for a 16 Rippy stated at a meeting of weekend employees attended by May that, if a union came into the plant, they would be the first to be affected by it This statement by Rippy is uncontroverted in the record 17 One witness quoted Henderson as presenting her with a choice of having a STAR check or "paying union dues," a miniscule variation of his standard refrain Henderson admits giving out STAR checks along with a verbal antiunion message He has no independent recollection of speaking to Simmons in particular among the 151 people to whom he gave checks He testified that he pretty much used•a memorized speech with each employee, telling them that it would benefit them and their family more to sign a STAR check than to sign a union card Simmons had a better memory of the conversation in question and I credit his ver- sion 18 From time to time Simmons is assigned to work as a first-line super- visor On the occasions described above, he was working as a rank-and- file employee 724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD copy of the writeup. Rogers refused to give it to him, so he asked Rogers if he could go to the office and inspect the copy that was being put in his file Rogers agreed. Rogers testified at the hearing that he had no reason to believe that Simmons was engaged in any type of solici- tation other than union solicitation On the way to the office, Simmons argued that he should not have been given a writeup on the basis of hearsay. Rogers simply replied, "You can deny it all you want. I know you are organizing." Simmons argued that he had not been talk- ing union for quite some time. Rogers then said that he did not care if Simmons was talking union but told him not to do it on Company time He told him to do it either outside the plant or on breaks, adding that he knew that Simmons' father was a union man and that Simmons himself was.19 • On one occasion, when Simmons was temporarily re- placing Mrs. Holt as a first-line supervisor in the palletiz- ing section, he went into Henderson's office to relay a message that the palletizers wanted to talk with Hender- son. Henderson asked why, and Simmons replied that they, want to know about overtime work in the ware- house Henderson asked, "Who's the ringleader?" Sim- mons inquired what Henderson meant, and Henderson stated, "Who asked you about it?" Simmons replied that it was Hershell Tate, to which Henderson replied, "That's Hershell causing trouble again." David Raney, who was also in Henderson's office at the time, added, "You can tell Mike's [McDonough] back." On another occasion, when Simmons was again substi- tuting for a supervisor, Henderson asked him if Mike McDonough had returned from jury duty. Simmons re- plied that he had done so. Henderson then suggested to Simmons that he should keep a new weekend employee, Scott Derry, away from McDonough. On another occa- sion, Henderson told Simmons that he would like to keep the weekend employees entirely away from the more senior day-shift employees I credit the uncontradicted testimony of truck tire builder- Danny Smith that, sometime late in October 1986, he was talking with his immediate supervisor, Jeff Bradley, near a machine. He asked Bradley what was wrong. Bradley pulled out a note book and asked Smith, "Why don't you just make it easy on me and tell me who all you have signed up?" Smith's reply was that this would just take the fun out of it. Bradley then started re- citing names of various employees. He referred to em- ployee Steve Boyd, who was standing nearby and asked, "What about him?" Smith countered by asking- Bradley about certain other named employees who were known by him to be antiunion. Bradley then mentioned that an employee named Brett Gray had been bad-mouthing Smith for wanting to "get a place like this [to] work under a union plan." Apparently Smith made no reply to this statement. 19 Rogers denies the portions of Simmons' testimony relating to state- ments concerning union activities I discredit Rogers C. The Harassment and Discipline of Gerald (Andy) May Gerald (Andy) May is a truck tire builder who has been employed by the Respondent at its Mt.' Vernon plant since 1976. May testified that he supported organiz- ing drives which preceded the one which was undertak- en in August 1986. He recalled, without contradiction, a conversation with Rippy following a speech which Rippy had delivered to certain plant employees in Janu- ary 1985. He attempted to ask Rippy a question and was told to wait until Rippy had finished At the conclusion of the speech May asked Rippy a question and the ex- change between them turned into a shouting match, in the course of which May said to Rippy, "You mean to tell me that a union would not help us?" During the 1986 union effort, May spoke up for the Union in the plant and gave out authorization cards. He frequently wore URW hats and T-shirts to work. Wil- liam Hogue, the manager of the truck tire building de- partment, testified that May was open in his union activi- ties so he was aware that May was prounion. In August 1986, Hogue and May had a conference in Hogue's office. The occasion was May's 10th anniversary as a company, employee, a date having more than routine sig- nificance since, under ERISA requirements, May's pen- sion rights had vested. The two chatted somewhat infor- mally about what had occurred at the plant during the years which had elapsed since May had become a com- pany employee and Hogue had arrived as a supervisor. Hogue told May that he was a born leader and might make a good supervisor. May's reaction was that he would not take the job because he felt that the Company would fire him if he ever left the bargaining unit Hogue replied that he thought that this was crazy, that the Company had never done this in the past, and it would not start doing so now. May said that maybe Hogue would not do so but he felt that Rippy might. May reminded Hogue that he had applied some years before to be a supervisor but had been turned down be- cause of his attendance record. He suggested that this would happen again. Hogue replied that this could be changed. May went on to tell Hogue that they might as well discuss what he was really called into the office to discuss, namely his union activities May told Hogue that he was prounion and that he had signed a card. At one point in the conversation, Hogue told May that his pen- sion rights had vested and he would get his pension even if he were fired May asked Hogue if he was firing him and Hogue said no. I credit May's statement that, during this conversation, Hogue pulled out a union handbill that was being circulated and told May, "This is not going to get it." In late August or early September, May's foreman, Bill Aydt, came around and began to discuss union organiz- ing with May May told Aydt that he was for the Union and that Aydt's "speech" would probably be to no avail. Aydt agreed but said that he had to talk to him anyhow. Aydt recounted to May that he had worked in a union plant before and that the union at that plant had failed to fight hard for employee grievances Aydt felt that a union would not help employees at the Mt Vernon GENCORP plant. Sometime thereafter, May told Hogue that he wanted equal time. When Hogue asked him what he meant^^by equal time, May said that, if Aydt could come around to employees at their work stations and tell them how he dislikes unions, May should be able to go around and campaign for unions. Hogue made a gesture toward May with his finger and told May that, if he did not watch it, he would not have any time. 2o On August 1 the Company posted throughout the plant a reminder to employees that they should not leave their work areas before the change of shift. In a bulletin illustrated with two horses and signed by Preston, the Respondent stated: We Hate to Nag You ... Once again, it has been reported that there are a number of employees leaving their work areas before shift change. They have been seen drifting to the front door or going down the outside walk- ways. This is a reminder-Do not leave your work area until the shift change signal is heard. It should be noted that, in most departments in the plant-and specifically in the department where May works-the Company follows a program called "mini- mum expectancy." Each affected employee is assigned a daily production quota. If he completes his "minimum expectancy" before the end of his shift, he is free to quit working even though the shift change signal has not yet sounded. Employees in the truck tire department or any other department are normally not supposed to leave their department area after making their minimum ex- pectancy for the day. They are expected to clean up their area, fill in timecards, and do related chores. They are permitted to talk with other employees in the same department who are not working. After Preston pub- lished the plantwide reminder on August 1 concerning leaving work areas before the shift change signal, Hogue issued a more restrictive order pertaining to his depart- ment. He instructed employees not to leave their ma- chines after making their minimum expectancy for the day He claimed that he had to do this because he was experiencing a problem from employees under his super- vision who were leaving the department and going into other departments. This rule lasted about a week and was rescinded by Hogue when he received a number of complaints from employees that it was too restrictive. I credit May's statement that, in mid-September, while he was working at a curing press, Hogue came up to him and instructed him henceforth to go straight to his ma- chine, to refrain from talking to anyone on the way to or from break, and to stay by his machine until quitting time without speaking to anyone, even if he had com- pleted his minimum expectancy. Hogue's instruction per- mitted May to speak to other employees only in the break room 21 May asked Hogue whether this rule ap- 20 Aydt did not testify so May's testimony in this regard is uncontra- dicted in the record Hogue did testify but he made no mention of this event in his testimony 21 Hogue denies imposing a strict no-talking rule upon May However, another employee testified that they were aware of this order as it per- 725 plied only to him or whether it was plantwi'de•in scope. Hogue replied, "Mister, I am telling you." May then in- formed Hogue that he wanted to be sure because' he was planning on taking the matter to court, whereupon Hogue told him to "do what you have to do." May com- plained about this rule to Aydt, his