Filene'S Basement Store

FILENE'S BASEMENT STORE • 183 BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On September 22, 1989, Administrative Law Judge Robert G Romano issued the attached deci- sion The General Counsel filed exceptions and a supporting brief The Respondent filed cross-excep- tions and a supporting bnef The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, 2 and conclusions only to the extent consistent with this Decision and Order The judge found, inter gm, that the Respondent did not violate Section 8(a)(3) and (1) of the Act when it discharged employee Edward Konicki about September 2, 1987 Applying a Wright Line analysis, 3 although he found that the General Counsel had established a prima facie case that Konicla's union activity was a motivating factor prompting his discharge, the judge concluded that the Respondent had met its burden of establishing that Konicki would have been discharged even in the absence of his union activity The General Counsel excepts to the judge's conclusion that the Respondent rebutted the pnma facie case The Re- spondent cross-excepts to the judge's finding that the General Counsel established a prima fame case 4 For the reasons set forth below, we reverse the judge and find that the Respondent's discharge of Koniclu violated Section 8(a)(3) and (1) 'The Respondent also filed a motion to stnke the General Counsel's exceptions for failure to comply with the specificity requirements of the Board's Rules and Regulations We find that the General Counsel's ex- ceptions and bnef sufficiently designate the General Counsel's points of disagreement with the judge's decision Accordingly, we deny the Re- spondent's motion 2 The General Counsel and the Respondent have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 3 Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Or 1981), cert denied 455 U S 989 (1982), approved in NLRB v Transporta- tion Management Carp, 462 U S 393 (1983) 4 The parties have not excepted to any other portion of the judge's de- cision Soon after the Respondent opened its Auburn Distribution Center in April 1987, 5 the Union began attempts to organize that facility The Union's organizing campaign became overt about July, although the Respondent had been aware of the Union's efforts prior to that time Edward Komcki was employed as a utility worker at the Auburn facility when it first opened in April After the facility opened, utility workers were assigned to a "home base" in one of several departments Although assigned to a home base, workers could be reassigned or "flexed" to other departments depending on business demands Edward Kamel, the Respondent's operations man- , ager, testified that it was the Respondent's policy to try not to flex the same employee on consecu- tive days On August 5, Komcki was flexed from his home base m the bulk department to the reserve depart- ment Rather than accept this flex assignment, Komcki quit Komcki went home, thought about his decision, and concluded that he had made a mistake by quitting An August 6 meeting was ar- ranged between Komcki, Steven Krauth, Auburn facility manager, and Karen Linden Young, person- nel manager, to discuss why Komcki had walked out As credited by the judge, during this meeting, Krauth mentioned to Komclu that Komclu had not been reading the Respondent's "letters" regarding the union Following a brief exchange, Komcki said I just want to be left alone I want to do my job I want to do my job well I don't want to read the Company literature I don't want to read the Union literature I don't want to read anything I just want to be left alone to do my job Komcki was thereafter permitted to return to work on August 7 after signing a letter which stated On August 5, 1987, I quit without notice be- cause I was asked to work in the Reserve De- partment I am requesting to be reinstated to my former position as Utility Worker and I under- stand and accept that I may be flexed from time to time I will accept and cooperate with manage- ment regarding these reassignments After his return, Komclu's home base was in the bulk department 5 All dates are in 1987 unless otherwise indicated Filene's Basement Store, Division of Federated De- partment Stores and Local 1445, United Food & Commercial Workers International Union, AFL-CIO. Case 1-CA-24958 July 30, 1990 DECISION AND ORDER 299 NLRB No 23 184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD About August 15, Kamel gave Konicki a flex as- signment to work on the dock According to Kamel's credited testimony, when Kamel told Komcki that he would be working on the dock, Komcki replied, "Me, down the dock?" Komcki then walked away from Kamel toward the dock with his head shaking and his hands "flying" in the air Komcki worked on the dock as instructed and Kamel did not discipline Komcki or report this in- cident to supenors On August 25, Komcki was given a handout by union organizers handbillmg outside of the Auburn facility On arriving to work on August 26, Kon- icki parked his truck close to the employee en- trance to the facility and placed the union handout on the truck's window As a result of his parking the truck near the entrance, the union handbill was visible to persons entering or leaving the building When he reported to work that day, Komcki was immediately told to report to Krauth Krauth, who had never previously assigned work to Kon- iclu, assigned Komcki and a temporary employee to put up a tent outside the building The tent was used as a covering for two employee meetings hosted by the Respondent's senior vice president, John Tempesta Krauth also instructed Komclu to attend the first of the scheduled "voluntary" meet- ings During the meeting Komcki attended, Tem- pesta told employees that "most" of the union em- ployees were "gone "6 After the first meeting, Krauth assigned Komcki to clean up around the fa- cility, take inventory, and then take down the tent On his arrival to work on August 27, Komcki was again told to report to Krauth for his work as- signment Krauth assigned Komcki to conduct an inventory on the lower floor of the facility, an area apart from the other employees Komcki worked in this area on August 27 and 28 7 On August 31, Komcki's next workday, Supervi- sor Greg Manning assigned Komcki to work on the dock As Komcki walked toward the dock to begin work, Kamel came upon Komcki and also told him that he would be working on the dock Komcki replied, "I'm no cloche" When Kamel "reminded" Komcki about the letter Komclu had signed, Komclu responded, "Don't give me that shit" After this exchange, Konicki went to the dock as instructed Komcki worked on the dock August 31 and September 1 Kamel reported this August 31 incident to Per- sonnel Manager Young, who contacted Federated Department Store officials After internal discus- 9 Neither the employee meetings nor Tempesta's remarks were alleged to be unlawful 1 Komclu worked with a temporary employee for the first half-day, but thereafter worked alone mons, Konicki was terminated on September 2 for "insubordination" Initially, we note, as did the judge, that the Gen- eral Counsel has established a strong pnma facie case that Komclu's September 2 discharge, follow- ing closely after Komcki displayed the union hand- bill on his truck, was motivated by Komckes pro- tected union activity 8 However, the judge ulti- mately concluded that Komclu's August 31 re- sponse to Kamel was "more than was allowable for impulsive behavior," noting that Kamel's com- ments to Komcki had not been provocatively made In our view, the judge failed to give proper weight to the credited record evidence and inap- propriately ignored the circumstances surrounding Komclu's unusual consecutive flex assignments The Respondent knew Komcki did not like being flexed to other departments, as Komcki had quit over such an assignment on August 5 With this knowledge, and contrary to its admitted policy, the Respondent flexed Komcki on 4 consecutive days prior to the August 31 incident Significantly, one of these assignments involved an instruction that Komcki attend a "voluntary" employee meeting where the Respondent's vice president noted that "most" of the union supporters were "gone" When Komcki responded to the fourth consecu- tive flex assignment by expressing his dissatisfac- tion, Kamel "reminded" Komcki about the rein- statement letter in which Komcki agreed to coop- erate, in effect reminding Komcki that he was powerless to prevent what could have been per- ceived to be harassing flex assignments It was this "reminder" that immediately prompted Komclu's intemperate response The Respondent has offered no explanation for why Komcki was flexed imme- diately after he engaged in protected union activity or why Komcki was flexed on 4 consecutive days contrary to the Respondent's policy 9 The record also contains substantial evidence es- tablishing that the Respondent treated Koniclu's August 31 response differently from similar inci- dents The first such incident involved Komcki himself As noted above, in mid-August, after Kamel gave Konicki a flex assignment to work on the dock, Konicki responded, "Me, down the dock?" and walked away from Kamel gesturing in a manner indicating that he did not approve of the 9 We find the following especially significant the Respondent commit- ted prior unfair labor practices directly relating to the Union's attempts to organize the facility, two of these unfair labor practices were commit- ted by Krauth and Kamel, as credited by the judge, the Respondent was aware of Komclu's union activity prior to his discharge, and Koniclu's consecutive flex assignments immediately followed his union activity 9 Although Komcki's consecutive flex assignments were contrary to the Respondent s policy, the flex assignments themselves were not al- leged to be unlawful FILENE'S BASEMENT STORE 185 assignment Yet, Kamel did not follow up on Kon- Ickes obvious displeasure by "reminding" Komcki of his agreement to cooperate, nor did Kamel find this incident, which occurred before Komcki posted the union handbill in his truck window, suf- ficiently important to report it to his superiors The second incident of disparate treatment oc- curred about June 19 when an employee who was operating power equipment had an accident that damaged a warehouse office According to the Re- spondent's own disciplinary records, after this acci- dent, the employee involved used "foul and abra- sive language in an aggressive manner towards man- agement" (emphasis added) Yet, rather than dis- charge the employee for "insubordination," the em- ployee was merely given a final warning We do not agree with the judge's statement that this June 19 incident and the August 31 incident in- volving Komcki are "readily distinguishable in both nature and degree" The Respondent's wit- nesses testified that the incidents were treated dif- ferently because Komclu's remarks were directed at a supervisor while the other employee's remarks were not As noted, however, the documentary evidence does not support the Respondent's asser- tion and the Respondent's witnesses did not favor- ably "impress" the judge with their recollection of the June 19 incident We do not, of course, condone Konickes intem- perate response to Kamel The question that must be answered in cases such as this is not whether the Respondent could have discharged Komcki for his actions, but rather whether the Respondent would have done so in the absence of Komclu's protected 1 activity Based on the totality of the record, particularly noting the evidence of dispar- ate treatment, we find that the Respondent's reli- ance on Komclu's response to Kamel as a justifica- tion for Komclu's discharge was a pretext and the Respondent has therefore failed to rebut the Gener- al Counsel's prima facie case See Vought Corp, 273 NLRB 1290 (1984), enfd 788 F 2d 1378 (8th Cir 1986), Duroyd Mfg, 276 NLRB 144 (1985) Accordingly, we find that the Respondent failed to meet its burden of rebutting the General Coun- sel's prima facie case, and conclude that the Re- spondent's discharge of Edward Komcki on Sep- tember 2, 1987, violated Section 8(a)(3) and (1) 10 '° In light of our decision, we find It unnecessary to address the Gen- eral Counsel's contention that, even if Koruckes response to Kamel on August 31 was a sufficient basis to terminate Komcki, the Respondent is precluded from relying on it because Konickes response was provoked by the Respondent's actions We shall modify the judge's recommended Order to conform to our decision, to more closely reflect the violations found and to correct Inad- vertent errors AMENDED REMEDY Having found that the Respondent unlawfully discharged Edward Komcki about September 2, 1987, we shall order the Respondent to offer Kon- icki immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previ- ously enjoyed, and to make him whole for any loss of pay or other benefits he may have suffered by reason of the discrimination against him, in the manner set forth in F W Woolworth Co, 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987) We shall also order the Respondent to remove from its files any reference to Komclu's un- lawful discharge and to notify him in writing that this has been done and that the discharge will not be used against him in any way ORDER The National Labor Relations Board orders that the Respondent, Filene's Basement Store, Division of Federated Department Stores, Auburn, Massa- chusetts, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Creating the impression that the union activi- ties of employees are under surveillance by telling employees who had attended union meetings held at the Yankee Drummer Inn that the Respondent was aware of meetings bemg held there (b) Unlawfully issuing oral warnings to employ- ees or unlawfully accusing employees of harassing and agitating other employees, or threatening to terminate employees for engaging in protected con- certed and union activity (c) Making a record of counseling of unlawful discriminatory oral warnings, and seeking to cause an employee to sign it (d) Interfering with and restraining employees in the exercise of their protected and union activity to hand out and receive union literature in the em- ployees' parking lot on the Employer's property, after completion of their scheduled worktime (e) Advancing an unlawfully broad no-solicita- tion rule, by telling employees that they really should not talk about the Union during their breaks because the Company paid for that time (f) Discharging or otherwise discriminating against any employee for supporting Local 1445, United Food & Commercial Workers International Union, AFL-CIO, or any other labor organization (g) In any like or related manner interfering with, restraining, or coercing employees in the ex- 186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ercise of the nghts guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Remove from its files any reference to an oral warning and related record of counseling issued to its former employee Glen D Noonan, and notify Noonan in writing that this has been done and that neither the oral warning nor the record of counsel- ing will be used against him in any way (b) Offer Edward Komcki immediate and full re- instatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his semonty or any other rights or pnvileges previously enjoyed, and make him whole for any loss of earnings and other bene- fits suffered as a result of the discnmination against him, in the manner set forth in the remedy section of the decision (c) Remove from its files any reference to Kon- ich's unlawful discharge and notify him in writing that this has been done and that the discharge will not be used against him in any way (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social secunty payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (e) Post at its distribution center in Auburn, Mas- sachusetts, copies of the attached notice marked "Appendix " 11 Copies of the notice, on forms pro- vided by the Regional Director for Region 1, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other matenal (f) Notify the Regional Director in wnting within 20 days from the date of this Order what steps the Respondent has taken to comply 11 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" 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 create the impression that the union activities of our employees are under surveil- lance by unlawfully telling employees who had at- tended union meetings held at the Yankee Drum- mer Inn that we are aware of meetings being held there WE WILL NOT unlawfully issue oral warnings to our employees, or unlawfully accuse employees of harassing and agitating other employees, or threat- en to terminate our employees for engaging in pro- tected union activity in support of Local 1445, United Food & Commercial Workers International Union, AFL-CIO, or any other union WE WILL NOT make a formal record of counsel- ing of an unlawful and discriminatory oral warn- ing, nor cause an employee to sign it WE WILL NOT interfere with or restrain our em- ployees in the exercise of their protected and union activity to hand out and receive union literature in the employees' parking lot on the Employer's prop- erty, after completion of their scheduled worktime WE WILL NOT advance an unlawfully broad no- solicitation rule on an individual employee, by tell- mg an employee that the employee really should not talk about the Union during the employee's breaks because the Company paid for that time WE WILL NOT discharge or otherwise discrimi- nate against any of you for supporting Local 1445 or any other labor organization WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL remove from our files any reference to the unlawful oral warning issued to Glen D Noonan, including any related written record of FILENE'S BASEMENT STORE 187 counseling that may exist, and WE WILL notify him that this has been done and that neither the oral warning nor the wntten record of counseling will be used against him in any way WE WILL offer Edward Komcki immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest WE WILL notify Edward Konicki that we have removed from our files any reference to his dis- charge and that the discharge will not be used against him in any way FILENE'S BASEMENT STORE, DIVI- SION OF FEDERATED DEPARTMENT STORES Robert Pulcim, Esq (formerly), and John F Welsh, Esq , for the General Counsel David E Watson, Esq and Mark J Mahoney, Esq (Nutter, McClennen & Fish), of Boston, Massachusetts, for the Respondent Warren Pyle, Esq (Angoff Goldman, Manning, Pyle, Wanger & Hiatt), and James Ronayne, Organizer, of Boston, Massachusetts, for the Charging Party DECISION STATEMENT OF THE CASE ROBERT G ROMANO, Administrative Law Judge I heard this case at Boston, Massachusetts, on April 11-15, and June 6-7, 1988 Local 1445, United Food & Com- mercial Workers International Union, AFL-CIO (Local 1445 or Charging Party Union), filed the original charge in Case 1-CA-24958 on September 17 (amended October 28), 1987 1 against Filene's Basement Store, Division of Federated Department Stores (Filene's or Respondent Employer) Complaint issued on November 10 The complaint alleges that Respondent Employer has committed multiple violations of Section 8(a)(1), by its supervisors and/or agents, on various dates in July, but commencing in mid-July (a) in making certain state- ments that tended to create an impression among em- ployees that the employees' union activities were under surveillance, (b) coercively interrogating employees as to what they thought of the Union, or, why a union was needed, (c) threatening employees with various forms of reprisals for engaging in union activities, namely, dis- charge and/or termination, including telling an employee that another employee wearing a union hat was not too bright, and would not last long, that the wages of the employees would be cut if the 'Union got in, and, that Employer would have to be more strict about productiv- ity if a union came in, and (relatedly) that the employees 'A dates are in 1987 unless otherwise stated could always get the union authorization card back that the employee had signed The complaint further alleges that Respondent violated Section 8(a)(1) by telling an employee that the employee could not solicit employees to join the Union on Respondent's property, and, by tell- ing another employee that the employee should not be soliciting for the Union dunng coffeebreaks, because the Respondent Employer paid for that time The complaint additionally alleges that in violation of Section 8(a)(3) and (1), Respondent Employer (a) on July 17, discriminatorily issued an oral disciplinary warn- ing to warehouse employee Glen Noonan and later me- morialized it in writing, and (b) on September 2, Em- ployer discnmmatonly discharged two warehouse em- ployees Edward Komcki and Michelle Savageau By answer timely filed on November 23, Respondent Em- ployer has denied the commission of any of the above al- leged unfair labor practices There are essentially two evidentiary rulings that appear to be also in issue The first relates to the scope of a proper limitation of Employer's evidentiary present- ment, upon Employer's failure to produce a certain sub- poenaed relevant document upon direction, and subse- quent refusal to allow a witness to testify on related matter The second involves the propriety of Employer's use of a prior inconsistent statement to attack the credi- bility of a General Counsel witness, as is clearly provid- ed for under the Federal Rules of Evidence, and, as ap- peals and was ruled, over the General Counsel's objec- tion, as accordingly also permitted under a certain State of Massachusetts, Division of Employment Security (DES), so-called shield statute Although, initially, coun- sel for General Counsel saw, and sought to raise an issue of broader evidentiary use and/or restriction, as finalized at hearing, the issue was otherwise limited to further evi- dentiary ruling imposed on the General Counsel for a timely related use of similar evidence (in cross-examina- tion of a Respondent witness) These evidentiary ruling issues are more conveniently addressed in their own con- text infra The case, however, is primarily a credibility case On the entire record,2 including my observation of the witnesses and their demeanor, and on due consideration of the briefs filed by the General Counsel and Employer on or about July 26, 1988, I make the following FINDINGS OF FACT I JURISDICTION Jurisdiction is not in issue Filene's Basement Store, Division of Federated Department Stores, a corporation, in material times had corporate offices at Wellesley, Mas- sachusetts, and, inter aim, an office and place of business (a warehouse facility) in Auburn, Massachusetts Re- spondent Employer is engaged in the retail sale of con- 2 The General Counsel's uncontested (oral) motion to correct record as made at hearing on June 6, 1988, and Respondent Employer's uncontest- ed motion to correct record (filed July 26, 1988) are essentially granted, respectively Thus, inter aka, wherever the name Campbell, Cambell, Cambel, or Hamel, appear of record, Kamel is to be substituted, but only to the extent consistent herein 188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sumer products, and, during calendar year ending De- cember 31, 1986, Respondent Employer derived gross revenues from its business operations in excess of $500,000 During calendar year ending 1987, Respondent Employer purchased and received goods and materials valued in excess of $50,000 directly from points located outside the Commonwealth of Massachusetts The complaint alleges, Respondent admits, and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and I further find, that the Union is a labor organization within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES A Background 1 Filene's operations a The material warehouse operations For many years the Filene's Basement Store oper- ations were part of the William Filene's & Sons enter- prise (Filene's & Sons) For many years Filene's & Sons was a party to a multiple location (but not all inclusive) collective-bargaining agreement with Local 1445, or its predecessor union In 1984 Filene's Basement Store (Fi- lene's Basement, or simply Filene's) was created as a sep- arate company Filene's Basement encompasses organized and unorga- nized operations Thus, similar multilocation collective- bargaining agreements continued to extend to certain (but by far not all) of Filene's Basement's operations The most recent collective-bargaining agreement cover- ing certain employees of Filene's & Sons and Filene's Basement had effective duration from February 3, 1985, through January 31, 1988 Its terms covered certain em- ployees employed at Filene's two distribution centers, warehouses, located at Somervile (SDC) and (then) at Dedham (DDC), Massachusetts (There is indication of record (G C Exh 29) that as of July 17, only Filene's Boston Basement Store was additionally organized and covered by the Union's contract with Filene's ) Filene's is currently a wholly owned subsidiary, or di- vision of Federated Department Stores (Federated) Fi- lene's continued to maintain corporate offices at Welles- ley, Massachusetts, from which it supervised operational management of the chain of 21 Filene's Basement retail department stores located throughout the New England States and New York, and the two distribution centers In March 1987 Filene's told Local 1445 and the em- ployees of DDC that it would close DDC in late May, and that it had selected Auburn, Massachusetts, as the lo- cation for a new distribution center (ADC) Filene's opened the new ADC on April 6 The new ADC is a very large warehouse It processes 25-30 percent of all the merchandise in the stores, as well as storing (ware- housing) the flat merchandise for future store selections On April 10, Local 1445 and Filene's met to discuss cer- tain issues of severance pay and relocation rights for DDC's employees Upon receipt of Filene's summary of its position thereon, Local 1445 filed a grievance on April 17, discussed further infra ADC (as apparently did DDC, and does SDC) essen- tially receives merchandise from Filene's vanous suppli- ers and/or vendors, checks invoices by providing a phys- ical count of items, marks (ticket prices) items, and dis- tributes and/or warehouses the merchandise for future selection and distribution The shipping and receiving work includes loading and unloading trucks at a dock Filene's allowed its supervisors to transfer to ADC, but decided to staff ADC with new hires In material times, ADC has employed anywhere from 80-100 ware- house (unit) employees ADC's warehouse unit employ- ees are currently classified as either utility workers or heads of stock, discussed further infra By cover letter of April 17, Local 1445 filed a griev- ance under the collective-bargaining agreement applica- ble at Dedham, alleging, inter atm, that Filene's had vio- lated the agreement by closing DDC for discriminatory reasons, had failed to honor the recogmtion clause of that contract, and had violated the contract by its failure to offer DDC employees transfers to ADC By letters of May 5 and 11, Filene's stated that its position on the grievance was that the issues sought to be raised by the Union's gnevance were not arbitrable, and that it was willing to proceed to arbitration on the issue of the arbi- trability of those issues A duly designated arbitrator held a hearing on the ar- bitrability of the issues on October 27, and, inter aim, Union therein contended Filene's had effected a runaway shop The Employer argued that the Union's request that the arbitrator compel an employer recognition of the Union as the bargaining representative of ADC's ware-( house employees, or, impose the Local 1445 contract, is beyond the arbitrator's authority The Company further asserted before the arbitrator that the matter (of recogni- tion) is solely the function of the National Labor Rela- tions Board, if, and when, Local 1445 demonstrates ma- jority support among ADC's employees pursuant to a representative petition (then) currently pendmg On March 1, 1988, the arbitrator upheld the arbitrabi- hty of two of the issues presented by the Union's griev- ance, namely, whether the Employer had violated the applicable agreement (1) by closing the Dedham facility for (asserted) discriminatory reasons, and, (2) by failing to recognize the Union at Filene's new ADC facility (whether on basis of urged runaway shop, or on basis that the contract survived the move) Moreover, while finding that the issue of transfer of DDC's employees was not arbitrable as an independent claim, the arbitrator ruled that that consideration may be relevant to a request for remedial relief (for other arbitrable claim advanced, if established) Both of the above determined arbitrable issues are presently pending before the arbitrator The parties agreed at hearing, and Employer reasserts in brief that, "The claim of a discriminatorily motivated closing of the Dedham warehouse has never been pre- sented to the Board and is not part of this proceeding" Thus, no party has contended that any allegation of a discriminatory DDC closure is an issue raised before the Board, let alone sought to raise either deferral or nonde- ferral arguments thereon FILENE'S BASEMENT STORE 189 b Filene's operations management Filene's corporate offices are located at Wellesley, Massachusetts John Tempests is Filene's senior vice president of operations, and his office is located there Steve Haskell is Filene's vice president of operations Haskell maintains an office at ADC, but is there (at most) 3 days a week Starting the latter part of May, Steve Krauth was facility manager at ADC (Krauth's assignment since October is as director of distribution in charge of both ADC and SDC ) Krauth is responsible for the operation of ADC, and he is the highest repre- sentative of Employer regularly at ADC Previously em- ployed by Filene's as a personnel manager, Laura (Linden) Young also started work at ADC in May As ADC's personnel manager, Young worked for Krauth Ed Kamel is the operations manager of ADC, and he re- ports directly to Krauth Kamel is responsible for ADC's day-to-day (operational) activities Kamel has five area supervisors to assist him The area supervisors report directly to Kamel The area supervisors and their assigned area of responsibility (in most recent and material times), are Michael Gordon, shipping and receiving, Greg Manning, bulk (e g, leather goods, luggage, and bags etc ) and giftware (crystal, vases etc ), Bruce Brackett, reserve (store and select), David O'Neill, shoes, and Jim Coumhan, control office (all paperwork, including data entry of invoices to computer) Setting momentarily aside the consideration of personnel management, ascending management hierar- chy in material times is at ADC, the five area supervi- sors reported directly to Operations Manager Kamel, Kamel reported to Facilities Manager Krauth, Krauth re- ported to Haskell, who in turn reported to Tempests, at Wellesley c Utility workers, heads of stock, and the principle of "Flexing" ADC warehouse employees, upon receipt of merchan- dise from suppliers, first check the merchandise against invoice, then mark the merchandise, i e, attach a ticket to the merchandise, and then they either immediately dis- tribute (ship) the merchandise to the stores, or they stock the merchandise in the warehouse for a future selection, and distribution of the merchandise to the various stores upon order The ADC warehouse (unit) employees are currently classified as either utility workers, or heads of stock Kamel testified that utility workers are responsible for working in all areas of the ADC facility as needed, and, that the heads of stock assist the ADC area supervisors in passing out the work In that regard, !Camel testified that when the ADC initially opened, the warehouse em- ployees were given specific (variable) assignments every day Kamel and the area supervisors would determine the particular job assignments for the employees at a daily "shape-up" meeting Essentially, assignments were based on a given area's backlog Kamel and the area supervisors determined daily how many employees would be assigned to work in given area Kamel further testified, and Employer has acknowledged in brief, that sometime during spring- early summer, employees were assigned to a home base (area) However, Kamel has also testified, with convinc- ing support of others, that all the employees (even then) remained available for daily or weekly assignments to other areas, when a fluctuating workload required This process of assignment to varying work areas, upon fluc- tuation of workload, is referred to as "flexing", and, Kamel has testified, without contradiction, that a flex of 8-10 employees throughout the facility on a daily basis is typical, even now d Filene's and Federated's personnel management, and/or industrial relations hierarchy Joseph Staffen, formerly Filene's vice president for labor relations, in material times was located at corporate headquarters in Wellesley ADC has its own personnel manager During material times, e g, from May through November, Laura (Linden) Young occupied the position of personnel manager at ADC having been previously employed by Filene's as a personnel manager elsewhere since 1984 (On December 1, Katie Schoonover, prior personnel manager at SDC, replaced Young, who had been reassigned as personnel manager at SDC ) As ADC personnel manager, Young worked for Facilities Manag- er Krauth, but regularly reported to Karen McGrath, Fi- lene's (then) director of employee relations McGrath was located at Wellesley corporate headquarters In ma- terial times, McGrath was responsible for ensuring that all of Filene's personnel function (at 21 retail stores and 2 distribution centers) were handled properly In summary then, Filene's personnel and/or industrial relations' hierarchy in material times was ADC Person- nel Manager Young worked for Krauth, but reported to McGrath, at corporate headquarters McGrath in turn reported there to Staffen Federated Department Stores (Federated) also has an employee relations department It is available to all Fed- erated Divisions as a consultant on employee relations Joe Vella is Federated's operating vice president for em- ployee relations Ora Matthews is a Federated employee relations specialist under Vella Matthews had responsi- bility, inter aim, for ADC Federated's material contact was with both ADC's local management, and Filene's corporate level management Pursuant to Federated's established policy, Vella and Matthews would become involved with ADC because of the Union's initiation of an organizational campaign there In such circumstances, the function of Federated's officials mcluded advising Filene's (ADC's) managers and supervisors of the legal restrictions on their activity in the Union's organizational campaign In fact, Vella and Matthews provided certain trammg to ADC's man- agers and supervisors based on an extensive Federated handbook thereon entitled, "Communications Guidelines for Managers and Supervisors Regarding Employee Rights and Union Activity" (R Exh 2) The General Counsel conceded at the outset that in most respects Employer is a well run, efficient enter- prise, and conducted under comprehensive rules of con- duct and/or regulations, including (I find) the above rules and regulations (and other policies) that compre- 190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD hensively govern Employer in regard to employee and union relations Respondent at the outset candidly ac- knowledged that it opposed the Union's effort to orga- nize its ADC employees, and, that it communicated with its employees orally and in writing in the effort to try to convince the employees not to support the Union How- ever, Employer also contends that it has extensively trained its supervisors as to what is proper, and what not, and, that its supervisors never crossed the line and/or boundary to engage in any illegal conduct Respondent has stressed in brief that extensive training of local ADC management took place in July, asserting that Federated's training involvement at that time was occasioned by the Union's organizational activity in the middle of July In contrast, the General Counsel has urged in brief that Filene's had much earlier recognized that ADC would be a likely target of Union's organiza- tion, and he would have it observed that even prior to ADC's opening (in April), Federated had held one or more meetings with the Auburn managers on the union subject The General Counsel has further established that Krauth was not employed by Filene's until May, and that he was not present at the earlier training sessions at- tended by (DDC) management and supervisors (then) as- signed to ADC management The General Counsel does acknowledge that Federated officials had conducted meetings pursuant to Federated's established policy of "becoming actively involved in personnel matters in sub- sidiary stores subject to union campaigns" There is cred- ible evidence to support all the above observations, as discussed infra 2 The Union's organizational campaign John Phmney is president of Local 1445 James Ron- ayne, employed as an organizer, testified at heanng (April 13, 1988) that Local 1445 had employed Ronayne for 1 year, that it was President Phinney who had han- dled Local 1445's filing of a grievance on the DDC clo- sure and ADC opening without transfer/hire of DDC employees, and that Ronayne had commenced an orga- nizing effort at ADC in approximately April According to Ronayne, he first met with a group of employees in April, made home calls, and, normally thereafter held at least one meeting per week with em- ployees In the beginning Ronayne held weekly organi- zational meetings with small groups of employees in the restaurant/lounge of the Yankee Drummer Inn, which is a hotel in Auburn, and located a few miles from ADC Ronayne recalled that it was starting in April that he had first passed out union authorization cards to employees to sign, and that employees Mike Corso, Glen Noonan, Richard Norgren, and many other employees had there- after solicited employees to sign union authorization cards Though it is asserted that the Union distributed authorization cards to the employees there, and else- where, it is also generally established that union card so- licitation was done away from work at first Indeed, all parties in the end appear to have essentially acknowledged that the Union's campaign did not become overt at the warehouse until mid-July, and that it was at that time (generally) that ADC supervisors and managers received (I find) additional extensive training on what they could do and say during a union campaign When that occurred in precise relationship to Noonan's union activity in July is more in issue It is in any event pres- ently noted, mid-July is when the complaint (generally) alleges and Respondent denies that certain unfair labor practices were first committed by Respondent Employer Federated staff members were clearly on the scene, and directly involved in the discharges of employees Sava- geau and Komcki, which occurred much later, in early September B The Evidence 1 The employment tenure of union activists Glen Noonan and Michael Corso Filene's transferred its former DDC supervisors to ADC about the last week in March The supervisors then conducted interviews for the hire of new employees at ADC, and, in the first week of April they were en- gaged in training ADC opened on April 6 ADC employed Michael Corso as of the start of ADC operations on April 6, as a general warehouse (utility) worker ADC initially and regularly assigned Corso to work on the docks, under the (then) supervision of Man- ning Sometime later, and during more material times, ADC regularly employed Corso on a forklift, under the supervision of Brackett ADC also hired and employed Glen Noonan as of the start of its operations on April 6 ADC employed Noonan as a warehouse utility worker