Prentice-Hall, Inc.Download PDFNational Labor Relations Board - Board DecisionsSep 30, 1981258 N.L.R.B. 1340 (N.L.R.B. 1981) Copy Citation DECISIONS OF NATIONAL LABOR RELATIONS BOARD Prentice-Hall, Inc. and District 65, affiliated with United Automobile, Aerospace and Agricultural Implement Workers of America. Cases 2-CA- 17040 and 2-CA- 17149 September 30, 1981 DECISION AND ORDER BY ME MBE.RS FANNING, JENKINS, ANI) ZIMMI RMAN On March 27, 1981, Administrative Law Judge Steven B. Fish issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Re- spondent filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Prentice-Hall, Inc., West Nyack, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i 'he c(incral Counls.l has cxcepted riin crcdibilit findings made h the Admilistratie [.aws Judge It i, tie oard's, cstablished polic> iIot to overrule ai admiistraltivse a1: jtidge' resolutilonls ith rc- specl to credihilily tiless he clear preponderance of .all of Ihe rclc'alit cvidciiC conlsinces u I ha the rcsoluliolns are i lcorrtect Standard )rV, Wall Proeducts. Inc.. 91 NIRBI 544 (1950). cid 188 1XX 2d 3ti2 (3d Cir 1951) We has c calrefull examined Ihe record and find no bahasis fr r- crsinhg his fiindings 211 tlhe abselCC f cxceptions itirtt i rcl. c adotni. pro/)irmu. tle Admill- isiratixc .as Judgc's disinlisal (it' allcIgaiOns thai Supersisor Porceili Mi ice iil.MwtfllN interrogated criiplosec Calanmii and Iha( ic nil.a. fully illncrrogated a group of' cmplotces Ill e Ilillcichroomn ill Janlulr I1'8() DECISION STATIAMI.NT 01 1nlL CASI Sl IvILN B. Fisit, Administrative Law Judge: Pursuant to charges filed on January 29, 1980), in Case 2-CA- 17040 by District 65. affiliated with the United Auto- mobile. Aerospace and Agricultural Workers of Amer- ica, herein called the Union. the Acting Regional Direc- tor for Region 2 on March 27, 1980, issued a complaint and notice of hearing alleging that Prentice-Hiall, Inc.. herein called Respondent. violated Section 8(a)(1) and 258 NLRB No. 184 (3) of the National Labor Relations Act, as amended. Pursuant to charges filed on March 2(). 1980, in Case 2- CA-17149 by the Union. the Regional Director for Region 2 on April 30. 1980. issued a complaint and notice of hearing alleging additional violations of Section 8(a)( I) and (3) of the Act by Respondent. On May 15. 1980, the Regional Director issued an order consolidat- ing the above-cited cases. The hearing on these consoli- dated cases was heard before me in New York. New York, on August 25, 26. and 27, 1980. Briefs have been received front the General Counsel and Respondent and have been duly considered. Upon consideration of the entire record, the briefs, and my ob- servation of the demeanor of the witnesses. I make the followittg: FIND)INS 01- FACT 1. JURISI)ICTION Respondent is a New Jersey corporation, engaged in the business of the publication and distribution of books to retail stores, with an office and place of business in West Nyack, New York. Annually Respondent sells and ships from its West Nyack, New York. facility books valued in excess of $50,000 directly to points outside the State of New York. It is admitted and I so find that Re- spondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It is also admitted and I find that the Union is a labor organi- zation within the meaning of Section 2(5) of the Act. I. TI:E Al I IG(il) UNFAIR I.ABOR PRACTICE S A. The Union Campaign On May 28, 1979,' the Union filed a petition seeking to represent Respondent's looseleaf service editors em- ployed at its facility at Englewood Cliffs, New Jersey. Pursuant to that petition, an election was held on Sep- tember 18 The Union was successful in said election and was subsequently certified by the Regional Director for Region 22 of the National Labor Relations Board. The Union began organizing at Respondent's West Nyack facility in June. The campaign consisted of distri- bution of leaflets outside the plant, wearing of union but- tons, and distribution of authorization cards. The cam- paign at West Nyack was most active during the months of June through November. Substantially all of the above-cited types of organizing activities ceased as of Novenmber. 