immediate foreman, who said that he knew nothing about it. He suggested that May go back to his machine while Aydt made in- quiries. Aydt returned to May later and advised him to stay in the department, refrain from talking to anyone, and "just hang loose."22 On October 29, May was given an unsatisfactory per- formance notice, step two, for interfering with other em- ployees while they were working. Early that' day, May and Rippy had a widely noticed confrontation in the aisle near the machines in May's working area which oc- curred while Rippy was making an inspection of the area. As Rippy was looking about, May asked him "if we have a problem." Rippy told`May that, if there was a problem, May would be the first to know. Rippy asked May why May was bothering him. May said he was not bothering Rippy but he was wondering why Rippy was inspecting the tires on May's line. Rippy ordered him back to his machine, saying that he had the right to look at any tire he wanted. May agreed, but persisted in his question as to whether there was something wrong with the tires on his line. Rippy summoned Supervisor Tom Strain to the scene and told Strain to order May back to his machine. Strain did so. When May left his machine at 10:30 to go to lunch in the breakroom, he passed by a machine being operated by Kerry Jones. Jones had a different lunch hour and was still at work. Jones attracted May's attention as he was passing and asked May what had happened earlier in the day with Rippy. May told Jones that he could not speak with him at that time. Jones persisted. Hogue was in the area and saw the conversation. He came up to May and told May that he was getting a disciplinary ci- tation. May tried to explain what had just happened but Hogue simply replied, "You have been warned " May told Hogue that it was Jones who had stopped him on his way to the break room, but Hogue said that he did not care. Hogue wrote up a disciplinary notice dated October 29 which stated: You deliberately interfered with another employ- ee's work by conducting a talk session beside his machine during work time. When you saw me, you immediately left the area. I've warned you in the past concerning interference with other workers, yet you persist. Immediate correction is expected! tamed to May Moreover, the disciplinary warning given to May in late October is quite consistent with his complaint that he was the object of a strict no-talking order which pertained exclusively to him May admits that the individualized no talking,order is no longer enforced, although he was never specifically told so by Respondent's supervision 22 As indicated supra, Aydt was not summoned by the Respondent to testify, so May's version of Aydt's reinforcement of the no-talking order is uncontradicted in the record 726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The form in question contains a space in which the disci- plined employee can express his reaction . In` this space May wrote as follows: I wai going to break and Jones stop [sic] me!! I told him I could not talk but we talked for about a minute. Lonnie Garrison 's witness. At the hearing, Hogue testified that he felt that May was deliberately trying to interfere with production on this occasion by talking with Jones. He admitted that Jones had not been given any disciplinary warning because Jones had been at his own machine during the conversa- tion while May was not. Hogue stated further that it was immaterial to him that Jones might have started the con- versation. D. The Disciplining of Michael J. McDonough Michael J. McDonough is a palletizer labeller in' the final finish department. He has worked at the Mt. Vernon plant for about 12 years. His immediate supervi- sor for the past several years has been Sherilyn Holt. McDonough has supported organizing drives on the part of the Union in years past and he supported the one which began in August 1986. I credit his testimony to the effect that, on Monday, September 16, he had a conversation in the plant with Preston concerning the Defenders, a janitorial and main- tenance contractor which the Respondent was employ- ing. McDonough had learned from one of the employees of the defenders that they were carrying tire labels in the warehouse to put on replacement tires which were being made from original equipment tires. In McDonough's opinion, this was work normally performed by company palletizers. McDonough asked Rippy why contractors were performing palletizers' work at $5 an hour. Preston replied that it helped the STAR program. McDonough objected, "To heck with the STAR program. There are people{ on the weekend crew who are not getting hours. Those jobs are ours and they should be offered to palle- tizers before they are given to the clean-up crew " McDonough then added that, if there were a union in the plant, the Company would not be doing this. Preston became angry and walked away while talking into a tape recorder he was carrying McDonough had been summoned to serve as a member of the petit jury for the Circuit Court for Jeffer- son County, Illinois, which sits at Mt. Vernon. The courthouse is approximately 3 miles from the plant. Jurors are expected to report each Tuesday during their period of service. McDonough's first day of jury duty was Tuesday, September 16. McDonough had informed Holt of his forthcoming ob- ligation and asked her what he had to do to be eligible for the company program which compensates employees for the difference between what they earn as jurors and what they would normally be paid if they worked. Holt did not know. Apparently, the question had never arisen since she had been a supervisor, at least as to any em- ployee under her supervision. Moreover, the question was not addressed in the employee handbook which was in use at that time,23 so she inquired about this matter from Henderson, the department manager. Henderson was also unsure so he pulled out a company procedure manual and referred to procedure number 1700, which Preston had put into effect on May 23, 1985 The item in question, entitled '"Leaves of Absence-Jury Duty," stated, in pertinent part: If it is necessary for an employee with seniority to serve on municipal, county, federal, or grand jury, or be examined at a specific time as a juror, the company will pay the employee the difference between the amount paid for such service and his present straight-time rate for the time lost from his regularly scheduled work shift by reason of such service subject to the following provisions: (a) Employee must notify his supervisor within twenty-four (24) hours after receipt of notice of se- lection for jury duty. (b),Any employee called for jury duty and who is temporarily excused from attendance at court must- `report for work if a reasonable period of time, four: (4) or more hours, remains to be worked on the ,shift assigned to him for the duration of his jury duty. (c)! In order to be eligible for jury duty pay, the employee must furnish the company proof from the court `of such service, showing the date and time served and the amount paid for this service. These payments apply only for those absences from work which are actually required to make the necessary court appearances. I credit the testimony of McDonough that, on Septem- ber 15, he told Holt "Don't forget. Tomorrow is my jury duty day."24 She replied, "If you think you can make it 23 After the dispute here in issue arose between McDonough and the Respondent, the Company issued a revised employee handbook which contained the steps that had to be followed by employees to claim jury duty pay from the Respondent 24 Holt admits that she was informed by McDonough of his impending absence for jury duty, but her response to this information was different from McDonough's version According to Holt, she told McDonough that it was company policy that he had to return to work if 4 or more hours remained on his shift at the time he was excused by the court McDonough then asked if this was standard procedure or if it was just something she invented for him He reportedly gave her an argument that he would have to drive home, change his clothes, and come back and that he lived 10 miles from the plant Holt then said that he should take his work clothes with him and change in the company locker room She repeated her admonition I discredit this testimony by Holt, as well as other uncorroborated or uncontroverted testimony that she gave at the hearing Holt's demeanor was hostile and defensive, not merely in an in- stitutional sense of defending the Respondent from a complaint but also in exhibiting and admitting personal hostility toward discrimmatee Tate, whose case was intimately bound up with McDonough's She was argu- mentative, evasive, and, in one instance, admitted that she destroyed original notes relating to a crucial event (the timing of breaks on Tate's final day of work) in these proceedings while providing the Respond- ent-but not the record-with a copy thereof As discussed more fully later on, by her unique use of a personal stopwatch to time employees under her supervision, Holt displayed a marked, aggressive disposition to "pin a rap" on certain individuals who had incurred her displeasure As to McDonough, she gave positive assurance at the hearing that he had Continued GENCORP in'by the start of the second shift, try and make it in." McDonough said he would try but that he was not sure he could since that Tuesday was his first day of jury duty. Neither McDonough nor Tate gave any evidence of a second conversation that,day between Holt and the two of them concerning McDonough's duty to report to work if excused early by the court, and I conclude that it did not take place. Later on, McDonough and Tate, who worked together under Holt's supervision in the palletizing section, formed a working arrangement be- tween themselves by which each would attempt to serve as witnesses for the other in dealing with supervisors, es- pecially Holt. However, this agreement did not take place until after the September incident. It was not until a second dispute over McDonough's jury service arose in January 1987, that Holt had occasion to speak with both of them concerning McDonough's absence for jury service. McDonough went to the courthouse on September 16 for jury service and was excused about 11 a.m He spoke with Danny Sims and Dean Hall, two other employees of the Respondent who were also on jury duty, and asked them if they had been given any instructions about returning to work that day. Both said they had not re- ceived any such instructions. Sims