at $6 an hour At various times thereafter Noonan was supervised by Coumhan, Manning, and Gordon In more recent and material times, Noonan regularly worked on the docks and he specifically did so in early July It is uncontested that Noonan's work performance was always exemplary In August, both Corso and Noonan voluntarily termi- nated their employment with Employer Corso did so in the first week in August Noonan voluntarily terminated his employment with Filene's on August 20 Noonan did so with intent of getting a better paying job, which he subsequently did, with some union aid Thus, with cer- tain union assistance in arranging application interview, an organized employer in the area (Stop & Shop) later employed Noonan at the rate of $9 97 an hour, about October Just prior to Noonan's termination, Noonan had unquestionably engaged in substantial activity in support of the Union, of which the Employer was aware, at least since mid-July Indeed, both Noonan and Corso became openly active for the Union in mid-July, though after having exhibited much earlier interest in the Union a The union activity of Noonan and Corso More specifically, Noonan testified that he attended a dozen or more union meetings, and he confirmed that the first union meetings that he attended were held at the Yankee Drummer, though he recalled those meetings as starting the end of April, first week in May Apart from attendance at certain special meetings called, Noonan re- lates that regular union meetings were held weekly, almost every month thereafter FILENE'S BASEMENT STORE 191 Noonan testified that he received union authorization cards from the Union several times In that regard how- ever, although Noonan recalled that he personally had signed an authorization card for the Union in May, Noonan testified that he had not taken an active role (in the Union) at that time Nor did he do so until about mid-July, following the circumstances next to be dis- cussed ADC had also employed Glen Noonan's brother, Todd Noonan, and Richard Norgren, both of whom also subsequently became openly active in the Union, about the same time as Noonan and Corso Noonan and Corso have testified in this proceeding Neither Todd Noonan nor Norgren testified In early July, Todd Noonan had occasion to work, inter aim, with employees Steve Giguerre and Richard Norgress (sic) On July 10, Supervisor Manning had oc- casion to assign Giguerre, Norgren and Todd Noonan to perform certain work downstairs From time to time Manning checked up on them A confrontation later de- veloped between Manning and these employees over Manmng's instructions to them and his related observ- ances of their work performance that day, but particular- ly with regard to Giguerre, noted of record as a young employee, previously warned about his work perform- ance Giguerre had only recently (on July 2) received a written counseling (warning) for having filled an order calling for 140 briefs at $7 with 140 tops at $14 The counseling warned that if this conduct persisted, Gi- guerre, would be discharged Counseling record of July 10 records that on three occasions (that day) Giguerre was observed standing around doing nothing It noted that Giguerre had been written up previously for his poor work performance, and that he understood then It was to be his last and final shot (chance) Concluding there was no improvement in Giguerre's work perform- ance, the recommendation of discharge of Giguerre was then effected Supervisor Manning, Operations Manager Kamel, and Personnel Manager Young signed the record of counseling (G C Exh 24) on July 10 (Friday) As reported to Noonan by employees, Noonan ac- knowledged the confrontation with Manning had devel- oped over the employees' failure to follow a prior direct Manning instruction (literally) not to sit down on the job, and, that Giguerre was terminated for (again) sitting down on the job The confrontation however, reported- ly, had also involved an incident of Supervisor Manning throwing a chair in front of the employees, not at an em- ployee so much as in an act evidencing Mannmg's dis- pleasure with the employees, upon Mannmg's observance of the employee(s) again sitting down on the job, after having been told (at least once) earlier that day not to do SO In any event, according to Noonan, employees were upset about the subsequent termination of the kid (Gi- guerre), but particularly so with nothing having been done about the (perceived) improper behavior of the su- pervisor in throwing a chair in front of the employees Noonan relates that there were also a lot of other things going on, some of which had been directly affecting Noonan in his own job performance Noonan asserted (generally) that he had received some reports of acts of mistreatment of employees (purported- ly) by another supervisor, Brackett As related to Noon- an's work, however, Noonan has testified with greater specificity that some employees from Brackett's work area were making mistakes that were directly affecting Noonan's (shipping) work In Noonan's view, there was a lot of work production going down, and these matters had a lot to do with the (perceived) bad morale of em- ployees In any event, Noonan decided at this time that he wanted to talk to the person in charge, and Noonan made an initial effort to talk to the highest official to be found at ADC, viz, Steve Haskell Noonan understood Haskell had an open door policy Noonan approached Haskell's secretary, and said he wanted to meet with Haskell The secretary said that Haskell was not there (Haskell was somewhere in the building that day ) Has- kell's secretary then said that Noonan could not speak to Haskell, that Noonan had no need to do so Noonan re- plied that he would come back when Haskell was there It is unclear whether Noonan made any further attempt to see Haskell It is clear that Noonan did not see Has- kell b Noonan 's meeting with Kamel and Young on July 13 Operations Manager Kamel approached Noonan and asked if Noonan could settle (sic) with him, instead of Haskell Noonan relates that he was at first reluctant to do so, but when he could not meet with Haskell, he met with Kamel and Young, on July 13 (Monday) Noonan otherwise recalled that when he arrived at work, Kamel (I find) asked Noonan if he wanted to meet then (The time of Kamel's first inquiry of Noonan as to Noonan's willingness to meet with Kamel, rather than Haskell, is somewhat unclear, but it probably was Kamel's initial in- quiry made of Noonan the first thing Monday morning, and the agreement as to the time of their meeting fol- lowed) In any event, when Noonan said he did want to meet then, Noonan promptly met with Kamel and Young in Young's office (That this meeting occurred in the morning of July 13 is convincingly established of record ) Noonan asserts that at this meeting he said that em- ployee morale was bad, and, according to Noonan, he also told Kamel and Young (1) that the employees were upset that the kid (Giguerre) was fired, and that the in- volved supervisor (Manning) was allowed to throw a chair, and nothing happended to him, (2) that a lot of people had complained to Noonan that there was not fair treatment in Brackett's (reserve) area, and (3) that a lot of people from Brackett's area were making mistakes (in their work) that were affecting Noonan's own job per- formance In the discussion Noonan asserts he also said that the employees thought there was a lot of unfair wages, and, that a lot of people were making different rates of pay for doing the same job Noonan concluded they (Kamel and Young) were concerned about the chair incident, but did not seem to agree otherwise The meet- ing ended, and Noonan went back to work Noonan has 192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD testified (at least at one point clearly) that there was no discussion of the Union in this meeting whatsoever. Kamel does not appear to have testified as to the spe- cific content of this meeting at all. Young did. Though unsure of the date, Young testified that Kamel and Young had one conversation with Noonan. Young sum- marized that Noonan was very, upset, or dissatisfied with certain aspects of his job (or) how the warehouse was being run. She (also) did not recall any references to union activity. Notably, Young specifically had no recall of Kamel telling Noonan that Kamel was aware of union representatives passing out literature in the parking lot. Any suggestion in Noonan testimony to that effect would be materially inconsistent, and against clear weight of more credible testimony of Ronayne as to when distribution of union literature at ADC first began, viz, July 17. Accordingly, it is not credited. (Ronayne testified far more credibly that the first handbill of the facility was on July 17; and otherwise, that there were two handbillings at ADC in July, one in August, four in September, three in October, arid one in December.) Young initially recalled that the first that she was aware of union activity at ADC was at the time of the first handbilling, sometime in July. Although Young did not know whether she was aware at this time that there were union organizational meetings going on at the Yankee Drummer, it would appear from the record con- sidered as a whole, far more likely that she would have been as aware of them at that time as was Krauth. In that regard, Krauth testified frankly and candidly, that at the time he spoke to Noonan, on (I find, infra) July 14, Krauth believed that he was already aware that there had been union meetings going on at the Yankee Drummer. Indeed, Krauth has offered credible explana- tion that some employees had informed them (manage- ment) that they (the employees) were asked to attend. Moreover, although Young also did not recall it, I am persuaded that Young, just as likely became aware of Noonan's more recent union activity in handing out union authorization cards at ADC, at about the same time that Krauth has acknowledged he did, viz, some time prior to the round table meeting with employees, which was held on July 15, and which is discussed more fully infra. I note that Young has otherwise corrobora- tively acknowledged that Krauth had spoken to Young, prior to the Round Table meeting of July 15, about Krauth's occasion on that very morning to stop two non- union employees from conducting, on company time, a survey of employees who did not want the Union, infra. It is very clear that neither Krauth nor Young would have had an awareness of Noonan actively handing out union cards to employees at ADC on or before July 13, for wholly convincing reasons next to be discussed. Noonan testified relatedly that the first time he re- ceived union authorization cards (I find) to pass out at ADC, was on July 14. Noonan's recollection was that Ronayne gave the union cards • to Noonan at breaktime, in the ADC parking lot. (To the extent any Noonan tes- timony would appear to suggest that Filene's vice presi- dent, Stafferi, gave Noonan a related oral warning on July 14, I observe that is not alleged in the complaint; find it it wholly inconsistent with clear weight of more credible evidence of a Stafferi warning on July 17, infra; and I do not credit it.) Ronayne's account confirmed that it was on July 13 (Monday) that Noonan had called Ronayne and said that there were a lot of problems at Filene's; and, that he (Noonan) wanted a bunch of union authorization cards so he could start signing up employees. Ronayne also confirmed that it was on July 14 (Tuesday) that Ronayne met Noonan and gave Noonan authorization cards, though Ronayne has recalled it as at noontime that he did so. Noonan testified that he thereafter inquired of employ- ees if they were interested (in the Union), and (generally) related that he then distributed union authorization cards to any interested employees outside ADC during breaks, and also inside ADC in the cafeteria. Noonan does not appear to have explicitly testified that he handed out the above authorization cards to employees in the cafeteria at lunchtime on July 14. In testimony related to his ques- tioned conversation with employees on July 16, Noonan made a related reference only to the day, as opposed to specifying either July 14 or 15 (or break or lunchtime) that he had earlier passed out cards in the cafeteria. It is reasonably inferable from the above, that Noonan passed out cards in the cafeteria at lunchtime, either on July 14 or 15. No more definitive employee corroboration was offered that Noonan passed out union cards on July 14, in the cafeteria. Initially Krauth asserted that he was not aware of the authorization cards being passed out at the time (of the Union's handbilling). On other occasions Krauth clarified that he was aware that employees were passing out cards at the ADC facility, but he did not recall cards being passed out in the cafeteria. Krauth then testified that at least prior to a certain Round Table meeting with a small group of employees (including Noonan), Krauth believed that employees had told him that Glen Noonan was handing out cards. But Krauth then asserted (with, I find, diminished candor) that he could not recall the identity of the employees who had informed him that Noonan was handing out the cards. That round table meeting is clearly established as one held on July 15; and it is discussed further infra, in connection with other complaint allegations. Noonan relates that it was after lunch on July 14 (Tuesday) that Krauth approached Noonan at Noonan's work station. Although not without notable confusion, Noonan has in the end appeared to recount severally: that Noonan had at first wanted to see Haskell; that Krauth had approached Noonan (purportedly) upset; that Krauth wanted to know why Noonan (had) felt he could not approach Kamel with a problem; why Noonan wanted to go over his (Krauth's) head (to Haskell), and why Noonan had not come directly to Krauth (about the problem); why Noonan met with Kamel and Young, and what they had talked about; and whether Noonan wanted to talk to Krauth about the problem (now). To the latter, Noonan replied he did; and Krauth and Noonan went to the cafeteria. According to Noonan, Noonan repeated to Krauth what Noonan had earlier told Kamel and Young, includ- FILENE'S BASEMENT STORE 193 mg about the incident of the chair thrown by a supervi- sor, which, according to Noonan, Krauth admitted was wrong, and then said they were looking into it Noonan testified (and I credit) that he also spoke to Krauth about low and different wages (purportedly) being paid em- ployees, and Krauth said he would look into it (also) Noonan recalls this entire conversation lasted about 20 minutes 2 Noonan's related complaint allegations a Krauth conduct alleged as creating the impression of Employer's surveillance of employees' union activity The complaint alleges that on July 14, Facilities Man- ager Krauth (only) told an employee that Krauth was aware of union meetings held at the Yankee Drummer Inn (only), and, that this statement of Krauth tended to create an impression among the employees that the em- ployees' union activities were under surveillance, in vio- lation of Section 13(a)(1) of the Act Whether simply confusedly or otherwise, Noonan ini- tially testified, in seeming support of this complaint alle- gation, that during the course of their discussion Kamel had said he was aware that there was a union organizer going into the parking lot, and that there were some meetings being held at the Yankee Drummer As noted, Young had no recall that Kamel had made the statement (that Kamel was aware of a union organizer in the park- ing lot) in their conversation with Noonan on July 13, and Noonan had earlier otherwise testified specifically of that prior conversation with Kamel and Young that there was no mention of union whatsoever To the extent it is considered simple misreference to Kamel, rather than Krauth, Noonan notably did so on two different incidents (The second is discussed infra ) Indeed Noonan misspoke on this first incident, twice, for he also then testified that Kamel did not specifically ask Noonan if Noonan had attended Apart from the contrast of the complaint's limited allegation of a Krauth state- ment of awareness of union meetings at the Yankee Drummer now to an additional ascribed statement of an awareness of a union organizer in the parking lot Noonan (at best) clearly in this complaint allegation con- text has initially nusattributed the questioned remark(s) to Kamel (This is not an instance involving a record cor- rection of some phonetic name misspelling to clearly in- tended Kamel ) Noonan however did later testify (not only) that Krauth had said he was aware of certain meetings that were being held at the Yankee Drummer, but that Krauth also told Noonan that he (Krauth) knew of an (unnamed) or- ganizer that had been coming into the parking lot How- ever, Noonan then additionally related that Krauth had also asked Noonan on this occasion, why did Noonan think the Company needed a union, and, more specifical- ly, why Noonan thought Noonan wanted one Accord- ing to Noonan, Noonan said (sic) he did not want to talk about the Union on company time, so Noonan said he did not know, and he went back to work (Apart from observation that Noonan's account appears on its face as strained, the complaint does not allege that Krauth (or Kamel) interrogated employees on July 14 Noonan's account of this incident Insofar as it purports to support the existing complaint allegation that on July 14 Krauth told an employee that he was aware of union meetings being held at the Yankee Drummer Inn (and as such, constituted a statement that created an impression of surveillance, in violation of the Act), appears to con- tain a number of inconsistencies and substantial points of confusion and/or embellishment (if arguably on collateral matters, nonetheless of seeming nature), such as to raise serious question as to Noonan's reliability on the matenal complaint allegation itself Krauth confirmed that he had a meeting and a conver- sation with Noonan, in the late afternoon, in the cafete- ria, admittedly at Krauth's invitation Although not sure of the precise date, Krauth recalled the meeting as oc- curnng after Noonan had met with Kamel and Young, held either on the same day, or the next day, and held after Krauth had found out about, the earlier meeting Krauth's recount indicates timing of his meeting with Noonan as occasioned by Krauth's work encounter of Noonan that day Krauth otherwise testified that his best recollection of his meeting with Noonan was that Noonan was upset about pallets coming down not ade- quately sorted, and that that was the reason that Noonan had met earlier with Young and Kamel In that regard, Krauth has testified that he was Kamel's superior and not at all upset that Krauth had earlier met with Kamel However, Krauth was also aware that Noonan had first requested to see Haskell, who was Krauth's superior Though aware Noonan did not see Haskell, Krauth's testimony does not appear to encompass a specific denial of Noonan asserting Krauth's displeasure over Noonan's appearance of unwillingness to talk about problems with either Kamel or Krauth, and Noonan's apparent intention to go over Krauth's head in his initial attempt to see Krauth's superior, Haskell I am persuaded that Krauth evidenced a concern over Noon- an's apparent unwillingness to initially discuss problems with either Kamel or Krauth, and because of Krauth's perception that Noonan had attempted to go over Krauth's head to Haskell Krauth otherwise confirms that in the cafeteria con- versation Noonan discussed some of the problems with Krauth Krauth recalled that Noonan said some of the cartons coming down for shipping should have been sorted, but weren't, and, that Noonan felt that it was Just careless(ness) on the part of some people Krauth asked what sort of mistakes were being made, and Noonan re- sponded that a lot of pallets were coming down with mixed stores, saying, that there should be one store to the pallet Krauth confirmed that Noonan felt it was a direct result of people not being trained properly or low moral Krauth further recalled, and without apparent contra- diction, that he had asked Noonan at the time if Noonan wanted to show Krauth (the problems), or have some of the (involved) employees come down According to Krauth, they then went over to see some of the prob- lems, and where the problems were generated Krauth recalled, and Noonan did not subsequently deny, that Krauth suggested to Noonan at the time that Noonan go 194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD work with the employees (generating the problems), or have the employees come down to see the problems (being generated) in shipping Contrary to Noonan's recollection of the conversation ending on the interroga- tion of Noonan's interest in the Union, Krauth recalled specifically that their conversation had ended when the (end of the workshift) bell rang, and Noonan left Krauth did not recall Noonan talking to Krauth about the supervisor upsetting Noonan or other employees, nor about the discharge of Giguerre, or about Supervisor Brackett not treating his employees fairly Krauth re- called a discussion about Supervisor Manning throwing a chair in front of employees, but he did not recall it as part of this conversation Krauth otherwise testified that he did not recall any discussion of the Union in this meeting, but Krauth did not specifically deny telling Noonan that he was aware of meetings at the Yankee Drummer Moreover, Krauth testified (I find) very candidly, that he believed that he was aware at the time he spoke to Noonan in the cafete- ria late that afternoon, that there had been union meet- ings going on at the Yankee Drummer Krauth was aware that the meetings there were held mostly on Friday Indeed, Krauth has acknowledged (generally) that employees would tell them (management) that they (the employees) were asked to attend them (union meet- ings at the Yankee Drummer) Krauth did testify that there was no mention of union activities at the facility in their conversation that he re- called (None is alleged in the complaint ) Krauth has categorically denied that he was (then) aware that (earli- er) that afternoon, Noonan was passing out (union) cards in the cafeteria Kamel testified (in support) that he was not aware of, nor had he heard of Noonan allegedly passing out union cards on July 14 in the cafeteria (But neither was Kamel aware of any conversation between Krauth and Noonan on July 14 ) (1) The circulation of an antiunion petition or list on July 15 Sometime during the morning (I find) of July 15 (Wednesday) Noonan saw two (named) employees walk- ing together with something in their hand Noonan later came to understand that it was a list of names, or survey of people who were against or for the Union At lunch- time that day, outside the parking lot, in the presence of Michelle Savageau, Noonan told one of the two employ- ees with the list that a lot of people were upset that she had made the survey Weight of credible evidence of record establishes the referenced survey was to be a list containing signed names of those employees who did not want a union, thus essentially a no-union list, or petition That afternoon Noonan attended a round table meet- ing of employees and (certain) management conducted by Krauth discussed further, infra, and Noonan brought the subject up According to Noonan, Krauth said, that he was aware it had happened, that he had told the em- ployees (essentially) to stop doing it on company time Noonan's recollection acknowledged that Krauth said he told the employees, that whatever they did on their own time was okay, but not to do it on company time Krauth confirms that he became aware that the two employees were conducting (essentially) a no-union survey Indeed Krauth initially again candidly related that on that morning the two named employees had (first) approached him at the receiving dock and said that they wanted to go around and take a list of people who did not want the Union (Krauth later related that he did not believe it was these two employees who had (also) told Krauth that Noonan was handing out union cards, with Krauth then less convincingly asserting that he did not recall who had told him that ) Krauth other- wise testified that initially he (only) said he did not think it was appropriate, but at that time, he did not tell the employees not to do it Krauth testified that he then re- turned to his office, and he realized that it was just as wrong for them to be doing it (soliciting the names of employees against the Union) on company time as it was for union (employees) to solicit (on company time) Krauth relates that he thereupon went back upstairs to the two employees at their jobs Krauth told the two em- ployees that he had made a mistake, and that they were not allowed to do that (in context) on company time Krauth specifically confirmed Noonan's account that Krauth told the two employees that they could do a survey on their breaktime, lunchtime, and after work Young had corroborating recollection that on the same day, Krauth had told Young he had found out the two employees were passing out a petition, vote, or signup sheet, and that Krauth informed Young that he had told them to stop Young further testified she was told the two employees had passed around a sheet of paper that they wanted associates to sign if they were not interested in the Union Krauth testified that he did not know if the two em- ployees did subsequently conduct a survey, that they did not report one to him, and he did not see one The area supervisors received instruction to report their observ- ances of employees' reactions to the Union to Federated officials, rather than to Krauth Federated's Matthews testified that Federated and Fi- lene's policy was the same, and that in a union organiza- tional attempt, it is Filene's practice to try lawfully to get a picture of employees' pros and cons, and attitudes about the Union, but it is not their policy to solicit it (from employees) In regard to the two (named) employ- ees' (purported) conduct of a survey, Federated's Mat- thews testified credibly, that she did not learn of that in- cident until some 2 weeks later from a supervisor, that she was not sure there ever was a list, that she did not see it, nor did she ever talk to a supervisor who saw it Matthews also testified that to her knowledge the Com- pany has no list of (employee) names who signed the (no-union) petition Krauth has testified consistently that management did not keep a record of what employees were prounion, and what employees were not proumon Prelimmary Analysis Weight of evidence that I deem the more credible con- vinces me that Krauth was not aware on July 14 that Noonan was handing out union cards in the cafeteria, though by that time Krauth was aware that union meet- FILENE'S BASEMENT STORE 195 ings with ADC's employees were being conducted at the Yankee Drummer Inn Although, Noonan's testimony of a Krauth statement to Noonan about Krauth's awareness of certain meetings at the Yankee Drummer Inn was not by itself such as to readily warrant credit, because of Noonan's noted general nonrehability in recalling other circumstances of this event, Krauth's candid revealment of his own awareness of union meetings at the Yankee Drummer Inn tends to lend support to a Noonan recol- lection that Krauth had mentioned his awareness of cer- tain meetings held at the Yankee Drummer in their dis- cussion of problems at ADC, especially when apparently not accompanied by a specific denial by Krauth that the had told Noonan that Thus, despite reservations as to certain of Noonan's other testimonial recollections of this event (and particu- larly as to asserted Krauth union interrogations in this conversation, which I do not credit) I am nonetheless in the end persuaded and I find that on July 14, Krauth told Noonan that he was aware of meetings at the Yankee Drummer Moreover, since I find infra that when Krauth had this conversation with Noonan in the late afternoon of July 14, that Krauth was not then aware that Noonan had begun only that very day to be openly active for the Union by distributing union author- ization cards at ADC for the employees to sign, I further conclude and find that Krauth's remark about his aware- ness of the meetings at the Yankee Drummer (which union meetings Noonan had attended) reasonably had the effect of creating an impression of employer surveillance of the employees' meetings with the Union at the Yankee Drummer as alleged in the complaint Otherwise, although I am not persuaded from Noon- an's unclear and uncorroborated testimony, that Noonan did hand out union cards in the cafeteria on July 14, I am convinced that he had begun to hand out union au- thorization cards at ADC that day, if not in the cafeteria that day, then (at least) on his own time outside the warehouse at a breaktime after having received them from Ronayne more probably (I find) at noontime on July 14 In any event, whether Noonan passed out union authorization cards to employees in the cafeteria on July 14, or not, I credit Krauth's denial that he was aware of it at the time if his dicsussion with Noonan A question is presented whether Krauth had first become aware later that day (after work) from employee reports (otherwise conceded received by him) that Noonan had started handing out the union authorization cards to employees at ADC (on July 14), or, as seems to me more likely, that Krauth first learned of it in the fol- lowing morning of July 15 If Krauth had impressed me with his candor in initially acknowledging an early awareness of Noonan's distribution of union authoriza- tion cards (at ADC) to employees to sign (at least) prior to a certain Round Table meeting held the afternoon of July 15, Krauth's then asserted lack of recall of the iden- tity of the employee(s) so informing him, on direct in- quiry, did not Young's collective similar responses in this area were at best unconvincing, and at worst a rare instance of Young being evasive Krauth's specific disclaimer of a belief that it was the same two employees (who had approached him early that morning about wanting to circulate a list to be signed by employees who did not want the Union) who had (also) informed him that Noonan was handing out union authroization cards at ADC, and his then subse- quent nonrecall of who it was who had actually told him that Noonan was handing out the union cards, is too strained for me to accept, or credit, especially where fair inference runs to the contrary Thus, it appears to simply strain credulity too much that Krauth would not have remembered the employee source that had supplied him with the information that another employee (Noonan) had started handing out union cards at ADC, which development (and not the asserted later union handbillmg on July 17), I find, is what occasioned, first, Krauth's immediate report to his own superior, Haskell, and, second, their prompt meeting with Tempests that evening, to further discuss employer counterstrategy Moreover, it is difficult for me to accept that the two named employees would have expressed to Krauth their own desire to begin taking around a list for employees (who did not want the Union) to sign, and in doing so have also made no mention to Krauth about Noonan's initiation of union card activity at ADC, at a time when Noonan appears of record as the first and then only indi- vidual employee who had recently begun to openly hand out the Union's authorization cards at ADC for employ- ees to sign That Employer viewed the recent develop- ment of the Union's campaign at ADC to get ADC em- ployees to sign distributed union authorization cards as an imperative for Employer in turn to immediately pro- vide its employees with the Employer's own counter- views thereon, would appear hardly open to serious question on this record (Tempesta's first letter of July 17, infra, essentially confirms it ) However, the evidence offered of record has other- wise failed to persuade me that Krauth was aware of Noonan's union card activity at ADC at the time Krauth had his conversation with Noonan on July 14, or, render it as even more probable that Krauth subsequently learned of it from others that same day (after work) Ma- terially, if Krauth were already aware of it at the time of his discussion with Noonan in the late afternoon of July 14, it would seem that Krauth would have been as likely, if not more likely, to have spoken of that fact to Noonan, as I have found Krauth to have mentioned his awareness of (union) meetings at the Yankee Drummer Inn, in his discussion with Noonan that day about the problems at ADC Contrary to any indication in Noonan's testimony that a union organizer had been earlier coming into the park- ing lot, ICrauth testified that his own first awareness of a union organizer in the parking lot was on the occasion of a certain (interrupted) Noonan union handbillmg inci- dent, clearly established of record as occurring on July 17, and discussed infra Be that as it may, there is in any event, no complaint allegation that Krauth made any statement to Noonan on July 14 about a union organizer being present in the parking lot that day (nor of Employ- er's awareness of Noonan's passing out union cards to employees at ADC on July 14), that was advanced in 196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD specification of Employer's alleged creation of an im- pression of unlawful employer surveillance of employees' union activities in violation of the Act Krauth has as much as conceded he was aware on July 15 (e g, from belief of employee report received prior to the RT of July 15) of Noonan's prior union ac- tivity in handing out union cards to employees Weight of evidence that I deem the more mutually consistent and credible, in the end thus wholly persuades me (at least) that it was no later than by the morning of July 15 that Krauth had learned of Noonan's recent union card activity at ADC, as well as of certain other employees' desire to undertake certain counter (nonunion) activity It is clear of record that Krauth promptly reported the same to his superior, Haskell I further conclude and find that it was on that very evening of July 15 that Krauth had the meeting with his (Filene's operations) superiors, Haskell and (then) Tempesta about the employee union card activity that Employer only now was aware had ac- tually started at ADC They decided, with prompt (probably next day) conjunction of Federated, inter aim, upon an immediate company literature response to Union's organizational campaign at ADC (2) The response of Employer upon awareness of employee union activity at ADC in mid-July The General Counsel established that Employer dis- tributed Tempesta's letters dated July 17, 21, and 27, and August 3 Contrary to an apparent aversion of some of Employer's supervisors to refer to the company litera- ture as being antiunion, I find it clearly was However, the General Counsel does not contend in complaint (or otherwise), nor do I find, that Respondent Employer has in any manner violated the Act in the distribution of any of the above Tempesta letters to employees As clearly revealed of record, however, the Compa- ny's full strategem included more than just distribution of the letters Supervisors were instructed to distribute the letters to employees and to listen to the responses of em- ployees to the literaure when distributed Although Krauth testified that the supervisors did not report there- on to him, Krauth acknowledged that they reported to the Federated representatives (Ora Matthews and Carol Burke), who were regularly at ADC one or more times a week, though not apparently for the entire week Krauth however also acknowledged that Employer held meet- ings with supervisors on a regular weekly basis to discuss the union activity at the facility Indeed, Young testified, and Krauth essentially confirmed, that Young was desig- nated the collection point for all union leterature that was passed out at the facility, and she maintained a file of it at ADC Federated promptly held training and/or retraining sessions at ADC for ADC's management and supervisors As background, Matthews readily testified that the Company was aware that the Union had an interest in ADC from the grievance the Union had filed in the spring shortly after Employer notified the Union of the DDC (prospective) closing Indeed, Kamel testified that he and the (area) supervisors had had a meeting with Federated officials, at Wellesley, even before ADC opened Kamel recounts relatedly that in that meeting they had all received instructions from their superiors as to what to do if confronted with union activity at ADC Notably, Kamel testified that Krauth was not present at that time However, after Krauth became aware of the union ac- tivity at ADC on July 15, Krauth immediately notified his superior, Haskell Moreover, Haskell and Krauth at- tended a meeting that evening with Haskell's superior, John Tempests, senior vice president of operations, in which they discussed generally the matter of the Union's campaign to organize the employees at ADC, and Em- ployer response Although the precise date of that meet- ing was not initially recalled by Krauth (and neither Tempesta or Haskell has testified), I have found it oc- curred on the evening of July 15 Krauth confirmed re- latedly that the meeting with Haskell and Tempesta had occurred before Federated officials held training meetings with ADC's management and its supervisors I credit Matthews' (Federated's) related testimony, infra, that she first heard of the union activity at ADC on July 15 I further find that she was conducting the first of such training reviews with supervisors at ADC (at least) on July 17 The training session consisted of a page-by-page review of the Employer's (I find) sophisticated and en- compassing policy (R Exh 2) for a lawful counterre- sponse to a union's campaign to organize its employees In regard to Krauth's additional recollection that those meetings were held right after Employer's first notice of union literature, if by that, an intended reference is being made to Union's distribution of handbills at ADC, the same is clearly mistaken As found, the first union hand- bill literature was passed out on July 17, after the first training session at ADC In that regard, Matthews was firm in her recollection of being at ADC on July 17 conducting training reviews with the supervisors about what they could and could not do in the Union's campaign at ADC Moreover, Matthews specifically recalled that she had given her first training review that day before the first union hand- bills were passed out by Noonan (and otherwise) after work that day, infra Finally, Tempesta's first letter dated July 17, previously prepared for and distributed to employees on July 17, itself confirms Employer's (prior) awareness of the Union's attempt to organize employees at ADC by seeking to obtain signed union authorization cards from them Thus, the General Counsel has established by the letter of Tempesta dated July 17 (G C Exh 29), that Tempesta confirmed Employer's awareness of union activity prior thereto in that he told employees in the letter that Em- ployer's understanding (then) was that a labor union was asking the employees to sign a union authorization card in an attempt to organize ADC Tempests told the em- ployees that the union authorization card was a legal document that carried certain responsibilities, and was a "serious matter", and he then urged the employees not to sign a card, or anything else, for the Union, "unless you know what it is, how the Union may use it, and what you may be getting into" Tempesta's letter told the employees that they had, "a legal right to refuse to sign a union authorization card- FILENE'S BASEMENT STORE 197 or to sign one", and, that the Company's position there- on was, "You have a right to be for or against it, and we are committed to protecting your rights in making an in- formed and uncoerced decision" (Other content of the