JOHNSON, Circuit Judge:

The National Labor Relations Board (the Board) petitioned this Court for an adjudication of civil contempt against Trailways (the Company) for violating an extant order of this Court which prohibited the Company from, inter alia, "[d]ischarging or otherwise discriminating against employees because of their interest in or activity on behalf of the Union" in violation of § 8(a)(3) of the National Labor Relations Act (the Act) and from "[i]n any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act" in violation of § 8(a)(1). The Company's allegedly contemptuous conduct consists of the following activities: maintaining an overly-broad rule prohibiting employee solicitation and distribution of materials, including union campaign materials, even while the employees are on their own, nonworking time; discriminatorily enforcing its no-distribution rules to prohibit only distribution of union campaign materials; unlawfully interrogating an employee about the materials she was distributing on behalf of the Union; threatening to discharge or otherwise discipline employees for distributing union campaign materials; unlawfully preventing an employee from displaying union campaign materials at the employee's work station; penalizing an employee for attending a Board hearing. After an evidentiary hearing, the Special Master appointed by this Court concluded that the Company had committed "some instances of unlawful conduct" but that the violations were "technical in nature, de minimis, or excusable in the heat of a long and arduous campaign." Accordingly, he recommended that the Board's allegations of civil contempt be dismissed in their entirety. The Board here brings exception to a limited number of the Special Master's recommendations. This Court concludes that the Company's violations constituted contumacious conduct. Accordingly, we reverse two of the Special Master's recommendations to which the Board brings exception and find the Company in civil contempt.

Facts

Approximately four months after this Court enforced the Board's order which found §§ 8(a)(1) and (3) violations, Paula Wells, the employee ordered reinstated by the judgment, contacted the Amalgamated Transit Union (the Union) about the possibility of organizing the Company. The Company's employees signed authorization cards designating the Union as their representative. On May 29, 1980, the Union filed an election petition with the Board's Regional Office; an election was scheduled for September 16, 1980. The Board's charges in the instant case stem from the Union's campaign leading up to the September election.

On September 23, 1980, the Union filed objections to the September election results on the grounds of employer misconduct during the election. On October 14, 1980, the Board filed the petition for adjudication in contempt now before this Court.

Standard of Proof

Where the Board seeks an adjudication of civil contempt, it bears the burden of producing clear and convincing evidence that the Company engaged in contumacious conduct. The Special Master concluded that the Board had failed to meet this burden of proof. We disagree.

Since this is a proceeding in civil, not criminal, contempt, the only issue is the Company's actual compliance with this Court's orders; any absence of willfulness is irrelevant. McComb v. Jacksonville Paper Company, 336 U.S. 187, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949); Florida Steel Corp. v. N.L.R.B., 648 F.2d 233, 236 (5th Cir. 1981); N.L.R.B. v. Crown Laundry and Dry Cleaners, Inc., 437 F.2d 290, 293 (5th Cir. 1971). In McComb the Supreme Court stated:

Since the purpose is remedial, it matters not with what intent the defendant did the prohibited act. The decree was not fashioned so as to grant or withhold its benefits dependent on the state of mind of respondents. It laid on them a duty to obey specified provisions of the statute. An act does not cease to be a violation of a law and of a decree merely because it may have been done innocently.

69 S.Ct. at 499. In reviewing the Special Master's findings of fact, this Court is, of course, bound by the clearly erroneous standard. Fed.R.Civ.P. 53(e)(2); Florida Steel, 648 F.2d at 236. We are not so constrained, however, in reviewing the Special Master's conclusion of law that the Board did not meet its burden of proof in establishing contemptuous conduct; this Court may independently review whether the Special Master's findings clearly and convincingly demonstrate contemptuous conduct. Id. at 236 n. 9 citing Crown Laundry, 437 F.2d at 293; N.L.R.B. v. J.P. Stevens and Co., 538 F.2d 1152, 1160-61 (5th Circuit 1976).

The Contempt Allegations The No-Solicitation Rule

The Company's employee handbook contained the following unlawful statement regarding solicitation and distribution of written materials:

All solicitation and/or distribution of written materials is strictly forbidden during working hours. Posting of any materials on company premises is strictly prohibited unless approval has been secured from the Personnel Department.

The statement was unlawful because it used the term "working hours" rather than "working time." The handbook containing this statement was distributed to Company employees up until May or June 1980.