2 Respondent prepared a memo dated June 13, and dis- tributed it to its supervisors, both at its Englewood Cliffs and West Nyack facilities. The memo refers to the union campaign at Englewood Cliffs, and indicates that it be- lieves that the Union will probably expand its organizing activities to other of Respondent's facilities. All tates htrcillnlicr refer hi '', tL1iilCs otihcrlsx isc ind ltated As 1iited th li 1leion as certfie a Resoindenlu's Illgle- ll d Cliffs faclillt so-IcttilllC aflter Ihe SCpcirItih r ISX elctii N ptio il C C a filed h. tli L illit sct kling to iscliClll ll O R pIltIdent ' , Les. N\.al k ciiplo\cc., 134() PRENTICE-tAI.I.. INC. The memo criticizes the Union for its attempt to repre- sent convicted prisoners and for causing a strike at an- other publishing firm. The memo continues that Re- spondent is vigorously opposed to the Union and firmly believes that the Union is not in the best interests of either its employees or the Company. Thus, the memo appeals to the supervisors for their support in Respond- ent's efforts to "stop this union thrust into our organiza- tion." The memo then warns the supervisors that anything they say to employees can be attributed to management, so it warns supervisors to be most careful in discussing the Union with its employees. The supervisors are then informed of various prohibitions of the National Labor Relations Act, such as discharging or suspending em- ployees because of their union activity, and instructs su- pervisors not to threaten, interrogate, promise benefits to, or spy or maintain surveillance of employees' activi- ties. The memo then tells supervisors that they are entitled to express their views of the Union as long as no prom- ises or threats are made. Then supervisors are requested to communicate certain items to the employees under their supervision, about unionization. These items includ- ed: that if a majority selects a union the Company will have to deal with it on all problems, and that Respond- ent prefers to continue dealing directly with employees on such matters; the benefits the employees presently enjoy, all of which were obtained without the Union; the disadvantages of a union, such as expensive initiation fees, dues, fines, strike assessments; the possibility of a strike and that a strike can cost employees money in lost wages that they may never recover; that in negotiating with the Union the Company does not have to agree to all of the Union's terms; and that the employees are free to join or not to join a union without prejudice to their status with the Company. The memo concludes by repeating that Respondent is strongly opposed to having an outside group of union agitators coming into the Company and interfering with its operation, and that it will fight such thrust with all its resources, because it is certain that it would not be in the best interests of the employees or the Company. Attached to this memo are two appendixes. One ap- pendix is a two-page summary of portions of the Nation- al Labor Relations Act. The other appendix is headed "lawful supervisory responses to employee questions," dealing with such items as card signing cost to employ- ees, negotiations, strikes, and loss of personal freedom. In addition, Respondent distributed to its employees at its Englewood Cliffs and West Nyack facilities a number of "Fact Sheets" dealing with the Union. These sheets, dated in August and September, consisted of a question and an answer on various subjects. In these sheets, Re- spondent stated that, based on its examination of the Union's constitution and other contracts. the Union would negotiate a "union shop" clause. and that this would mean an employee could be fired if they did not join the Union; that fees, initiation fees, and strike assess- ments would be paid to the Union; that a union contract would result in a barrier between management and the employees and self-expression, recognition, and individu- al worth would disappear as seniority would be followed on personnel and administrative decisions: that if a strike occurs, employees need not be paid by Respondent and they do not receive unemployment benefits in New Jersey, and that in the event of a strike Respondent would hire permanent replacements and that strikes pro- duce a lot of bitterness. B. Warnings [sned to Elizabetlh Calapmis Elizabeth or Betty Calamis has been employed b Re- spondent for approximately 8 years.' She is prcsentl> em- ployed as a bookstore order clerk. In June. Calamis re- ceived union cards and leaflets in front of the plant from union organizers. Calamis signed the card and mailed it to the Union, and offered her services to the Union as an organizer. During the next several months. Calamis dis- tributed union authorization cards and literature to em- ployees inside and outside the plant at West Nyack. On one occasion she was observed by Gail DiMeglio, group leader and her immediate supervisor, giving a card to an employee in the ladies room. DiMeglio had no conversa- tion or discussion