and Hall went home and so did McDonough. Between 11 and 11:30 am Hen- derson, the manager of the department in which McDon- ough worked, phoned the courthouse to inquire whether the jurors had been excused. He learned that they had been excused and informed Holt of this fact. Since McDonough had not returned to the plant, Holt pre- pared an unsatisfactory performance notice for McDon- ough charging a violation of the Company's attendance policy relating to jury duty. When McDonough reported for work the following morning, he turned into Holt a slip of paper, authenticat- ed by the court, which evidenced the fact that he had been on jury duty the previous day. Holt forwarded the slip to the payroll section so that McDonough could be paid.25 About 10 a.m. Holt summoned McDonough into an office where she began to question him concerning his whereabouts the previous day. She asked him what time he had been excused by the court and he replied, not been paid by the Respondent for jury duty on September 16, a fact which would support the Respondent's version of the September 16 disci- pline, and then , when pressed , backed off her statement and admitted that she did not know Holt was a good soldier but she was not a good wit- ness 25 As the hearing wore on, a subsidiary question arose as to whether or not McDonough had in fact been paid for his time on September 16, as provided for in the company procedure manual Henderson testified first that McDonough and the two other Gencorp employees who had jury duty were paid and that he had taken no steps to prevent payment As the import of the question to Henderson became clear, Henderson backed off his ougmal statement, said he was not sure, and testified that the payroll records would be the best evidence Holt testified that she thought that McDonough had not been paid but then changed that testi- mony to state that she was not sure I requested that pertinent payroll records for McDonough be produced to ascertain this fact None were produced Based on this state of the record and the unexplained failure of the Respondent to produce relevant requested records within its control, I conclude those records would, if produced, reflect the fact that McDonough was in fact fully paid by the Respondent for the day of Sep- tember 16 in accordance with its stated policy pertaining to jury duty pay 727 "Around 11." She asked if he was positive He replied that he was not positive and that he could have been ex- cused a few minutes before or a few minutes after 11, whereupon Holt handed him a written reprimand which she had already prepared. McDonough objected , insist- ing that Holt had only told him to return to work if he thought he could make it in by 11 a.m. Holt was ada- mant in her statement that McDonough should have come to work for part of the day. She asked McDon- ough to sign the reprimand evidencing notification of its contents, but he refused and she kept the paper. McDon- ough then returned to work. During this period of time, Henderson and Holt were informed by Preston that he felt it would be inappropri- ate to charge McDonough with a violation of the Com- pany's attendance policy since two other employees, Sims and Hall, had been on jury duty and did not return to the plant, although they were excused by the court at the same time that McDonough was released. Preston justified the refusal of the Company to take any action against Sims and Hall because they had not been 'in- formed by their respective supervisors of any duty to return He suggested that McDonough might be charged with insubordination rather than an attendance violation Henderson then told Holt that she would have to change the basis of the discipline meted out to McDonough in order to bring it into line with the Company's treatment of the other two employees who were found to be in the same circumstances. Holt objected but complied with this instruction. Two days later, McDonough was called into Hender- son's office and met with Holt and Henderson. He was given an unsatisfactory performance notice, step 1, for violating Company Rule Ten relating to insubordination. The reprimand read: On 9-15-86, you were given explicit instructions that if you were excused from jury duty with four or more hours remaining in your scheduled shift you would be required to report for work. On 9-16-86 you were excused from jury duty with more than four hours left in your scheduled shift, yet you failed to report to work as instructed. The instructions given you were clear and con- cise with no room for misunderstanding on your part. Your actions on 9-16-86 were clearly insubor- dinate. Again McDonough refused to sign the notice. He insist- ed that he did not do anything wrong, that Holt had not told him that he had to return to work, and that she had merely said "try to make it in" in a casual manner I credit McDonough to the effect that, during this inter- view, Henderson warned him that he did not like the un- dercurrent which McDonough was creating in the bull- pen26-creating turmoil and questioning company poll- cies27-and informed McDonough he would have no se- 26 "Bullpen" is a term sometimes used to refer to the palletizing sec- tion 27 The reference by Henderson to McDonough's questioning of com- pany policies serves to corroborate McDonough's testimony that he had Continued 728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD niority at the plant other than the right to bid on jobs every 6 months . On November 20, the Union filed an amended charge in this case relating to this disciplinary warning and, on November 26, the Acting Regional Di- rector of Region 14 issued an unfair labor practice com- plaint, directed in part to this event. During the late fall , McDonough was the subject of a citation relating to jury duty attendance on later dates. Both the company handbook and Human Resources Di- rector Preston maintain that a citation is not an act of discipline but merely a written record of an event or verbal warning. However, the unsatisfactory perform- ance notice, which is a formal act of company discipline, refers specifically to citations as part of the Respondent's progressive discipline system . Citations are retained in an employee's personnel file and are referred to in meting out subsequent discipline, including determinations as to whether subsequent disciplinary steps should be consid- ered at the next step in the progressive system or wheth- er a step or steps should be skipped when additional rep- rimands are made. While not alleged as a separate violation of the Act, the record reflects that McDonough received a citation from Holt in mid-November for conduct the reverse of which he was reprimanded on September 19. Veterans Day in 1986 fell on Tuesday, November 11, a regular jury duty day, and the Circuit Court for Jefferson County was not in session . McDonough did not learn that he was excused from jury duty until after he had left the plant on Monday afternoon . Before leaving work he had told Mrs. Holt that he would be off the following day for jury service. When he arrived at work at the be- ginning of his 7 a.m. shift on Tuesday , an employee on the night shift who had been asked to fill in for McDon- ough was sent home. McDonough was criticized by Holt for showing up when he had said he would be off and for not letting the Company know that he would be at work. This event was memorialized in a citation which was placed in McDonough's record.28 Tuesday, January 6, was McDonough's last assigned day of jury duty I credit his corroborated testimony that, on the preceding Monday evening , he informed Holt that he would be on jury duty the following day.29 McDonough was absent on jury duty on January 6. When he returned to the plant on January 7, he handed Holt a slip of paper verified by the circuit court clerk evidencing the fact that he was absent for jury duty the preceding day. In doing so, McDonough told Holt that he had just served his last day on jury duty and "we won't have to worry about that anymore." Holt replied, "Oh, yeah!" Later on in the day, McDonough was called complained to Preston about the farming out of palletizers' work to a maintenance contractor 28 To substantiate its position, the Respondent dispatched Plant Securi- ty Chief Sands to the office of the Mt Vernon Register-News to purchase back copies of that paper in which notices appeared that the circuit court would not sit on November I I and that jurors would be excused 29 By this time, McDonough and Tate, who worked near him in the palletizing section of the final finish department, had worked out a mutual understanding that they would act as witnesses for each other in order to verify and substantiate each other 's statements and activities in dealing with the Respondent Tate was present on January 5 when McDonough told Holt that he would be at court the next day into the company office and asked by Henderson where he was the preceding day. McDonough said that he was on jury duty. Henderson asked McDonough why he had not informed the Company of this fact. McDonough in- sisted that he did . Holt, who was present, denied that he had done so McDonough repeated that he had told Holt and that Tate had been a witness to this notification. Henderson told McDonough that he had not told anyone that he was going to be absent and that "I am going to do something about this." A second meeting concerning McDonough 's absence for jury duty was held in the presence of Holt, Preston, Henderson, and David Sink, an employee relations super- visor. McDonough requested permission under a stated company policy to be permitted to have Tate as a wit- ness at this meeting.3 ° He was refused permission to have Tate present. Holt told him that "you will have me, Bill Henderson, Preston, and Dave Sink. You will have all the witnesses you need." He again insisted on having Tate as a witness and was refused. When he asked why, he was told that Tate was not impartial. McDonough re- plied that "Hershell can't be intimidated ."3 i Preston ob- served that "we can't trust him." When McDonough said again that he was "going to stick with Hershell," Preston reiterated that this would be unacceptable. At this point Henderson handed McDonough an unsat- isfactory performance notice for a violation of Company Rule 21 relating to insubordination. The notification stated that the reprimand was a step 3 discipline which placed McDonough on probation from that date until July 7, 1987. The text of the reprimand stated: On January 6, 1987, you were "absent-no report" from