In March 1977 the Company posted a notice on the bulletin board which contained a lawful statement on the solicitation and distribution of materials. The notice read:

Solicitation on Company premises shall be prohibited in working and nonworking areas during an employee's working time or the working time of the employee solicited. Distribution on Company premises of literature shall be prohibited during working and nonworking time in working areas and in nonworking areas during an employee's working time. . . . (emphasis in original)

The Company had posted the notice in March 1977 and it remained posted at all times during the 1980 campaign.

The Board argues that the simultaneous existence of the handbook and bulletin board statements on solicitation created an ambiguity which had a reasonable tendency to inhibit lawful union activity. The Special Master concluded that the statement in the employee handbook was not a rule but merely part of an educational pamphlet distributed to new employees. Clear and convincing evidence supports his conclusion. After June 1980 the handbook was no longer distributed to new employees; the bulletin board rule was posted at all pertinent times and was later modified in accordance with the Board's changed views on solicitation and distribution. See ante note 8. In addition, the record indicates that any references made by supervisors to employees regarding the Company's solicitation/distribution policy were references to the posted bulletin board notice. No evidence was introduced by the Board demonstrating that Company employees were confused as to which statement represented Company policy, that they interpreted the two statements differently, or that they interpreted the handbook statement in a manner which would inhibit lawful union activity. The Special Master correctly concluded that the Company's solicitation/distribution rule was lawful and that the Company did not violate this Court's order by maintaining an ambiguous policy regarding solicitation.

Disparate Enforcement of the No-Solicitation/Distribution Rule

The Special Master concluded that the Company disparately applied and enforced the no-solicitation/distribution rule with regard to union materials as opposed to nonunion items such as Avon, Tupperware, and football pools. He refused, however, to equate these violations of this Court's order with contumacious conduct. The following activities are involved in the allegation of disparate enforcement: supervisor Rice's August 14, 1980, warning and threat of discharge to employee Wells if she continued to distribute union keychains and pens; manager Thimesch's and supervisor Mody's August 14, 1980, orders to employee Myers to stop passing out union keychains, pencils and pens; supervisor Clark's and supervisor Anderson's August 14, 1980, threats to discharge Myers if she continued to pass out union materials; supervisor Mody's August 15, 1980, order to Myers to take down the union pocket protector from her in-basket and remove the ATU keychain from her keys.

When supervisor Rice warned Wells against solicitation of union materials and threatened to fire her if she continued to pass out union materials, he made no distinction between solicitation in working versus nonworking areas. The Special Master discounted supervisor Rice's unlawful threat to discharge Wells because the following day Rice apologized to her, saying he should have used the word "discipline" rather than "fire."

Myers was told by supervisor Thimesch not to distribute union materials on Company premises and was told by supervisor Mody not to distribute union materials in the Accounts Payable Department. The warning by supervisor Thimesch was unlawful because an employee may lawfully make distributions in the nonworking areas during nonworking time. The Special Master discounted supervisor Thimesch's warning because Myers was not fired or even disciplined as a result of her activities. Both supervisors Clark and Anderson lawfully warned Myers that distribution of written materials in the work areas could result in disciplinary action, including termination. The Special Master discounted this warning because it represented a fair statement of a valid company rule on distribution and because the warning resulted in no disciplinary action. Finally, Myers was told by supervisor Mody to remove a union pocket protector from the inside of her in-box, although he did not ask her to remove a cartoon which was taped next to the union item, nor did he ask her to remove a Dallas Cowboy's football schedule on the wall behind her desk. Myers was also instructed by Mody to remove a union keychain from her desk although he allowed her to keep the keys on her desk. Prior to this occurrence Mody had never directed an employee to remove any items unrelated to work from his or her desk or the in-out box. The Company, in fact, had no policy regarding nonwork-related items on an employee's desk. The Special Master regarded the foregoing incident as a technical example of disparate enforcement of company rules but discounted the violation because it resulted from a miscommunication.

In summary, the Special Master considered the Company's disparate enforcement of its no-solicitation/distribution policy to be mitigated by the legality of the warning, apology, mistake, or failure to result in disciplinary action. He also identified three further mitigating factors: (1) the Company permitted its employees to wear union buttons, keychains and pocket protectors throughout the campaign; (2) the Company had demonstrated that it was "trying to comply" with this Court's judgment; (3) although some supervisors disparately enforced the no-solicitation/distribution rule, other supervisors did enforce the rule across-the-board.