with Calamis pertaining to this inci- dent. In June. Harry Bradley, assistant manager and a super- visor, in the course of a work-related discussion, brought up the subject of the Union. He informed Calamis that Respondent pays the salaries and not the Union, and said to her that, if she thought she could do better elsewhere, she should look for a job elsewhere.' Sometime in June. Bob Porcelli, shipping manager and a supervisor of Respondent., called Calamis into the office of Joseph Hegmann. Respondent's branch man- ager. Porcelli had union leaflets and cards on his desk. He asked Calamis if she wanted a card. and then said, "Oh you already have one. you sent it in already." She responded, "Maybe I did and maybe I didn't." Porcelli added that Calamis was probably prounion be- cause her husband was prounion. Calamis replied that she did not do everything that her husband told her to." Sometime in August, Calamis was not wearing her union button.' Porcelli approached her and asked cwhere her union button was. She thanked him for reminding her. Porcelli laughed and said that lie could see why she was not wearing the union button, since it does not match her outfit. In August. Calamis was approached by Charles Binaghi, department head of stock and also a statutory Iti e (ietilr;il Co(lnlr l ldoes iot illege t tlh t Ii. fillte co lc nlllit, cI forth i the aoIlrs-d,.scrihed handout, to enIplosec, aimount t unfair labor practices under the Act. He does allege, hoever, Ithal these handou l well as the memo to it' uperlsors demonstrate Repond- ent\, hostilit and animus towards the nion Certain errors in the Ira.script are hereby noted alrd correcled tlased o the credited testirnotn of Calarni oe cr the equlx 1ocl ilrll. of Itradllc. 1th;a he "dildn' recall n;akinic such remark, to enlplosec,, i the ahoe hcbased i the ulndelled tesllmoll\ of Calallli, IPorcelli .id ('Cllarlm , ls . hbea t soilI is e illaltillc c 1iCI the Icars (,illll1 Illb llhll.l I i ti l i itrher al aiither empliicr alind h i1nt 'orcel li h.st 11 hid di- ciision, aihoit uiiii lurliig lhCc SlICiJI iccastlsn iaLttls hbhMillrh Itoh sp k..t iii ihaor of ill lOn .n)l l' h reli us oul i l iht It dd 11i 1 11iCt'd aii O c Ito spcik toi liil itid hit could ight h i IIlhi ] ; Sie \ore 111110i 1i l)hi biii l hi ti t it i tll),t ti ( it'l O i.ti her 1341 DECISI()NS OF NATIONAL I.ABOR RELATIONS BOARD supervisor of Respondent. Binaghi said to her that she used to be a nice quiet girl and that he did not know what happened to her, she had become a real agitator. Calamis replied that she did not tell people what to do.' Hegmann. Porcelli, DiMeglio, and Kay Peters, depart- ment head of traffic of Respondent, all admit that they were aware of Calamis' active involvement in activities on behalf of the Union.' In early December, Respondent decided to institute a new policy of screening incoming phone calls in its traf- fic department. The new procedure consisted of having all calls to the department go initially to DiMcglio, rather than to the individual extension of the employee as in the past. "' On December 12, pursuant to this policy, a call intend- ed for Calamis was routed to and answered by DiMeg- lio. DiMeglio asked who the caller was and who the caller wanted and then switched the call to Calamis. Ca- lamis, while taking the call, discovered that contrary to previous practice DiMeglio had initially taken the call." Calamis at the end of the day, about 4 p.m., spoke to DiMeglio. Calamis asked her why she had taken the call. DiMeglio replied that there were too many calls coming into the traffic department and that all calls would there- after be put through to a supervisor before going to the party. Calamis protested that this was an invasion of her right of privacy. She then threatened to report Respond- ent to the National Labor Relations Board. DiMeglio re- sponded, "Betty, that's the way it is." DiMeglio then reported to Hegmann that Calamis had threatened to report Respondent to the Board and had accused DiMeglio of invading her privacy. Hegmann re- plied that she need not worry, that these were company phones and they were to be used for business not for personal conversation. On the next day. December 13, the phone rang and DiMeglio picked it up and answered, "Traffic." As she was walking around her desk, the call was accidentally disconnected. Around 12 noon, DiMeglio answered an- other call and the caller asked for Calamis. DiMeglio asked the caller to hold on while she sent one of the em- ployees to get Calamis who was in the ladies room at the time. The call was from Calamis' brother, who