work. Upon investigation it was found you had jury duty. You failed to notify us of your ab- sence nor made any attempt to do so You have been directed on several occasions to contact us to advise us of your responsibilities toward jury duty. You chose on this date to ignore your instructions These actions on your part are clearly insubordinate. You have been counselled on this previously, yet again you failed to follow clear and concise instruc- tions. We have waived a suspension in this instance but we will put you on probation. McDonough was requested to sign this notice but he de- clined . He simply reiterated that he had informed Holt that he was going to be absent for jury duty and that Tate had witnessed his notification. He accused the Company of harassing him because of his union activity and served notice that the Company was not going to in- timidate him and that he was going to continue to sup- port the Union. so This policy was established by the Company when it discontinued a previous practice of taping disciplinary meetings 11 Henderson testified at the hearing that he did not consider Tate a neutral witness because Tate was active on behalf of the Union and had filed an unfair labor practice charge against the Company GENCORP E. The Disciplining and DIs'charge'of Hershell Tate Hershell Tate began, working for the Respondent on October 23, 1975. At the time of his discharge on Febru- ary 4, 1987, he was employed in the "bullpen," or palle- tizing section, under the immediate 'supervision of Holt He testified without contradiction that he had supported previous abortive efforts on the part of the Union to or- ganize employees at the Respondent's Mt. Vernon plant. Early in 1986, he went to Henderson, his department manager, and inquired whether it would be possible for the Respondent to hire his son,'who had just reached the age of 18. Henderson said' he would talk to Preston Eventually, Tate's son filed an application but, when no action had been taken, Tate made further inquiry. After several inquiries Henderson eventually reported to Tate that Preston had decided that Tate's son would not be hired. Preston's reported remark was, "No, no, no." Preston further told Henderson to inform Tate that, if Tate wanted to know why, he should talk to Preston personally. Tate argued with Henderson upon learning that the Company was not going to hire his son. Hender- son told Tate that, "I don't think I should have to tell you why" the Company was not going to hire the younger Tate. Later in the day, Tate had occasion to speak to Henderson and Preston while they were visiting the production line in the palletizing section. Tate asked Preston what he meant by "no, no, no" with respect to his son's job application. Preston replied that he should not have to explain it to Tate. Preston admitted that Tate's argument that he was a good worker and had a good attendance record, but he accused Tate of having a "negative" attitude toward the Company He told Tate that he was "one of those 17 people" who was negative toward everything General Tire did. Tate admitted that he might be negative toward some of General Tire's policies but that it was unfair to accuse him of being neg- ative toward everything.32 Respondent has a standard practice throughout the plant of granting employees on the Monday thru Friday shifts two 10-minute breaks per day and a 24-minute lunchbreak However, it apparently allows supervisors in various areas to increase this allowance. It is undisputed that Holt allows employees in the palletizing area work- ing under her supervision two 15 -minute breaks per day and a lunch period of 30 minutes.33 Completed tires are continually coming off the assembly lines and must be sorted and placed on pallets before being taken to the warehouse. The operation is a continuous one so all em- ployees cannot leave and return from breaks at the same time. They must wait to be relieved before leaving their work areas. Relief usually comes from two employees working in the section-a wrapper and a checker-who do not regularly perform a palletizing function through- out the day. Breaktime in this section is any 15-minute period within a given timeframe when an employee is re- 33 While at first denying that the phrase "negative" meant prounion, Preston admitted that the phrase , " 17 or 18 people" could have a union connotation It certainly had that connotation when Rippey used the phrase while speaking at a "white hat " meeting 33 There is evidence in the record to suggest that the same practice is followed throughout the final finish department, not just in the palletizing section 729 lieved from duty, and palletizers are expected to take their breaks in a prearranged order . They normally go in pairs. On December 3, 1986, Holt brought a stopwatch to work from home. Without notifying any employee in her section, she began to time them as they went on break. During that morning Tate went on his morning breaks with fellow employee Jim Ellis. Holt timed them with her stopwatch. She testified that both of them left their duty station at 8:45 a.m. and returned at 9.04 a.m. Holt confronted Tate and accused him of taking a long break. He denied it, asserting that, he had timed himself and knew that his break was within limits. Holt informed him that she had clocked him with her stopwatch. Tate re- plied that she ought to learn how to use a stopwatch be- cause he did not take a long break. Holt gave Ellis a unsatisfactory performance notice, but the notice did not indicate into which step in the dis- ciplinary system this warning fell. The notice read: . You were observed taking a 19 minute break today. I have cautioned you about long breaks and lunches. , Further disciplinary action will be taken if this con- tinues. Ellis wrote at the bottom of this notice: I think that if this is to be enforced it should be en- forced in all of the department, not just in the bull- pen Tate was called into Sink's office and given a discipli- nary notice by Henderson designated as step 3 in the dis- ciplinary system, which meant that Tate was being placed on probation until March 4, 1987.34 The notice read: On December 3, 1986, you were gone from your work area for nineteen ( 19) minutes on your first break. You are well aware that excessive personal time is in direct violation of company policy. You have been warned repeatedly on your al- lowed personal time, yet you continue to ignore these warnings. At this time I feel it necessary to place you on probation for ninety days. Any further occurrence of failure to'adhere to company policy will result in more severe disciplinary action. In a place listed on the notice for disciplinary actions taken in the past 12 months, the notice read: 34 With respect to the December 3 incident, Holt testified that Tate asked her if anyone else had taken a long break and she replied "No " Tate then accused her of playing favorites and picking on him When asked if she had told any employees that she was using a stopwatch, Holt testified that she had not done so "for just this reason, you know if you, if you tell, they-they are not going to take a long break " When asked if her purpose was to catch them, she stated, "No, not so much catch them, to make sure that they were taking the right amount of time for breaks I just wanted to make sure everybody was within the time for breaks " Q [By Mr Weinrich] Similar to a radar trap A [Holt] Something like that 730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Citation Date 11-21-86 Step 1 Omitted Step 2 Date 5-30-86 The notice was tendered to Tate for his signature, but he refused to sign because of his contention that he had not taken a long break. Tate accused Henderson of trying to make the whole department afraid of him and of trying to set him up . Henderson became angry , accused Tate of getting loud, and warned Tate that he was not going to tolerate any insubordination from him. On January 19, Holt wrote a citation on Tate for put- ting greasy gloves on a checker's station. She stated in the citation which was placed in Tate's personnel record: [Tate] couldn't wait till he got to court . I asked him was he going to court and he said , "We both know I am" and "we know what it's about" and "I can't wait to see how you explain this," and "I'll be there with bells on my toes. I don 't know why you just don't fire me. I'm working with the union and I will until you fire me." On January 14, 1987, the Union filed an amended charge relating to the recent disciplining of McDonough and the placing of Tate on probation on December 4.3 s On Monday, February 2, Tate arrived at work a few minutes before the scheduled beginning of his shift He had occasion to visit the warehouse, smoke a cigarette, and speak with warehouse employees Vince Rebecci and Bob Miller, both of whom worked on the night shift Re- becci told Tate that he might be interested in signing a card and suggested that Tate also speak with Miller. Tate then asked Miller if he was interested in supporting the Union but Miller declined , telling Tate that he had a disagreeable experience with a union at another job in Chicago. Shortly after the day shift began at 7 a.m , Tate ob- served Miller speaking with Holt, who was described in the record as a "friend" of Miller and a person with whom she conversed almost every day, despite the fact that they work on different shifts and in different depart- ments Record evidence supports the finding that Miller told Holt on this occasion that Tate had been soliciting him to support the Union , and I discredit Holt's denial. Holt admits seeing Tate speak with Miller on the morn- ing of February 2 but states that Miller did not inform her that Tate had been soliciting for the Union until 3 days later. Respondent acknowledges that it learned that Tate had been soliciting union support from Miller but asserts that it did not learn of this conversation until after Tate had been discharged . I credit the testimony of former General Tire employee Clarence E Brien, now chief of security at a local shopping center , that, shortly after Tate was discharged, Supervisor Karl Mezo admit- ted to Brien that Tate had been discharged because he had walked up to an employee and tried to give him a union card . When the employee complained about Tate's conduct to management, Tate was discharged. The oc- as Henderson admitted in his testimony that Tate was associated with unfair labor practice charges which had previously been filed by the Union even though Tate 's name did not actually appear in