The final mitigating factor is unsupported by the record evidence. The testimony, both from supervisors and employees, universally indicated that supervisors allowed nonunion-related solicitations and distributions, e.g., Avon and Tupperware, in working areas, some even during working time. Only one supervisor, Thimesch, testified that he told employees not to distribute Avon during working hours. This sole testimony is insufficient to support the finding that "[o]ther supervisors warned and threatened to discipline employees" who engaged in selling and distributing nonwork-related materials in the working areas and who displayed personal items in the work areas. Accordingly, we find clearly erroneous the Special Master's finding of fact that some supervisors enforced the no-solicitation/distribution rule as regards nonunion, nonwork-related items.

The other mitigating factors relied upon by the Special Master cannot validly be applied in a civil contempt proceeding. This Court ordered the Company not to discharge or otherwise discriminate against employees because of their activity on behalf of the Union and not to interfere in any other manner with employees in the exercise of the right to engage in union activity. If the Company has so discriminated or so interfered with employees' rights to engage in union activity, the Company must be held in civil contempt. See McComb, 69 S.Ct. at 499. The issue here is simply whether the evidence reflects that the Company disparately applied the no-solicitation/distribution rule. The Special Master concluded that the Company had so applied the rule; clear and convincing evidence supports his conclusion. Whether the acts of disparate application of the rule were followed by an apology or whether they resulted from an innocent mistake is irrelevant. Id. In judging whether the Company is to be held in civil contempt, this Court cannot consider compensating acts on the part of the Company, e.g., allowing employees to wear union emblems. It is this Court's 1979 order which controls. By its terms the order enjoined any practices which were violative of § 8(a)(1) and (3). If the no-solicitation rule in the instant case was discriminatorily applied or enforced, i.e., applied to union activities as opposed to nonunion activities, that discriminatory application violates § 8(a)(1) of the Act.

In concluding that the Company's disparate application of its no-solicitation/distribution rule did not warrant holding the Company in civil contempt, the Special Master attempted to distinguish both Sunnyland and Bonnell in that the employees in those cases were fired or discharged as a result of the disparate application of no-solicitation rules whereas in the instant case neither Wells nor Myers was even disciplined, much less discharged. Although it is true that in both Sunnyland and Bonnell employees were discharged, in neither case was the act of discharge crucial to the holding. What those cases turned on is clearly set forth by this Court's language in Bonnell: "[W]here no-solicitation rules are applied only as to union activity where other types of solicitation have gone unchallenged by the employer, the inference arises that the rules are not being used simply to serve the ends of plant order and production." Bonnell, 405 F.2d at 595. If the language "disciplinary action" or "without consequence" in Sunnyland leaves any room for doubt, we now clarify that language to ensure that interrogations, warnings, threats of disciplinary action, or even mere statements not to solicit/distribute union materials fall within those terms. A rule is discriminatorily applied if it is brought to the attention of employees supporting the Union but not called to the attention of employees engaging in nonunion, nonwork-related activities. Actual sanctions, such as discharge, do not have to be applied in order to support a conclusion of disparate application or enforcement of a no-solicitation/distribution rule. In N.L.R.B. v. Litho Press, 512 F.2d 73, 76 (5th Cir. 1975), this Court stated: "It is not necessary for a sanction to be imposed for violation of an extemporaneous command . . . to constitute discrimination." See also N.L.R.B. v. Avondale Mills, 242 F.2d 669, 671 (5th Cir. 1957). (stating that "[a]n otherwise valid no-solicitation rule . . . cannot be invoked or applied for a discriminatory anti-union purpose") (emphasis added), aff'd sub nom., N.L.R.B. v. United Steelworkers, 357 U.S. 357, 78 S.Ct. 1268, 2 L.Ed.2d 1383 (1958). Compare Amalgamated Clothing Workers v. N.L.R.B., 365 F.2d 898, 911 (D.C. Cir. 1966) (company's failure to honor a request that pro-union employees have access to their fellow workers equal to that available to anti-union employees would support a finding of discriminatory application of the no-solicitation rule without any imposition of sanctions). As in Bonnell, the record presented to this Court is one of "an employee permitting solicitation on working time except where union activity is concerned." Bonnell, 405 F.2d at 595. Discriminatory application of the rule constitutes a violation of § 8(a)(1), and perforce, of the extant order of this Court. We therefore adjudge the Company in civil contempt of court as to its acts of disparate enforcement of the no-solicitation/distribution rule.