informed her that he had called earlier and gotten her supervisor, but had been disconnected. Her brother told her that their mother was ill. Calamis then went into the cafeteria and told the employees whom she was supposed to have lunch with that she would not be having lunch. Calamis I Based ,i the undertied cstimony of Calamis It i Iloted that August was the height of the union campaign. and as the month during which Respondent distributed its antiunion leaflets to its emplovyc. '" For example, Plctrs s', a Calarnis ',earing union buttlhl ever day from August Io ()ctober, and sayw her reading UlliOn literatiure an(d dis- cusillg the inatter with employeec approximlately once a week during this period of tie DiMeglio sa;l\ Calamis A earing union huttons and distributing union litera;llure outside the plant from October through No- vnember. ltegmannll s told h supervisors Itiad emnplovees that Calanili, ils, gi, ing out ullion pamphlets and wearing unionl buttons. l'he complainl does lot allege nor does (icneral Counsel onlitelnd that the irlitiUtitn of tIis iic e police x ,as in anriy 'ay xiolaixe oIt le Acl " e R spoldrenl mnade n10 annoull nclr llnrtt crlernlllr g th inlplelenlltitinr 1 of tille lnex screenllilng pliic then approached DiMeglio. She told DiMeglio that she had a personal phone call i the morning and that Di- Meglio had lost the call. DiMeglio replied that she did not know who the call was for. Calamis continued that her mother was sick and that DiMeglio did not tell her about the call. Calamis informed DiMeglio that since her mother was sick she had to leave. Calamis put on her coat and left. The above recitation of this conversation is essentially not in dispute. What is in dispute is the tone of voice used by Calamis during this discussion. Calamis, corrobo- rated by employee Linda Kane who heard the conversa- tion, testified that, although Calamis was visibly upset, she did not raise her voice. DiMeglio, corroborated by employee Lisa Thomas who was also present, testified that Calamis was shouting and raising her voice through- out the discussion. Although I found Calamis to be a be- lievable and credible witness for the most part, I do not credit her ill this instance. I rely most heavily upon the fact that, in the warning memorandum issued to her sub- sequently dealing in part with this incident to be dis- cussed infra, Calamis was given the opportunity to revise and change anything she felt was inaccurate. In fact, she availed herself of the opportunity to make various changes in the memo, and admitted that Hegmann per- mitted her to make all the changes that she requested be made. The memorandum clearly states that Calamis shouted at DiMeglio and Calamis did not request that Hegmann remove that comment. Calamis also admitted that the memorandum was an accurate description of what transpired at the meeting. Accordingly, I find that Calamis did in fact shout at DiMeglio during the course of the discussion set forth above. On the next day. December 14, Calamis asked fellow employees Janet Koch and Maryanne Bonnano if they were aware of the fact that calls were going through the supervisor and not directly to the individual. They re- plied that they were not so aware, and one of them said that she did not care for this procedure, because she has a son in school and, if there were an emergency, it would upset her if she could not get the call. Calamis said that she was going to see DiMeglio to inquire if the policy was to continue. Koch and Bonnano agreed to go with Calamis to speak to DiMeglio about the problem. Calamis informed them that she would do the talking. After lunch, the three employees went in to see DiMeg- lio in Peters' office. Calamis began by saying that she wanted to discuss Respondent's policy of screening phone calls; she asserted that she felt that it was an inva- sion of her privacy. DiMeglio replied that she did not want to discuss i then and that when Kay Peters come back, "we can discuss it." Koch and Bonnano said noth- ing during this discussion. The employees left the office and did not return to attempt to speak with Peters about the matter. When Peters returned from lunch, DiMeglio informed her that Calamis, accompanied by Bonnano and Koch. had come to see her about Respondent's phone call policy. According to DiMeglio's own testimony. which I credit, she then told Peters, "I told them, if they want to discuss it. they can come i when you come back." 1342 I'RE:NICF-IIAILI . INC Peters responded, "Fine. if they ant to discuss it,. let them come in and we'll discuss it." Peters added. "Whenever the