letter is discussed infra, in connection with complaint al- legations relating to Savageau ) Accordingly, I am once again more persuaded that it was Krauth's awareness of Noonan's recent union card activity at ADC that had occasioned Krauth's report to Haskell, and in turn their prompt meeting with Tempests, on the evening of July 15 In the interim there was a round table meeting of Krauth and Young with a number of employees, including Noonan, pnor to Krauth's meeting with Tempesta, but not prior to Krauth's report to Haskell (3) Round tables Personnel Manager Young describes Filene's round table (RT) meeting as a meeting between associates (em- ployees) and a facility manager, or (store) general man- ager According to Young, the holding of RTs is proce- dural, and it is a normal part of a personnel manager's responsibility It was at least clearly an established store meeting policy (G C Exh 8) While it is uncontested that Filene's had previously held RT discussion meetmgs at its store locations, there is only suggestion in the evi- dence that it did so at DDC, but clear that it did not do so at SDC (According to Young, the ADC supervisors were all familiar with the round table procedure as they came from the previous (DDC) facility At SDC, Em- ployer holds General shop meetings, not RTs ) Matenally, Young relates that the RT discussion is an open forum which gives the associate (employee) an op- portunity to voice and air any concerns and suggestions for immediate response of the facility manager, as well as providing Employer an opportunity for a periodic review of Employer's policies and procedures Young re- lates that the RT is normally held in small groups of 6-7 employees, with attendance voluntary, lasts an hour, and is attended always by the facility manager and personnel manager Young, who arrived in May from DDC, acknowl- edged that the RT discussions were not initiated at ADC in that month, and, on weight of evidence (I find) they probably were not inaugurated until (at best) late June (Krauth did not arrive at ADC until the end of May The problems associated with opening the warehouse were his immediate concern, not RTs Young first in- formed Krauth about RT procedure, and then recom- mended it Thereafter Young had to arrange a schedule for employee attendance, and coordinate it with Krauth's availability) In any event, in July and August there were numerous round tables held at ADC, and Young ac- knowledges that most, if not all the RTs, were conduct- ed in an office (conference room) area It is clear and I find that RTs had been held at ADC prior to the RT of July 15 that Noonan attended, and, I further find, in general, that attendance of employees at the ADC RTs was pursuant to a schedule that had been previously posted on the bulletin board Both Young and Krauth have essentially testified that the attendance of employees in small groups was per a schedule with em- ployee attendance at given RT arranged (essentially) by random selection, but in keeping with area workloads, and with design for all employees to participate within a reasonable period of time The General Counsel does not contend that the initiation, or holding of Round Tables at ADC, in itself, violated the Act Noonan was previously aware what an RT was, and he confirms that everybody was told that a new program was being started where 5-7 employees would be picked to attend a meeting with Facilities Manager Krauth and Personnel Manager Young to discuss certain problems in the facility Noonan also confirmed that a schedule for all employees' attendance at RT as (previously) posted on the employees' bulletin board, and Noonan recalled that several RTs had been already held before the one he attended Although there were 10 employees present (rather than the usual 6-7) at the RT of July 15, I find that the attendance of Noonan at the July 15 meeting was pursuant to the above general procedure (It is clear nonetheless, that many of the subjects raised by Noonan in his recent conversations with management on July 13 and 14 were addressed in this meeting, e g, the frustra- tion for employees in continuously catching problems, problems caused by human error, or carelessness, pro- spective area meetings, and the need for training and re- training The subject of wages was also discussed, infra Noonan attended his first (of two) 1-hour long RTs on July 15 Employer held the RT, as was customary, at 2 p m, in the conference room located downstairs It is otherwise significant to note that 10, not 7 employees were present at this RT, and, that Muriel Raymond, and apparently 8 other employees that Noonan did not know attended it b Krauth's alleged unlawful (1) interrogation of employees, and (2) statement that wages would be cut The complaint alleges that at a meeting of employees on July 15 Facility Manager Krauth asked employees what they thought of the Union, or why a union was needed, and that Krauth told employees that their wages would be cut if a union got in the warehouse facility (1) Alleged interrogations Again there is some degree of initial confusion in Noonan's testimony related to alleged Krauth interroga- tions Thus, Noonan initially testified that Kamel went down the line and asked every single person if they thought they needed a union, and why (they) themselves thought they needed a union Noonan however then sub- sequently testified that Krauth went around the table and asked everybody why they thought they needed a union Still later Noonan reaffirmed that Krauth went around the table asking everybody how they felt about the Union, and that he asked every single person, except Noonan, if they were for or against the Union Accord- ing to Noonan, most said no, that they were against it Noonan did not recall an employee asking about the Union first Krauth acknowledged that there were discussions about the union issue in some RTs However Krauth tes- tified that he did not believe it was he who raised the 198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD union issue Krauth then explained that it was typical that at the end of an RT meeting that he would ask the employees in attendance if there were any other con- cerns, problems, or issues that they (employees) wanted to speak about Krauth testified that typically that is where the union issue may or may not come up (In gen- eral, I have no doubt and I find that is where it regularly did come up ) Krauth also testified that he had been instructed that he was not allowed to, and Krauth had relatedly cate- gorically denied that he has ever, ask individual employ- ees if they wanted a Union Krauth has also specifically denied that he asked employees at the July 15 RT why they wanted a union Young confirmed that union "pros and cons" were voiced at the RTs Young categorically denied that she had ever asked an employee in any of these meetings whether they had engaged in union activ- ity Analysis of Alleged Interrogations Once again Noonan's initial ascription of the alleged unlawful interrogation to Kamel (albeit twice later as- cnbing it to Krauth) has the effect of seriously reducing his reliability in the matter, especially in the light of the consistent and credible denials of Krauth and Young There is still another reason why I do not credit Noon- an's recollection of the alleged unlawful Krauth interro- gations of employees in this matter Krauth and Young have mutually testified essentially that Young made notes of the subjects discussed in the RTs, that she regularly wrote up a summary, and that the summary was first reviewed by Krauth Krauth testi- fied that the summary was normally then posted on the employees' bulletin board Whether the minutes of the July 15 meeting were so posted or not, as compared with Noonan's recollection of Krauth going around the table asking individual em- ployees why they thought they needed a union, or, how they felt about the Union, or if they were for or against the Union, except Noonan, the summary of that meeting (R Exh 11) that Young has testified she had previously prepared from contemporaneous notes Young had made of that meeting, shows that a question was in fact pre- sented to 9 (of 10) employees present Moreover the question is one whose subject nature is compatible with it not having been posed by Krauth to Noonan, in light of recent circumstances It addressed the individual em- ployee's feelings about going to immediate supervision with problems It is there recorded, "When the question was posed 'Do you feel you can go to your supervisor with a prob- lem' eight associates out of nine responded positively" I am convinced that is the basis for Noonan's present recollection of Krauth's alleged interrogation of individ- ual employees (except Noonan), as to whether they were for the Union, and for his recollection that most said they were not Only the more notable then in these cir- cumstances, the General Counsel has offered no evidence that is corroborative of Noonan's recollection of Krauth's interrogation of employees at this RT meeting Moreover, Krauth's denial of any direct questioning of employees about the Union in the July 15 RT meeting with the employees, on this record, appears as clearly the more consistent, corroborated, and credible In short, I credit Krauth's testimony to the effect that employees were prone to bring up the subject of the Union volun- tarily, albeit usually in response to Krauth's question at the end of the meeting whether there was any other matter they wished to discuss It will accordingly be rec- ommended that the complaint allegation that Krauth at a meeting on July 15 unlawfully asked employees what they thought of the Union, or, why a union was needed, be dismissed in its entirety (2) Krauth's alleged statement that wages would be cut, if the Union got in at the warehouse facility Initially, Noonan related that Krauth had a contract for Filene's Basement in Somerville (SDC), and, refer- ring to a contract going around, Krauth had said, "The wages in that contract is the ones that we would have if the Union came in" Noonan asserts the wages (in the contract) were lower According to Noonan, Krauth also mentioned the insurance would rise At one point Noonan seemingly recalled that Krauth had specifically mentioned $4- to $4 50-an-hour wage rates, though then less surely, that he had probably re- ferred to the contract at Somerville The then current SDC contract wage schedule, inter aim, did provide Start 60 day Grade I Marker 360 3 85 Grade II Utility 4 25 450 Grade III Head of Stock 445 470 On another occasion Noonan recalled Krauth said the wages would go down to $4 to $4 50, but then recalled Krauth had made no connection with a contract Though Noonan relates that the Union had told him that there were some (employees) in Somerville making $8 an hour, Noonan did not recall (relatedly) asking Krauth about employees in Somerville making $8 an hour, nor did he recall, one way or the other, saying, "If the Union gets in here we'll get $8 an hour" Certainly con- fusedly, if not without fatal inconsistency, Noonan seem- ingly ended up asserting that at the RT meeting Krauth did not refer to a contract, nor did Noonan see one there Noonan has significantly acknowledged that in an inci- dent report he made out for the Union on July 18 (thus notably much closer to the event) Noonan had there re- corded his recollection that at this meeting he (Krauth) "implied to us that if we got a Union we would have to pay initiation dues of $5000 and we would also get lower wages than we were earning now" (Emphasis added ) Noonan then asserted that ICrauth brought up that our wages be lower and our insurance would go up Krauth again testified that he was counseled not to, and he has categorically denied that he ever did, tell any (ADC) employee that if the Union got in, or were select- ed, wages would go down, but their benefits might rise Significantly, Krauth also testified that he never indicated FILENE'S BASEMENT STORE 199 to (ADC) employees that if the Union came in, the SDC/DDC contract would be applied to them Indeed, Krauth testified that he did not have or use a copy of the Union's contract (or any other union documents) in RT meetings Kamel has testified that at (I find) a subsequent train- ing session he was given a copy of the Union's contract for use as a tool in discussions with employees, if a ques- tion came up on it Question of garbled Noonan recollec- tion of Krauth (not Kamel) discussion of the SDC con- tract with Raymond and other employees aside, Kamel in any event has also categorically denied that he had told employees that these were the wages employees would be paid, if the Union came in, or, that he ever told the employees that this contract would be in effect at ADC, if employees voted the Union in Noonan's testimony on the point of Krauth's use of SDC union contract at the RT clearly vacillated, supra Krauth's testimony that he did not have or use the SDC contract, in contrast, did not I credit Krauth's denial of his use of the union contract (or union papers) at RTs, and particularly so as to the material July 15 RT meet- ing Krauth otherwise was not sure how the subject of wages initially came up in the July 15 RT meeting I am persuaded however, by weight of credible evidence of record, that it initially came up as a Krauth general in- formational statement made to employees based (at least in part) upon Noonan's prior report of employee con- cerns about low and different wages, whether raised again by Noonan in this meeting, or, as appears far more likely to me, as a subject Krauth concluded warranted such responses based upon Noonan's earlier registered employee wage complaints of July 13 and/or 14 In any event, I conclude, and find, that it was Krauth who initially brought up the subject of wages, I fmd he did so comparatively early in the July 15 meeting, and probably right after Krauth had voiced an approval of Noonan's suggestion that the Employer's Associate of the Month program (an already established program), be refined to include an overall Associate of the Year, as would reasonably appear from the minutes kept of the meeting (R Exh 11) On the subject of wages, I find that Krauth first told the employees that in regard to some people's feeling that they should be making more money, that wage sur- veys had been done, and, that Filene's was confident , that their wage package for the (newly) opened facility was competitive Krauth also noted the Company's existing commitment was to a continuing survey on a quarterly basis to remain competitive Krauth then further in- formed the employees that one (such survey) was then in process of completion (There is no related complaint al- legation alleging any unlawful promise of benefit arose from the statements Krauth made at this meeting ) Krauth's own recollections on the discussions about wages in this meeting however, were not entirely con- sistent Initially, he did not recall a discussion about what the wages and benefits were at SDC On another occa- sion, and then with (essentially) the minutes' summary support (R Exh 11), Krauth recalled that Noonan had asked at this meeting why the people in Somerville were making $8 an hour, and, that Krauth had replied, there may very well be people in Somerville making $8, but not with 3-4 months' service The minutes reflect the question was posed in terms of what about the people in Somerville making $8 an hour, itself as compatible with a prior Krauth reference to the Union's current SDC con- tract providing for $4 to $4 50 wages, as (at least at one point) Noonan had essentially indicated Relatedly, Noonan did not recall one way or another asking Krauth about employees in Somerville making $8 an hour However, Noonan acknowledged that the Union had already told Noonan that there were some people in Somerville making $8 an hour I conclude and find that it is likely that Krauth made reference to the Union's contract applicable at SDC as providing for starting wage rates of $4 to $4 50, in comparison with the $6 paid warehouse workers at ADC There is sub- stantial support for this finding in Young's testimony I thus further credit Krauth's account and Employer's minutes thereof that Noonan then made the inquiry what about the $8 rates paid at SDC, and, that Krauth re- sponded with the length of service distinction as above On another occasion, Noonan seemingly recalled that he had made the SDC contract rate inquiry after Krauth had mentioned lower rates of the Union's contract that would be applicable (at ADC) Noonan however re- called (essentially) that the Union had not told him, and he did not know at the time that the Union was seeking to have the Union's existing contract applied to ADC Thus, Noonan relates that at this time (July 15), the Union had not told Noonan that the Union had a griev- ance pending against Filene's Noonan acknowledged that he now knows that the Union is seeking to bring ADC employees under the Somerville collective-bargain- ing agreement Of course Employer knew of the griev- ance, and the Union's intent in its regard In the end, I am wholly persuaded that Noonan had initially concluded from what Krauth said only that Krauth had implied that if the Union got in at ADC, it would mean lower wages for ADC employees, but (I conclude and find) that Krauth did not specifically say that Indeed, Noonan has confirmed that ICrauth did not specifically say either that "If the Union gets in here this is the contract that will apply to you", or, "If the Union gets in here, you'll be under this contract and the wages in this contract are $400 to $4 50" To the contrary, Krauth testified that in regard to the Union he had said (and Noonan admitted of the possibility that Krauth had said on that occasion) that everything is negotiable, that wages could just as easily go up, stay the same, or go down, and that Krauth had said, it's all negotiable Moreover, Krauth has testified that the mmutes of the meeting (R Exh 11) accurately record an additional statement he made at the time, viz, "Its always been the mtention of Filene's Basement to offer employees in its non-union facilities wages, or benefits as good as, or better than, those offered at the union facilities" Relat- edly, Krauth testified that was all he said, and he gave no explanation to employees of the basis behind that statement of Filene's policy 200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A related argument is made in brief of the General Counsel that this latter statement not only would coin- cide with a discussion of the Somerville contract, as Noonan testified, but also would tend to impart a clear message to RT participants—"the Employer does, in fact discriminate in compensation decisions based on a facili- ty's union status." The statement appears on its face am- biguous in meaning, e.g., beyond (collectively) paid em- ployees who are represented by a union. The complaint did not allege this statement of Krauth independently violated the Act. In that regard, at hearing the Respondent on several occasions inquired whether the General Counsel was seeking to expand the complaint; and on each occasion the General Counsel clarified he was not. Indeed, as ob- served by Employer in brief, albeit in other context, the General Counsel on one such occasion stated definitively and broadly that he was not alleging any violations other than those that were alleged in the complaint. The instant statement is fully compatible with the de- termined Noonan conclusion that Krauth had implied there would be lower wages if the Union came in at ADC, and indeed, I am persuaded that this statement in principal measure is the basis upon which Noonan had formed a conclusion that Krauth had implied there would be lower wages at ADC if the Union came in. But again, that is not what Krauth actually said. He said the contrary. To the related extent the General Counsel's urging is susceptible of contention that the statement also connoted, Employer stated an unlawful policy to grant a discriminatory benefit to ADC as a nonunion facility, that matter simply was not alleged in complaint, is nei- ther urged at hearing by the General Counsel, nor proven herein; and accordingly it is not found. The existing complaint allegation that Krauth told em- ployees that wages would be cut if the Union came in, need not be further belabored. I have found, as urged by the General Counsel, that the RT meeting of July 17 ad- dressed many of the concerns raised by Noonan. Howev- er, viewed otherwise, the several versions of Noonan's testimony given in support of the complaint's allegation that Krauth told employees that their wages would be cut if the Union got in the warehouse, or came in ADC, if not to be viewed as flatly contradictory, are at least shown to be substantially confused, fatally uncorroborat- ed, and on this record constitute recollections that are simply left exposed in those circumstances as unreliable. In contrast, Krauth's testimony in specific denial of making any statement that wages would be cut if the Union came in, pursuant to prior employer instruction, in •the main, appears as the more internally consistent; in many respects was substantially corroborated; and it is congruous with other more discernibly credible evidence of record. Accordingly, for all of the above reasons, it will be recommended that the complaint allegation that Krauth told employees in a meeting with employees held on July 15 that their wages would be cut if the Union got in the warehouse be also dismissed. All but one of the remaining complaint allegations re- lated to Noonan allege employer conduct that purported- ly occurred on July 17, including the issuance of an al- leged discriminatory warning to Noonan. The July 17 al- legations are best addressed collectively in order to fa- cilitate the review and individual consideration of the scope of certain evidentiary rulings made thereon. Initially the alleged unlawful disciplinary warning was purportedly based upon the complaint of three employ- ees that they had been harrassed by Noonan. The evi- dentiary rulings arose, however, in connection with Re- spondent's failure to produce a certain subpoenaed docu- ment (purportedly) recording a second incident, or second complaint registered against Noonan, relevant to the disciplinary warning administered to Noonan on July 17; and, relatedly, Respondent's subsequent direction of Personnel Manager Young not to testify about that inci- dent, despite Young in the interim having stated that it was the second incident that had triggered Respondent's disciplinary award of the oral warning to Noonan. A wholly separate matter for consideration, not to be con- fused with any of the above, is the indicated unavailabil- ity of a written record of counseling (recording the issu- ance of the above oral warning) signed by Young and Noonan, and itself a subject of a separate, but related complaint allegation. c. July 17 allegations Stafferi's and Kamel's alleged unlawful conduct in: (1) issuing an oral warning to Noonan; (2) accusing Noonan of harrassing, and agitating other employees about the Union; and (3) threatening to terminate Noonan because of his union and/or protected concerted activity. Respondent's alleged unlawful conduct in: (4) making a written memorandum of an earlier oral warning it issued to Noonan; and (although I find infra that an additional Respondent alleged act on July 17 was a separate and in- dependent act, I set it forth presently for the review). Stafferi's alleged unlawful conduct in: confiscating, and not returning union literature to an employee (Noonan) who was outside lawfully distributing literature to other employees; and telling Noonan that what Noonan was doing was illegal, and, that Noonan could not solicit on Respondent's property. i. The failure of Respondent to produce a relevant and lawfully subpoenaed document The General Counsel had timely subpoenaed, and at the outset of hearing called for the production of the entire content of (former) employee Noonan's personnel file, the same to include any documentation provided to Employer by an employee, and upon which the Employ- er had relied in meting out discipline to Noonan. The Employer produced Noonan's file, which included an Employer's memorandum recording the report(s) of three employees who had promptly registered a com- plaint with their Employer of recent Noonan harrass- ment of them at lunch in the cafeteria on July 16. In further response to the subpoena however, Re- spondent by counsel, at the outset, also advised that Em- ployer had received a second complaint on Noonan from an employee so distressed that the employee would make the complaint only if she was promised that neither her name nor the substance of her complaint would ever be• FILENE'S BASEMENT STORE 201 made public Respondent advised that at the time the Company had made that promise to the employee Respondent asserted that it did not produce this docu- ment because of Employer's desire to protect the confi- dentiality of the individual, as it had promised it would do Upon immediate observation that the confidentiality of the document was being raised by Employer only pur- suant to Employer's asserted policy of keeping such re- ports confidential, and not by any recognizable rule, or pnnciple of law, I ruled that the documentation of the second incident was well within the scope of the General Counsel's subpoenaed documents Accordingly, I or- dered that Respondent produce the second-incident doc- ument At the outset, Employer was additionally put on notice that upon Respondent's continued failure to timely produce the document, and, in lieu of the General Coun- sel's pursuit of a subpoena enforcement proceeding in Federal district court to compel the Employer's produc- tion of that document, I would in that circumstance en- tertain and draw any and all adverse inferences that might be shown by the evidence as appropriate to be drawn because of Employer's failure to timely produce the relevant document, indeed, one that (essentially) Re- spondent as much as acknowledged was relevant to the material complaint allegation(s) Nonetheless, Respond- ent did not produce the document There was no indication in the previewed evidence, or contention from the parties at the time, that it was the second incident (and not the above three employees' complaint of Noonan's harrassment) that had in fact "triggered" the issuance of the July 17 oral warning given to Noonan, which is the subject of complaint alle- gation That revealment came much later, and it is dis- cussed further infra The General Counsel called (former) ADC Personnel Manager Young as his first witness Young initially testi- fied that Noonan was given an oral warning about an in- cident occurring in the cafetena between Noonan and three other employees Though at first Young could not recall the details, Young later recalled that Krauth had spoken to Young the same day (July 16) that three em- ployees had reported to Krauth that Noonan was "agitat- ing" the associates (employees) Young acknowledged Employer's awareness at the time that the employees had been discussing the pros and cons of the Union Young otherwise defined "agitating" as being somewhat strong- er than bothering, and then testified that Employer did not tolerate that type of behavior in associates Young next recalled that she was present in her office with Operations Manager Kamel and Vice President of Labor Relations Staffen on July 17, when Kamel began, and Staffen took over and completed a counseling of Noonan as to (essentially) what Employer tolerated and did not tolerate as far as employee behavior in the facili- ty Young did not recall any warning statement(s) made to Noonan that, "the next time that this sort of thing happens,"—"you will be terminated" Noonan recalled that Staffen did all the talking Staf- fen asked Noonan if Noonan had done anything within the past couple of days to agitate or harass anybody during work hours Noonan replied no Noonan further testified that he had no idea what Staffen was talking about According to Noonan Staffer' then said he had re- ceived a complaint that Noonan had done this, and, Staf- fen repeated the question, could Noonan recall any inci- dent that might have caused this complaint Noonan re- plied no, and, Noonan asked if Staffen could give Noonan any of the specifics, who, what, when, etc, but Staffen would not say According to Noonan, Staffen did not mention the Union, but said (essentially) the complaint was about har- rassmg employees (Noonan later clarified Staffer' said he had received a complaint that Noonan had been har- rassmg and agitating people, keeping them from their work, and mterfenng with their jobs ) Staffen told Noonan that Staffen was going to give Noonan an oral warning, and, if something was going to happen like that again, Noonan would be terminated The General Counsel also introduced in evidence a memo prepared by Young in summary of discussions that Muriel Raymond and two other employees had held with (I find) both Krauth and Young (immediately after lunch) at approximately 12 50 p m on July 16 That report (G C Exh 9) covered Raymond's report of being bothered by Noonan throughout the entire lunchtime, and, specifically complaining that Noonan was, "yelling at them, asking why they did not want a union and tell- ing them what the union could do for them" One of the other employees related that they had told Noonan pre- viously that they were not interested in the Union, that they had worked for a union before, and they did not want to work for a union again, and though she had told Noonan to "Shut up," Noonan had persisted in yelling at them, mcludmg telling them that when he became a state trooper, they better "Watch out" The memo records that all three said Noonan was swearing at them, "saying `F-n this, F-n that The memo also records the three employees made a request of Krauth to stop Noonan, with the employees asserting they have a right to eat in peace Significantly, the memo then records, "Steve and I agreed that they had the right to enjoy their lunch in peace Steve said he would look into it and that type of activity would stop" As the General Counsel's witness, Noonan later con- firmed that on the day before, July 16, Noonan had spoken about the Union to the employees at lunch in the cafeteria According to Noonan, there was a group of about 25 employees present during lunchtime They were all seated at a long table located to the side of one big open area room 1 The employees were eating lunch and/or playing cards This was the third time Noonan had addressed a group of employees at lunch or break time, having on one such occasion previously handed out (as earlier noted) union authorization cards to those in- terested At this time Noonan was wearing a union hat openly (Noonan's testimony that he was the most active union supporter since (supplied date) July 13, is credited only to the extent congruous with earlier credited evi- dence herein ) Noonan relates that he was kneeling on a chair, midtable, and he addressed the group, speaking to them for about 5 minutes 202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Present were Muriel Raymond and (at least) two coemployees (who worked in Shoes area), both of whom were vocal, along with Raymond, in responding to Noonan Noonan testified that initially he spoke to the group as a whole According to Noonan, he told the em- ployees, "Some of the things Steve Krauth said wasn't true" Noonan then said, they were not going to get the same contract as Somerville, their wages would not go down, and their insurance (sic) was not going to go up Noonan testified that one woman, two-three (seats) down, almost immediately said, "Are we going to have to listen to this shit every lunch time" Noonan testified that he did not reply to that, but kept on speaking to the group Then a few employees across from him said, they did not think we needed a union, they just needed to stick together However, Noonan readily conceded that they (the three employees) were really upset that Noonan had brought that up during lunch To the extent Noonan on occasion has asserted he re- mained calm and was not personally emotional, I am not at all persuaded of that Noonan much more convincing- ly related on other occasions that he was there trying to prove his point to the group, that the conversation ad- dressed to the group quickly devolved into a conversa- tion between Noonan and three employees with the three employees excitedly telling Noonan that they did not believe him, and they were not going to listen to this Noonan further testified that he felt it was like a three-on-one confrontation, and, that they had jumped him, that two of the three employees could not talk civil- ized about it, that he had always helped these employees and done them lots of favors, and that under all these circumstances, he also got hyped up (excited) Noonan then acknowledged he had raised his voice, as he asserts they did Noonan repeatedly denied that any of the three em- ployees had said to leave them alone so they could eat (their) lunch in peace On cross-examination, Noonan specifically denied that he ever said to any of the three employees (women) that when he got to be a state troop- er, he was going to get them Neither did he recall saying that they should watch out, nor recall his use of profane language In passing I observe that the summary report of Young on the complaints of the three employ- ees while it reflects Noonan's statement that the employ- ees should watch out when he became a state trooper, and did use improper language, it does not record any threat by Noonan to get the employees, and no evidence of it (a threat to get employees) appears otherwise of record However, in an incident report made for the Union on July 18 (R Exh 2), Noonan there acknowl- edges that the three employees got mad, and Noonan was sure they went to management and complained that Noonan was harassing them u Respondent's direction of a witness not to answer certain related questions Young has testified that she was not aware that the three employees had prepared statements on the cafeteria incident (and there is no evidence offered that they did) However, Young then related that others (sic) not in- Niolved in the cafeteria incident had Young proceeded to testify, that as she recalled, it (the cafeteria incident) was not the entire reason that Noonan was counseled Indeed, Young then further testified that there was another specific incident that had triggered the counseling On cross-exami- nation of Noonan (over the objection of General Coun- sel), Respondent established (relatedly) that later on that day while working, Noonan had asked Young, "if I got the warnmg because I was discussing the union at lunch", and that Young had on that occasion replied no Upon immediate and pressed the General Counsel's in- quiry of Young as to what that triggering incident was, Respondent, by counsel, instructed the witness not to answer the question Essentially, Respondent then again offered in explanation that the subject incident on which Young was presently being asked to testify, was the same (second) incident that involved the promise made by the Company to an employee that neither the employee's identity, nor the nature of her complaint, would become public, and that the Company felt obliged to keep their promise to the employee (on whose report it had recent- ly been asserted that the warning to Noonan had actually arisen) Despite observance of these connected circum- stances, and specific direction, the witness thereafter re- fused to answer the question The question as posed and the witness' refusal to testi- fy clearly involved the same reported incident concern- ing which Respondent had earlier refused to produce a lawfully subpoenaed and relevant document, though this time testimony of Respondent's personnel manager had now also declared that the so-called confidential incident was the very incident that had initially triggered Re- spondent's discipline (oral warning) of Noonan In those circumstances, Respondent's legally unjustified refusal to the General Counsel of relevant documentary and testi- monial evidence beanng thereon (despite the direction to produce and to testify), while Respondent itself proposed to continue to seek to defend the same complaint allegation(s) on its own asserted (other) grounds (the three employees' complaint of Noonan harrassment) with its own proof offer thereon, in my view then (and now), simply would have constituted a flagrant abuse of Board procedures, and it was not permitted The abuse is one not sufficiently ameliorated by Em- ployer's mere statement at heanng that it recognized that maintaining the promise of confidentiality in this manner might affect Employer's ability to defend this particular warning Under my view of the urged authorities at hearing and/or in brief, it necessarily did, on the basis of adverse inference and other reasons to be more fully dis- cussed infra, but not however, because of an additional nonproduction of the related written record of counsel- ing, which Employer's nonproduction, it would appear, is adequately explained of record m The explained unavailability of Noonan's record of counseling Thus, I do not rely on any adverse inference that may be urged to arise from Respondent's failure to produce the also lawfully subpoenaed (written) record of counsel- ing (RC) that (I find) Noonan had effectively received the morning of July 17 Young testified that an RC form FILENE'S BASEMENT STORE 203 is a record regularly kept in the personnel file to indicate any type of discussion held between an associate and a supervisor and/or personnel manager Young testified that there was a record of counseling prepared on the Noonan warning, and she recalled that Noonan and she had signed it The parties have stipulated that the file of Noonan contained no RC, at all Young testified that the Noonan RC properly should have been placed in Noonan's file, though she had no specific recollection that she had done so Young also testified credibly that her own recollection of the Noonan RC was that she had prepared it, and Noonan and she signed it, that it was a general warning on his agitating employees, and that it did not specify names It did not describe the (second) incident Young otherwise relates she has had no access to (ADC) file(s) since No- vember In further response to the matter of a production of the Noonan RC document pursuant to the subpoena law- fully served on it, Respondent's counsel thereupon addi- tionally represented that all the files were searched for this particular document including (filed of) the involved supervisors, and that, if the document exists, it had not been found Respondent otherwise essentially contended at hearing that despite a diligent effort it had made to locate this document, it was not to be found I conclude and find therefrom that the Noonan RC was involuntar- ily not available in this proceeding However, I also find, present whereabouts of the document aside, that a writ- ten RC on the Noonan oral warning was prepared, and that it was issued to Noonan in that it was signed by Noonan and Young on July 17 iv The evidence sanctions What was not produced purusant to the subpoena duces tecum then was solely a certain document, admit- tedly in Respondent's possession, asserted as reporting a second incident of employee complaint against Noonan, and one which witness Young had now further testified had triggered the warning given to Noonan on the morn- ing of July 17 Moreover, Respondent's prior nonproduc- tion of the lawfully subpoenaed document, previoulsy ruled relevant and producible, was now shown accompa- nied by Young's further refusal (upon Respondent's spe- cific instruction) to answer any of the General Counsel's prior questions that would have served to identify the complaining employee and/or a purported second em- ployee complaint on Noonan conduct that purportedly had led to Noonan's discipline No recognizable privilege justified the Respondent's