The Charged Absence

Because Wells was subpoenaed by the Board to testify in the Board representation hearing involving the Company, she was absent from work on July 1 and 2, 1980. In calculating Wells' total number of absences, the Company counted these two days as "one occurrence" of absence. This absence, together with her other absences, gave Wells a total of four and one-half occurrences of absence in a six-month period and resulted in a written warning notice stating that "absenteeism is a problem which could lead to severe disciplinary action." Under Company policy, an employee is subject to discharge after five occurrences of absence in a six-month period, and, after four occurrences, the employee is required to sign a written warning or counseling report. Had the absence due to Wells' attendance at the Board hearing not been counted, Wells would have received only an oral warning, a less severe form of discipline. The company supervisor admitted that when he gave Wells the warning, he was aware that she had attended the Board hearing under subpoena.

The Special Master looked into the issue of the Company's culpability and found that the supervisor's warning to Wells was based on a mistake. Lesko, the Company's Director of Human Resources, testified that NLRB hearings are not to be counted as absences when employees are subpoenaed, but that he could not find a subpoena for the July 1980 NLRB hearing in Wells' personnel file. The Special Master concluded that since other employees who were subpoenaed were not docked for appearances at NLRB hearings, and since Wells was not docked for appearances at subsequent hearings for which subpoenas were in her file, and since Wells' personnel file did not contain a subpoena for that particular appearance, the written warning on absences she received was the result of a mistake which amounted to a harmless error.

Again, the Special Master incorrectly focused on the Company's lack of culpability in docking Wells for the NLRB appearance. First, the Company's intent was not all that pure. Wells' supervisor admitted that he was aware that Wells had attended the hearing under subpoena when he gave her the written warning. Secondly, the attempted justification for charging Wells with an absence (the lack of a subpoena in her file) is a poor one. The protections from retaliation accorded employees for attendance at Board hearings are the same regardless of whether they are subpoenaed. NLRB v. Scrivener, 405 U.S. 117, 92 S.Ct. 798, 802-03, 31 L.Ed.2d 79 (1972) [Section 8(a)(4) protects an employee who participates in the investigative stage of an unfair labor practice charge and no basis exists for denying the same protection to voluntary participants as to employees who are subpoenaed]. To reiterate, "[a]n act does not cease to be a violation of a law and of a decree merely because it may have been done innocently." McComb, 69 S.Ct. at 499. In penalizing Wells for her appearance at the hearing, the Company interfered with her right to engage in union activity and hence violated section 8(a)(1) of the Act and the 1979 order of this Court. We adjudge the Company in civil contempt of court as to its docking Wells for her appearance at the hearing.

The Sanctions

The purpose of imposing judicial sanctions for civil contempt is to achieve full remedial relief. Florida Steel, 648 F.2d at 239. The sanctions imposed are to be remedial or coercive but not penal and are to be adapted to the particular circumstances of each case. Id.

The Board urges this Court to impose the sanctions of notice distribution, union access, and a prospective fine. The imposition of prospective fines is an extraordinary remedy to be imposed only where violations have been flagrant and lesser remedies appear to fail. N.L.R.B. v. A.W. Thompson, Inc., 651 F.2d 1141, 1145 (5th Cir. 1981). Such fines should not be imposed unless they are necessary to "coerce the contemnor into compliance with [the] court's order." Florida Steel, 648 F.2d at 240. In the instant case, the Company's acts of disparate enforcement occurred over a limited time period — two days. The unlawful threat to discharge Wells was retracted; one of the warnings of disciplinary action given to Myers was lawful; none of the warnings or threats resulted in disciplinary action. In addition, it appears that Myers would not have been told to remove the union pocket protector and keychain from her desk if it had not been for a miscommunication. Finally, although Wells was docked for the NLRB appearance, nothing further resulted from that action — in fact, she later received a promotion. Furthermore, although the Company's actions violated § 8(a)(1) and consequently the previous order of this Court, the specifics of the order did not refer to disparate enforcement of the no-solicitation/distribution rule. Significantly, the Special Master was impressed with the efforts the Company had made to comply with this Court's judgment. See ante note 12. In sum, the Company's degree of culpability does not warrant imposing prospective fines. Nor do we conclude that union access or notice distribution is necessary to achieve full remedial relief.