girls want to come back, they can talk to me, my door is always open." Hegmann, according to his own testimony, was told by' Peters and DiMeglio that Calamis, Koch, and Bon- anno came in together to see DiMeglio, and said that "they would like to talk to her and Peters on the use of the invasion of privacy." Hegmann further testified that Calamis did the talking, and wanted to talk about the phone policy and invasion of privacy. Later in the day, on December 14. Calamis' husband called and, when DiMeglio answered and asked who it was, he refused to give his name. He requested to be switched to Porcelli, and she complied with his request. DiMeglio later confirmed her previous suspicions upon speaking to Porcelli that it was in fact Calamis' husband who had called. Hegmann, after discussing with DiMeglio and Peters the various incidents described above, decided to meet with Calamis to hear her side of the story with respect to these events. Peters had recommended that Calamis as a result of her behavior be removed as backup supervi- sor. 12 On December 20, a meeting was held with Peters, Hegmann. and Calamis present. Subsequent to the meet- ing, Hegmann prepared a written memorandum to he placed in Calamis' file. The memorandum was shown to Calamis who, as noted above, was permitted to make any changes or additions that she wished. She availed herself of the opportunity. Since all parties agree that the memorandum correctly summarizes the meeting, I have set it forth below as my findings with respect to the dis- cussion therein: January 4, 1980 To: Elizabeth Calamis cc: Personnel File Kay Peters Jack Romaine Fr: J. Hegmann Re: Meeting with Ms. Calamis, Kay Peters and Joe Hegmann on Thursday, December 20, 1979. Ms. Calamis, we discussed incidents that oc- curred on Thursday, December 13, 1979, and Friday, December 14, 1979, at a meeting on Thurs- day, December 20, 1979, with Kay Peters, your De- partment Head. 1. Screening of all incoming calls for extension 463 which you told your supervisor was an invasion of your privacy although they were personal calls on Prentice-Hall time. I told you that I did not con- sider that personal calls on company time were an invasion of your privacy and also personal calls should be for emergency only. 2. On Thursday morning, December 13, 1979, a call for extension 463 was routed to extension 462 The comnplaint doe, no1l llege nor dos the (cnral CouneIl con- tend that Calami,' exentual rmo'.al al backup upcrlsor Aai .iloli c of the Act and answered by Ciail DiMeglio. supervisor Traffic Department. Ms. iMcglio could not hear caller and then call w;as lost. his was betwveen I10:(X) a.m. and 11:(X) a.m. At 12:15 p.m. a call came in for ou and ''you ,ere given the call. You proceeded to cafeteria and at 12:32 p.m. ou returned and shout- ed at Ms. DiMeglio that lihe had not told you of the earlier call and you then punched out. I asked you if ou explained to the Department Head why you had left early and you said you had not talked to either supervisor. On Friday. December 14. 1979, you. Janet Koch and Mary Ann entered Kay Peters office wishing to speak to Ms. DiMeglio. You were told to wait for Kay Peters who was at lunch to discuss screening of calls. When Kay Peters returned no one asked to see her. At 4:00 p.m. on Friday, December 14, a call came in on 462. was answered by Ms. DiMeg- lio and she identified herself. Caller asked for 463 and was asked to identify himself. He insisted on being put on extension 463 and would not give name. Finally after verbal abuse he was transferred to Robert Porcelli. This caller was identified as your husband. Betty. I want to make sure you understand my position in these matters. I have the right to screen all personal calls enter- ing he West Nyack Plant and especially when em- ployee is on company time. Also, anyone requesting an extension will be asked to identify themselves. and if they refuse e will terminate the call. I don't know what has happened in the past six months. but your attitude has indeed created tensions among the Traffic Office mployees, and these incidents must stop. I will not have supervision being abused and if this behavior should continue I will be forced to take drastic action which could include termination. I have told you that if personal phone calls are becoming extensive in any area of the warehouse the Department Head has the right to screen or eliminate these calls except in cases of emergency. If you still feel that your privacy has been invaded you have the right to go to anyone of your choos- ing that includes the Labor Board. I also told you that