repeated refusals of documentary and testimonial evi- dence bearing on this material matter Though I had spe- cifically ruled the question proper, and specifically di- rected witness Young to answer the open question and identify the incident that Young asserted had led to the questioned discipline, witness Young refused, the Gener- al Counsel promptly called for imposition of sanctions Respondent urged as appropriate sanction that Young's related testimony be stricken The witness had Just testified that Respondent had viewed the second incident as the incident of critical sig- nificance in Respondent's decision to issue an oral warn- mg to Noonan in the morning of July 17, and yet it was Respondent that was even then repeatedly thwarting General Counsel's procedural efforts to establish all the material circumstances of that purportedly tnggenng in- cident for the Board's proper evaluation of the underly- ing complaint allegation, inter aim, that the oral warning given to Noonan that day was actually discrimmatonly based Respondent's suggestion that witness Young's most recent testimony (viz, that the second incident triggered the warning) be stricken as the normal sanction for a witness' refusal to testify on a relevant matter, I ruled in this instance was inappropriate I also ruled that I would thereafter draw all appropriate adverse inferences war- ranted from Employer's continued refusals in this matter, that the General Counsel would be allowed to establish the relevant facts of the incidents related to the warning (e g, as involving either protected conduct, or conduct of nature not to cause a forfeiture of Noonan's protected status) by direct and/or secondary evidence such as might be available to the General Counsel, and that, in turn, the Respondent would not be allowed to thereafter controvert that evidence by its own proffer of direct or secondary evidence in these matters On mquiry of Respondent as to the scope of the ruling, viz, as extended to the first reported incident, I specifically ruled that I could not thereafter sefitrate the two (incidents) in light of Respondent Employer's with- holding of evidence as to a now asserted causitive second incident As urged by the General Counsel, I pre- cluded Respondent from, in effect, offering, countervail- ing evidence on the selected incident of its choice In short, I viewed the (reported) two incidents as now In- separably interwoven for evidentiary resolution, and ac- cordingly, appearing inseparable as well as for the pur- pose of sanction ruling on an apparent improper and se- lective withholding of material evidence bearing on the asserted critical second incident report The ruling thus effectively precluded Respondent's proffer of countervailing evidence on both first and second incidents that were being related to the oral warning as described by Personnel Manager Young In that regard, Noonan has testified that he engaged in proper union activity not only in the cafeteria (first inci- dent), but (essentially) at all times Thus, Noonan specifically testified that he told Staffen that he did not know what Staffen was talking about when Staffen had first asked Noonan about, and then issued an oral warning to Noonan for harrassment and agitation of employees Contrary to the General Coun- sel's urging for such additional sanction, the above ruling was not extended to preclude Respondent's cross-exami- nation of General Counsel's witnesses (specifically Noonan) on the material events that were offered in prima facie support of the alleged discnminatonly oral warning issued to Noonan for having engaged in con- tended protected concerted and/or union activity Finally, although on one occasion thereafter Respond- ent said it was prepared to offer no evidence on the warning allegation, and put the General Counsel to his proof thereon, on another occasion it would appear that 204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD , Respondent has effectively reserved its position that an application of the Board's preclusionary evidence rule to the first reported incident of the three employees' com- plaint to Employer of Noonan harassment, in the circum- stances of this case, was improper Accordingly, the issue is deemed one to be addressed Having further re- flected on the entire matter, I now reaffirm the prior rul- ings Analysis The failure of a party to produce material evidence (either testimonial or documentary), that is established to be in its possession and/or control, supports, the drawing of an adverse Inference that the evidence if produced would not be favorable to the party withholding it, and even a failure of the other party to have subpoenaed the evidence, would in no way diminish the application of the rule, Master Security Services, 270 NLRB 543, 552 (1984) Though normally the drawing of an adverse in- ference is discretionary with a trier of fact, and certain circumstances (not present here) may serve to explain a party's 'failure to produce material evidence, absent such an adequate explanation, in other circumstances, e g, of a subpoena refusal, the adverse inference appears one which must be drawn, Auto Workers v NLRB, 459 F 2d 1329 (D C Or 1972), and see the discussion 1333-1336 Thus, when a lawful subpoena process is invoked, and a relevant document (as here) is even then wrongfully withheld, or, when a witness has refused to answer a question theretofore determined relevant and proper, and though directed to do so (as here), then force of any pre- existing proper adverse inference is but the more strengthened Not only that, but the inquiring or offend- ed party may then be permitted on request and/or ruled on that procedural development as to be thereafter al- lowed to use any secondary evidence that is available to that party to establish any of the material facts appeanng to be wrongfully withheld The offended party may con- tinue to urge that all appropriate adverse inferences be drawn from the continued improper refusal(s) of (docu- mentary and/or testimonial) evidence, such as may there- after appear reasonably warranted by the evidence of record presented as a whole The offending party is properly precluded from either its own use of the improperly withheld direct evidence, or, from its own later offer of its own secondary evi- dence in an attempt to rebut, or controvert any second- ary evidence that may have been available to, and been offered on the matter by the previously offended party as an alternative to its seeking enforcement action(s) for the production of the denied evidence, cf International Medication Systems, 244 NLRB 861, 862 fn 2 (1979), modified (reversed in pertinent part) 640 F 2d 1110, 1116 (9th Cir 1981), Bannon Mills, Inc , 146 NLRB 611, 613, 623, 633-634 fns 4 & 36 (1964), American Art Industries, 166 NLRB 943, 951-953 (1967), enfd in pertinent part 415 F 2d 1223, 1230 (5th Cir 1969), NLRB v Sprague ci Son Co, 428 F 2d 938, 942 (1st Cir 1970) (forfeiture of cross-examination right upheld, but with reference to things which could have been produced by complying with the subpoena) Employer has argued that the Sprague case, supra, in- volved a Respondent Employer that had wholly failed to respond to subpoena (the nonproduction being noted as well beyond contested areas) In contrast, Employer urged that here Employer has only narrowly refused a production, and, it did so only to protect a promise of confidentiality it asserts it had previously made to an em- ployee Assuming Employer's promise of anonymity was given to the reporting employee in good faith, the privilege es- sentially attempted to be raised by Employer is not one that it has been able to show has been previously recog- nized at law, or in Board precedent Employer's refusal to produce the related material document, when lawfully subpoenaed by the General Counsel and directed to do so, on a claimed privilege not recognized by the Federal Rules of Evidence, or provided for in Board proceed- ings, stood unjustified in law Employer's later refusal to allow Personnel Manager Young with knowledge of that incident to testify as to the incident came in its own rather significant circumstances In her testimony, Young acknowledged the first incident had mvolved pro and con union discussion by employees Young had only then asserted that the first incident was not the entire reason for the warning given Noonan, saying that there was a second (documented) complaint that was the triggering incident for the issuance of the warning in issue Despite obvious materially of the incident, Young (on direction) refused to testify further about it c The First Circuit's opinion in the Sprague case, supra, does not indicate that that court would be in basic dis- agreement with later observation of the D C Circuit in Auto Workers, supra, 459 F 2d at 1342, that production of many documents does not excuse a flagrant violation of lawful Board subpoena process, and, that a selective obe- dience thereto merely reinforces an adverse Inference that lies where other material evidence lawfully subpoe- naed is wrongfully withheld, as was the case (I find) here But see and compare the different treatment afford- ed a subpoenaed document refusal, and testimonial evi- dence use that was not in the control of the offending party, PSC Resources v NLRB, 576 F 2d 380, 389 (1st Cir 1978), and Crowley v Teamsters Local 82, 679 F 2d 978, 995 (1st Cir 1982) The issue presented is basically one of assessing proper scope of warranted preclusionary sanction to be placed upon the Employer, where it has wrongfully withheld evidence of a material incident that its involved person- nel manager had asserted had triggered the oral warning in issue The new question presented is, should the Em- ployer in circumstances of clearly unlawful refusals of evidence on that material incident (but impacting on anther incident) be itself permitted to later produce evi- dence on the other incident that it would then appear to have elected to urge in its defense of the complaint alle- gation that its issuance of the oral warning to Noonan was discriminatory I think not For the Employer, at the same time it has withheld material evidence in the above manner and circum- stances from the General Counsel (despite related direc- tions to produce and to testify), to also then seek to press I. FILENE'S BASEMENT STORE 205 on with its own offer to direct evidence to establish the earlier reported incident as the then (in effect) sole inci- dent to be thereafter addressed in the evaluation of the discipline awarded Noonan, despite the recent testimony that the other incident was at least a significant interplay in my view, simply invoked direct, indeed a flagrant, abuse of Board procedures for factfindmg, and it was not permitted at hearing In light of the above authorities, I remain of firm view that it would simply involve too substantial an abuse of Board hearing processes for Respondent to be permitted in this manner to have itself refuse to provide documen- tary and testimonial evidence of a material incident avail- able to it alone, despite the General Counsel's use of lawful Board processes to obtain it, and for Respondent to be allowed at the same time to (m effect) selectively advance another incident of its choice in defense of its questioned discipline of Noonan This is deemed particu- larly unwarranted where it has by its own unjustified evidence refusals both hampered the factfinder, and pre- cluded the Board from an analysis of the withheld event's overall bearing on the complaint issue It follows Respondent's evidence preclusion was war- ranted The underlying issue of the alleged discriminato- ry issuance of an oral warning to Noonan is properly to be decided under the above authorities on the basis of the General Counsel's direct and secondary evidence Respondent was permitted to cross-examine the testimo- ny of the General Counsel's witnesses, specifically Noon- an's testimony offered in prima facie support of the com- plaint's allegation that Employer had issued a discrimina- tory oral warning to Noonan because he engaged in pro- tected concerted and union activity Over the General Counsel's objection, cross-examina- tion was permitted (essentially) of Noonan's direct testi- mony in this matter in support of prima facie case that the oral warning given him was for protected concerted and union activity, and, primarily to aid in the resolution of issues of credibility thereon It would appear its use in the above circumstances (where Respondent has with- held certain evidence that affects its use of other evi- dence), is a matter left within the sound discretion of the trier of fact See, e g, an indicated cross-examination use in American Art, supra, 166 NLRB at 952 In any event, the cross-examination that was allowed in this case can afford the Employer no additional defense to these alle- gations The adverse inference is applied on shift of the burden, Interstate Circuit Inc v United States, 306 U S 208, 225- 226 (1939), and see related discussion in Auto Workers, supra, 459 F 2d at 1344-1345 There is no question that as of the morning of July 17, the day the warning issued to Noonan, Noonan was then well known by the Em- ployer to be a very active union adherent, and, in work performance, known to be an exemplary employee who had never received a warning before Respondent un- questionably then knew that prior to July 15, Noonan was soliciting union card signatures at ADC, and that on July 16, Noonan was actively and prominently engaged with employees at lunchtime in the employee cafeteria in a discussion of the pros and cons of an organization of the Union at ADC for the purpose of collective bargain- mg with their Employer, an employee collective action that on this record I find Respondent Employer strongly opposed, and which it sought systematically to dissuade employees from taking That the employees' discussion in the cafeteria that day was a vigorous one, or was a repeated one and this time became an excited or heated one, or that Noonan sought to raise subjects that day that certain employees at the table may not have wished to again hear during their lunch period, whether due to their own predeter- mined union preference, or for whatever other reason, did not serve to make Noonan's exercise in this case of a clearly protected Section 7 right to attempt to organize the Union among his coemployees at the employee cafe- teria during their own lunchtime, any the less protected Neither would reported instances of Noonan's (unre- called) use of profanity in expression of his position on the Union, e g, as evidenced in Young's summary report of complaints registered by the three employees, shortly after that discussion The General Counsel had intro- duced the summary report into evidence presumably to otherwise establish Young's and Krauth's admissions of reaction to this first reported incident, viz, that they both agreed' with the complaining employees that the employ- ees should be able to eat their lunch in peace, and that it (Respondent) would take steps to stop Noonan from en- gaging in such conduct in the future Finally, I also credit Noonan's specific denial that he ever threatened to get an employee when he became a state trooper, noting earlier observation there is no direct or even secondary evidence appearing of record to that effect Such a threat is clearly not the generalized remark appearing as previously reported by the three employees In respect to the latter, even assuming that Noonan made the (unrecalled) statement that an (the) employee(s) better watch out when he made state trooper, the cir- cumstances of the employees' contribution to the overall heated discussion that ensued that day must then be also considered, in similar fashion as evidence of employer provocation would be The confrontational discussion by employees included remarks made to Noonan (by one or more of the three employees) to shut up, that they did not believe him, and at least one early inquiry by an employee, itself asked in pejorative manner, whether the employees were going to have to listen to Noonan on the subject of the Union each lunch period Thus, even were I to conclude from Young's summary of the employees' complaints (placed in evidence by the General Counsel) that Noonan actually made the (mire- called) statement at some point in the discussion that an employee (or the three protagonist employees) better watch out when he made state trooper, it was said in overall circumstances and/or was itself of generalized and ambiguous nature as to be not such as to warrant a forfeiture of Noonan's protected status (E g, no inquiry was made of Noonan whether he had at this time made application for, let alone was in process of soon becom- ing a state trooper Indeed, the record if anything indi- cates the latter was not the case ) 206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Thus, in my view, while not condoning the remark (indeed, of either employee), the protection to be afford- ed an employee in the pursuit of the Section 7 right to organize coemployees (as in the face of equally protect- ed, heated and/or forceful rebuff by some), is (are both) made of sterner stuff than that which permits only of the mutually courteous remark Indeed, Employer did not appear to issue a warning to Noonan for any specific threat asserted as made to em- ployees, but rather (I find) is shown of record to have done so with only generalized accusation of Noonan's harrassment and/or agitation of 3 (of 25) employees present, who had vocally opposed the proumon position that Noonan expressed dunng lunch period In basic agreement with the General Counsel, I find that, in seek- ing to make his prounion points with coemployees in the cafeteria during lunchtime on July 16, Noonan was clear- ly engaged in protected, concerted union activity, and that Noonan effectively made no threats and/or engaged in no conduct on that occasion of developed heated dis- course that would exceed the bounds of protected con- duct under the Act, cf , Brunswick Food & Drug, 284 NLRB 663 (1987) Noonan's attributed statements were not made insubor- dinately to management, nor, in context, are they shown to have created a discipline problem for Employer Cor- rectly viewed, as but heated conversation between em- ployee antagonists on the union issue, the remarks of Noonan did not constitute a threatened vendetta against employees who might hold to a different view about the Union, so much as appear in this record at best as in- stance of an impulsive, but harmless Noonan puffing in the face of an unexpected, and (I find) perceived (at least by him) unfair attack by certain of Noonan's coem- ployees on Noonan's otherwise clearly protected exercise of his right to attempt to organize the Union among his fellow employees, cf NLRB v Cement Transport, Inc , 490 F 2d 1025, 1031 (6th Or 1974) See also Tartan Marine Co, 247 NLRB 646, 655 (1980) Clearly, mere assertion otherwise of the existence of a second triggering complaint by an employee who has de- manded of Employer, and purportedly been granted con- fidentiality as a precondition to registering the complaint, can afford Respondent no viable defense for its other- wise established discriminatory conduct Especially is this the case for adverse inference where the Employer has additionally wrongfully withheld the evidence there- of Accordingly, it is now concluded and found that, by the conduct of its (former) vice president, Staffen, and its operations manager, Kamel, on July 17, Respondent discnminatonly issued an oral warning to Noonan for engaging in protected, concerted union activity, further wrongfully accused Noonan of harrassmg and agitating employees, and unlawfully threatened to terminate Noonan for engaging in protected, concerted union ac- tivity, all in violation of Section 8(a)(1) and (3) of the Act I further conclude and find that, by the conduct of (former) ADC Personnel Manager Young, on July 17, in thereafter making a written RC of the prior discriminato- ry oral warning, and in presenting it and causing Noonan to sign it, Respondent thereby engaged in conduct addi- tionally violative of Section 8(a)(1) and (3) It is clear however from the above and what follows that the alleged Staffen interference with Noonan's dis- tribution of union literature later that same day (includ- ing Staffen's alleged confiscation of union literature from Noonan), is a discernibly separate incident from the oral warning issued earlier that morning, and one as to which the Emloyer was allowed to fully defend It is next dis- cussed Noonan testified credibly that he received and passed out union literature several times, but that he did so for the first time on July 17, Friday Noonan recalled the circumstances were that he had asked Ronayne earlier that week for some union literature to pass out to em- ployees, and, Ronayne informed Noonan during that week at the same meeting in the parking lot on July 14 (Tuesday) when Noonan had received union authoriza- tion cards from Ronayne, that on the following Friday after work, Ronayne would give Noonan some union handbills (literature) in the parking lot to pass out to em- ployees Noonan testified relatedly that, from an employ- ee's handbook that Employer had previously issued to Noonan, he was already aware of Employer's solicitation (and distribution) rule Noonan's understanding was that under its terms that he could distribute the Union's litera- ture to employees after work in the Employer's parking lot, and that that was the reason he had agreed to do so v Employer's applicable solicitation rule Filene's governing policy statement on solicitation and distribution provides as follows Any solicitation or distribution of literature by ANY PERSONS WHO ARE NOT EMPLOYED BY THE COMPANY is prohibited at all times throughout all of the Company's stores, service buildings and distribution centers It is the policy of the Company that solicitation or distribution of literature by EMPLOYEES OF THE COMPANY is prohibited on all selling floors during all hours when the store is open to the public Solicitation or distribution of literature by employees is prohibited in all selling and non-selling work areas during an employee's working time "Working time" includes all time during which either the employee being solicited or the employee doing the soliciting is scheduled for the perform- ance of job duties "Working time" does not include time before or after an employee's scheduled work hours, during lunch periods, rest periods or any other time when an employee is not scheduled for actual job duties This rule applies to all of the Company's loca- tions including stores, service buildings, office bin- dlmgs and distribution centers and applies to solici- tation and distribution for all purposes including lot- teries, raffles, charitable or political organizations, labor organizations, fraternal organizations, and the like The only exception to this policy is the annual FILENE'S BASEMENT STORE 207 United Appeal or United Way campaign which is a total community project The Employer's solicitation rule is posted on employee bulletin boards, including in the cafeteria room at ADC The General Counsel does not contend that the above statement of Filene's solicitation rule has in any way vio- lated the Act On July 17, Noonan distributed union lit- erature to employees, outside the ADC, in the employ- ees' parking lot, on company property Staffen stopped Noonan under the following indicated circumstances At this time Employer did not use a timecard (punch in/out) clock, though there was a clock in the area where employees signed out for the day According to Noonan, pursuant to a prior arrangement with Ronayne, Noonan signed out promptly at the end of his workshift at 3 30 p m on July 17 (Fnday), and 20 seconds later he was down the adjacent two flights of stairs and outside to hurriedly pick up some union literature from Ronayne to pass out to employees as they came out into the park- ing lot Noonan testified that his brother Todd Noonan, and Richard Norgren, who were to help him, were actu- ally the first out the door, and they were followed by a few other employees who had also preceded Noonan According to Noonan, Todd Noonan and Norgren remained by the door that the employees use to exit into the parking lot That employee door is located essentially at the corner of the building On exiting, Noonan went directly to Ronayne's car, which was then located directly in front, some 30-40 feet away (in the parking lot) with the motor running Noonan hastily ap- proached the car, and obtained the handouts from Ron- ayne When Noonan approached Ronayne's car, Ronayne handed Noonan a 6-inch pile of union literature to dis- tribute, which Ronayne estimated contained about 30 handouts Noonan's and Ronayne's testimonies reveal that each of the Union's literature handouts was a multi- page (20-25) handout addressing what an employee could, and could not do in a union campaign Ronayne did not get out of the car, and Noonan in turn engaged in no conversation with Ronayne, because there was no time Noonan explained credibly that he knew the em- ployees would be coming out, and he wanted to get the literature as fast as he could, to be able to quickly get back and distribute it As Noonan returned to the employees' exit door, Nor- gren had in the interim gone to his car for something Noonan handed about one-third (10) of the handbills to his brother Todd, and they both then started handing out the handbills to the employees as they left Estimated as anywhere from almost immediately to within a minute or two, Noonan observed that Staffer' had come out of the main entrance located in the middle of the building, and that he was walking hurriedly toward Noonan Accord- ing to Noonan, as Staffer' approached, Todd Noonan became nervous, and handed what handbills he had left to Noonan Todd Noonan then walked away Norgren had not returned from his car, and he handed out no handbills that day That left Noonan alone handing out the union literature Noonan's understanding from the employee's handbook was that he could distribute the Union's handbills to employees in the parking lot, and he continued to do so Thus Noonan relates that as Staffer' approached, Noonan continued to pass out the handbills to the de- parting employees Noonan's account of what occurred thereafter at hearing was, Staffen grabbed the remaining union handbills out of Noonan's hand and said, "Glenn [sic], what you're doing is illegal, you're soliciting on company grounds I want you to come with me" On cross-examination Noonan reiterated that Staffen had grabbed the handbills Noonan had left out of Noonan's hand Noonan at this point estimated it was half the stack, though Noonan also related he did not count them According to Noonan the handbills were never re- turned to him Noonan next relates that after he and Staffen had walked halfway back towards the entrance to the build- ing, Ronayne had pulled up in his car, and asked if Noonan was okay Noonan told Ronayne that Staffen said what Noonan was doing was illegal, and that Staf- fen wanted Noonan to go with him, but that he (Noonan) was okay According to Noonan, Ronayne then asked if Noonan had signed off the clock Noonan replied he had Ronayne essentially has corroborated Noonan on this union handbill distribution Ronayne testified that he had informed the employees that they had a right to handbill after work, after they were punched out, and also where, viz, at the employee's entrance (in the parking lot) Ron- ayne testified that he also instructed the employees that if there were any problems, they were to do whatever they were told, but to make a memory (sic) of whatever is happening Ronayne confirmed that it was shortly before 3 30 pm when he arrived on July 17, and no one had come out Ronayne, who customarily drove some employees to the regular Friday umon meeting, knew from experi- ence that the employees would come out almost right on the dot, and he left the engine of the car running Ron- ayne had confirming recollections that a few employees left before Noonan, that when Noonan came out, he went directly to Ronayne's car, and that Ronayne then gave Noonan approximately 30 handbills to distribute to the employees who were coming out According to Ronayne about 1-2 minutes after Noonan had started to hand out the Union's handbills to employees, Ronayne observed a man (Staffer') come out of the main entrance, and walk at a fast pace toward Noonan Ronayne testified that he observed Staffen take the handbills from Noonan's hand, and, he saw Noonan then follow Staffen back to the building On cross-exam- ination, Ronayne testified that they usually make a count of the handbills handed out, but this time they could not because the handbills were confiscated Ronayne testified only that he saw an estimated 1-10 handbills in Staffen's hand, and none in Noonan's hand Ronayne confirmed that he pulled up in his car to ask Noonan if he was okay, and what was the problem Ron- ayne corroborated Noonan that Noonan replied that he was told that he was soliciting on comany property, that it was illegal, and that he was to go with the man (Staf- 208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fen) Ronayne testified that he asked Noonan if Noonan had punched, or signed out, and, that Noonan said he had Ronayne then said he would see Noonan when he was all through Both Noonan and Ronayne have related that Staffer' said nothing during this conversation As noted Staffen did not testify in this proceeding, and consequently, Staffen's version of the nature of his initial confrontation with Noonan, and Staffen's asserted confis- cation of union literature is not directly of record How- ever, in regard to Respondent's alleged confiscation of union literature, Respondent did establish on cross-exami- nation of Noonan that Noonan (at union request) had made a prompt report on this incident In that early ac- count (R Exh 3), Noonan recorded the event (in two pertinent parts) as follows (a) And as I was handing some one a pamphlet and [sic] he (Staffen) prevented me from giving it to this person by taking it out of my hand and said, "Glen, you are soliciting on company grounds," and I couldn't do it He then told me to come with him and I did (b) While we were walking he still had the pam- phlet He then asked if he could keep it and I said, "Yes, I had nothing to hide" Ronayne confirmed that he saw Noonan later that day at the Yankee Drummer at about 3 30 pm Ronayne also confirmed that Noonan had filled out the incident report at Ronayne's request, apparently within 15 minutes of Noonan's arnval there Employer has further established that in a letter (R Exh 4) that Noonan distributed to his fellow employees 2-3 days later (and noted as distributed to employees in the parking lot without incident), Noonan's account of the same incident (again) stated that Staffen had grabbed one (handbill) out of Noonan's hand Moreover, although Ronayne had estimated at one point that Staffen had grabbed 1-10 handbills, Ronayne also has readily ac- knowledged it could have been only one On cross-exam- ination, Noonan acknowledged that he had later hand- billed employees in the parking lot without incident Noonan otherwise recalls that he went with Staffen into the buidling, and to Young's office Noonan recalls that Young was present along with another woman (McGrath) According to Noonan, Staffen told Noonan to wait there, and Staffen then left Noonan recounts that he was kind of nervous, and after a while he wanted to see if he could leave, so he started walking toward the door Noonan testified that McGrath on that occasion told Noonan that Staffen wanted him to wait, and he could not leave When Noonan then said he wanted a drink of water, Noonan's recollection is that McGrath had Young get it According to Noonan he waited about 3 minutes (for Staffen's return) Noonan relates that Staf- fen then came around the corner, but only motioned, waived to McGrath that Noonan could leave McGrath then told Noonan he could go, and Noonan left McGrath testified that at this time Staffen was the vice president of wage benefits and labor relations, and he reported to Kathleen Collman, who at that time was senior vice president of personnel Neither Collman, Staffen, nor McGrath were employed by Filene's at the time of hearing Neither Collman nor Staffen testified in this proceeding McGrath testified that Staffen had approached her and asked if McGrath would stay with Noonan Although McGrath at one point has not said why McGrath should stay with Noonan, and she did not recall Staffen mention Noonan's handbilling, on another occasion McGrath has asserted that Staffen thought Noonan had left before the end of his scheduled shift McGrath otherwise recalled looking at her watch, observing that it was close to 3 30 p m, and saying, "it's so close to the end of the day, I think that you should check the clock upstairs where the people work, or sign out" According to McGrath Staf- fen then left, but she had no idea where he went In con- trast, Noonan testified that he did not hear McGrath say anything to Staffen when Noonan had entered the room, and, he heard no conversation between them there McGrath recalled that she had stayed with Noonan in a large conference room (not Young's office) McGrath testified that at one point Noonan had decided he was going to leave, and McGrath confirmed that on that oc- casion she told Noonan that Staffen would like Noonan to remain, and, that Noonan did Although also affirming that she was standing by the door, McGrath testified that she was not standing in the doorway in order to prevent Noonan from leaving, as Noonan asserted McGrath con- firms that Noonan asked for a glass of water, but McGrath recalls she got it for him According to McGrath within a matter of minutes Staffer' had re- turned and said it was okay (for Noonan) to go McGrath testified that Noonan was not warned or disci- plined for this incident Young recalled Staffer' walking into the office with Noonan Although Young's recollection was initially hesitant, Young thereafter confirmed that Noonan was sitting at a table in the office, and McGrath was in the vicinity, while Staffen was in another part of the office Young otherwise recalled that she had discussed Noon- an's union activities with Staffen on July 17, and signifi- cantly, that their discussion had related around the distri- bution of literature, though Young otherwise asserted she could not recall the specifics The circumstance that nei- ther Staffen nor Collman have testified and that Young could not recall the specifics of her discussion with Staf- fen on the subject of Noonan's distribution of union liter- ature is not without its own measured significance Fi- lene's policy procedure provides that all violations of the solicitation rule are to be immediately documented "by the Location Personnel Manager" and forwarded to the senior vice president of personnel (Collman) Ora Matthews confirmed that she was at ADC on July 17 giving training sessions to management, and she re- called that Staffer' was in and out of the sessions Mat- thews had recollection of later being in a large confer- ence room making a phone call when Staffen came up to her and said that Noonan was passing out some union flyers, close to the end of the shift Staffen then showed Matthews a copy of the flyer, which Matthews kept Matthews testified that was all she knew of the incident at the time FILENE'S BASEMENT STORE 209 Matthews testified specifically that she was not aware that Noonan was in the facility waiting for Staffen, and, that she became aware of that only later that day Mat- thews otherwise testified that as far as she knew, there was a mistake as to whether Noonan was still on the clock or not (while handbillmg), with Staffen saying he was standing by the door (seemingly observing Noonan handbillmg) and it was not 3 30 yet Matthews testified that she was not aware of any Staffen counseling or dis- cipline of Noonan Matthews also testified however that Staffen did not admit that he had made a mistake Matthews otherwise testified (though not without some confusion thereon also appearing of record), that Filene's solicitation rule policy would allow an employee to handbill on his own time in front of the store (sic), and, that under solicitation rule policy, a supervisor would not have been allowed to detain such an employ- ee, or otherwise remove handbills from the employee's possession (Somewhat confusedly however, Matthews appears of record to further testify that it might be oth- erwise on company property, and, depending on where the employee was on the property, we have the nght and could ask an associate to leave our pnvate property ) In agreement with the Employer I conclude and find that Noonan's hearing account of Staffen grabbing a stack of handbills out of Noonan's hand is instance of an embellished Noonan recollection On this record it is far more probable that by the time Staffer' had actually reached Noonan that day, Noonan was in the process of handing out the last of the (30) handbills to an employee With Noonan's further acknowledgment that he had agreed that Staffen could keep the handbill, the allega- tion that Respondent has confiscated union handbills, in my view, rests on too strained an evidentiary base on this record to support such a finding However, in regard to Employer's defense of the basic interference and restraint allegation of Staffen telling Noonan that what he was doing was illegal (accompanied by public interruption and detention of Noonan), the account of Respondent's management officials simply did not appear as frank, nor to hang together as is usually to be expect- ed in the presence of a persuasive whole cloth of truth In any event, I am more persuaded by credited evi- dence as a whole, and I find that Staffer' took the last union handbill from Noonan's hand, essentially intercept- ed it before Noonan could deliver it to an employee as Noonan then intended Thus, I find that the General Counsel has established a prima facie case that on July 17, Staffen substantially mtefered with Noonan's distribu- tion of union literature to employees in the employees' parking lot located on Employer's property by taking a union handbill that Noonan was about to distribute to an- other employee out of Noonan's hand, and thus notably doing so in the presence of other departing employees, by telling Noonan that what Noonan was doing was ille- gal, and thus imposing an unlawfully broad no-distribu- tion rule on the Company's property, and enforcing it by ordering Noonan to come with him to the warehouse office, although at the time Noonan had already signed out at the end of his shift at 3 30 p m, and was on his own time The Employer contends severally any restriction im- posed on Noonan was short-lived, at worst only tempo- rary, and Noonan at all times was fully aware of his rights in the matter Staffen at the time was only permis- sibly investigating a potential violation of company rules and regulations, and that circumstance, coupled with the Employer's eventual nondisciplme of Noonan for this in- cident, along with Noonan's subsequently permitted handbilling of employees in the parking lot witliout fur- ther incident, have all effectively served to render the in- stant incident de mimmis Staffen's conduct in the above circumstances was at best with appearance of being an open departure from Employer's own long-posted solicitation and distribution rules Wholly apart from this incident following upon the effect of Staffen's warning of Noonan earlier that day, previously itself determined unlawful, the confrontation was between a high corporate management official of Respondent and an employee who was lawfully distribut- ing union handbills to employees (at least), some of whom were exercising their right to receive the Union's literature Other corporate and local managers were aware of the incident There was no effort made by any. of Respondent's management officials, let alone