Having found that Trailways violated this Court's judgment of December 27, 1979, it is ordered and adjudged that Trailways is in civil contempt of this Court's order and it is further ordered that the Company by its officers, directors, and agents shall purge itself of contempt by:

(1) Complying in full with the Board's order of August 18, 1978, and not in any way, by action or inaction commit, engage in, induce, encourage, permit, or condone any violation of said judgment;

(2) Refraining from discriminatorily applying or enforcing company rules, including no-solicitation, no-distribution and no-posting rules, to deter unionization;

(3) Refraining from coercively interrogating employees about their campaigning on behalf of unions or other union activities;

(4) Refraining from threatening employees with discipline, discharge or any other retaliation because of their campaigning on behalf of unions or other union activities;

(5) Removing from employee Wells' records any unfavorable personnel reports or other adverse notations resulting from her attendance at Board hearings and refraining from taking any action against Wells or any other employee as a result of such attendance;

(6) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the National Labor Relations Act;

(7) Immediately posting in conspicuous places in all of its Dallas, Texas locations, including all places where notices to employees are customarily posted, for a period of sixty (60) consecutive days, copies of this contempt adjudication, and, alongside, copies of the Notice to Employees appended hereto as an Appendix. Said Notice shall be signed on behalf of the Company by its President and said copies of the Adjudication and Notice shall be maintained in clearly legible condition throughout such posting period and the Company shall insure that they are not altered, defaced, or covered by any other material;

(8) Issuing written instructions to all its supervisors to comply with the provisions of the underlying judgment and this order, and to abide by the undertakings in the Notice attached hereto as an Appendix, and requiring each supervisor to signify in writing that he or she has received such instructions;

(9) Paying to the Board all costs and expenses, including reasonable attorney's fees, incurred by the Board in the investigation, preparation, presentation, and final disposition of this proceeding, and all costs relative to the Special Master. Said amount, unless agreed upon by the parties, shall be fixed by the Court upon submission by the Board of a certified statement of such costs and expenses.

It is so ordered.

APPENDIX [33] NOTICE TO EMPLOYEES PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

WE HEREBY NOTIFY all the employees of Trailways, Inc. that on the _____ day of _____, 1984, the Company was ADJUDICATED IN CIVIL CONTEMPT by the United States Court of Appeals for the Fifth Circuit because the Court found that officers and agents of the Company disobeyed a judgment of the Court of Appeals of December 27, 1979, requiring the Company to comply with the provisions of an order issued against it by the National Labor Relations Board. THIS ORDER FORBID THE COMPANY, its officers, agents, successors and assigns from:

Interrogating employees concerning their interest in or activity on behalf of the Union or any other labor organization;

Threatening discharge, plant closure, or other loss of benefits should employees select the Union as their bargaining agent;

Promising employees wage increases or other benefits should they abandon their interest in the Union;

Giving the employees the impression that it would be futile for them to continue their organizational efforts to select the Union as their bargaining representative. Giving employees T-shirts or other benefits in order to influence their interest in or activity on behalf of the Union;

Discharging or otherwise discriminating against employees because of their interest in or activity on behalf of the Union. In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

We are now telling you sincerely that WE WILL NOT

Violate the Board's orders as enforced by the judgment of the Court of Appeals by coercively interrogating employees about their campaigning on behalf of unions or other union activities; threatening employees with discipline, discharge or any other retaliation because of their campaigning on behalf of unions or other union activities; in any other manner discriminatorily applying or enforcing Company rules, including no-solicitation, no-distribution, and no-posting rules to deter unionization.

In any other manner interfere with, restrain or coerce our employees in the exercise of their rights under Section 7 of the National Labor Relations Act. WE WILL remove from employee Wells' records any unfavorable personnel reports or other adverse notations resulting from her attendance at Board hearings and refrain from taking any action against Wells or any other employee as a result of such attendance.

WE FURTHER NOTIFY our employees that we will in good faith comply in full with the judgment of the Court of December 27, 1979, and with all the provisions of the Contempt Adjudication which is posted alongside.

TRAILWAYS, INC.

Dated ______________ By ______________

(Title)

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE

This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's office, 819 Taylor Street, Ft. Worth, Texas 76102.

Phone: 817-334-2921.