you were no longer the Backup Supervisor. No relief operator was told to give calls to 462. And I said all operators shall be told to give calls to Ex. 462.':' All parties agree further that Calamis did not accept Hegmann's explanation at the meeting that the screening policy was a legitimate exercise of management rights and that she continued to insist that it was an invasion of her privacy. Although, as noted. Calamis was criticized in the memorandum and at the meeting for her "attitude" during the past 6 months., Hegmann did not at the meet- ing define what he meant by that term. However, during t rFhec I1,li thrc IcnlTlltc , nlOt O t I clT1c l. \rrcf r )}lllni\s rlt tic llid rlcrlci .1l ti III ICIc n,.1t' (' . ral 1 1 343 DECISI()NS OF NATIONAL LABOR RELATIONS BOARI) his testimony he was asked on three different occasions, by his attorney, the General Counsel, and me, what he meant by that term. When asked on direct examination by his own counsel, his testimony was as follows: Q. Did you give any warning of any kind to Betty Calamnis during [the disciplinary meeting]? A. Well, I told her that if she was to continue to abuse a supervisor, that I would have to take more drastic action than just talk and there is a letter in her file on that aspect. Q. Did you warn her with respect to any other incidents that took place'? A. Well, I told her-I believe in the memo I said something about in the last six months that-well, I had been sick from April to August, the 15th I re- turned, I was in the hospital for a month and then I was in recovery, I came back, of course, on August the 15th and at that point I had heard, of course, when I returned that first day that people were wearing buttons and I was very surprised, I think another woman, Florence Timmons, came in to me that day and sat down and talked to me about her leaving the company and basically that I went out on the floor into the traffic area, as I basically nor- mally do, as I go through the floor. and I didn't seen any buttons, I was very surprised. During cross-examination, the following exchange took place: Q. Mr. Madigan asked you what you meant by the problem with Betty's attitude in the disciplinary memo concerning her. A. Yes. Q. Your answer was, and correct me if I am wrong, but my recollection is that you said: Well, I was out for three months. I got back in the middle of August and I heard that people were wearing buttons. I then went out to check for myself and I didn't see any buttons. At that point, we went on to another topic. What were you talking about when you answered that question concerning attitude? A. Oh, boy. I must have been upset because I didn't-well, basically her attitude-what did I mean by the buttons? I have no idea. Q. You have no idea? A. No. Q. What made you think of that'? A. I don't know. When asked by me what he meant by attitude, Heg- mann responded: Well, basically it was sort of a family affair in the traffic area with the girls there, I pass through nor- mally and I talk and say hello and there would be smiles and everything else. It just seemed that-well, I had come back from a-being out three months, three and a half months, whatever it is, and I could notice that the change in even Betty and-well, I wouldn't call it as friendly as I thought it was before and I mentioned that to her. Hegmann insisted that the only matter that he warned Calamis about was her "abuse" of her supervisor. Di- Meglio. DiMeglio had in fact been very upset after her confrontation with Calamis on December 13 and had gone home early that day. Calamis had also been a per- sonal friend of DiMeglio, and DiMeglio was particularly upset that Calamis would believe that she would inten- tionally refuse to put through an important call to her. As noted, Hegmann insisted that the only "warning" that he gave Calamis pertained to her "abuse" of her su- pervisor. He admitted, however, that he referred to a number of incidents that must stop including her position concerning Respondent's phone call policy and Calamis' husband calling and refusing to give his name. Hegmann testified "but it was not a warning, it was just explained to her that these incidents should be cut out, the warning was on mainly-the warning was given on the abusing of the supervisor." Peters, in her testimony, was asked what, if anything, did Calamis receive a warning about. She replied, "When we had our meeting, our discus- sion was mostly, I think Joe was very upset that she had abused her supervisor. I think that was the biggest thing, okay. And then, of course, invading her privacy to phone calls, those were the