Staffen, to afford some clarification to Noonan (or employees) of what had been at first perceived by Staffen as improper conduct by Noonan, and which had been since deter- mined not to be such Accordingly, I conclude and find that by (former) Vice President Staffen's above conduct on July 17, Re- spondent has substantially interfered with and restrained the protected union and concerted activity of Noonan and other employees, to hand out and receive union liter- ature in the employees' parking lot on Employer's prop- erty after completion of their scheduled worktime, violation of Section 8(a)(1) of the Act, Sahara Tahoe Corp, 292 NLRB 812, 813 (1989), cf EPE, Inc , 284 NLRB 191, 200 (1987), enfd m pertinent part 845 F 2d 483, 492 (4th Cir 1988), Uniontown Hospital Assn, 277 NLRB 1298, 1307 (1985) See also Intermedics, Inc , 262 NLRB 1407, 1415 (1982), enfd 715 F 2d 1022 (5th Or 1983), and E I du Pont & Go, 263 NLRB 159, 162-163 (1982) I further conclude and find that the Employer has not effectively, or adequately remedied its prior un- lawful conduct determined in this regard d Area Supervisor Mike Gordon's alleged unlawful conduct The complaint alleges that on July 21, Area Supervi- sor Mike Gordon told an employee (Noonan) that Gordon knew where Noonan stood on the Union, and, that Noonan should not be soliciting for the Union during coffeebreaks because the Respondent paid for that time Noonan testified that in the early afternoon of July 21 (Tuesday), Gordon approached Noonan at work Gordon asked Noonan if he had any question in regard to the Company's literature about the Union, and, if Noonan had read it Noonan said he had read it Gordon then asked Noonan, did it have any effect on how Noonan felt Noonan replied, no Gordon then said that 210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD he was aware of how Noonan stood on the issue Ac- cording to Noonan, Just before the end of their conversa- tion, Gordon also said that Noonan really should not talk about the Union during break, because the Company did pay for that time, even though it was Noonan's break Gordon did not testify in this proceeding and Noonan's above testimony stands essentially undisputed In agreement with the General Counsel, I conclude and find that by Area Supervisor Gordon telling Noonan on July 21, that Noonan really should not talk about the Union during break because the Comapny paid for that time, Respondent effectively advanced an overly broad no-solicitation rule for application to Noonan, and thus it has interfered with Noonan's Section 7 rights, in viola- tion of Section 8(a)(1) of the Act, Peck, Inc , 269 NLRB 451, 458-459 (1984), Tartan Marine Go, 247 NLRB 646, 655 (1980) However, to the extent this complaint allega- tion has alleged that Gordon's statement to Noonan that he knew how Noonan stood on the union issue was also violative of the Act, I do not agree Noonan's proumon conduct at the ADC by this time had already made it readily apparent how Noonan stood on the Union, as did his answers when Gordon inquired about the effects of the Company's literature on him I see no interference or coercion in Gordon's statement es- sentially in acknowledgement of that which Noonan had previously elected to make quite clear to all at ADC Em- ployer notes, and I agree that the complaint did not allege that Gordon's inquiry of Noonan as to Noonan's reactions to the Employer's literature was itself an un- lawful interrogation (nor part of a systematic pattern of unlawful interrogation made in that manner of employ- ees' union interests and sympathies) 3 Corso's related complaint allegations The complaint alleges that on July 17 (facilities) Man- ager Krauth told an employee (Corso) that Krauth knew everybody that was involved in the union campaign and at the union meetings, where and when those meetings were held, and, that Krauth told Corso that another em- ployee (Todd Noonan) wearing a union hat, was not too bright, and would not last too long Corso testified that he went to union meetings, passed out union cards, and occasionally passed out union litera- ture, though admittedly not on, or prior to July 17 (nor apparently after August 3, when Corso voluntarily termi- nated his employment with Filene's) Corso otherwise re- counts that he was also named as one of the Union's leading union adherents The parties stipulated and I find that by union letter sent to the Employer on July 21 (Tuesday) and received by the Employer on July 24 (Friday), the Union notified the Employer that Corso, Glen and Todd Noonan, and Richard Norgren (only) were on the Union's employee organizing committee It will be recalled that Noonan testified that he (Noonan) was wearing a union hat earlier at ADC on July 16 in the cafeteria Corso's testimony (compatibly) has Todd Noonan also wearing a union hat in ADC on July 17 Apart from time, Krauth affirmed that Glen and Todd Noonan (and other employees), wore union hats at ADC Corso testified credibly that he (Corso) did not wear a union hat (or button) that day (July 17) Corso does acknowledge, albeit with date undisclosed, that he subsequently wore a union hat and union button at work Krauth essentially confirms that Corso was not wearing a union hat the day that they had a conversation, in testi- fying that Corso clearly revealed to Krauth that he was for the Union in his conversation (thus, e g, rather than by what he was then wearing) As noted earlier, Corso's direct supervisor was Re- serve Area Supervisor Bruce Brackett Corso testified that on July 17, Supervisor Bruce Pierce (sic, but seem- ingly Brackett) approached Corso wanting to talk to Corso about the Union Corso knew that they were all talking about the Union, but Corso asserts that he did not want to talk to the supervisor about the Union Corso then asked if he could talk to Facilities Manager Krauth (instead), and Corso did, later, on the same day On that occasion, Corso told Krauth that Corso's main issue was job security According to Corso, Krauth then told Corso that Krauth knew about everybody in the Union, that he knew where our meetings were, and when they were, that he knew Corso was involved with it, and, while in the meeting (sic), as employee Todd Noonan walked by wearing a union hat Krauth said that he knew that Todd Noonan was in it, and, that "the kid" was not too bright, and he would not last long Although it is not without some confusion and/or am- biguity appearing of record as to the referenced meeting, both parties in bnef appear to be of view that it was at the same meeting between Corso and Krauth that Krauth also told Corso that if the Union got in, we would have lower wages, and Krauth would be able to fire people a lot easier The question arises whether Corso has in the latter regard simply erroneously con- fused a recollection of an RT meeting that he attended Corso clearly did not attend the RT meeting that Noonan attended on July 15 However about this time the Employer was holding more than one RT a week in order to complete holding an RT with all employees, m small groups, in a reasonable period of time Krauth's recollections would place the conversation between Krauth and Corso anywhere from about the same time as a prior conversation with Noonan (seeming- ly July 14), to a week or so later than Corso does, but notably in no event after July 24, the date that Employer had received the Union's letter informing the Employer that Corso, the Noonans, and Norgren were on the Union's employee organizing committee Krauth testified both credibly and candidly to a firm recollection that he had no conversation with Corso thereafter Thus, Krauth's conversation with Corso occurred clearly before Employer had received written notice that Corso was serving on the Union's employee organizing commit- tee Krauth confirms generally that Corso had approached Krauth wanting to talk to Krauth about some issues of the Union, and specifically job security I credit that ac- count of the meeting between them on July 17 Krauth did not recall telling Coiso in this meeting that he knew where the union meetings were being held Though Krauth on one occasion relatedly asserted that it was apparent to everyone in the facility everytime there FILENE'S BASEMENT STORE 211 was one (a meeting), it is clear of record that Krauth was then referring to a penod of time after the end of the workday of July 17, because he relatedly testified that the Union distributed handbills announcing the meetings, and employees would bring us (local manage- ment) the notification Just about this time however some employees had seemingly been also leaving notes in ADC inviting other employees to attend the Union's meeting, some of which notes were starting to surface in ADC, and come to the attention of the Employer In any event, I have found (essentially) on other candid revealment of Krauth, that Krauth was even somewhat earlier aware from employee reports brought to him that union meetings were being held at the Yankee Drummer, and that he did mention that to Noonan on July 14 I conclude it is at least as possible that he may have mentioned that to Corso 3 days later, though I have no doubt he received additional instruc- tions about his response to the Union's campaign in the interim as well ICrauth has testified that he did not recall telling Corso that he knew Corso was involved in the union organiz- ing Rather, Krauth testified that during the conversation it was Corso who had made it clear that he was for the Union Krauth testified relatedly, without subsequent rebuttal by Corso, and I find credibly, that Corso told Krauth that Corso felt that once employees had worked any length of time and made better wages, a company, if not union (organized), would fire employees, and bring in new employees with less wages Krauth recalled telling Corso on that occasion that it would be crazy on the Employer's part (to do that) to be constantly going through a new work force, retraining (employees) all the time, and, especially in today's economy Significantly, Krauth has otherwise categorically denied that he told Corso, or any employee, that he knew who was involved in the union organizing Al- though Krauth confirmed that Glen and Todd Noonan wore union hats in ADC, Krauth has also categorically denied that he told Corso that Todd (Noonan), Glen (Noonan), or any employee wearing a union hat, was not too bright, or would not be long for the Company Krauth otherwise testified that the only conversation he had with Todd Noonan was to remark that he liked the (union) hat Krauth candidly acknowledged, however, that the fact that Todd Noonan had worn a union hat in ADC was probably reported to FDS The General Counsel contends that Corso has testified in these matters clearly and concisely, and he urges full credit be given to Corso's testimony In affirmative sup- port of a finding of the statements that Corso has attrib- uted to Krauth, the General Counsel points to Krauth's conceded earlier awareness of the meetings at the Yankee Drummer, and to his acknowledgment that Todd Noonan's wearing of a union hat in ADC was reported to FDS In contrast, the Employer contends that Krauth was a candid and precise witness who is wholly worthy of credit, and that it is simply inconceivable that Krauth would so flagrantly depart from the instructions he had earlier received on talking to employees about the Union, by discussing the Union in the manner that Corso has described In contrast with Krauth's careful testimo- ny, Employer contends that Corso testified like "a wind- up doll," and, he did so "almost without punctuation" Thus, the Employer urges that when Corso's demeanor is taken into account, as it should be, Corso is then the one shown not worthy of credit Analysis In agreement with other urging of Respondent, I first observe that the complaint does not allege that Krauth on July 17, has discriminatorily threatened an employee with lower wages, or with easier discharge, if the Union came in Noting the same in brief, the Employer would then have It further observed that counsel for the Gener- al Counsel stated at hearing that he was not alleging any violations other than those that were (already) alleged in the complaint Respondent essentially contends that the General Counsel should be held to his position on com- plaint as stated at hearing At least on the matters brought before me, I agree The matter of a threat of lower wages, presently under discussion, is not to be confused with the similar com- plaint allegation earlier considered at length that on July 15, Krauth had said to a group of employees (Noonan and others in an RT meeting) that employees' wages would be cut if the Union got in at the warehouse Corso did not attend the July 15 meeting with Noonan To the extent there is any indication from the record, if not in Corso's testimony, of an additional (similar RT) meeting with Krauth that Corso may have attended on July 17, the contentions of the General Counsel in the matter fare no better Moreover, even were I to con- clude the issue(s) of Krauth's threat of lower wages (or easier discharge) was (were) fully and fairly litigated as part and parcel of the allegation alleged (which I do not), Corso's testimony thereon, under all of the attend- ant circumstances, would still not be sufficient to per- suade me that there is warrant to make a finding on the basis of Corso's testimony alone that Krauth had threat- ened that there would be lower wages, or, easier firing, if the Union came in, in either the individual conversa- tion with Corso, or at an RT that Corso and a group of other employees may have attended on that day (or oth- erwise) Some of the factors considered in so concluding on the urged matter of Krauth's discriminatory threat(s) of lower wages or easier firing were (1) the threats are not alleged in the complaint, (2) the General Counsel at hearing did state that he was not seeking to amend the complaint to allege additional allegation, (3) Krauth has specifically denied that he told Corso wages would go down if the Union came in, indeed, denied that he had ever made such a statement to anyone, and, Krauth has so testified in a generally credible context, viz, in light of the prior training he had received on what not to do, as well as the earlier credited nature of his pnor discussions with others, (4) ICrauth has credibly denied as well that he told Corso it would be easier to discharge employees if the Union came in, for similar reaons, (5) any indica- tion of the Krauth statements being made at some other meeting (e g, RT meeting) are unclear, (6) even in that 212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD event, a lack of any corroboration of Corso thereon would then appear all the more critical, especially in the light of the disposition of the operative circumstnces as determined at length, supra, in the consideration of the complaint allegation, re, similar Krauth statements made to a group of employees (at an RT) on July 15, (7) later the Employer's literature discussed the subject of greater rigidity a union usually imposed on an employer, dis- cussed, infra, and (8) certain Corso assertions have inde- pendently appeared unpersuasive in context, discussed next As to the proof offered in support of complaint allega- tions that Krauth told Corso that Krauth knew every- body that was involved in the union campaign and at the union meetings, that Krauth knew where and when those meetings were held, and, that on observing Todd Noonan wearing a union hat, Krauth had said the kid (Todd Noonan) was not too bright, and would not last too long, I do not find Corso's testimony thereon persua- sive, i e, beyond (at best) such as may appear duplicative of what Krauth had mentioned to Noonan in their earlier conversation(s), viz, of Krauth's awareness of the (I fur- ther find) recent union meetings held at the Yankee Drummer (There is confirming indication in certain of Kamel's testimony that some notes (as opposed to hand- bills) inviting attendance of (at least) some employees to these meetings were being left in the warehouse, and had surfaced at about this time ) Finally, in addition to the above-noted factors, I find myself in the overall evaluation of the proof offered on these complaint allegations to be also more in agreee- ment with certain of the Employer's general observations made thereon In general, Krauth impressed me more with candor and deliberateness while testifying on the stand on these matters In contrast, Corso in general simply impressed me unfavorably Specifically, Corso ap- peared a bit too glib on the stand in describing the above conversation with Krauth On these matters, I both credit Krauth's central denials of the complaint allegations that Kruth said he knew ev- erybody that was involved in the union campaign, and at the union meetings, and, where and when they were held, and I conclude and find Corso's recollection there- in has (at best) involved an overgrandisement of a much more limited remark about Krauth's awareness of union meetings being held at the Yankee Drummer I credit Krauth's categorical denial that he made the remark about Todd Noonan that Corso attributes to Krauth, in the absence of any corroboration of Corso, as being also more worthy of belief In that regard, apart from any discernible strain in credulity that Krauth would say of an employee prominently wearing a union hat in ADC, that he knew the employee was for the Union, in any event, under all the above circumstances, I conclude and find that the proof offered by the General Counsel in support of these specific allegations was generally unper- suasive Since the Corso testimony that may be viewed (at best) as in part supported by certain other evidence of record appears to be but duplicative of the earlier cred- ited Krauth statement to Noonan, I shall accordingly recommend that these complaint allegations be dismissed in their entirety 4 The complaint allegations as related to Michelle Savageau Filene's employed Savageau as a utility worker in ADC from April 6 to September 2 Savageau testified that she ticketed shoes, but did a little bit of everything At different times she was supervised by Manning, Brackett, and Gordon On July 9, Savageau received an oral warning (essentially) from Manning (though also signed by Kamel and Young) that her productivity was just poor, and, she was not putting up enough items per hour Savageau testified that she became aware of the Union's organizational campaign about the end of April, beginning of May She asserts that she attended union meetings (starting) in May, which were held about once a week on Friday at the Yankee Drummer Savageau normally went to the meetings with Corso As Savageau recalled, at first there were about five-six employees in attendance at the Yankee Drummer, and later, a dozen or more employees attended Savageau also testified that Ronayne gave her a union card which she signed and re- turned to Ronayne on May 15 or 16 Ronayne corrobo- rates a first meeting with Savageau in April, that Sava- geau had signed a union card on May 15, and that Sava- geau had thereafter attended meetings at the Yankee Drummer Savageau's testimony about her asserted involvement with a seemingly 2-week solicitation of union authoriza- tion cards was strained Savageau recounts that she re- ceived union authorization cards to hand out to others in May At one point Savageau then asserted that she ap- proached employees at lunchtime and after work, but upon inquiry of particulars, then was not exactly sure of who, or how many Savageau has asserted that she gave out cards to friends if interested, but did not press anyone Savageau also acknowledged that she did not re- ceive a signed union authorization card back from any employee On other occasions Savageau had simply related, albeit somewhat disjointedly, that others were handing out the cards, and she kept the union cards she was given at home Ronayne's testimony in this area did not substan- tially or materially add to Savageau's essentially unper- suasive testimony on personal involvement in the distri- bution of union cards, and certainly insofar as to be viewed done prominently at ADC Ronayne adds only that he knew Savageau had tried to pass out union cards However, when pressed to explain his knowledge of the latter, Ronayne then asserted that Savageau did other or- ganizing things for the Union, discussed further, infra Savageau also at no time participated in handing out the Union's literature However, Savageau has testified that she displayed union handbills in her car, that she had a union hat on the back seat of her car, and that she had worn the hat at a couple of employee softball games To the extent Savageau has asserted a recollection of her own involvement with union handbills and/or union hats in May, however, I conclude and find that Savageau is in clear error in that account I am also wholly persuad- ed that as of her conversation with Kamel on July 17, Savageau did not then possess or display any union 1 r FILEI Lr'S BASEMENT STORE 1 213 l - 1 handbills in her car Significantly, there is no evidence presented that a supervisor ever saw Savageau wear a union hat, or, that on July 17 she had one on the back seat of her car, let alone that a supervisor was aware of it that day The Union never listed Savageau as an employee orga- nizer for the Union As noted, Ronayne at one point as- serted that Savageau did other things for the Union, but immediately added that he did not want to get into that As far as Ronayne's later testimony would reflect, the service was solely in the area of providing some employ- ee addresses and phone numbers to the Union, along with bringing other employees to the meetings, which Ronayne testified he instructed, and she did The complaint alleges that on July 17, Operations Manager Kamel told an employee (Savageau) that if a union came in Respondent would have to be more strict about productivity, and, that Kamel told Savageau that she could always get the union authorization card back that she had signed The complaint also alleges that on September 2, Respondent discnmmatonly fired Savageau for her union and other protected concerted activities a Kamel's discriminatory threat of stricter productivity, and coercive suggestion that Savageau get her signed union authorization card back Savageau recalled that on July 17, Operations Manag- er ICamel came up to Savageau in the warehouse while Savageau was stamping sticker prices in giftware They were alone Savageau relates that Kamel asked Savageau if she knew what was going on about the Union Sava- geau recalled that Kamel had some papers both for and against the Union at the time, and Savageau summarized that Kamel was telling Savageau the bad things about the Union Savageau initially testified that Kamel said if the Union got in or comes in, they would be more strict on employer activity, and, only later, that productivity would be more strict Savageau testified initially that Kamel also said the hourly wages would go down, or probably go down, and the health insurance would go up Kamel handed the papers to Savageau, and she looked them over Kamel said it (the Union) would not be good in here Savageau testified that Kamel asked Savageau if she signed a union card, and Savageau said, she had Sava- geau has testified (essentially, albeit m several forms), that Kamel then said that Savageau could always get the union card back Enclosed with the Employer's letter of July 17 was certain information, inter aim, addressing the effects of an employee signing a union authorization card It is warranted to note this letter addressed the specific issue of employees who might have mistakenly already signed a card for the Union as follows IF I SIGNED A UNION CARD BY MISTAKE, CAN I "CANCEL IT" Unfortunately, there is no official way to "cancel" a signed union authorization card You can ask for it to be returned to you but the Union has no obliga- tion to do so In general, Kamel handed out Employer's letters (an- tiunion campaign literature) to employees when an area supervisor (for whatever reason) was not available to do so Kamel confirms a related conversation with Savageau about the union organizing employees However, Kamel was unwilling to firmly set the date of his conversation with Savageau as occurring on July 17 To the extent the General Counsel would seek in brief to rely on Kamel's unwillingness to confirm he had handed out a letter to Savageau on July 17, as being in- dicative of Kamel's evasiveness and/or lack of credibil- ity, I am not inclined to so conclude Certain employer letter(s) handed out later could have prompted a Kamel-Savageau conversation as well, e g, the Tempests letter of July 21, and certain of the testi- mony of Area Supervisor Manning, who notably was also unsure of the date of his discussion with Savageau, would support a finding that a similar discussion between Mantung and Savageau occurred on July 17 In the latter regard, Manning testified that he (also) had handed Savageau a company letter that related to union cards, that Savageau told him that she had signed a card, and, on that occasion, Savageau wanted to know if she could get it back if she wanted to However, as noted, Manning also could not recall the letter to which their conversation had related Apart from date, Kamel's version otherwise is that he gave Savageau a company letter concerning union issues and asked her to read it Kamel then asked Savageau if she had any questions Although Kamel was unsure it was the July 17 letter that he passed out to Savageau, Kamel recalled that he did pass out some company let- ters to employees, and he confirmed that he did pass out a letter to Savageau, which resulted in conversation Al- though the issue is not one free from doubt, on weight of evidence, I find it most likely that Kamel passed out the Company's July 17 letter on July 17, which led to Kamel's conversation with Savageau on July 17 Savageau related (seemingly as occurring in the same conversation) that Kamel had another union contract saying the wages would go down, an old contract that he was showing the people However, Savageau thereaf- ter clarified that she believed that Kamel was showing her the contract for the other Filene's location, and he was saying if you got him (sic, but in context in) under the contract the wages would go down, and your health insurance costs would go up Kamel was previously aware of the contents of the Union's contract covering SDC and DDC from prior times when he had worked there Kamel also acknowl- edged that FDS had given him a copy of that contract to use However, Kamel could not recall if he had used it in conversations with employees, or at the time of his conversation with Savageau Kamel had another paper he was to use for questions on the Union's (DDC/SDC) contract However, Kamel has categorically denied On any event) that he had ever told any of the employees that the old contract wages and benefits would be of- fered to the Union Of the Union came in) In that very regard, Savageau significantly testified that Kamel told Savageau, if the Union got in, everything would be ne- 214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gotiable, wages could go up, they could go down, and that there were no guarantees one way or the other After observation that only Filene's Boston Basement Store and SDC are organized, Vice President Tempesta relatedly informed employees in his July 17 letter (a) "Our position on unionization is quite clear You have a right to be for or against it, and we are committed to protecting your rights in making an informed and un- coerced decision", and, (b) that although unions have tried to organize some of Filene's other stores, they failed, because the store employees realized that they "Enjoy the same competitive pay and benefits available to our unionized associates" Kamel has also denied that he interrogated Savageau (or any employee) as to whether she had signed a card for the Union, and testified convincingly that he had been specifically instructed not to do so Kamel other- wise asserted that he was not sure what had raised the subject of an employee getting a union card back from the Union Kamel's recollection was that Savageau had asked Kamel the question, if she could get her union card back Kamel then acknowledged that he had told Sava- geau she could get the card back, but she would have to address that (request) to either the union organizer, or a union business representative Savageau on cross-examination testified, hesitantly, that she did not believe she had said to Kamel that she had signed a union card, and realized it was a mistake Savageau also relates that she did not say, that "if I'd known that, I wouldn't have signed the union card" (at least) in exactly those words However, Savageau then testified that she did say, she "heard a lot of pros and cons about it, and didn't realize what was going on" Sa- vageau has also otherwise testified of that day and con- versation that she did not want to be bothered that day at all, her attitude at that time was she was not too sure either way, she did not want to pick either side, and, Sa- vageau finally acknowledged she had said to Kamel, "maybe I made a mistake, I don't know, I just don't want to be bothered" Analysis Firstly, the complaint does not allege that Krauth said that the hourly wages would go down and the health in- surance (costs) go up, if the Union came in To the extent that Savageau testified on occasion that Kamel had discnmmatonly said the hourly wages would go down and the costs of health insurance would go up, not only was such not alleged in the complaint, and the Gen- eral Counsel at hearing given various assurances that he was not seeking to amend the complaint, but other testi- mony of Savageau has effectively and convincingly clan- fled that any related statement of Kamel made to that effect, was said in context of a conditional application of the SDC contract to ADC, and indeed, other Savageau testimony made clear that Kamel had also told Savageau that if the Union got in, everything would be negotiable It may be secondly observed that (again) the complaint does not allege a Kamel interrogation of employee Sava- geau Not only does the complaint not allege a Kamel in- terrogation of Savageau as to whether she had signed a union authorization card, but Kamel has the more credi- bly denied doing so Savageau's testimony in the end must be analyzed in combination with the Kamel statement made on lower wages and higher health costs if the employees were to come under the SDC contract, as well as the July 17 letter statement of the company policy of always paying nonunion locations the same (read by Savageau at the time) Given Savageau's testimonial admission of having also expressed indecision in some form about the Union at this time (at least) to Kamel, if not also to Manning (inquiring if she could get her card back if she wanted to so so), a surely congruous context is then made out for Kamel's recollection that Savageau said in Kamel's pres- ence (at least) maybe I made a mistake in a clear context that was indicative of her earlier support of the Union, if Savageau did not technically ask Kamel if she could get her card back, as she had Manning There is a possibility that the Manning-Savageau conversation occurred before, and led to the Kamel-Savageau conversation, but that finding is not critical to the resolution of the com- plaint matters alleged herein Thus, I am in any event persuaded that Savageau had directly expressed to Kamel at this time a possible mis- take on Savageau's part in previously supporting, or signing a card for the Union, which (I find) then led to Kamel's statement that Savageau could always ask the Union for her card back, a message unquestioned as law- fully delivered to employees in the July 17 letter (regard- less of when the Kamel-Savageau conversation oc- curred) Moreover, under these determined circumstances, even if I were to credit the (repeated) recollection of Sava- geau that Kamel had in their conversation actually asked the question of Savageau whether she had signed a union card, and, then followed up with a statement that Sava- geau could always get (or ask the Union for) the union card back, I would be even in that event also convinced on this record that the question and statement came in overall circumstances already reasonably indicating to Kamel that Savageau had signed a union card in support of the Umon, and that she had also already (at least) ex- pressed to Kamel her personally then held belief of possi- bly having made a mistake with the Union, whether Sa- vageau had explicitly stated at that time that she had pre- viously signed a card for the Union Even a question posed to Savageau, if she had signed a card, objectively viewed in those circumstances, does not appear to have reasonably had the effect of probing Savageau to identify any prior unrevealed union interests and sympathies so much as, under the circumstances as presented to Kamel by Savageau, been asked in prelude to Kamel ensuring that Savageau was aware that Sava- geau could in that event (if she felt she had made a mis- take in signing a card with the Union), always ask the Union for the card back Under the entire circumstances shown above, I con- clude and find that neither Kamel nor Respondent Em- ployer has interfered with, restrained, or coerced Sava- geau in Kamel stating in effect orally (or Respondent in Tempesta's July 17 letter) that Savageau could always FILENE'S BASEMENT STORE 215 get or ask the Union for her (signed authorization) card back, in circumstances where I have found Savageau had earlier indicated to Kamel that she felt she may have made a mistake in previously supporting the Union Savageau's other testimony offered in support of the complaint allegation that Kamel had also said that if the Union came in, the Respondent would have to be more strict about productivity was (at best) unconvincing (if not inconsistent) on the matter, e g, with earlier testimo- ny that they (a union) were usually more strict on em- ployer activity Given the problems of Savageau's (and all witnesses') recollections, in general, I additionally note in passing that Tempesta's letter of August 3 specifi- cally addressed the related subject of union contracts usually creating greater rept:lay upon an employer In any event, Kamel's specific denial that he had said that the Employer would be stncter on productivity if the Union came in, to Savageau (or to any employee), because he was instructed and trained not to threaten employees in that manner, is simply on this record with appearance of being the more reliable, and I do credit it In passing, I observe that Savageau was, at first, an ad- mittedly nervous witness, and I have taken that into full and careful account I have also taken into account that her recent RC problem with productivity was known to Kamel at the time of this alleged conversation Nonethe- less, the evidence offered by Savageau was general of nature and shown in context of other credible evidence of record such as to have simply failed in the end to per- suade me that Kamel made the statements that are al- leged in the complaint Accordingly, I shall recommend that this complaint allegation also be dismissed in its en- tirety b The alleged discriminatory termination of Savageau on September 2 First, it is apparent from the above, and I find that as of July 17, Respondent was aware (at least) that Sava- geau had earlier signed an authorization card for the Union However, I have also found that Savageau at the same time had indicated to Kamel that she presently felt she may have made a mistake in previously supporting the Union In this material time Manning was area supervisor of bulk processing in giftware Manning supervised any- where from 15 to 35 employees depending on daily flex (At time of hearing Manning had already given Filene's notice of his voluntary resignation, and, in accordance with Respondent's request that factor has been taken into account in assessing credibility ) Manning had fairly reg- ularly supervised Savageau, at least from mid-June (seemingly) when Manning had transferred to bulk from shipping and receiving) until the end of July (when Man- ning took a 2-week vacation—July 30 to August 14) During that 2-week period, ADC transferred Savageau to the reserve department under Area Supervisor Brack- ett Manning has testified generally that Savageau was probably the worst employee in work performance that he had supervised As noted, Savageau had previously received a warning from Supervisor Manning about her low productivity on July 9 Notably, on that July 9, Manning, Kamel, and Young signed the RC on an oral warning given Savageau for her poor productivity Manning also testified that he wrote up evaluations for all the employees he supervised, including Savageau, and he turned them into personnel before he left on vacation In Mannmg's (unsigned) evaluation of Savageau he rated Savageau as a marginal employee in all categories except versatility as earlier noted That evaluation also reflects, inter aim, on cooperation, with comment explanation written by Manning, "Michelle seems to be just passing time She shows no concern for the job she is doing Spends too much time talking & sitting" Related procedure is established that the area supervi- sors' evaluations of employees were first to be reviewed by Young (and McGrath), then returned to the area su- pervisor to conduct the actual evaluation interview with the employee I credit Manning and Young's testimony that the normal 60-day reviews were delayed in prepara- tion and delivery, in part because of the ADC startup, and employee turnover I further credit Manning that he had evaluated Savageau in the manner he wrote up and submitted to Young, though Manning did not subse- quently actpally conduct an interview thereon with Sa- vageau (as he did with Komcki, infra), because of certain time constraints that existed after his return from vaca- tion, and because of the number of employees then wait- ing review Even assuming there was some Savageau mvolvment with Noonan on July 15, namely, in the confrontation with no-union petitioner(s) on the dock, the details of which are not shown of record, the same would not serve to prove any discriminatory motive, or taint in the first (oral) warning Savageau had received for her poor productivity Indeed, neither this warning nor a second written warning of August 7, infra, is alleged to have discriminatorily issued To the extent Savageau may be viewed to have assert- ed that, in the interim, on July 17, Kamel had threatened Savageau with the Employer being stricter on productiv- ity if the Union came in, I have found the evidence of- fered to suppOrt that allegation was unpersuasive Rather I have credited that on July 9, Manning had orally warned Savageau, inter al's, that Savageau would have to improve in her production or he (Manning) would take (still) further discipline, and, that on August 7, in Manmng's absence, Kamel and Young recorded written warning a month later that Savageau's production was still unacceptable, and had to improve Savageau explained her own lack of production with assertion that she was being moved around so much she could not get use to the work, which affected her pro- duction There is support in the record that Savageau was being moved about In that very (but notably alone) regard, Manning evaluated Savageau's versatility as good Savageau acknowledges that on August 7, Savageau received another counseling, this time a written warning from Kamel and Young (in vacation absence of Man- ning) that Savageau's production was unacceptable, and that Savageau must improve her production or there would be still further discipline Savageau refused to sign 216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD this warning, explaining that at this time she was keeping track of her own production, and she felt that she was improving, and that her production was adequate How- ever, the General Counsel does not contend, or