those charges currence of the Miller -Tate conversation is admitted Re- spondent would have us believe it was purely coinciden- tal that it took place just 4 hours before Tate was sus- pended, pending investigation. On the morning of February 2, Holt asked Tate to fill out a paper indicating the size of a jacket he was to re- ceive as an award for perfect attendance during calendar year 1986. Once again Holt used her stopwatch to time Tate's morning break, and possibly the breaks of other palletizers. She gave no warning of this activity. Before he went on break, Tate gave McDonough a prearranged hand signal notifying McDonough that he was taking a break. I credit Tate's testimony , corroborated by McDonough, that according to the clock hanging in or near the palletizing area, Tate left his machine for the breakroom at 8:50 a.m. and returned at 9.04 a in. Later in the morning, Tate was summoned to Hender- son's office and was told to go from there to Preston's office When he arrived at Preston's office, Preston asked Tate if he wanted to have a witness present . Tate asked for McDonough. Preston told him that he could not have McDonough as a witness because McDonough was not impartial . Tate was then informed that he had taken too long for his morning break, that he had been timed on his break, and that he would be on suspension. Tate asserted that he was being disciplined because of union activities. Preston insisted that it was because of a long break. Tate was told to leave the premises and to return the following Wednesday at 11 a in. When Tate returned on Wednesday, he was told that the Respondent had completed its investigation of his morning break on February 2 and that he was being dis- charged . Tate accused the Respondent of firing him for union activities and denied that he had taken a long break. Respondent handed him an unsatisfactory per- formance notice, which read: On February 2, 1987, you took a twenty minute first break . You were placed on probation Decem- ber 4, 1986, and in fact are still on probation for this very same violation. You have been warned repeatedly on your al- lowed personal time to no avail and now even pro- bation has proven ineffective. At this time, I found it necessary to suspend you until 11:00 a.m . February 4, 1987, pending termina- tion. After reviewing the facts in this case , I find it necessary to terminate your employment here at General Tire. Tate left the plant without ever receiving the award the Respondent was preparing to give him for perfect at- tendance in 1986. II ANALYSIS AND CONCLUSIONS A. Antiunion Animus Any assessment of the independent violations of Sec- tion 8(a)(1) of the Act which have been alleged in the amended complaint, as well as any evaluation of the charge of discriminatory treatment of May, McDonough, GENCORP and Tate that has been laid at the feet of the Respondent, must take place against a background of deep and abid- ing antiunion animus, which has repeatedly manifested itself in words and conduct of the Respondent. These acts and statements do not mount to the level of unfair labor practices, but they do serve to define the setting in which other conduct has occurred. Respondent's overall strategy was and remains not merely the defeat of the URW at a representation election but the heading off of a representation election . In practical terms this means preventing the Union from obtaining authorization cards from 30 percent of the Mt Vernon production and main- tenance employees, an effort that is the necessary predi- cate for the filing of a representation, petition at that plant. As soon as Winchester and Sellers got to town in August 1986, the Respondent's management began hold- ing meetings with employees to warn against unionism in general and these organizers in particular. Their pitch was hardsell and sarcastic. It was made to massed assem- blies and to selected groups of "white hat" employees, who were encouraged to go forth and campaign on the Respondent's behalf against the signing of authorization cards.36 Respondent posted an antiunion employee peti- tion on its bulletin board for all to see, giving its sponsor, Joanne Buchanan, a mild slap on the wrist as it patted her on the back In pursuance of its "Just Say No" cam- paign, Respondent deluged employees with antiunion decals, T-shirts, and caps, and followed up these distribu- tions with letters mailed to their homes denouncing the incipient organizing effort. Respondent's feeling on the subject was fully explicated in its employee handbooks, which contained lengthy explanations of the Company's "union-free philosophy." The most graphic expression of the Respondent's utter loathing and contempt for union sympathizers among its work force was a statement made by Rippy, the highest ranking official in a plant of 1,300 employees, when he publicly referred to union sympathizers as "shitheads." B. Independent Violations of Section 8(a)(1) of the Act The Respondent here violated Section 8(a)(1) of the Act by the acts and conduct set forth below. (a) Supervisor Combs reported to Davidson, an active union supporter who had engaged in making home visits with union organizers, that Rippy had commented to Combs that Davidson's attitude had changed. Combs stated specifically that Rippy thought Davidson had for- merly liked the Company'and was proud of it but now he had changed. Rippy's - reported statements indicate that the Respondent was creating the impression that Davidson's union activities were the subject of Company as Even under the most restrictive common law notions of agency, the employees attending these "white hat" meetings became nonsupervisory agents of the Respondent for the purpose of engaging in antiunion activi- ties Employees were given the charge , "We are asking each employee to speak out We are not telling you what to say or giving you any propa- ganda-,lust speak what is on your mind we are asking each person to speak up so we don't have to have all the meetings necessary in a union campaign Speak what is on your mind whatever it is " Rippy and Preston also told them "We think the majority of our people feel that we don 't need a union We want the majority to speak up 11 731 surveillance. As such, they violate Section 8(a)(1) of the Act. (b) Having credited Sands' denial that he went to the Ramada Inn for the purpose of engaging in surveillance of union activities, I would dismiss so much of the amended complaint that makes this allegation. (c) When Combs stated to Kash, upon distributing a STAR bonus incentive check, "Sign this and not a card," he was, in effect, saying that the advent of the Union would bring about a discontinuance of the STAR program. Any doubt about this point can be resolved on the basis of the Respondent's animus and other state- ments in the record concerning the effects of unioniza- tion on the STAR program By threatening to discontin- ue benefits in reprisal for union activities, the Respond- ent violated Section 8(a)(1) of the Act (d) When Loucks told West that he had heard that union organizers were making house calls in the compa- ny of some of the Respondent's maintenancemen, the Re- spondent created the impression that the union activities of employees were the subject of company surveillance, and thus violated Section 8(a)(1) of the Act (e) When, in the course of this conversation, Loucks asked West how he felt about unions, the Respondent en- gaged in coercive interrogation which violates Section 8(a)(1) of the Act (f) Supervisor Strang told West he was hurt that West was taking his break with known union sympathizers and observed that West should know better than to let them lead him around by the arm. A statement of hurt feelings constitutes neither a promise of benefit nor a threat of re- prisal, so I would dismiss so much of the amended com- plaint which alleges this conduct to be a violation of the Act. (g) Rippy stated to massed assemblies of weekend em- ployees that, if the plant became organized and layoffs took place, the weekend crews would be the first to be affected. He made another similar statement that week- end employees would be the first to feel the effect of unionization in the plant. Such statements constitute a veiled threat to discharge employees in the event of unionization and is a serious violation of Section 8(a)(1) of the Act. (h) Rippy stated on more than one occasion that the cost to the Company of fighting an antiunion campaign would be reflected in lower STAR program earnings and stated, on one occasion to weekend employees, that if an election took place employees would lose a day's work because of the election. Such statements constitute a threat of reprisal for engaging in union activities and violate Section 8(a)(1) of the Act. (i) During the course of one of his massed assembly speeches, Rippy stated that there were just 17 trouble- makers who were causing all of the union trouble. He urged his listeners not to be among them. At a "white hat" meeting , in response to a question by Simmons as to whether 17 percent of the plant were really prounion, Rippy said, "We have more like 17 shit heads. They are the same, year after year, who continue to organize." In his testimony, Preston stated that frequently used num- bers like 2 percent or 17 or 18 employees was just a 732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD figure of speech indicating that union support in the plant was very small He denied that the Respondent ac- tually kept a list of known union supporters. While Pres- ton's explanation may be true, this is not what Rippy told employees on more than one occasion. His state- ments gave the clear impression that the Company was keeping the union activities of its employees under sur- veillance. Such statements violate Section 8(a)(1) of the Act. (j) The General Counsel alleges as a violation a state- ment made by Preston to West that Preston was disap- pointed with West. Preston refused to respond to a letter from West asking the meaning of his statement. West took the comment to mean that Preston was disappoint- ed in West for supporting the Union. Preston testified at the hearing that he told West he was disappointed in him because, earlier in the day, Rippy had been touring the plant and had found West away from his machine Re- gardless of Preston's true meaning, an expression of dis- appointment is neither a promise of benefit nor a threat of reprisal. Accordingly, I would dismiss so much of the amended complaint that alleges this statement to be a violation of the Act. - (k) On one occasion, Henderson handed out STAR benefit checks to each of the employees working under his supervision. As he handed out checks he said to each employee, "Would you rather sign this every month or sign a union card?" This statement was a clear threat to discontinue the STAR program if the Union came into the plant and is a violation of Section 8(a)(1) of the Act (1) In a lunchroom conversation, Supervisors Mezo and Rogers made certain statements to employees con- cerning the effect on breaktime if the Union came into the plant. Mezo said that, if the Company went union, everybody would have their breaks timed and he would have nothing to do all day except wear a suit and tie to work and stand outside the breakroom with a stopwatch. Rogers agreed and added that, in union shops, they time your breaks from the moment you leave the assembly line until the time you return. Such comments constitute threats to discontinue existing company benefits and practices in reprisal for union activities and violate Sec- tion 8(a)(1) of the Act. (m) The Respondent has a no-solicitation rule in effect. The rule itself is not the subject of any attack by the General Counsel. However, the disparate application of the rule by Supervisor Rogers is the subject of an allega- tion in the amended complaint. Rogers and Personnel Office employee Benway told Simmons that he was strongly suspected of soliciting so he was warned that soliciting was a violation of company rules. Later in the day, Rogers gave him an unsatisfactory performance notice-a formal disciplinary writeup-for soliciting in violation of the company rule. Later, Rogers told Sim- mons that he knew he was prounion, that he knew Sim- mons was organizing, and that -he should confine his ac- tivities to breaktime or to conversations outside the plant. In contrast to this reaction to Simmons' asserted discussion of unionization on company time, the Re- spondent took an antiunion petition circulated by Bu- chanan on company time and posted it on the company bulletin board. This disparate application of the no-solici- tation rule is a violation of Section 8(a)(1) of the Act, as is Rogers' statement to Simmons that he knew that the latter was a "union man." (n) On one occasion, when Simmons was acting as a supervisor, he reported to Henderson a desire on the part of certain employees to speak with Henderson about a grievance. Henderson asked Simmons who was the ring- leader behind the request and, upon learning that it was Tate, referred to Tate as a troublemaker. Since the re- marks in question were uttered solely in the presence of supervisors or individuals acting as supervisors, they do not constitute a violation of the Act. Accordingly, I would recommend the dismissal of so much of the amended complaint that alleges these comments by Hen- derson to be violations of the Act. (o) When Supervisor Bradley asked employee Danny Smith whom he had signed up for the Union and fol- lowed up the initial question by inquiring about specific named employees, Bradley engaged in coercive interro- gation concerning the union activities of employees and, in so doing, violated Section 8(a)(1) of the Act. (p) When Preston stated that Tate's son was not being hired, in effect, because of Tate's union activities and this message was relayed to Tate by Henderson, the Re- spondent violated Section 8(a)(1) of the Act by announc- ing that it was blackballing the members of families of union sympathizers. (q) In August, Supervisor Hogue and May held a lengthy conversation in Hogue's office during which they discussed May's career with the Company. Hogue suggested that May would make good supervisory mate- rial and broadly hinted that past obstacles to such a pro- motion, such as checkered attendance record, could be overlooked if May would abandon his known support of the Union. This promise of benefit for abandoning union activity violated Section 8(a)(1) of the Act. (r) On another occasion, May protested to Hogue that Foreman Aydt had been coming around to employees on company time to campaign against the Union. May asked Hogue for equal time to conduct a similar campaign in support of unionization. Hogue's response was that, if May did not watch it, he would not have any time. This remark constituted a threat of reprisal against May for engaging in union activities and is a violation of Section 8(a)(1) of the Act. C. The Disciplining of Gerald (Andy) May As discussed previously, May was a known union sup- porter and the target of certain 8(a)(1) conduct on the part of the Respondent . Hogue admitted that he was aware of May's feelings in this regard when he gave May the disciplinary notice at issue in this case. Cor- roborated testimony establishes that, in the fall of 1986, not long after the Union revived its organizing effort, May was personally instructed by Hogue to refrain from talking to any other employees anywhere in the plant at any time except breaktime . This instruction went far beyond the general no-solicitation rule found in the com- pany handbook and exceeded in stringency the restric- tions placed upon any other employee in May's depart- ment or section. When May asked Hogue if this rule ap- GENCORP plied throughout the plant, Hogue'replied, "Mister, I'm telling you." In light of 'the' 'Respondent's admitted animus and May's known union sympathies, it is not dif- ficult to conclude that the purpose behind this isolation or gag rule was to prevent May from campaigning in support of the Union, something'he had asked Hogue for permission to do on company time: Having been set up by this particularized restriction, May was eventually, disciplined for violating it. On Octo- ber 29, 1986, on his way from his machine to the break- room to begin his lunch period, May was approached by another employee, Jones, who wanted to inquire about a confrontation between May and Rippy which had taken place earlier in the morning. May attempted to give Jones a polite brushoff, saying that he would tell him about it later. This was not enough for Hogue who was standing nearby and witnessed this brief exchange. He gave May a formal written disciplinary notice for delib- erately interfering with production and testified at the hearing that he felt that May, on this occasion, was in fact deliberately trying to impede the Company's pro- duction, notwithstanding the fact that it was Jones who initiated the conversation and who participated in it for an equal length of time, and notwithstanding the further fact that the conversation lasted only a matter of sec- onds. Jones received no disciplinary warning of any kind, and Hogue testified that, in assessing responsibility for the asserted infraction of a Company rule, it was im- material to him whether or not it was Jones rather than May had started the brief exchange of words. Like the gag rule itself, the enforcement of this rule was prompted by May's union sympathies and by a per- ception on the part of the Respondent that any conversa- tions May might be having with other employees as he went about the plant would probably be aimed at union- ization. It is also clear that the discipline was in prompt reprisal for May's willingness to confront the plant man- ager in the presence of other employees, as he had .pub- licly done dust a few hours before this discipline was meted out. By imposing upon May a no-talking or gag rule and by giving him a disciplinary warning on Octo- ber 29 for violating that rule, the Respondent violated Section 8(a)(1) of the Act. D. The Disciplining of Michael McDonough The disciplining of Michael McDonough is the first in- stance in this record, if viewed in chronological se- quence, when the Respondent took immediate action against a union sympathizer for failing to keep his mouth shut. On September 15, McDonough, a longtime union supporter, had a brief confrontation with Preston relating to the alleged farming out of bargaining unit work to a janitorial and maintenance contractor. In the course of a spirited discussion, McDonough told Preston that this would not have happened if there had been a union in the plant. Within 24 hours the Respondent was setting up McDonough for company discipline. McDonough was scheduled to be on jury duty the fol- lowing day and on every Tuesday thereafter until his tour was completed Two other employees at the Re- spondent's Mt. Vernon plant received similar summonses and were present at the Jefferson County courthouse on 733 September 16 with McDonough. All three were excused by the court at the same time and none of them reported for work until the following day. McDonough was for- mally disciplined for not returning in the late morning or afternoon of September 16 and the other two were not. The original basis for the written warning to McDon- ough was an asserted violation of the Respondent's at- tendance policy relating to jury duty.37 When Preston was afraid that this would not wash, the Respondent issued a revised reprimand and called McDonough's ab- senteeism insubordination. As in the May case, the Respondent here took a trivial incident and blew it entirely out of proportion in order to achieve a preconceived result After 11 a.m., on Sep- tember 16 less than 4 hours would have remained on McDonough's shift, and, if jurors were excused after that hour, McDonough would have been immune from pun- ishment under the rationale which the Respondent worked out under the jury duty pay provision of, its manual. Within minutes after that cutoff time, Henderson phoned the Jefferson County courthouse to determine whether or not jurors had been excused. This was an ex- traordinary thing for Henderson to do and his action, reminiscent of a truant officer's inquiry, can be explained only by a desire to "get something" on McDonough. Within an hour thereafter, Holt had been informed by- Henderson that McDonough had been excused before 11 a.m. and she went about preparing a written disciplinary warning without knowing whether McDonough would return later that day and before McDonough was ever asked for an explanation for his absence. The Respondent was ready to pounce38 when McDonough appeared at work the following morning, and it was only an unfore- seen snafu arising from the presence of two other compa- ny employees on jury duty on the same Tuesday which caused the Respondent to redo its paperwork and achieve the same end under a different theory of wrong- doing. 