establish, that Savageau's production was not low on each of these occasions Brackett supervised anywhere from 7 to 25 employees in the reserve department, again depending upon daily business load flex Brackett's assigned employees essen- tially select and pack the merchandise to fill store orders Brackett recalled that Savageau was assigned to Re- serve in midsummer Brackett has testified that his regu- lar employees informed Brackett that they did not like to work with Savageau because Savageau did not pull her own weight, and, they complained to him that Savageau would frequently leave to go to the restroom Brackett testified that he checked with Manning, and he received the same information on Savageau from Manning FDS Employee Specialist Matthews has testified can- didly, that at all times they were trying to keep track of, or (essentially) be aware of, how the peoples' (employ- ees') attitudes were towards the Union Brackett related- ly acknowledged that if he received any information concerning employees and the Union, he presented it at the weekly meeting held for that purpose If, when he presented a letter to an employee, an employee had a question, he reported that to the FDS official that was on hand Brackett also expressed his own opinion to FDS about the employees under him However, Brackett testified that he had received no information about Sava- geau's attitude about the Union Neither did he discuss the Union personally with her Brackett additionally testified that his own subsequent observations of Savageau's work habits confirmed that she had a tendency to go to the bathroom frequently, and, an unconcerned attitude about the work However, Bracket acknowledged that he made no effort at a fur- ther immediate discipline of Savageau Brackett ex- plained that at the time he had work supply logistical problems, and in his mind the time to discipline Sava- geau was not opportune, that is, until the job incident oc- curred the end of August On August 28, a Fnday, Savageau drove her car to work She went to lunch that day at noon with her boy- friend, who is unidentified of record They used his car Savageau did not return to work at ADC, nor did she advise Employer by phone that she would not be back to work that afternoon Savageau explained that a family problem developed at her house with her mother, and, Savageau asserts she could not go back to work At heanng she otherwise related that there was something emotional going on at the time between Savageau and her mother, that Savageau did not want to stay there, and that Savageau had to leave Savageau acknowledged that she had previously been given specific instructions as to what she was to do when an absence was necessary The basic procedure was contained in the employee's orientation booklet At time of orientation Savageau had also been given a phone number to call, which she wrote down in the booklet Savageau initially testified relatedly that she had tried to call Filene's with that number twice between 12 30 p m and 1 p m, and, there was no answer the first time, and the last time the line was busy Savageau would later clarify that she thought she had actually called three times, and that the last time the line was busy, though Savageau then revealed that the last time she may have dialed the number (in haste) erroneously Savageau initially testified that she had never previous- ly failed to return from lunch On cross-examination however, with aid of refreshed recollection from prior affidavit, Savageau then clarified that she had previously called Filene's to report (both) she was not coming in, and back (to work), and, that each time, someone had answered the call she placed at the number she had Brackett testified that upon returning from lunch on August 28, a Friday, he noticed at 12 40 p m that three people had not returned The three were Anna Naleski, Dawn Thrush, and Michelle Savageau After the brief time it took to get his department running again, accord- ing to Brackett's recollection, Brackett went to Young and reported that the three individuals had not returned and had not called Whether before or after his recalled contact of Young, Brackett relates that some employees complained to Brackett about the employees who did not return to work that Friday afternoon after lunch, and ac- cording to Brackett, they wanted to know what Brackett was going to do about it Brackett otherwise testified that he reported all three to Young, though he knew that one, Naleski, was returning to college, and that Naleski had already given a notice to the Employer that would be her last day It is Brackett's recollection that he had recommended that Friday afternoon that Savageau and Thrush be ter- minated However, he also recalled that Young told Brackett that they would have to wait and see if the em- ployees called in that afternoon Thrush called in that afternoon Thrush informed the receptionist that Thrush had had a family medical emergency in which her sister had to be rushed to the hospital Neither Brackett nor Young thereafter questioned Thrush's report of a medi- cal emergency Savageau did not call Savageau returned to work on Monday, August 31, which was the next workday for her Nothing happened that day No supervisor said anything to Savageau about her absence on the prior Friday afternoon Savageau did not say anything to any supervisor about it Brackett has testified that he recommended termination of Savageau for job abandonment, because Savageau had made no at- tempt to explain her absence This would appear also, if not more, compatible with a Brackett recommendation made on Monday, after Savageau had returned to the job, had opportunity to speak to Brackett, and still said nothing to Brackett m explanation of her absence on the prior Friday Brackett relates that on Monday, he called Young again asking what they were going to do Brackett re- calls that by this time Young had apparently been in con- tact with FDS, and Young said they were going to have to wait for a reply (from FDS) on what to do Young confirms Brackett's report and recommendation to terminate Savageau, except that she did not recall re- ceiving the report from Brackett on Friday, but rather FILENE'S BASEMENT STORE 217 recalls Brackett's contact of Young occurred on Monday morning Thus Young relates that it was on Monday that Brackett informed Young that Savageau had left for lunch on Friday, and that Savageau had not returned, or called Young relates that Brackett inquired of Young whether Young had received a message, or had any in- formation on it Young (who had earlier that morning also checked the answering service) replied no Young relates (at least) on one occasion, Brackett said that was the last straw, and he recommended termination based upon Savageau's past work record evaluation, and her Friday job abandonment Young also confirmed that, in discussion, Brackett informed Young that other associ- ates had problems working with Savageau, and, that Sa- vageau made a lot of trips to the restroom McGrath had been responsible for 21 branch stores in New York and New England In July, she received addi- tional responsibility for SDC and ADC Young contact- ed her superior, McGrath, and reported the facts on Sa- vageau as then known, namely that Savageau had not re- turned to work after lunch on Friday, and she had not called Though Young was not sure whether it was in her first conversation with McGrath, that she had rec- ommended it, McGrath recalls, and I find Young initially recommended that Savageau be terminated for job aban- donment Notably, Young's recommendation to McGrath that Savageau be terminated was in accordance with normal procedure, as no Filene's personnel manager has authority to discharge an employee on their own, i e , without going through Filene's corporate headquarters McGrath confirms Young contacted her on Monday (August 31) McGrath specifically recalled that Young reported that she had found out that day that Savageau had left for lunch on Friday, had not returned, and had not contacted us McGrath also corroborates that Young thought that was grounds for dismissal, job abandonment without (stating) a valid reason According to McGrath, Young had called McGrath to ask for counsel, which was McGrath's role McGrath felt that they should (first) listen to what the employee had to stay McGrath confirmed however that others were also consulted McGrath relates that normally she has the final au- thority on a termination However during a union cam- paign, McGrath brought everything to the attention of her supervisor, Filene's senior vice president of person- nel, Collman, as a precautionary measure, to make sure McGrath was handling everything properly McGrath testified that FDS also required everything to be report- ed to them McGrath explained that she was told that FDS wanted to also be sure that we (Filene's) were doing everything correctly and fairly, because of the ex- istence of the Union's campaign McGrath thus testified that she had first reported to her supervisor, Collman, recommending that they talk to Savageau, listen to what she had to say, and find out all the circumstances from her point of view According to McGrath, Collman contacted FDS, who concurred with McGrath On September 1, Tuesday morning, Brackett again called Young Brackett testified that at that time Young said that she was still waiting to hear from FDS Savageau relates that on Tuesday, September 1, Sava- geau again came to work Savageau is an immigrant In that regard, Young had apparently earlier informed Sa- vageau that Savageau would have to have certain immi- gration papers (on file) with Employer on September 1 In any event, at about 9 30 a m that day, Young spoke to Savageau about Savageau's need to provide the re- quired immigration papers Young told Savageau that she would have to immediately leave ADC, and go get the required immigration papers Young also informed Savageau that she had to return with the required papers before 3 30 p m or Savageau would be terminated Sava- geau promptly left ADC Savageau first collected her birth certificate and identification papers Savageau next went to city hall, where she was able to successfully obtain her immigration papers Savageau returned to ADC with all required immigration papers before 3 30 pm Young has testified that she received a call later that afternoon, after Savageau had left for the day Accord- ing to Young, the instruction that Young received on that occasion was that she was to make the final judg- ment on Savageau's termination based on whether Sava- geau had an extreme emergency that had in effect pre- vented Savageau from returning to work, or calling in Matthews testified that the decision that FDS made was that Young was to sit down with Savageau and de- termine if there were any extenuating circumstances, or an emergency that had occurred It was left up to Young to determine According to Matthews, if the reason was not valid, Young would make the determination to termi- nate, or not (However, Matthews acknowledged that Fi- lene's recommendation had been to terminate ) McGrath compatibly testified that Young's instruction was to see what Savageau had to say, to be sure to have Savageau presented with an opportunity to explain all the circum- stances McGrath corroborated Matthews however, that if Savageau did not have a valid reason, it was up to Young how to handle Brackett corroborated Young's understanding of the FDS instruction at the time Brackett testified that some- time after the close of work that day, he had a conversa- tion with Young in which Young advised Brackett that she had received word from FDS Brackett then testified that Young informed Brackett that the instruction she re- ceived was that Young should interview Savageau Young was to question Savageau on why Savageau did not give us an explanation for her absence Young was to ascertain if the reason Savageau did not call involved an extreme emergency, or life threatening situation, some- thing that would explain Sabageau's not thinking of call- ing the Company If so, Savageau was not to be dis- charged But if otherwise, Savageau was to be dis- charged On Wednesday, September 2, Savageau again reported for work at 7 a m At about 8 30 a m, Brackett brought Savageau to Young's office According to Savageau, Young asked Savageau where she was on Friday, and why Savageau did not come back, or call Savageau told Young that she did try to call On cross-examination, Savageau acknowledged that 218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Young asked Savageau why she had not covered herself by calling Filene's answering service Savageau then re- plied that she did not know the answering machine number, and that she did not know there were two num- bers to be called Young testified that when Young asked Savageau for the reason that she did not return, or call in, Savageau's first response was "I tried" Savageau said she tried to call between 1-2 p m Young then asked Savageau what number she had used According to Young, Savageau did not recall the number Young first said, there is a re- ceptionist always on the phone Young then asked Sava- geau why she did not (alternatively) call the answenng machine, and leave a message to cover yourself Young recalled that Savageau said she did not think of that Young has testified that the installation of the answer- ing machine recently actually had nothing to do with Sa- vageau's call-in circumstances Young credibly explained that the answering machine's service importance related to those attempting to call in before the receptionist manned the phone in the morning In contrast Sava- geau's call would have been made while the receptionist was there manning the main line (switchboard) phone be- tween 8 a m and 4 30 p m In further explanation, Young explained that employ- ees who were not going to report for work on a day they were scheduled to work, were supposed to call in between 6 30-7 a m At that time the receptionist was not working The employees had been (previously) told to use the pay phone, located nearby an employed secu- rity guard The absence call-in procedure was that a message would be taken by the security guard, and at start of regular hours, transferred to personnel Young acknowledged that she was not getting all the (morning) message on absences On that account Employer had recently installed an answering machine to which the employees could call in their absence and reason, prior to the receptionist man- ning the phone Young wrote a covering memo on it on August 18 The system was effective August 24 The memo informed employees that ADC would no longer be using the pay phone for employee absences The phone number connecting to the answeremg machine that em- ployees were to use thereafter was set forth in the memo The answering machine number was posted on the em- ployees' bulletin board(s) A note on the new call-in pro- cedure and the new phone number to use had been pre- viously stapled to every employee's paycheck Thus Young credibly explained that though the new answering machine servie could be used by an employee as a backup, for calls made during the day, there was someone at the receptionist phone all the time during the hours of 8 a m to 4 30 p m Brackett confirmed in gener- al Young's observance at the time that Employer did not receive a Savageau call from either receptionist or an- swering machine source I credit Young that on the oc- casion of Young's inquiry why Savageau did not use the answenng machine to cover herself, Savageau had re- sponded that she did not think of that Savageau's version otherwise continues that Young then asked why Savageau did not return, and, Savageau said it was a personal problem Young asked what the problem was Savageau further replied, it was family problems, the family problems had to do with her mother and it was personal Savageau acknowledged that she did not give Young any further details Young confirmed that she asked Savageau for the reason that Savageau had not returned According to Young, Savageau said personal problems, mentioned something about her boyfriend, and she left it at that Young had specifically testified that she asked Savageau a couple of times if she could elaborate on what the per- sonal problems were and Savageau did not Brackett has (essentially) corroborated that Young asked Savageau to possibly elaborate on the personal problems that she had, and Savageau did not want to do that Brackett acknowl- edged that Savageau may have mentioned her boyfriend, but Brackett did not recall that she had mentioned she had problems with her mother Brackett did recall how- ever, that Savageau had said that she had personal prob- lems, and that she didn't feel comfortable divulging them Savageau testified that her termination papers were al- ready written out Brackett confirms they were, and he testified that he did not know of that beforehand Young acknowledges that she had prepared termination papers prior to the meeting and that she handed the termination papers to Savageau to sign When she did so, Young told Savageau it (her failure to return Friday afternoon, or to call in) was job abandonment Savageau testified that at the time she did not know that the Employer was going to go to the extent of firing Savageau over it However Savageau also acknowledged that in the interview at that point when she knew she was being fired over it, she did not (even) then ask for an opportunity to further explain the personal problem in more detail to Young, as Young had earlier requested that she do Savageau signed her termination papers She entered in the comments section, according to her, on her own, "I tried to call from 115 to 2 15 Problem had to take care of" Brackett testifeid that the reason he did not ask Sava- geau in the prior 2 days about her reason for being absent, was, because he felt it was her place to tell him, though in the end he more candidly testified that he wanted Savageau to be fired Young confirmed that Sa- vageau was a problem performer, having been counseled twice before for her substandard work performance However, Young held firm that Savageau was fired for her job abandonment Young testified credibly that job abandonment covers an employee who has left the worksite without any type of supervisory approval, who did not return to work within the scheduled shift, and who did not call in, and, it also covered one who did not show up for work for some period of time, and who did not come back with some emergency reason faor failing to do so Brackett testified that Young turned to Brackett and asked Brackett if he thought that was grounds for termi- nation Brackett replied that he had not received the in- struction from FDS, and, he thought that Young should make the decision Young testified that she made the FILENE'S BASEMENT STORE 219 final decision, and that the reaon that Savageau was ter- minated was because of her failure to return (to work) from lunch, to call, and to not provide a reason of ex- treme emergency Young testified that if Savageau had called in, and if she had her absence excused, Savageau would not have been fired for her prior poor productivi- ty McGrath testified that Young reported back that she had held the meeting with Savageau, and that she had terminated Savageau for job abandonment, and for not having an acceptable reason McGrath confirms that Young reported that when she asked if Savageau had called, Savageau said she had tried, but she couldn't con- tract anyone, and, that when Young had then asked if Savageau tried using the answering service, Savageau said she did not think of that According to McGrath, Young also reported that Savageau did not have any par- ticular reason for not calling in McGrath recalled that Young said, Savageau said she did not return or call in for personal reasons, and that although Young had asked several times if Savageau could expand on that, Sava- geau said no Brackett, Young, and McGrath have testified that Sa- vageau's termination was consistent with the Employer's progressive disciplinary policy Indeed, McGrath has tes- tified that a termination for established job abandonment is consistent with both normal policy, and past practice Matthews testified that she had no knowledge or infor- mation about Savageau's attitudes towards the Union McGrath testified that at time of Savageau's discharge, McGrath had no information one way or another on Sa- vageau's union attitude Brackett has testified that he had no conversation with Savageau about her attitude to- wards the Union, or union organizing, and, that prior to Savageau's discharge he had not ever received any mfro- mation about her attitude towards the Union Although Kame/ and Manning were aware that Savageau had signed a card for the Union their awareness also included a simultaneously evidenced indecision on Savageau's part Young testified that prior to Savageau's termina- tion, Young personally was never aware that Savageau was involved in union activity Contentions and analysis The General Counsel's basic contention advanced is that Employer discharged Savageau in part because of her known union organizing activities, which it strongly opposed I first address the scope and degree of Sava- geau's union activities as credibly established of record, and as shown known to Employer In addition to Kamel's awareness on July 17 that Sava- geau had previously signed a union card, the General Counsel has urged that Krauth's concession that he was earlier aware of union meetings being held at the Yankee Drummer Inn should be expanded to include a Krauth awareness that Savageau was an early union supporter who had been attending union meetings since May In this regard, the General Counsel seeks too strained an inference No question was put to Krauth, or to other Respondent officials, that has in substance or in effect elicited specific Employer knowledge of employees who attended the meeting, let alone that they were aware that Savageau had done so early and regularly, and/or had been reported as an active union organizer She was not one of the four employees named on the Union's em- ployee organizing committee, nor one of the two others that Matthews had become aware of otherwise at the time Evidence of Savageau's union prommince in organiz- ing was not convincing To the extent the General Coun- sel would seek to rely on a Savageau prominent involve- ment with union card solicitation, particularly at ADC, I have found the evidence offered of record to support such a finding to be wholly unpersuasive, for reasons earlier noted She did not engage in union handbillmg at ADC More viable, on the surface, is Savageau's testimony that she had displayed union handbills in her car when it was in the employees' parking lot at ADC, though she offered no evidence of direct observation or comment made theron by Employer Such a display, if Employer be shown aware of it, would necessarily have been after Savageau had imparted some indecision on her prior sup- port of the Union to Kamel (if not also Manning) on July 17, and thus of significance in evidencing her re- newed union support The circumstance that Savageau wore a union hat at a couple of employee softball games away from the plant is not shown by the record to be significant Savageau concedes that no supervisor ever saw her wear a union hat No evidence is presented that Savageau's wearing of the union hat was reported back to Employer Nor does Savageau's testimony of having the union hat on the back seat of her car near a window on occasion(s) when she had parked her car in the emloyees' parking lot, on this record, much advance her company-known union activity The question remains whether either circum- stance of display of union handbill(s) in her car, or pres- ence of a union hat on the back seat of her car is reason- ably shown of record to have come to the attention of Employer I conclude and find that neither has been shown by the evidence to have come to the attention of Employer In sum, I have found that the General Counsel has made out only a prima facie case of company-known Sa- vageau engagement in protected union activity in signing a union card Although the Company strongly opposed its employees organizing the Union at ADC, I have also found that the Company was aware of certain facts in- dicative that Savageau more recently was indecisive about the Union At best, the General Counsel has made out a comparatively weak prima facie case for Sava- geau's prior union activity as being an operative factor in Savageau's later discharge The General Counsel, however, also would rely on circumstances of Savageau's (delayed) termination on Wednesday for her prior absence on Friday, and a claim that the Employer is shown to have disparately treated Savageau in this matter when its discipline of Savageau for her unexplained absence on a Friday is compared with the Employer's treatment of certain other employ- ees for the same or similar matter, and thus it is in that manner to be established that the concealed prescribed 220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD antiunion considerations played a role in the various dis- charge recommendations of Filene's local and corporate managers, and in the review of FDS officials that has lead to the decision to discharge Savageau The delay in Employer's investigating and administer- ing discipline on Wednesday, for a prior Friday absence, espacially with the intervening threat on Tuesday to ter- minate Savageau for nonproduction of immigration papers, may be viewed, initially, as suspicious However, what is indicated on this record in the end is that Sava- geau's situation passed through three levels, Filene's ADC (local), Filene's (corporate), and FDS, and Sava- geau had also failed to on her own act timely to provide her Employer with required immigration papers at the requied interim time The fact that that circumstance may have been a contributing factor in Employer's sub- sequent delay in pursuit of the investigation of Sava- geau's unauthonzed absence on Friday, does not itself convey sole inference the delay was for an unlawful motive, rather than a delay stemming in part from an in- tervening practical consideration of Employer meeting what is now required of Employer for it to employ im- migrants The General counsel would also have an asserted fail- ure on Employer's part to afford Savageau a fair consid- eration evaluated in the light of Employer's discount of Savageau's admittedly unsuccessful attempts to call in her absence, especially in the circumstance where but 2 weeks before, Filene's had altered its call-in system The General Counsel's argument is thus that Employer should have reasonably expected there would have been some degree of employee confusion (e g, on there being two numbers to call in) In agreement with Employer however, I find this argument is fatally exposed as being nonmentonous by Young's definitive explanations of the call-in procedures, and their reasonable effects in this matter In short I find the failure of Savageau to report her absence that afternon is not adequately eiplamed by any recent change in Employer's call-in procedure Employer contends generally that its admitted opposi- tion to the Union is not to be automatically equated with an employer animus that supports unlawful discriminato- ry discharge To the extent Employer contends thereby that its expression of opposition to the Union does not automatically establish that it discharged Savageau with a discriminatory motive, I agree Employer contends specifically the General Counsel has failed to make out a prima facie case of unlawful dis- crimination in termination of Savageau Rather, Employ- er contends that Savageau was only a marginal employee who was not an active union adherent, and/or essentially surreptitious in any union activity that she did engage in However I have found that the General Counsel has es- tablished that Respondent's agents did engage in certain unfair labor practices that have substantially mterferred with, restrained, and coerced employees in the exercise of their Section 7 right to organize the Union at ADC, and, that he has also made out a prima facie case on the basis of Employer's awareness that Savageau had earlier signed an authorization card for that union Although essentially conceding that both Kamel and Manning were aware that Savageau had stated in mid- July that she had signed a card for the Union, Employer would have it noted that Savageau had also effectively told both Kamel and Manning that she realized she might have made a mistake and wondered whether or not she could get her card back In that regard, Employ- er contends, that there is no evidence that Savageau en- gaged in, but, I find (more convincingly on this record) none that establishes that Employer was aware that Sa- vageau engaged in union activity after the above-noted conversations with Kamel and Manning However, I have difficulty with attaching much significance to the Employer's argument that neither Kamel nor Manning, who knew of Savageau's union activity, participated in Savageau's discharge, and that the management officials that did, have each testified that they were unaware of Savageau's union activity, and especially as it applies to Local Personnel Manager Young, who made the decision to terminate Savageau after an investigatory interview Employer's additional contention that other employees who were open, active, and leading union adherents were not subjected to (discriminatory and/or other un- lawful) discipline, is not persuasive, inasmuch as I have found that was the case with Noonan I do otherwise agree with Employer's observation that there is no evi- dence presented of record to establish any Noonan-Sava- geau, boyfriend-girlfriend relation Indeed, if anything, the record only reveals (as earlier noted) that Savageau at one time had regularly gone to union meetings with Corso Significantly, apart from question of credibility in Young's denial of awareness of Savageau's union in- volvement, the extent of proven company knowledge lo- cally (Kamel and Manning), in any event extends only to company awareness of not only Savageau's earlier sign- mg of a union authorization card, but also her more recent possible disaffection from personally supporting the Union In that regard, Employer contends that even if there was some basis established to suspect union organizing played a role in the decision to discharge Savageau, the Respondent met its burden of establishing that Savageau would have been terminated in any event Employer contends that Savageau violated an established and known company rule requiring employees to notify the Company if they were not going to return to work Weight of still other more convincing evidence sup- ports Employer contention that it would have terminated Savageau in any event, irrespective of her prior union activiy Thus Employer contends, and I find, that on August 28, with knowledge of the rule, one she had pre- viously fully conformed with, Savageau not only failed to return to work, but, after an (at best) only brief and unsuccessful effort, Savageau wholly abandoned any rea- sonable effort to notify the Company that she would not be returning to work on Friday, for any stated, let alone acceptable reason Employer further contends that it is not only signifi- cant that Savageau did not contact the Company on Friday, August 28, it is equally significant that she did not approach the Company even on her return to explain her absence I agree Moreover, Manning was especially persuasive in testifying that Manning had earlier evaluat- FILENE'S BASEMENT STORE 221 ed Savageau, on the basis of her work performance, as an at best marginal employee Contrary to the General Counsel's urging, the fact that Brackett did not earlier in- quire of Savageau of her reason for absenee, as with design for Savageau retention, is wholly compatible with the credited evidence of record as to the nature of Sava- geau's earlier work performance, and, of the way Brack- ett viewed Savageau's work performance in, and her contribution to his reserve department Finally, Employer contends that when the Company later investigated the unreported, unexcused, and thus far unexplained Friday absence matter, despite Young's warnings on the need for Savageau to explain her ab- sence, and the opportunity provided to Savageau to do so, Savageau failed to timely state any extenuating cir- cumstances in the reasonably exercised judgment of Per- sonnel Manager Young, to whom the decision was in the end entrusted Indeed, in the judgment review of all offi- cials that were involved, Employer contends the dis- charge discipline administered to Savageau was both fully appropriate and concluded consistent with Re- spondent's progressive discipline policy The General Counsel would counter that contention by seeking to establish that there has been disparate treatment of Savageau, by Employer's asserted dissimilar treatment of other employees, notably Robin Rivera, and Noonan ADC employed Robin Rivera from April 18 to August 4, when she voluntarily terminated Rivera was never criticized for her work performace She was never disciplined Rivera not only testified that she had over a 2-week period openly solicited employees to sign author- ization cards for the Union, Rivera also testified, unlike Savageau, that she had openly handbilled for the Union at ADC Rivera testified generally that she did not always return after lunch, including on Friday, and, that there were occasions when she had done so without the super- visor's permission However, Rivera has also testified that at first she did obtain it (permission), and otherwise, that in the period of April-June, there were low periods of work at ADC when the Employer had regularly en- couraged employees to take time off Upon an inquiry of specific days that she had taken off midday, and particu- larly in the period mid-June-July, Rivera could not recall, one way or another, whether she had spoken with her supervisors before or after Moreover, Rivera has testified that she was aware of the rule requiring her to do so (call in or otherwise get supervisory approval), and she had done so in the past, though she continued to assert, only generally, not always Rivera's testimony failed to persuade me that the rule of job abandonment was one inconsistently applied to employee Savageau It is nothing short of ironic that the General Counsel seeks to establish disparate treatment of Savageau, by virtue of Noonan's nonreturn after lunch 1 day earlier that same month That circumstance need not be bela- bored Noonan was the Union's leading union adherent and advocate In work performance, Noonan was also a superior employee Moreover, when Young, in disbelief upon learning of his unreported absence, on her own ap- proached Noonan as to the reason for his absence, Noonan offered Young the explanation, found also ade- quate in the case of Thrush, namely, a medical emergen- cy of a family member, his grandmother Given the limited union activity of Savageau that Re- spondent is shown of record reasonably to have been aware, and, given the established circumstances of an un- excused job absence on Friday afternoon, and, Sava- geau's inadequate explanation offered Young for the job absence, though afforded ample opportunity to explain the absence on the prior Friday, and, given Savageau's established prior poor work performance in the opinion of her last two direct supervisors (of which Young was aware), the last of which in the end tellingly revealed that he simply did not want her back, I am persuaded tht Employer has established that under all the above cir- cumstances, Respondent, through Young, would have terminated Savageau for her recent instance of unex- cused job abandonment, irrespective of her known union activity That is, unless the presnbed discriminatory pur- pose is to be revealed in some other manner, as by force of proof of an alleged unlawful termination of employee Ed Komcki for the same alleged discriminatory reason, notably accomplished on the very same day c The alleged discriminatory termination of Ed Konicla on September 2 (1) Komcki quits on August 5 Edwin P Komcki testified that Filene's had employed him from April 6 to August 5, and from August 7 to September 2 Prior to August 7, Konicki was not in- volved with the Union in its campaign in any respect (Ronayne testified that he was not aware of Komclu's activity on behalf of the Union before August 26 ) Komcki relates that as of August 5, his home-base job was in bulk area, where he counted and put up stock (e g, clothing, pocketbooks, etc ) on pallets Komcki started work at 7 a m, though he would regularly arnve early Komclu was supervised by Manning from mid- July In the material period of July and August, Manning was the supervisor of bulk (giftware) processing area Manning confirms that bulk processing was Komclu's home base, and, that Komcki worked there more often than not However, Manning was on his vacation from July 30 to August 14 Prior to gomg on vacation Man- mng had written up Kornch's 60-day (but in time, more like 90) evaluation Manning rated Komcki as a good employee in all categories Manning sent his unsigned evaluation of Komcki (along with his evaluations of many other employees) to Young for her (and McGrath's) review, prior to Supervisor Manmng's review with the individual employee Young confirms that Komclu was rated a good solid performer Komclu relates that on August 5 he received an as- signment (recalling it Incorrectly as given by Manning who was on vacation at the time) to mark down prices in part of bulk area, but, that on the way to markdown, he had received a second assignment from Kamel to go to reserve (to ship out from reserve) To the extent Kon- iclu would assert in regard to a Kamel assignment on 222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD August 31, that Kamel had never assigned him work before, that assertion is not credited Komcki walked to reserve department, but then he kept on walking Komcki said nothing to any supervi- sors Komcki just signed out (on his own) at 7 15 a m Komcki left his badge, and he walked out of the ware- house, disgusted Konicki explained that there was work in his regular bulk area, and his understanding was that an employee would not be flexed if there was work in the employee's assigned home area However, they would start him somewhere, and then abruptly shove him somewhere else, and he was not too happy about it According to Konicki, he had been flexed before, but all of a sudden, he was being flexed more often, as much as 3-4 times a week, though there was work in his area As Konicki walked downstairs to leave the building, Kamel asked Komcki what the problem was Komclu replied he was sick of it, and going home Manning was on vacation when Koniclu walked off the job on August 5 Kamel recalls that he was standing by the exit door of the warehouse that day when Kon- icki walked by, and that Konicki gave his identification to Kamel, saying, "I quit" Kamel relates that he asked Komcki, "Ed, what's wrong" Kamel followed Komcki out the warehouse area door and down the stairs that led to the exit from the building Kamel confirms that Kon- icki said (only), "that's it, I'm sick of it," and Komcki walked out the door Kamel otherwise confirms that he was aware that Konicki was home-based in bulk, and, that Komcki had been flexed that day to the reserve area, (adding) as had 10-12 other employees Kamel denies that it was well known to him at that time that Konicki did not like moving around the facility to different areas There is no indication of it in Manmng's prior evaluation of Komcki, though Young relates that she had heard Konickes grumbling on it Kamel testified that it was his recommendation that Komcki be terminated, because Komcki had walked off the job and quit Kamel also testified that at that time Kamel had no information on Koniclu's attitude towards the Union Kamel relates that he never had a conversa- tion with Komcki about the Union Kamel