37 The jury duty policy in effect on September 16 has been read by the Respondent to impose an attendance obligation upon employees to return to the plant if 4 or more hours of duty remained at the time they are excused by the court and to make employees into violators of the attend- ance policy if they do not return At the time of the first McDonough incident, the policy was apparently unknown to most employees and most supervisors alike At least as to them, it could hardly be read as imposing any obligation at all A careful reading of the extract from the Respondent's procedure manual which was placed in evidence in support of this position makes it clear that the policy statement in question is not an attendance regulation but a jury duty pay regulation Employees seek- ing to qualify for jury duty pay under the Respondent's program have to return under the aforementioned requirement if they want to qualify for jury duty pay Those failing to do so will not be paid for missing the afternoon There is nothing in the stated procedure to indicate that em- ployees who failed to report for part of a day would be disciplined for failing to do so, and there is no record that any employee other than McDonough ever received any discipline for failing to return to the plant from court in a timely fashion I have concluded supra that McDonough was in fact paid for a full day on September 16, notwithstanding his fail- ure to return to the plant late in the morning This is a strange way to treat delinquent or insubordinate employees There is no suggestion that the other two jurors on the Respondent's payroll were treated any differ- ently by the payroll department 38 Among her questions to McDonough, Holt pressed him to find out if maybe he had been excused by 10 59 734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD After putting the best possible face on the Respond- ent's case, this incident involves nothing more than a trivial amount of absenteeism on the part of an employee of 10 years' service arising from a misunderstanding on his part as to his duty to return to the plant to work a part of his shift. There is no record evidence of any other employee being reprimanded for missing 4 hours of work, and substantial evidence that other employees have missed as much as a day of work without calling in with impunity. However, there is no reason to put the best possible face on the Respondent's case. Respondent operated in an atmosphere bathed in animus, had knowl- edge of McDonough's prounion sympathies, and commit- ted numerous other violations of the Act in furtherance of its determination to operate a "union-free" facility. It was also functioning, in this instance, through a first-line supervisor who gave repeated evidence of her disposition to "get something" on disfavored employees under her supervision. I have credited McDonough's testimony that he was not given any express instruction to return to the plant but was merely told to come back if he thought he could make it before the second part of his shift began. He did not think he could make it back before the second part of his shift began, and thus he comported himself well within the guideline which was given to him. In light of these considerations, I conclude that the September 19 reprimand was given to McDonough in re- prisal for his union sympathies and activities and, as such, it violated Section 8(a)(1) and (3) of the Act. Not long thereafter, the Union filed an unfair labor practice charge claiming that this reprimand constituted a violation of the Act. The matters alleged in the charge form a portion of the complaint which was issued by the General Counsel. Early in November, the Respondent gave McDonough a milder type of discipline in the form of a citation because he had mistakenly told Holt that he would be absent the following day for jury duty, only to learn after leaving the plant that jury duty had been can- celed because of a public holiday. When he showed up for work the following morning at the beginning of his shift, he was chastised by the Respondent for failing to notify the Company that he was coming to work. McDonough's final day of jury duty was Tuesday, January 6. I have credited his corroborated testimony that he informed Holt the preceding afternoon that he would be at court the following day. McDonough was routinely absent on Tuesdays for jury duty. Holt testified that she "had reason to think it might be',' (i.e., that McDonough might have jury duty), but, since he did not formally notify her on January 5 of his planned absence, she thought that he would not be absent. She did not in- quire. This statement indicates that her concern over his jury obligation almost to a matter of ritual, the net effect of the statement being that the fact of McDonough's ab- sence was of less importance than whether or not he re- membered to tell her. McDonough was absent for jury duty on January 6. When he returned to the plant he was given a discipli- nary warning for failing to notify the Respondent that he would be absent on January 6. The warning was a step three warning, whereas his first reprimand was only a step one warning. The Respondent had simply skipped step two in its progressive discipline system. When McDonough asked the Respondent to permit Tate to be present during a disciplinary interview, permission was refused. Henderson admitted at the hearing that the re- fusal to permit Tate to attend was prompted by the fact that Tate was a known union sympathizer. Such an ad- mission carries with it the implication that the discipline being meted out had something to do with union activi- ties, although the Respondent stoutly denies this fact. The January 7 reprimand was baseless in fact. It was nit- picking for the sake of nitpicking and for the sake of taking reprisal against an employee who had not only en- gaged in union activities but, by then, been the subject of an unfair labor practice charge which had been filed and served upon the Respondent. Accordingly, I conclude that, by reprimanding McDonough on January 7, the Re- spondent herein violated Section 8(a)(1), (3), and (4) of the Act. E. The Reprimand and Discharge of Hershell Tate In arguing its case , Respondent places great stress on credibility conflicts between its witnesses and those pro- duced by the General Counsel and apparently feels that the resolution of these conflicts will control the decision in the case. There are certainly a number of credibility problems in this record. However, as to Tate, even if every credibility determination were resolved in favor of the Respondent, it would still be left in an unsupportable position. There is no dispute that the Respondent was and is intensely antiunion, that it knew that Tate was not only a union supporter but that he had filed a charge against the Company and was named in a second charge filed by the Union on his behalf about 3 weeks before he was discharged. About 3 weeks before the discharge, Tate responded to what he believed to be petty harass- ment by challenging Tate to "go ahead and fire him" be- cause he was anxious to take his case to court. "I'm working with the Union and I will till you fire me" was how Tate was quoted by Holt in her memorandum to the file, dated January 19. Holt, the Respondent's princi- pal witness against Tate, confessed to the fact that she did not like him and that his prounion sentiments, which she included in her definition of "negative" attitude, formed at least part of the basis for her feeling. Tate was a longtime employee of the Company, was admittedly a good producer in terms of turning out work, and iron- ically was slated to receive an award for a year of per- fect attendance on the date he was suspended. Tate regu- larly made his minimum expectancy each day, including the days on which he was reprimanded and suspended. That a person with such a record would be discharged for returning from a coffeebreak 4 minutes late strains credulity. In all of the disciplinary notices placed in the record arising out of this large and busy bargaining unit, there is no other example of a employee being dis- charged or placed on probation for returning late from a coffeebreak. However, in Tate's case, his conduct on February 2 was so egregious in the mind of the Re- spondent that no other recourse existed than to remove him from the payroll entirely. GENCORP No other supervisor in the entire plant has used a stop- watch for the purpose of timing the breaks of his or her employees. Holt's excuse for doing so was that she was tired of the hassles that she encountered when she had relied upon her own personal timepiece for this purpose. Aided by the suggestion of counsel, she termed her deci- sion to time employees with a stopwatch as the equiva- lent of a "radar trap." Not surprisingly, when the trap was set, some one was eventually caught. In light of this admission, and of the circumstances present in this case, a violation occurred when Holt embarked upon this course of conduct, irrespective of whether or not she ac- tually caught anyone. Her extraordinary decision to use a stopwatch on her employees was not communicated to any of them. Her ostensible reason was to eliminate a practice of overstaying breaks. If her purpose was merely remedial and not punitive, would not a warning relating to the stopwatch have been appropriate? Most radar use requires posted warnings, since the threat of detection for speeding in and of itself has an inhibiting effect Holt's explanation, quoted above, was that her purpose was "not so much catch them, to make sure they were taking the right amount of time for breaks. I just wanted to make sure everybody was within the time for breaks." Her purpose was to "catch them " Holt had not timed any breaks between December 3, the morning she caught Tate the first time, and February 2, when she caught him for the second time. When asked why she re- sumed this use of her stopwatch on February 2, she stated: The day before39 I noticed that they were start- ing to abuse their breaks again, and so I thought, well, the next day I am going to time them to see if they are really taking a long break, or if it was just, you know, one of those days. Q. What do you mean, one of those days? A. Well, I just mean that if, like the day before, I noticed they were late coming back from their breaks, and I wasn't for sure whether they was really late or whether they were you know, helping each out in coming back so, you know, I will check them tomorrow to make sure. One of those days meaning, they were relieving each other and help- ing out a little bit before going to break This explanation outdoes Yogi Berra or Casey Stengel. It provides no illumination either as what prompted use of a stopwatch at all or the timing of her decision to use it on February 2. It is undenied in the record that, minutes before the February 2 shift began, Tate had solicited union support from a reluctant warehouse employee who had spoken with Holt shortly after her shift began. The only credi- bility question involved in this incident is whether, on this occasion or later, the solicited employee told Holt about Tate's activities. For reasons stated above, I have concluded that he told her then rather than later. I credit McDonough's testimony that Holt admitted to him during the period when Tate was under suspension pend- as The day before was a Sunday Holt's shift did not work that day 735 Ing discharge that she was just timing the break of one of her employees Lastly, I credit Tate's corroborated testi- mony that he did not in fact take a break on the morning of February 2 in excess of the allotted 15 minutes.40 However, my decision in this case would be the same even if these tangential credibility resolutions favored the Respondent, because the other evidence points unmistak- ably to the fact that the excuse proffered for Tate's dis- charge was pretextual and unbelievable on its face. On December 3 and again on February 2, Holt set out to get Tate and she got him. The rest of her testimony and that of others merely details how the Respondent went about carrying out its plan. On these findings of fact and on the entire record con-, sidered as a whole, I make the following CONCLUSIONS OF LAW 1. Gencorp, General Tire Division, is now, and at all times material has been, an employer engaged in com- merce within the meaning of Section 2(2) of the Act. 2. United Rubber, Cork, Linoleum and Plastic Work- ers of America, AFL-CIO-CLC is a labor organization within the meaning of the Act. 3. By disciplining Michael McDonough and by disci- plining and discharging Hershell Tate because they filed charges under the Act or because charges on their behalf were filed under the Act, the Respondent violated Sec- tion 8(a)(4) of the Act. 4 By disciplining Gerald (Andy) May, Michael McDonough, and Hershell Tate and by disciplining and discharging Hershell Tate because of their membership in and activities on behalf of the Union, the Respondent herein violated Section 8(a)(3) of the Act. 5. By the acts and conduct set forth above in Conclu- sions of Law 3 and 4; by creating among employees the impression that their union activities were the subject of company surveillance, by threatening employees with the discontinuance of an incentive bonus program if the plant became unionized; by coercively interrogating em- ployees concerning their union activities and the union activities of other employees; by threatening weekend employees with eventual layoff if the plant became unionized; by threatening reduction in incentive bonus payments if a representation election were held; by im- posing a gag rule on employees in reprisal for their union activities; by threatening to impose harsher conditions of employment relating to the taking of breaks if the plant became unionized, by disparately enforcing its no-solici- tation rule so as to encourage antiunion activity and to discourage prounion activity; by promising employees promotions to supervisory positions if they abandon their union activities; and by stating that an employee's son was not going to be hired because of the union sympa- thies and activities of his father, the Respondent herein violated Section 8(a)(1) of the Act. Said acts have a 40 Of secondary importance to Mezo's statement to Brien, while dis- cussing the question of Tate's discharge, that Tate had been "loud and visual" about his union activities Also of secondary importance is Sim- mons' credited version of a conversation with Rogers Simmons observed that "they were backing Hershell into a corner" and "they were going to get him to blow " Rogers smiled and agreed 736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD close, intimate, and substantial effect on the free flow of commerce within the meaning of Section 2 (2), (6), and (7) of the Act. REMEDY Having found that the Respondent has committed vari- ous and sundry unfair labor practices, I will recommend that it be required to cease and desist therefrom and to take other actions designed to effectuate the purposes and policies of the Act. Because the violations of the Act found are repeated, pervasive, and serious, I will recom- mend to the Board a so-called broad 8(a)(1) remedy de- signed to suppress any and all violations of that section of the Act. Hickmott Foods, 242 NLRB 1357 (1979). I will recommend to the Board that the Respondent be re- quired to reinstate Hershell Tate to his former or sub- stantially equivalent position, without prejudice to his se- niority or to other benefits and that he be made whole for any loss of pay or benefits which he may have suf- fered by reason of the discrimination found in this case, in accordance with the formula set forth in the Wool- worth case4 i with interest thereon computed at the short- term Federal rate used to compute interest on underpay- ments and overpayments of Federal income taxes under the Tax Reform Act of 1986. New Horizons for the Re- tarded, 283 NLRB 1173 (1987). The disciplinary warning notices placed in several employee personnel files are merely footprints along a paper trail being constructed by the Respondent to justify the eventual discharge of these employees. I will recommend that they be removed from the employees personnel files and that affected em- ployees be notified in writing that these warnings will not be used as the basis for future disciplinary actions.42 The General Counsel requests a so-called visitatorial clause permitting the use of the Federal Rules of Civil Procedure for discovery in the event a contempt pro- ceeding arises out of this case. I will grant that request. I will also recommend that the Respondent be required to post the usual notice, advising its employees of their rights and of the result in this case. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed43 ORDER Respondent Gencorp, General Tire Division, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from 41 F W Woolworth Co, 90 NLRB 289 (1950) 41 Preston testified that it was not the practice of the Respondent to use disciplinary warnings which were more than a year old as the basis for subsequent discipline unless , in the interim, the employee in question acquired additional written reprimands Preston allowed, however, that the Respondent was sometimes forgetful in removing stale disciplinary warnings from personnel files The record in this case is replete with such warnings, some of which go back as far as 10 years It is clear that the Respondent is an employer that neither forgives nor forgets and the filing system in its personnel office reflects this policy 43 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules , be adopted by the Board and all objections to them shall be deemed waived for all pur- poses (a) Coercively interrogating employees concerning their union activities and the union activities of other em- ployees. (b) Threatening to discontinue or reduce incentive bonus benefits or any other. benefits, and threatening to impose harsher conditions of employment respecting breaks or any other term or condition of employment; in reprisal for union activities of employees. (c) Promising promotions or other inducements to em- ployees if they abandon support for the Union. (d) Disparately enforcing the provisions of its no-solic- itation rule in order to encourage antiunion activity and to discourage prounion activity. (e) Threatening employees with layoffs if the plant be- comes unionized. (f) Imposing a gag rule upon employees in reprisal for their union sympathies and activities (g) Telling employees that members of their families will not be hired because the employees engaged in union activities. (h) Threatening, restraining, and coercing employees because they have filed charges or given testimony under the Act. (i) Discouraging membership in and activities on behalf of United Rubber, Cork, Linoleum, and Plastic Workers of America, AFL-CIO-CLC or any other labor organization by giving employees disciplinary no- tices, by discharging employees, or by otherwise dis- criminating against them in their hire or tenure. (j) By any other means or in any other manner inter- fering with, restraining, or coercing employees in the ex- ercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to Hershell Tate full and immediate reinstate- ment to his former or substantially equivalent employ- ment, without prejudice to his seniority or to other rights previously enjoyed, and make him whole for any loss of pay or benefits which he may have suffered by reason of the discrimination found herein, in the manner described above in the remedy section. (b) Expunge from employee personnel records any en- tries which reflect the discriminatory treatment found and notify in writing employees whose records have been expunged of that fact and that the disciplinary no- tices which have been removed will not be used as the basis for future discipline. (c) Post at the Respondent's Mt. Vernon , Illinois plant copies of the attached noticed marked "Appendix."44 Copies of said notice, on forms provided by the Regional Director for Region 14, after being signed by Respond- ent's authorized representative, shall be posted immedi- ately upon receipt and maintained by the Respondent for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily 44 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " GENCORP posted. Reasonable steps shall betaken by the Respond- ent to ensure that said notices are not altered , defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. For the purpose of deter- mining or securing compliance with this Order, the Board, or any of its duly authorized representatives, may obtain discovery from the Respondent , its officers, agents, successors, or assigns, or any other person having knowledge concerning any compliance matter, in the 737 manner provided by the Federal Rules of Civil Proce- dure. Such discovery shall be conducted under the su- pervision of the United States Court of Appeals enforc- ing this Order and may be had upon any matter reason- ably related to compliance with this Order , as enforced by the Court. IT IS FURTHER ORDERED that, insofar as the amended complaint alleges matters which have not been found herein to be violations of the Act, said allegations are dismissed.