further testi- fied that he was not involved in the decision to put Kon- icki back to work, but, that Kamel was informed that Komcki was later put back to work on the condition that he agree to cooperate with management on flexing in the future Krauth recalled that early in the morning of August 5, Kamel came downstairs and informed Krauth that Kamel was standing by the door when Komcki walked by, and simply said he quit and was leaving According to Krauth, Kamel asked what they should do, and Krauth said they should talk to FDS Young relates unsurely, that Krauth, Kamel, or a su- pervisor told Young that Konicki had walked off the job Young testified that it was considered job abandon- ment Young otherwise recalled that she was told that Komcki walked off the job because he was upset about being flexed into another area Young was aware that Komcki was a good employee, without RC As noted, there was no hint of Komclu grumbling over flexing in Manmng's ratings of Komcki (in versatility and coopera- tion) that Young had in her possession at the time (2) Komcki returns August 7 Komcki went home, thought it over, and he figured that he should try to return to work because he had done himself an injustice by walking out In any event, Komcki called Haskell that day, intending to talk to Has- kell about problems on the job, and Koniclu's return Haskell was not available Notably, the secretary did not ask, and Konicki did not tell Haskell's secretary why he wanted to speak to Haskell Young called McGrath, who reported it also to higher headquarters Initially Young related that she was to contact Komcki to find out why Komcki had left On another occasion Young related that Komcki had (subse- quently) called ADC, and left a message with the office of Haskell, who was not there at the time, so Young took it upon herself to call Komcki back to determine from his perspective what had happened, and why did he walk out However, Young seemingly later clanfied she probably was acting on McGrath's instructions in calling Komcki Young did not reach Komcki until later that afternoon (I find infra, evening), and thus, in any event, after Young had conversed with McGrath (and Matthews) McGrath confirms, pursuant to normal procedure, Young had called McGrath to report that Komcki had quit, reporting that he had left his name badge and walked off the job and the premises McGrath was (made) aware that Komcki had (later) called ADC McGrath relates that Young said that Komcki was upset because he had been flexed Seemingly out of context with an initial call of Young, and with what was then known, McGrath related that Koniciu regretted he had quit, and he wanted to come back and talk to Haskell In any event, McGrath informed her supenor, Collman McGrath recommended (to Collman) that they have Komcki come in, and listen to him According to McGrath, Collman then notified FDS Ora Matthews, FDS employee relations specialist, con- firms that Collman had called Joseph Vella, then FDS operating vice president (employee relations) Matthews had only recently reviewed Employer's Communications Guideline with Vella, sometime during the week of July 20 In any event, Matthews called Young directly, the same day that Collman had contacted Vella Young re- peated the circumstances that Koniclu had walked off the job, basically quit However, according to Matthews, and clearly the more consistent, Young was not then aware of why Komcki had phoned Haskell It appears reasonably clear that Young was instructed to ask Konicki to come in (whether by Matthews, or McGrath, or both), because they wanted to discuss (learn) Komclu's circumstances in leaving the previous day According to Matthew's recollection, Young did not make any recommendation at that point because they were waiting to hear Komckes reasons It also seems clear that Matthews had at least two conversations with Young, and, one clearly was after Young had eventually reached Komclu in the early evening of August 5 , FILENE'S BASEMENT STORE 223 Konicki thus testified that he spoke to Young that evening at 7 30 p m Young testified that upon reaching Komcki, Young asked Komcki if he wanted to explain to her what happened and why he walked off the job Kon- icki confirmed that Young first asked him what the prob- lem was, and Komcki said he did not care to discuss it over the phone Komcki recalled that Young then asked Komcki would he come in tomorrow and talk it over, and Konicki then said that he would like to meet her in person and talk it over Young confirms Komcki said, "Well, I'd like to talk to you about it, but I don't want to talk to you over the phone" Young however has asserted that she believed that Konicki wanted to talk to Krauth, and she recalls arranging for Konicki to come in the following morning and meet with both Krauth and Young to explain why it was he walked off the job Komcki essentially confirmed Young's account of arrangements to come in the follow- ing morning, except that Komcki testified that he told Young, when asked if he wanted to do so, that he would like to meet with Young in person, and talk it over I do not credit Young's recollection that Komcki asked to speak to Krauth (3) Konicki expresses disinterest in reading either company or union literature Komckes version continues that he arrived at 7 a m, the following day, August 6 Young called Komcki into the office, but then Young said that they would wait for Krauth They went to Krauth's office According to Komcki when Krauth arrived, Krauth asked Konicki what he was doing there Konicki said that Young had invited him over, and that he would like to get his job back After initial hesitation, and an assertion the he could not recall the details of their conversation, Komcki then testified that Krauth said, "You know we got letters that we pass out that we would like you to read that you haven't been reading" (Though there is some confusion of record therein, especially as to timing, apparently Krauth made a similar remark in an RT discussion when Konicki had recited certain problems on the job to Krauth ) In any event, Komc1u relates that he then told Krauth, he did not have to read those (antiunion) letters Konicki recalls that Krauth replied, "You think you know every- thing", and Konicki denied making that claim Konicki otherwise testified that Krauth did not express any opin- ion about the Union, or its campaign, in any respect Komcki initially asserted that no one asked him why he quit, and he did not recall a discussion of flexing, but then added he was not denying it Indeed, Komcki promptly acknowledged that that was what a certain letter was about the next day, infra Krauth confirms that on August 6, at 7 a m, he spoke to Konicki in his office in the presence of Young Krauth's version is that he wanted to find out what hap- pened, what was the reason for Konickes walking off the job and quitting, and he asked Komclu why Komcki left According to Krauth, Komcki said that he was sick and tired of being flexed Krauth was sure that he had also discussed the Company's flexing policy more with Kon- icki at the time but Krauth could not recall the conversa- tion details specifically Young's related testimony is that Komcki was very upset that he was flexed out of his department into an- other department, and, he said he did not know why they were flexing him According to Young, Krauth then explained to Konicki that they flexed people into other departments based on business demands, what had to happen in the warehouse, what work had to be then processed, and Krauth told Komcki that they would continue to do that I credit Krauth and Young's ac- counts that they inquired of Konicki why he had quit, that Konicki explained he was upset with flexings, and that Krauth in turn (essentially) explained the Employ- er's position on the business need for flexing, and that it would continue Krauth testified that at this time he had had no con- versation with Komcki about the Union, and Krauth had no information about Komclu's attitude towards the Union However, Krauth confirms that in their convera- non Komcki had said that he did not want to hear (or, was sick of hearing) baloney about the Company, or the Union, and Komcki just wanted to be left alone Krauth denied that he told Komcki in that meeting, or at any other time, that Komcki was required to read company literature Young relatedly testified that Koruclu's state- ments, e g, about not wanting to read either company or union literature, had no beanng on their decision Young clid not recall a Krauth statement that Krauth expected Koniclu to read the company literature Though she did not recall who brought up the subject of (reading) literature, she did recall that it came up I credit Komclu's recollection that it came up following the Krauth statement about Komclu's not reading com- pany literature that was being passed out and Komclu's reply he did not have to read that literature However, I am persuaded by the weight of other mutually consistent evidence in the accounts of the participants that that was not the entire conversation related to that subject Rather, I also find that when Komclu told Krauth that he did not have to read those letters, and Krauth then commented that Koniclu thought he knew everything, Konicki followed up his disclaimer of claiming to know everything with the additional statements attributed to him by Young, namely, "I just want to be left alone I want to do my job I want to do my job well I don't want to read the Company literature I don't want to read the Union literature I don't want to read anything I just want to be left alone to do my job" Young recalled that Koniclu asked for his job back, and Krauth said he would have to think about It Young believes that they told Koniclu that they would get back to him Krauth corroborates that Krauth and Young asked Komcki to leave and said they would get back to Komcki that afternoon Krauth recalls that, in his view, Konicki had Olt, and Krauth testified that he recommended termination Young confirms that Krauth recommended termination, though she recounts otherwise that she did not know what he felt Krauth relates that Young contacted FDS However, Young testified that it was discussed with 224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD McGrath, and a decision was made above her head, quickly, the same day McGrath confirms that Young reported back that Komcki had requested reinstatement McGrath did not recall if she was told that Konicki was a very good worker, though she acknowledged that was a factor in his return In significant contrast with a Krauth recom- mendation (at that time) that Konicki be terminated, McGrath testified that she was not aware of anything neg- ative McGrath recounts that (local) management explained to Konicki that part of his job was to be flexed to other areas, and, if Koniclu wanted to come back that Komcki also needed to understand that, and, to be sure it was clear In that regard, McGrath also testified that they had a statement for Konicki to sign, that he understood that in the normal course of his job, he would be flexed in the future Matthews did not recall what Young's recommenda- tion was She also did not think that FDS had the infor- mation whether Konicki was a good employee or not Based on her own personal experience, Matthews was sure that would be taken into account, but she did not recall a conversation on it The point to Matthews (and McGrath) was that the Employer had sat down and talked to Komcki, and the Employer had clarified to Komclu what Komclu's responsibilities were as a ware- house utility worker at ADC Thus, when Young told Matthews that Komclu wanted his job back (essentially) under those circum- stances, that he basically regretted walking off, and that he wanted to come back to work, Matthews discussed it further with Vella They then decided to reinstate Kon- icki with the clear understanding that Konicki would be in agreement to flex to other departments in accordance with his responsibility as a utility worker Moreover, they decided to put that agreement in the form of a writ- ten statement for Komcki to sign On the afternoon of August 6, Young spoke with Mat- thews in regard to the Komcki reinstatement letter Mat- thews dictated the content of the letter, in the form of a memo, over the phone, and Young typed it The pre- pared letter from Komcki to Krauth related the circum- stance that Komclu quit, and the conditions upon which Konicki would be returned to work, as follows On August 5, 1987, I quit without notice because I was asked to work in Reserve Department I am requesitng to be reinstated to my former po- sition as a Utility Worker and I understand and accept that I may be flexed and reassigned to work in other departments from time to time I will accept and cooperate with management re- garding these re-assignments Young confirms it was decided to offer Korucki rein- statement to the same job as a utility worker, that he was a good worker, and that it was approved all the way down the line Young called Konicki and she asked him (only) to come in the following morning for a meeting at 7 a m Konicle confirms receiving the call from Young, about 8 30 p m, to come in the following morning Young did not attend the meeting held on August 7, when Konicki signed the above letter Konicki signed the letter as prepared Komcki testified that pursuant to instruction, he had arrived at the warehouse (before) 7 a m, and he waited for Krauth to arrive When Krauth arnved, Krauth called Komcki into his office Komcki relates that Krauth had a paper, and that Krauth asked Komcki to read it, see what he thought, and asked would Konicki agree to it Konicki read and signed the letter Krauth told Konicki to return to work, which Komcki did on August 7 McGrath testified Young reported to McGrath, and Matthews corroborated, that Konicki signed the state- ment (agreement) and returned to work on August 7 Contrary to Komcki's apparent misunderstanding, Young further testified that Konicki did not return as a new em- ployee, but rather Komclu continued in his pnor em- ployment tenure At that time, McGrath was aware from Young's report (only) that at a previous meeting Konicki had said he did not want to be bothered heanng anything pro or con about the Union McGrath corroborated Young that was not a factor in Konickes rehire Matthews testified that at all times they were trying to be aware of an employee's attitude toward the Union Matthews also acknowledged that at this time Matthews had knowledge that not necessanly linked Konicki to the Union, but that Komcki was not necessarily procom- pany Matthews' understanding at this time was that in the Konicki-Krauth conversation, Komcki had said he just wanted to be left alone He did not want any literature from the Company, and he did not want any literature from the Union, he was neutral on the Issue of unions Matthews has also testified that she had no knowledge of any specific Konicki union activity at that time This would change with Krauth's report of certain Komi(' union activity on August 26, Young and Kamel's report of another Kamel-Konicki flexing incident occurrence on August 31, and, this time, Konickes discharge followed on September 2, with the parties contesting alleged in- subordination and disparate treatment claims (4) The unreported second Kamel-Koniclu flex incident, mid-August According to Kamel, when Komcki returned on August 7, he was home-based in the bulk area Kamel testified that he continued to flex employees, including Komcki However, normally it is the area supervisor that announces assignments to the employees under that su- pervisor Nonetheless (I find), Operations Manager Kamel might also announce an assignment, if Kamel saw the employee first after the assignments were decided by Kamel in the supervisor's shapeup meeting in the morn- ing Kamel relates on the next such occasion that he had to tell Konicki that he was flexed, which Kamel placed at somewhere around mid-August Kamel said Komcki, "Ed, you're going to be working down at the dock, today" According to Kamel, Komcki on that occasion said that he was not a doclue, and why should he work FILENE'S BASEMENT STORE 225 on the dock Kamel testified that Komcki then turned away, and, with hands flying in the air and head shaking, Konicki walked to the dock There was no apparent record made of Kamel's claimed second Komcki-Kamel flexing incident (Howev- er, Kamel's record made of a later incident on August 31, reflects also this earlier incident, though with Kon- iclu there recorded as having said on this occasion, "Me, down on the dock?") Kamel testified that he did not report this incident to anyone, because he did not think it was serious enough, and he let it slide As earlier noted, Komclu's assertion that Kamel had never before August 31 given assignment to Komcki was self-inconsistent with Komckes account of Kamel's August 5 assignment, and thus not to be credited Matthews also confirms later receiving a Kamel report of there actually being three Konicki incidents on flexing I credit Kamel's account of the second flex incident with Komcki, though I also find that on this occasion it is more probable that Komcla said, "Me Down on the dock", and that Komcki on that occasion also went off towards the dock mumbling to himself, and with his hands in the air (5) Komclu's subsequent open union activity at ADC Konicki relates that after August 7, he considered the Union However, the first visible manifestation thereof was 2 to 3 weeks later On August 25, Ronayne hand- billed ADC On that occasion Konicki accepted a hand- bill Komcki recalled (incorrectly) that the handbill relat- ed to the subject of an employer's earlier addressment of what employees could and could not do In any event, on arriving at work the following morning of August 26, Komcki placed the handbill on the dnver's side window of his truck, which was parked, as usual, so as to have the driver's side closely face the employees' entrance and exit door of the ADC warehouse building Koniclu ex- plained that he put the Union's handbill on the window of the driver's side of the truck facing the employees' door because the Union's handbill contained certain in- formation that Konicki felt the employees should have Konicki initially testified that Supervisors Bracket and Dave O'Neill saw him put the union literature in the side window of this truck that day Prior affidavit of Komclu records only (I find) the later Komcki posting of union literature on September 2, and it claimed as observed by Supervisors Brackett and O'Neill The Konicki statement was thus silent on Komclu's posting of union literature in his car earlier on August 26, and of his hearing claim that Supervisors Brackett and O'Neill observed the post- ing Komcki acknowledged that he (personally) had no discussion with any supervisor that day (August 26) about the union literature in his truck Brackett testified that he knew that Konicki drove a truck, but that he never saw union literature on it Relat- edly, Manning had no recollection of Brackett ever tell- ing Manning that Konicki had put literature on his truck According to Manning, no one told Manning that, and Manning did not know if his supervisors were aware of it Area Supervisor O'Neill did not testify However, the significance of that circumstance is (essentially) immateri- al, inasmuch as Facilities Manager Krauth testified that he was aware that Komcki had union literature on the side window of his truck, and it is otherwise apparent of record that Krauth (and Matthews) was aware of it before September 2, discussed further infra (6) The Krauth flex assignments According to Koniclu, that same morning (August 26) Manning instructed Komcki to report to Krauth Korucki had never been told to do that before At that time Krauth informed Komcki that he had a special duty as- signment for Komcki, to put up a tent The tent was used that day as weather cover for Vice President Tem- pesta's meetings with employees scheduled to be held outside the warehouse Krauth also told Konicki that he wanted Komcki to go to the first meeting Komcki put up the tent with the aid of a temporary employee, who had also been assigned to the task The first meeting was attended by 20 to 30 employees and lasted about 30-35 minutes In addition to Tempests, Krauth and Young were present Komcki testified, that during the meetmg, Tempesta said, most of the union em- ployees are now gone Those in attendance agreed that a lot were gone, with some people happy about it, and some not Tempesta informed the group that anyone who wanted to leave could Attendance was voluntary At the conclusion of the (first) meeting Komcki was told to take an inventory, and clean up Later, probably after the second meeting, Krauth told Komclu to take the tent down After that assignment, Krauth instructed Komcki to conduct an inventory downstairs Komclu conducted the inventory in 2 days, with the aid of a tem- porary employee available only for the first half-day Komcki conducted the rest by himself, including, in any event, conducting the inventory alone on August 28 (Friday) Krauth confirmed that he needed two employees to set up a tent outside, and to conduct an inventory down- stairs Krauth would typically not attend a shapeup, but simply tell someone he needed the employees, and the required employees would be flexed to him Krauth con- firms that Konicki was flexed to him, but did not recall who flexed Koniclu to him Manning, however, testified that Krauth told Manning to have Komcki put up the tent Manning confirms fur- ther, that after Tempests spoke (the second time) Kon- iclu (and Manning) took the tent down Manning did not recall if Konicki did inventory the next day Krauth however confirms using Konicki and another employee to conduct an inventory of parts and conveyor equipment for the first of a 1- to 2-day assign- ment, and that he used Konicki for the remainder Krauth testified generally that there was no specific reason why Komclu was assigned there There is some confusion whether the 2-day inventory assignment oc- curred on August 27-28 or 28-29 The latter would have involved some Saturday work Ronayne would recell Komclu's complaint of (perceived) unusual Krauth as- signments that occurred on normal workdays, August 26, 27, and 28 (Wednesday-Friday) Ronayne testified that another union committeeman, employee Mort Sullivan (deceased), had called Ronayne 226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD on August 26 and informed Ronayne of Komcki having the union literature on his truck Sullivan also mentioned to Ronayne (whether then or the next day) that Konicki as being given the runaround by the facility manager Ronayne testified that he told Sullivan to try to set up a meeting with Komcki as soon as possible, and Sullivan did, for August 28 (Friday) Konicki confirmed that he met with Ronayne at the Wonder Bar at noon on August 28 Konicki relates that they spoke of the problems that Komcki was having on job flexing, and Komcki also inquired about the union wages at Sommerville Komcki initially related that he had received union literature from Ronayne of August 28, but Komcki subsequently clarified that he signed an authorization card for the Union after work on Septem- ber 1, at which time he received a supply of union au- thorization cards and quite a bit of literature Komcki ac- knowledged that he kept the union cards in his vehicle, and that he had no occasion to hand out or solicit cards, as Komcki was discharged the very next day, September 2 Konicki did post some of the union literature on his truck side door window on the morning of September 2, when he arrived for work, and parked in the same place Although Komcki had testified that at the time he re- ceived the union handbill from Ronayne as he left work on August 25 that he said to Ronayne, good luck on your campaign, prior affidavit confirms that his meeting with Ronayne on lunchbreak on August 28, "was my first talk with any union representative " Ronayne also confirms their discussion at lunch included the Union's organizing drive, and what the Union can do for the people at ADC However, their conversation ended with Ronayne only giving Komcki, Ronayne's (home) phone number and union number Ronayne told Konicki to give him a call as soon as Komcki wanted to get involved, sign a union authoriza- tion card, and work full time (be on the unpaid, inside employee organizing committee) for the Union It is ap- parent that as of August 28, within the Union, Komcki was still undecided (at least) to the extent of present will- ingness to sign an authorization card for the Union It is also clear that all that would be changed by the evening of August 31 (7) The third and last Kamel-Konocki flexing incident of August 31 In the processing area there are twenty 100-foot lengths of roller-conveyor, at the end of which are two desks The desks are located perpendicular to, and about 10 feet away from the roller end On August 31 (Monday), Manning was in the bulk processing area, as- signing work to his warehouse employees Manning re- calls that he was at a desk with some other employees besides him Komcki came up to receive his assignment Komcki confirmed that his next workday was on August 31 (Monday) Komcki testified that on that morning, Manning (first) assigned him to work on the dock Konicki started walking to the dock When about 10 feet away, Kamel came from another direction ap- proaching Komcki on the right side, then about 10-15 feet away from Koniclu According to Komclu's recol- lection, "I just told Kamel, I wasn't a dock worker" Kon- icki relates that he kept walking According to Koniclu, Kamel then said, "Remember you signed that letter" Konickes initial version of what followed is that Kon- icki replied, "I know I signed a letter", and, as he kept walking, he mumbled to himself under his breath, "Here today Gone tommorrow " Komcki initially denied that he had addressed any vulgarity directly to Kamel, but Konicki then quickly added he did not recall what he said On cross-examination, and notably with Employer's use of any prior inconsistent statement(s) purportedly made at an unemployment hearing held on October 1, before the Division of Employment Services (DES) of the State of Massachusetts, and concerning which use separate ruling was made and issue is raised (and accord- ingly is to be separately treated), Konicki continued to at first assert that he did not recall the words he had mum- bled However, Komcki acknowledged on pressed cross-ex- amination severally that "shit" could have been one (word) and he was not denying it, later, that he knew it was "bullshit," but it was not directed at Kamel, (then) acceding that he did not say anything else to Kamel other than, "Here today Gone tomorrow", and finally, that it could have been, "oh shit" As of this time, how- ever, Komckt's testimony was firmly, and significantly, (a) that he knew he did not say, "this is a bunch of slut", and (b) it also couldn't have been, don't give me that shit", both denials being made assertedly because he was talking to himself Kamel relates that at the shapeup that morning, they decided that Konicki would go to shipping Kamel's ver- sion is that as he approached Konicki in the bulk area, he said, "Ed, you're going to be working down at the dock today" Komcki replied, "He's not a doclue, why should he work on the dock" Kamel told Konicki that he was a utility worker, and he was to work where needed Kamel recalls that Komclu then turned away (again) with hands in the air in exasperation, and head shaking Kamel confirms that as Komcki began to walk away, he was mumbling According to Kamel, while remaining stationary, Kamel called to Koniclu, "Ed, remember the letter that you signed, agreeing to cooperate with man- agement" Kamel testified that Konicki, then 6-7 feet away turned to Kamel and said to Kamel, in a loud but not yelling voice, "Don't give me that slut" Kamel relates that Konicki then turned away again, and walked off toward the dock Manning confirms Komcki that Manning had initially told Komcki, "You'll be working on the dock today" Manning confirms that Komcki said nothing to Manning, that Konicki did not wave or gesticulate his arms upon receiving the assignment, but rather simply turned around, and walked towards the dock As Komclu did, he passed Kamel, who not unusually was also in this general area Manning recalled having first noticed Kamel come within 50 feet of the area possibly from reserve, or at least from the back of the building In any event, Kamel came toward the desk Manning did not know if Kamel had heard Manning already tell Konicki his assignment FILENE'S BASEMENT STORE 227 for the day However, Manning testified that while Kon- iclu was 20-30 feet away, with Komclu's back to Man- ning, Manning heard Kamel say to Komcki, "Ed, you'll be working on the dock" Manning corroborated Kamel that he heard Komcki reply to Kamel, "I'm not a dockie " Manning did not know if Konicki had said anything first to Kamel (before that) Manning further recalls (contrary to Kamel) that he saw Kamel walk along with Komcki, and the last thing that Manning heard was Kamel tell Komclu, "You're a utility worker" Manning did not hear any foul language (thereafter), and he be- lieved that Konicki went on to the dock after that At heanng Kamel has testified that he never had an employee speak to him in that manner Kamel also testi- fied that the difference with the profanity that he has heard in the warehouse before, was that this time the profanity was directed to him Kamel testified that he recommended Konicki be terminated for insubordination After the incident Kamel spoke of it with Manning Manning did not recall what Kamel had specifically said on that occasion, though he recalled that Kamel did not tell Manning then, that Kamel was trying to get Konicki discharged FDS and corporate management essentially corrobo- rate, infra, a report of Konickes statement made to Kamel of, "Don't give me that shit," infra Kamel has also testified that he wrote an account of the incident the next day, which is true and accurate Kamel's records therein, that after Kamel reminded Komcki of his agree- ment to cooperate with management, and work where needed, Komi(' turned to Kamel and said "Don't give me that skit" Kamel's account of the specific remark at- tributed to Konicki is at least one well-established as not of recent fabrication, infra Nonetheless, it is presently observed that the basic conflict over (in my view) the very substance of the un- derlying contended subordination remains m dispute solely between Konicki and Kamel's accounts, on this the only other person present and testifying, Manning, was on the one hand unable to assist in the persuasive resolution of the central matter favoring General Coun- sel (clearly not having heard all of the conversation), but on the other hand, has generated some base for an infer- ence of nonsupport of Kamel, in Mannmg's nonrecall of any Kamel timely reference to Manning of Kamel's im- mediately intended discharge of Konicki for the remark However, apart from Kamel not relating the Konicki remark, or what he intended to do about it to Manning in their early discussion, the fact that Manning did not later take part in Komclu's discharge is adequately ex- plained by Young as not sinister in terms of the incident simply involved a higher management level, namely, the insubordinate remark was directed to Operations Manag- er Kamel Krauth asserts that his only involvement with Kon- Ickes termination is that he agreed with the recommen- dation of Kamel According to Krauth's recollection, Kamel reported to Krauth that Kamel had walked into the bulk department area that morning, seen Konicki, and Kamel told Konicki that Komcki had to go down to the dock to work, or, that he was going to be working on the dock that day The report to Krauth continued that Komcki had said, "I am not a doclue " As Komcki turned and started walking away, Kamel reminded Kon- icki of the letter that Konicki had signed, to be coopera- tive with management of flexing Kamel's report to Krauth continued that Komcki had then turned around and said, "Don't give me that shit" Komcki then turned around, and he went down to the dock According to Krauth, Kamel felt it was a clear viola- tion of the (signed) statement, and Kamel recommended "we do something" Krauth agreed, and he then recom- mended that Kornai be terminated Krauth relates that they called FDS, and then they waited Young testified relatedly, that they all came to a mutual decision (termination), though she could not recall who did so first However, Young corroborated that she reported the incident on August 31, and she confirmed that authorization to terminate did not arnve until the next day, and then after close of business on September 1 In the mtenm, in the morning of Septem- ber 1, Manning conducted Komclu's "60 day" review, and Manning rated Komcki good in all areas Thus, on September 1, Manning conducted his review with Komcki Manning went over his across-the-board "good" evaluation of Konicki, and Manning acluiow- leged that he did not have any problem with Konickes work In that regard I credit Konickes testimony that on the occasion of this review, Manning said to Konicki, "I don't know what's going on between you and Ed (Kamel)," but, "I have no problems with you" Both signed the review on September 1 Manning turned in the review to Young the same day Manning did not think that he told Kamel that he was going to give Konicki his review that day, though Manning as- serts that Young knew of it (As noted, Young confirmed that Komcki was rated as a good solid performer, but Young testified that there were so many reviews delayed and out to be administered that she did not know that Manning had planned to administer Komclu's review that morning ) Although appearing at one point to recall that it was later that day that he learned from Kamel that something was going to happen, Manning has also testified that he could not recall whether it was that day or the next day that he learned Kamel was going to fire Komcki for not agreeing to work in the assigned area In any event, Manning was aware of Komclu's impending discharge at shapeup time in the morning of September 2 McGrath confirmed that Young called McGrath, and she reported there was another Konicki (flex) situation, this one involving insubordination, and that Kamel rec- ommended permanent termination McGrath also testi- fied that the report she received was Korucki had used profanity, waved his arms, was agitated, and used a loud voice Young reported to McGrath more specifically that Komcki was working and Kamel had asked Konicki to flex to the dock Komcki said "I'm not a dockie, and his last statement to Kamel was, "don't give me that shit" McGrath relates that Komcki did not refuse to do the work, but he did it reluctantly, and had vocalized that he did not want to do it 228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD McGrath has testified that she considered that the above was insubordination, and grounds for termination Indeed, McGrath testified in her past practice, it was grounds for an immediate termination McGrath howev- er recommended termination to Collman, as did Collman to FDS, and FDS approved Matthews recalled that they (FDS) received a call from Young Matthews talked directly to both Young and Kamel According to Matthews, they (Kamel and Young) reported to her that Komcki had refused to be flexed to another department, the dock After some lead- ing, Matthews recanted Komcki's refusal to do the work, and then testified more consistently that Komcki did not acutally refuse the assignment, but Konicki went reluc- tantly, and used profanity Matthews otherwise con- firmed that ADC (local) and Wellesley (corporate) man- agement officials had (all) recommended termmation Matthews discussed it with Vella They concurred Ronayne testified that on Monday night, August 31, Konicki called Ronayne at home Konicki said he wanted to meet with Ronayne as soon as possible Kon- icki told Ronayne that he wanted to sign a card for the Union, he wanted the Union to immediately send a letter that Konicki was going to be working full time as a union organizer at ADC The reason that Konicki ad- vanced at that time to Ronayne was, Komcki thought he was being treated unfairly in assignment because of the union literature he put on his truck on August 26 The record established that it was Employer's policy to try not to flex an employee from the employee's regu- lar area on consecutive days Prior to discharge on Sep- tember 2, Konicki had five nonbulk area assignments in a row, namely, by Krauth on August 26, in the special as- signment to put up and take down a tent, with fill-in in- ventory and cleanup, and on August 27-28 to conduct a parts and roller inventory, by Kamel on August 31 to work on the dock, and by Manning, to the dock on Sep- tember 1, though with Manning's acknowledgment that the (consecutive) Komcki dock assignment on September 1, could have originated with Kamel Manning testified relatedly that it was possible that Kamel told Manning that Kamel wanted Komcki to work on the dock that morning (again) Konicki testified that he was not flexed that often to the dock, except re- cently Kamel did not deny that he flexed Komcki to the dock that day I find it was not only possible, but most likely on this record, that the decision to flex Konicki on consecutive days to the dock was not Manmng's deci- sion, but most probably Kamel's Ronayne testified that Komcki complained to Ronayne that he thought it was very strange that the plant manag- er was giving him jobs to do, and that his immediate su- pervisor was sending him to the plant manager for job assignments However, Ronayne testified that Konicki did not ever complain about being required to flex, for example, from bulk area to the dock area, or any other area On the evening of August 31, when asked to immedi- ately do so, Ronayne informed Konicki that he could not send a letter to the Company until Konicki signed a paper authorizing the Union to do so They then ar- ranged to meet the next day, September 1, after work at the Wonder Bar On September 1, at that meeting, Kon- icki signed a union authorization card, and he signed the release letter to enable the Union to notify the Employer that he was on the organizing committee Ronayne con- firms that Konicki wanted a supply of union authoriza- tion cards and that Ronayne also gave him union litera- ture According to Young, the final determination to termi- nate Konicki was received on September 1 (Tuesday), in the late afternoon, after the close of business at 3 30 p m Matthews testified that the decision reached to terminate Konicki was consistent with Filene's progressive disci- pline policy, because there was insubordination, namely, conduct that would be grounds for termination in certain circumstances without prior discipline According to Matthews, the nature of Konicki's insubordination was in his disrespect for management in the use of foul, abusive, or abrasive language, in an agressive manner (8) The Employer's knowlege of Komcki's more recent union activity Manning has testified that as of this time he had not made a judgment on the union interest of Komcki Kamel testified that he had no information on Konickes attitude toward the Union, and, he was unaware that Komcki had union literature on his truck (on August 26) Kamel was adamant that he did not pass out Tempesta's August 12 letter to Konicki I credit that testimony, and I also find that he did not hand out such literature at that time to Konicki because he was already aware of Kon- Ickes position on reading company literature, as ex- pressed to Krauth and Young on August 6 Young testified that as of Koniclu's discharge inter- view on September 2, infra, she did not know, one way or another, of Komcki's interest in union activity, beyond the one meeting in which he had said he was not interested in reading anything, and he only wanted to be left alone Young specifically denied that anyone had told her that Konicki had put union literature on his truck I In contrast, Krauth acknowledged that as of August 31, when Krauth recommended that Konicki be dis- charged (for the Kamel reported flexing incident) Krauth was then aware that Komcki had a union pamphlet on his truck the prior week Krauth has otherwise acknowl- edged that he saw Konickes truck with one of the Union's brochures handed out taped to the driver's side window Krauth further testified that he had reported that fact to FDS the same day that he had observed it Although Krauth did not recall seeing the union litera- ture on Komcki's truck on August 26 specifically, or spe- cifically on the day Vice President Tempesta had spoken to employees outdoors under a tent put up by Komcki, I have found, on other credible and convincing evidence of record, that Krauth observed the union literature on Konicki's truck on August 26 I further find that was the same day that Krauth instructed Konicki to attend the first Tempesta meeting when Tempests spoke to employ- ees outside about the Union, and, inter alia, specifically told employees that most of the union employees were gone At that time, Konickes truck, as (I find) was usual, FILENE'S BASEMENT STORE 229 was parked right up front, and its posted union literature visible to all employees upon their exit through the em- ployees' exit door Based on Komclu's earlier response that month that he did not want to hear any baloney from either the Com- pany or the Union, Krauth has advanced that he felt that Komclu's placement of union literature on the driver's side window of his truck facing the entrance/exit door, was mocking the Union Whatever may be said of that assertion, Krauth did not feel secure enough in it to report that opinion to FDS Krauth has otherwise testi- fied that the fact that Konicki previously had the Union's literature on his truck (under all the circumstances), did not influence Krauth's recommendation to terminate Konicki Matthews acknowledged that at the time that Mat- thews and Vella decided discipline (discharge) was ap- propriate, they had more information that Komcki was less procompany than he was before Matthews confirms she had the information from Krauth that on the day of Tempesta's meeting with employees (August 26) outside the facility on the lawn adjacent to the building, Koniclu had some union flyers on his truck parked close to the employees' entrance That was the only incident report- ed to her In contrast with Krauth's (at best) strained personal view that Konickes truck posting of proumon literature by the employee entrance mocked the Union, Matthews (at least) has acknowledged, we knew Komcki -could have been a union adherent I find that Employer would only have reasonably concluded that Komcki had had a change of view and not only no longer was opposed to reading union literature, but now was a strong and open proponent of his fellow employees reading the union lit- erature as well Matthews testified with greater conviction that that in- formation was not a factor in any way in Matthew's final decision to terminate Konicki Matthews has testified, that in all the above reported circumstances, she would have terminated Komcki for his conduct on August 31, irrespective of his attitude towards the Union When Konicki reported to work on September 2, he parked his truck in the usual place and this time he put even more union literature on his truck, which he asserts Supervisors Brackett and O'Neill saw Koniclu then went into the warehouse When Komcki reported to Manning, Manning told Komcki to go to the personnel office, where Konicki found Kamel and Young waiting for him Kamel had the August 7 (Komcki signed) state- ment, and a statement of the recent (August 31) incident that Kamel had written up (on September 1), and a pre- pared RC for Komclu's termination Kamel proceeded to read his statement of the incident When Konicki heard he was to be terminated, Komcki relates he stood up and said that he did not want to hear anymore, he was going to leave Young testified that halfway through Kamel's reading of the statement, Komcki questioned some aspect of the cooperation (that apparently Komclu asserted that ICamel had not said during the incident, but which subject was in the letter that Komcki had signed) Young told Kon- iclu to let Kamel finish reading the statement When Kamel finished, Koniclu asked why they were harassing him Katnel said, based on the prior letter, and this inci- dent, it was a violation of his reinstatement agreement According to Young's recollection, Konicki then said, "I'm violating you,—what about you violating my rights in making me read all those union [sic] letters" Young recalls that Komcki next asked what they were going to do about it Young said, "this is in direct violation of your reinstatement letter, is considered insubordination, and grounds for termination" Young confirms that at that point, Konicki became ex- tremely upset, jumped up from the chair, and yelled, "Oh you're terminating mel Fine, ok, well I'm going to make a phone call" Although they asked Komcki there- after to review and sign the prepared RC, Komcki re- fused, saying, "if you're terminating me, that's it" Ac- cording to Young, Kamel asked Komclu once more to sit down and review the RC Komclu again refused Although Komcki wanted to make a phone call, Kamel told Konicki to leave and sign out Kamel then escorted Konicki out of the building According to Young as Komclu was driving away he said, "I'll be back" The thus unsigned Koniclu RC on termination pro- vides On August 31 and two weeks prior Ed expressed unwillingness to flex to other departments (the dock specifically) His response to management when asked to flex to the dock is considered insubordina- tion and grounds for termination based upon his letter of reinstatement to Steve Krauth on 8-7-87 Matthews further testified that with the background of the previous agreement on flexing that Komclu stated he would adhere to, Matthews would have authorized, rec- ommended, or conferred (sic, but in context, clearly con- curred) as the discharge of Komi(' in any circumstance If the meaning of any circumstance is to be viewed as ambiguous in its use here, Matthews adequately clarified it elsewhere to mean, irrespective of Komclu's union in- terest, or union activity Contentions and Analysis In mixed motive cases, the General Counsel bears an initial burden of proving that protected union activity was a substantial factor which prompted the discipline imposed on the employee by the employer Once that is established the burden shifts to the employer to prove af- firmatively that the disciple admimstered would have been the same even as the absence of protected conduct, Wright Line, 251 NLRB 1083 (1980), enfd F 2d 899 (1st Or 1981), cert denied 455 U S 989 (1982) The General Counsel has essentiallly contended that Konichs recent emergence as an open union activist on August 26 is what motivated the Employer's decision to discharge Koniclu on September 2 The Employer has countered with initial contention that Komckes union ac- tivity in material times differed only slightly from that of Savageau, in that Komclu had engaged in some open union activity, but effectively, it involved only a single act on August 26, and, Employer has argued otherwise 230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that much more active union adherents were not dis- charged First, the General Counsel appropriately relies on Em- ployer's harbour of animus to the Union's attempt to or- ganize at ADC, as is evidenced by now determined Staf- fen's and Krauth's unlawful conduct directed towards leading union adherent Noonan, as well as by the certain other unlawful conduct of Respondent's supervisors as has also been determined All the aforesaid unlawful con- duct had occurred comparatively recently, e g, mid- July Second, at this time, Komcki was a known, evaluat- ed, and undisputed solid work performer Third, the record evidence has established that at the time Konicki had improvidently walked out and quit his job over a perceived improper flex assignment on August 5, Employer possessed no information on Kon- Ickes union attitudes Whatever else was appropnately addressed in the mterveiw conducted by Krauth on August 6 as foundation for a decision on Konickes return, the additional fact of record is inescapable that through a critical comment by Krauth (one that put Kornai on the defesive), namely, on Komcki's pnor re- fusals to accept and read the Company's antiunion letters when Kamel attempted to hand them out to Komcki, Krauth, defacto, if not by design, elicited from Konicki an expressed declaration for desired neutrality towards the union issue, prior to the actual decision being made by Employer on Konickes earlier expressed desire to return to work If Krauth's comment did not constitute a not-too- subtle probe of Komcki's attitudes toward and/or inter- est in the Union (not alleged in the complaint), it was in any event a cntical comment made in an area unrelated on its face to the purported subject of the interview, namely, as to the reasons for Komcki walking out, and quitting In short the comment necessarily indicated an interjection of Koniclu's attitudes toward and interests in the Union as an operative factor in his desired return at that time Assuming that Krauth (and Kamel) had initially rec- ommended a termination of Konicki because he had walked off the job and quit, weight of evidence of events thereafter that I find only then the more credible has also convinced me, that Krauth took a different position on it after this interview E g, I do not believe that a (continued) Krauth recommendation for termination of Kornai would have escaped McGrath's (credited) recol- lection that there was nothing negative expressed on Kornai's return, nor do I believe that Young would have failed to report Krauth's position on Konickes ter- mination to McGrath, if it was still held by Krauth That conclusion is seemingly independently supported by Young's further revealment in regard to the decision on Konickes return, otherwise conditioned only on Kon- Ickes signing the agreement on flex cooperation, that ev- eryone down the line had approved of Komclu's return In short, I conclude and find that General Counsel has established a prima facie case that with Komckes at least de facto declared neutrality, Konicki was later deter- mined returnable to employment (rather than be dis- charged as initially recommended), provided, that Kon- icki would also agree to cooperate with management in the future, and accept a flex when assigned Moreover, I further observe that not only did Kon- Ickes return promptly follow, but Kamel, only about a week later was disposed in those existing circumstances to overlook, as then not too serious, an occasion of a Konicki remark to Kamel evidencing a reluctant accept- ance by Komcki of a dock assignment, viz, a compara- tively moderate Komcki remark, as I have found, "Me Down the Dock," as opposed to "I'm no dockie" (but with accompanying physical gestures by Konicki) Kamel's toleration of Koniclu's reluctance occurred de- spite the written terms of the previously signed agree- ment that provided for Konickes cooperation with Kamel's flex assignment of Konicki being then but a week old Fourth to the extent Employer's first argument would minimize Koniclu's union activity engaged in on August 26, I conclude and find that argument is wholly unper- suasive By that time leading union adherents Noonan and Corso were both gone Konickes union activity en- gaged in that day at ADC (at least) presented Employer with appearance, if not prospect of a Konicki change from neutrality on the union issue, to one of indicated strong proumon activity Thus, what Konicki did that day was to present proumon literature, that Konicki felt his coemployees should be aware of, on public display The displayed pamphlet addresses such employee problems as transfer, demotion, layoff, discharge, etc, with statement that an employee facing such matters with a union contract had a grievance procedure and an impartial arbitrator to decide the issue, with the Union's location and phone number also provided for the employee to seek addition- al information Konicki displayed that prounion literature in the side window of his truck, which he had parked very close to where employees regurarly entered and exited ADC In substance and in pratical effect, the placement of his truck, and the posting of prounion literature in its side window facing and so close to the employees' entrance/exit, effectively constituted a union bulletin board on Employer's property for employees to read proumon litrature, when both entering and leaving ADC Thus, in my view, to descnbe Konickes above proumon action as being only slightly different from the at best surreptitious union activity of Savageau, or, to only summarize it as "some open Union activity" would serve only to unwarrantedly minimize and/or ignore the actual significance and effect of the act engaged in by Konicki that day Fifth, there is considerable merit in General Counsel's observation that, in urging that his view of Konicki post- ing literature in Komcki's truck was instance of Konicki mocking the Union, Krauth has in that regard exhibited a lack of candor I need not go so far as to adopt Gener- al Counsel's assertion that the same is contrivance It is sufficient to observe and conclude as I do, that if Krauth did not have enough confidence in holding that asserted view to report it to his own superiors when promptly re- porting on Konickes union conduct to FDS the same FILENE'S BASEMENT STORE 231 day, his election to advance it before me as in sole expla- nation of his view and subsequent conduct in regard to Komcki, is unconvincing Moreover, Krauth's indicated lack of candor in this instance, warrants inference that Komcluss display of prounion literature in that manner and place, played a greater role (at least) in certain sub- sequent events than Krauth has been willing to reveal, cf Ryder/PIE Nationwide, 278 NLRB 713, 719 (1986), enfd in part and denied in part 810 F 2d 502 (5th Cir 1987) Sixth, Krauth's observance and response was immedi- ate Inter aim, Krauth immediately directed Komckes at- tendance at Tempesta's morning speech in which that high corporate official made a special point of stating to a group of sonic 30 assembled employees that included Komcki, that most of the union employees were gone (Declaring the meeting a voluntary one thereafter came too late ) Komcki did not miss the message (I find) deliv- ered to him that day, and I have no doubt it had an effect on Komclu's view of the assignments Krauth made to Komcki later that day, and in the days that followed (none of which are alleged to be independently violative of the Act) Neither would the assembled employees be likely to have not recalled Tempesta's statement in the wake of Konickes discharge within a week of becoming openly active for the union In passing, I would only further observe in regard to Employer's assessment of the nature of Konickes proun- ion activity, that even assuming that Konicki had discon- tinued the public display of the prounion literature on his truck on subsequent days for reasons unrelated to Tem- pesta's remark (or Komclu's view of Krauth's and Kamel's unusual assignments next to be considered), Em- ployer would have had no way of knowing that Under the above circumstances, Employer can draw small evi- dentiary support therefrom for its argument of limited Komcki union activity Moreover, the full protection of the Act extends to those probing the merit of a union, with public temerity, as well as those fully committed in doing so Seventh, Employer's treatment of Komcki immediately after he posted the proumon material on his parked car, was markedly different than before Although the same, as noted, is not alleged in the complaint to be independ- ently violative of the Act, and I shall accordingly make no such finding, I need not ignore the unusual nature of the repetitive assignments that encompassed Konickes conduct that led up to his discharge That evidence establishes that shortly after Konicki had presented the appearance of having changed his neu- trality, and become openly and strongly prounion, there followed a series of unusual ICrauth and Karmel assign- ments that effectively kept Koniclu isolated for 3 days, assigned to the dock (as to which he had previously ex- pressed displeasure) for 2 days, and even more signifi- cantly, out of his home-base area for 5 consecutive days, despite an Employer's otherwise conceded normal policy to try to keep its employee home-based, and, to not flex an employee out of the employee's home-base area on consecutive days The essence of discrimination is to have treated like employees differently Although the last of three-four flexes in a week had led to the first Konicki walkout, General Counsel estab- lished that upon Komcki's first displayed of union litera- ture there recommenced even more unusual, if not ad- verse assignments, and upon Konickes second display of union literature, and despite interim rating as a solid good worker, his discharge followed immediately Contrary to Employer assertion in the matter, and in agreement with General Counsel, on the basis of all the above factors, I conclude and find that the General Counsel has established a prima facie case that Komclu's recent appearance of emergence as a new open union ac- tivist on August 26, was a substantially motivating and/or operative factor in Employer's subsequent deci- sion to discharge Komcki on September 2, even in the face of another established instance of Konickes ex- pressed discontent in accepting another flex assignment to the dock, viz, in remarking to Kamel on August 31, "I'm no cloche" An Employer that has tolerated such conduct in the past, may not later find it offensive only because an em- ployee has in the interim execised a Section 7 right, American Petrofina Co of Texas, 247 NLRB 183, 190 (1980), Holiday Inn of San Bernardino, 212 NLRB 280 (1974), enfd as modified 512 F 2d 1171 (9th Cir 1975) It is Employer's contention that even assuming a prima facie case is made out, Employer has met its burden of establishing that it had a totally legitimate, independent, bona fide basis for discharging Komclu Essentially Em- ployer urges that Kamel's account should be credited over Komckes demal that when Kamel had occasion to most recently remind Konicki of his prior agreement to cooperate with management in flex assignments, Konicki then told Kamel, "Don't give me that shit" Employer contends that that Komcki remark, particularly when considered in the light of Komclu's prior agreement, had provided compelling grounds for Konickes termination for insubordination Employer contends that Konickes remarks to Kamel were a form of hostile insubordinate employee behavior that should be found to have reasonably had a tendency to inhibit Operations Manager Kamel (as Kamel has spe- cifically testified) in making assignments in the furture, and, it called for Konickes termination in the view not only of Kamel, but of every single manager involved in review who has testified, as well as being conduct (gen- erally) that no Employer can be exected to tolerate If General Counsel has made out a strong prima facie case of discriminatory discharge, Respondent Employer has advanced a strong defense of its action, if it be credited on its salient feature, that when reminded of the agree- ment to cooperate that conditioned his return, Komcki replied to Kamel, "Don't give me that slut" The General Counsel has argued that Komcki has denied making that statement, and that Kamel's account is not fully supported by Manning, i e, in several fatal particulars (including on Komcki making that remark) Employer argues that Kamel's testimony at hearing, in contrast with that of Koniclu at hearing, is not only con- sistent throughout, but again, unlike Komclu's testimony at hearing being also shown inconsistent with pnor testi- 232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD momal accounts before the DES and in prior (Board) af- fidavits, Kamel's testimony at hearing is consistent with the prior memo account of the incident, established as written the day after the incident, and is also fully cor- roborated by the accounts of that incident as have been recalled by all reporting and/or reviewing management officials who have testified on it in this proceeding Manning corroborated Kamel over Komcki that Kon- iclu had told Kamel upon being told of his dock assign- ment, that he was not a dockie (rather than dockworker, or dockhand) Moreover, contrary to General Counsel's urging, the testimony of Manning considered otherwise, does not preclude that Komcki told Kamel, "Don't give me that shit," anymore than it does what Konicki has later acceded he said (after a review of his testimony at the DES hearing, infra), namely, "[This is a bunch of shit" Employer has also established that in a prior affida- vit given to the Board (during Regional investigation of the matter), in contrast with acknowledging that either statement was made, Komcki had there testified that nothing more was said Employer thus urges that in light of Konickes significant inconsistencies in his testimony at hearing (which I have otherwise earlier addressed), and as now established made before the DES and in prior af- fidavit, it is wholly warranted that Kamel's account should be credited over Komcki In the end I agree, and so conclude While Employer's memo and supporting management testimony in this proceeding have convinced me that Kamel's account is not one of recent fabrication, the fact is that the two witnesses who were the participants in the conversation, namely Konicki and Kamel, have re- called and presented accounts that are in direct conflict with one another on the substantive issues of the specific remarks underlying the insubordination as it is contended occurred on August 31, and, Manmng's testimony simply is not dispositive on that Issue, either way However, a permitted Employer's use of Konickes testimony at a hearing before DES occasioned further concession before me, which points towards the indicated more ap- propriate resolution III THE MASSACHUSETTS "SHIELD" LAW ISSUE At hearing, over General Counsel's objection, I ruled (I) that Massachusetts General Laws, C 151A, § 46 is compatible with a normal application of the rule on use of prior inconsistent statement under the Federal Rules of Evidence (FRE) in that it (MGL) provides for use (disclosure) inter aim, "as otherwise required, or author- ized by law" Accordingly, I ruled that prior to testimo- ny before DES may be used where permitted by the FRE, namely, by Employer in the instant NLRB pro- ceeding to cross-examine General Counsel witness Kon- mkt regarding any material prior inconsistent statement that Konicki made at a DES hearing (2) I relatedly ruled that General Counsel had already called and failed to inquire on that basis, the same appearing to me as un- timely raised by General Counsel (3) Finally, I ruled that if General Counsel desired to use similar evidence available to him in any cross-examination of Respond- ent's witnesses (called) thereafter, he would be privileged to do so, in a timely manner Counsel for General Counsel filed a special appeal on the above ruling(s) dated June 3, 1988 Employer filed an opposition thereto, dated June 14, 1988 On June 14, 1988, the Board denied the General Counsel's request for special permission to appeal without prejudice to the General Counsel's right to renew its contentions through the filing of appropriate exceptions In brief, counsel for General Counsel relatedly advised that counsel for General Counsel had asked the Massa- chusetts attorney general for a written opinion as to the intended scope and proper application of MGL, C 151A, § 46, and, advised that upon receipt of the opin- ion, that counsel for General Counsel would move to reopen the record for its receipt, and, if I would permit, submit additional brief in support of a request that I re- consider the earlier ruling(s) made Apparently that opin- ion has not been forthcoming, or, in any event, none has been received by me to date It appears that Employer conceded in its earlier opposition filed with the Board (p 12) that the law of Massachusetts in this area is generally silent on the construction of MGL, C 151A, § 46 The record before me otherwise reflects counsel for General Counsel's representations that the underlying issue (in light of the aforesaid law providing for criminal sanctions) has been a matter of general concern to cer- tain attorneys who are admitted to the Massachusetts Bar, and who serve as counsel for General Counsel It also appears that certain attorneys have heretofore pro- ceeded differently, based on their different perception of the reach of the law In any event the issue is one now squarely raised before me in this proceeding At hearing, over the vanously stated opposition of the other parties, Charging Party also moved for the admis- sion of the DES decision of board of review, dated June 16, 1988 Ruling thereon was taken under advisement General Counsel's position as last stated in brief, is, that only comity for the State "Shield" Statute should preclude the receipt of the above DES decision, and, if the "Shield" law is inapplicable certain findings are then highly relevant General Counsel's urgings in the matter are contained within the following findings of DES The Board further finds that on August 31, 1987, the employer directed the claimant to work in an area other than his regularly assigned work area again The claimant was upset at this because he had been assigned to work in other areas on a regu- lar basis over the preceding few days In frustration, he mumbled to himself in vulgar terms as he walked away from the employer, who concluded that the remark was directed at the employer The claimant reported to the assigned work area and carried out his duties without incident The Board further finds that the employer al- lowed the claimant to continue at work thereafter until September 2, 1987, when he was discharged for uttering the vulgar remark on August 31, 1987 However, the employer did not establish insubordi- nation on the part of the claimant The claimant's discharge under the circumstances is not subject to FILENE'S BASEMENT STORE 233 disqualification under the provisions of Section 25(e)(2) of the Law, cited above Employer has urged that all of my aforesaid rulings be upheld, with authorities, such as then found are avail- able, cited in its supporting memo for its opposition filed with the Board As stated in brief, however, Employer also contends that the DES decision itself should have no beanng on the issues to be determined in this case, be- cause of that law's "different definitions, policies and purposes", and that even otherwise, there must be an in- dependent evaluation in this proceeding of the alleged unfair labor practices Employer also argues that the board of review never had the information that Konickes testimony before them was (purportedly) directly contra- dicted by a sworn affidavit Komcki had given to the NLRB just 1 week before Analysis Apart from the consideration of the Massachusetts urged "Shield" law, there is no question that the Board has already held that similar decisions of other States have probative value, and are admissible for whatever probative value the decision may provide on the issues before the Board, and I so find as to this DES decision, cf Betances Health Unit, 283 NLRB 369, 387 fn 35 (1987) Such decisions, however, are not controlling as to either a specific finding of fact or conclusion of law, Western Publishing Go, 263 NLRB 110 (1982) It is also established that the "different definitions, policies and purposes" must be taken mto account, and, the mstant decision must be based upon an independent consider- ation and evaluation of all the evidence presented on the unfair labor practice alleged, cf Lattuner Associates, 258 NLRB 1012 fn 1 (1981), Justak Bros & Go, 253 NLRB 1054 fn 1 (1981), enfd 664 F 2d 1074 (7th Cir 1981) There is also no question as opposed to receipt of a transcript generally, that the Board would permit admis- sion of a DES tape recording in evidence where deter- mined appropriate under the FRE, e g, as containing a vicarious admission Bluebonnet Express, 271 NLRB 433 fn 1 (1984) I see no cause at all to conclude otherwise as to the Employer's instant use of a prior inconsistent statement under FRE Inter aim, the Employer has properly observed in op- position heretofore filed before the Board that the Su- preme Court, in its addressing the question of the Court's review of rules and statutes providing for privileges and exclusion of evidence, has stated that the Court must "avoid a construction that would suppress otherwise competent evidence unless the statute strictly contrued requires such a result," St Regis Paper Co v United States, 368 U S 208, 218 (1961) The ruling made at mstant hearing was fundamentally made on the basis of a discernment that MGL would permit appropriate use of a prior inconsistent statement under FRE Thus, I ruled that in my view, MGL, C 151A, § 46 allowed the use of the otherwise privileged material, in the manner sought by Employer, because the law itself made provision for (disclosure) use, "as other- wise required, or authorized by law" which appears rea- sonably to encompass a permitted use of such evidence in Board proceedings as provided for under FRE Fed R Evid 801(d)(1)(A) provides for the time-honored opponent party use of a witness' prior statement made under oath theretofore which is inconsistent with that witness' current testimony given before the tribunal, in the interest of the factfinder arriving as close to the truth of the matter as the more credible evidence will allow Accordingly, all the aforesaid rulings made at hearing are now reaffnmed Havmg so concluded and found, I need not address the parties various other arguments ad- vanced on the basis of an urged application of the "Su- premacy Clause" It follows that the Employer's inquiry as to the prior inconsistent statement made by Komclu at DES through use of a hearing tape of that proceeding to refresh his recollection was appropriate Employer has thus proper- ly also established that contrary to Komclu's initial testi- mony made in this proceeding that he had not said at the time to Kamel, "[T]his is a bunch of shit," Komcki, upon having his recollection refreshed as to his testimony given previously at the DES hearing of October 1 (closer to the event), acknowledged (and then testified herein also) that he had told Kamel, "this is a bunch of shit The prior statement of Komi(' in affidavit earlier given to the Board, indicates neither remark was made in that Koniclu has recorded there that he had said nothing else, as he had initially testified here The above discrep- ancies along with other earlier noted Komcki inconsist- encies in recalling what he had actually said to Kamel, only enforces the conclusion now reached that, under all the above circumstances, Kamel's supported account that Konicki had said on that occasion, "Don't give me that shit," is the more reliable I so conclude and find It is Employer's further contention that Komclu's remark to Kamel under all the circumstance, has provid- ed compelling grounds to Employer for the termmation of Komcki The issue then becomes whether that Kon- icki remark to Kamel, objectively viewed, has evidenced the type of insubordination that would have occasioned Employer's discharge of Komcki, irrespective of Kon- Ickes known union activity I conclude and find, on this record, it would have, especially with the urged consid- eration of the terms of Komclu's prior agreement to co- operate with management in regard to any necessary flex assignments in the future, Carolina Freight Carriers Corp, 295 NLRB 124 fn 1 (1989) This remark, in my view, simply involved more than is allowable for impulsive be- havior, and, it does not come to me for evaluation as to whether it could constitute an employee reaction in tol- erable indignation to a specific unlawful assignment First, Kamel's communication of the assignment of Komcki to the dock on August 31, was not itself one provocatively made Secondly, the complaint did not allege that the flex assignments theretofore received, let alone Kamel's specific flex assignment of Komclu to the dock on August 31, were independently violative of the Act Thus, this is not a case where Konickes remark, "Don't give me that shit," as found made to Kamel, is properly to be evaluated in a background of not only an unlawful Kamel assignment of Komcki to the dock, but 234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD as a reply, in tolerable indignation, to Kamel's further implication that such an unlawful dock assignment was encompassed within intendment of Komcki's prior signed agreement, cf Brunswick Food & Drug, 284 NLRB 661, 662 fn 6, and see Member Stevens view fn 9 (1987) To the extent General Counsel may have here, and/or from time to time otherwise in brief urged certain mat- ters as litigated within the framework of matters alleged in the complaint, and, has on that account urged addi- tional independent findings of unfair labor practices be made thereon, in my view, General Counsel must wait for another day, and other record circumstances, as for example, where pnor counsel for General Counsel has not earlier stated that the General Counsel was not seek- ing to amend complaint to add any unfair labor practice allegation There remains to consider General Counsel's last argu- ment that Konicki was treated disparately because an- other employee on June 19 had received only a final warning for his conduct in using (general) profanity to- wards Manning It is General Counsel's argument there- form that Employer is not to be credited that it would have discharged Komcki irrespective of his union activi- ty The argument has only surface allure On that occasion the employee involved, a young man, who had been previously ordered to stay off power equipment because of a prior accident, was (again) while operating power equipment, involved in an accident, this time causing some damage to a newly constructed office On that occasion the employee was heatedly taken off the power equipment by Manning with the employee (I find) more likely expressing profanity in turn to Man- ning According to Mannmg's and Kamel's asserted recol- lections, the profanity was not leveled at Manning How- ever, their nonrecollections of the incident otherwise did not impress me Moreover, the RC of the event indicated otherwise Thus the RC on the incident recorded that a final written warning was given to that employee for in- subordination for the following stated reason, "Disre- spect for management—using foul and abrasive language in an aggressive manner towards management" General Counsel's argument is that unlike this employ- ee who a couple of months earlier had only received a final warning for the profanity expressed to Manning, Komcki was disharged for like conducts General Coun- sel thus urges that this is disparate treatment, and that a concealed but operative discriminatory motive is re- vealed Konickes profanity as expressed to Operations Manag- er Kamel following Kamel's unprovocative statement of an assignment of Komcki to the dock and then warranted subsequent reminder to Konicki of his prior agreement to cooperate, that effectively Kamel was not to give Kon- icki "that shit," is, in my view, readily distinguishable in both nature and degree of insubordination, from a young man's profane remark to a correcting supervisor coming in the heat of an accident that caused damage, and con- cerning which both the employee and direct supervisor it appears had reacted excitedly Konicki and the employee unquestionably received different discipline However, I cannot say, under the different circumstances and causa- tions shown, that they were treated disparately Rather, it is my view in the end, in agreement with Employer, that Komcki's conduct under the above cir- cumstances was too directly insubordinate for retention, irrespective of his union activity However, in conclud- ing so, I do not rely on Employer's other urging that the haste of Konickes desire to become involved with the Union on the evening of August 31 itself indicates that Komcki felt the need to do so only because of his insub- ordination that day Other inference of developed deci- sion in union interest is equally strong That day was oc- casion for Konickes fourth nonbulk assignment in a row, along with his third assignment to undesired dock work that month Accordingly, having found that Respondent has estab- lished under all the circumstances that it would have dis- charged Konicki for his insubordinate remark to Oper- ations Manager Kamel on August 31, irrespective of Komcki's prior union activity on August 26, I shall rec- ommend that the complaint allegation that Respondent Employer had discriminatorily discharged Konicki on September 2, be dismissed in its entirety CONCLUSIONS OF LAW 1 Filene's Basement Store, Division of Federated De- partment Stores, is an employer within the meaning of Section 2(2), (6), and (7) of the Act 2 Local 1445, Umted Food & Commercial Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 3 By the conduct of Facility Manager Steven Krauth on July 14, in telling employee Glen D Noonan who had attended union meetings held at the Yankee Drum- mer Inn, that Krauth was aware of meetmgs at the Yankee Drummer Inn, Respondent has created the im- pression that the union activities of employees were under surveillance in violation of Section 8(a)(1) of the Act as alleged in the complaint 4 By the conduct of Vice President Joseph Staffen and Operations Manager Ed Kamel on July 17, Respond- ent Employer has discriminatorily issued an oral warnmg to Glen D Noonan for engaging in protected union ac- tivity, wrongfully accused Noonan of harassing and agi- tating employees, and unlawfully threatened to terminate Noonan for engaging in protected union activity, all in violation of Section 8(a)(1) and (3) of the Act 5 By the conduct of Personnel Manager Laura (Linden) Young on July 17, in thereafter making a writ- ten record of counseling of the above discriminatory oral warning, and then presenting it and causing Noonan to sign it, Respondent thereby engaged in conduct addition- ally violative of Section 8(a)(1) and (3) 6 By the conduct of Vice President Joseph Staffen on July 17, Respondent has substantially interfered with and restrained the protected union and concerted activity of Glen D Noonan and other employees, to hand out and receive union literature in the employees' parking lot on Employer's property after completion of their scheduled worktime, in violation of Section 8(a)(1) of the Act FILENE'S BASEMENT STORE 235 7 By the conduct of Area Supervisor Mike Gordon telling Glen D Noonan on July 21 that Noonan really should not talk about the Union dunng break because the Company paid for that time, Respondent has advanced an overly broad no-solicitation rule for application to Noonan, in violation of Section 8(a)(1) of the Act 8 Respondent has not otherwise engaged in any unfair labor practices as alleged in the complaint THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act Although former employee Glen D Noonan is no longer employed by Respondent Employer, I shall order that Respondent Employer be required to expunge from its records any reference to its oral warning of Glen D Noonan, and re- lated record of counseling, if found I shall also recom- mend that Respondent be ordered to notify Glen D Noonan in writing of such expunction and to inform him that Respondent's unlawful conduct will not be used as a basis for any future personnel action concerning him Sterling Sugars, 261 NLRB 472 (1982), Peck Inc , 269 NLRB 451 fn 2 (1984) [Recommended Order omitted from publication ]