two topics." It is undisputed that all of Respondent's witnesses were aware that Calamis' alleged abuse of Supervisor DiMeglio arose in the context of her complaining to Di- Meglio about Respondent's alleged invasion of her priva- cy. and in the context of DiMeglio having, as a result of the institution of its new screening system, lost a call in- tended for Calamis, which would have informed her of her mother being ill. As noted, on January 4, 1980, Hegmann met with Ca- lamis and went over the memorandum quoted above. After Calamis made certain changes, the memorandum was placed in her personnel file. C. The Discharge of Sandy Gach Sandy Gach was employed by Respondent for 10 years, working in the stock control department at the time of his discharge on February 15, 1980. Gach went to a union meeting in June, signed a card, and was given a union button to wear. Gach testified that he wore the union button until Oc- tober. " Gach, later in his testimony, asserted that he wore the button five or six times after October. No evi- dence was adduced that any management representative ever saw Gach wearing a union button. Porcelli, Re- spondent's representative, when asked about the issue, denied that he ever saw Gach wearing a union button. Gach admitted in his testimony that the union cam- paign had substantially lessened in intensity after Octo- ber, and he explained his decision to reduce the frequen- cy of his wearing buttons by stating that a union election at Nyack was coming closer, and that therefore it was not necessary to continue to wear the buttons. 'l Joe Shanilron, alnolhcr emplo ce. corrohbiratcd (Jach that (Gach did in ract N~car a unio hlll{,l 1344 PRENTICE-HALL. INC. Gach also testified that he regularly had union litera- ture on his desk, and that Respondent's supervisors, Por- celli and Binaghi, would come up to his desk, pick up the literature, read it, and put it down without any con- versation. Porcelli denies ever seeing any literature on Gach's desks. Binaghi did not testify. Gach initially testi- fied that these incidents involving supervisors looking at literature on his desk occurred in July. Later on in his testimony, he contends that Porcelli would come to his desk once every 2 weeks, from June 1979 until late Janu- ary 1980. At another point in his testimony, Gach ad- mitted that he had no union literature on his desk after October. Gach also testified that he had individual conversa- tions between himself and Porcelli on the average of once a week from June through the date of his dis- charge, and that the subject of the Union was brought up during these. According to Gach, he would be walking through Porcelli's office, " passing Porcelli's desk, when during the course of conversations about work Porcelli would bring up the Union. Gach testified that Porcelli would say that once employees signed cards they were legally members of the Union and would have to start paying dues whether or not Respondent would become unionized. In addition, Porcelli allegedly said that, if there were a strike at other places, members of the Union would have to picket even if Respondent was not on strike, and that if employees went out on strike, they faced a loss of income. Finally, Porcelli allegedly mentioned that Respondent did not feel they needed a union and would take steps to keep the Union out. Gach further asserts that he told Porcelli that he was in favor of the Union to bring up the standards of Respondent. Porcelli denies having any individual conversations with Gach with reference to the Union at any time. He admits, however, that on a few occasions during the summer, he discussed various as- pects of the literature distributed by Respondent with employees in groups, and that Gach may have been pres- ent on one or two of these occasions. According to Por- celli, the main item that he recalled was the issue of whether the union authorization card is a legal contract, and that he told the employees that he was informed that the card was a legal contract. From the foregoing, it is apparent that significant credibility resolutions must be made with respect to the extent of Gach's activities on behalf of the Union, and Respondent's knowledge of such activities. I found Gach on the whole to be a most unimpressive and unpersuasive witness. He was very evasive on cer- tain significant areas of his testimony, and he contradict- ed his own testimony in later portions of his testimony on several key areas. For example, as noted, at first he testified that he wore his union button until October, and then later on he said he wore it five or six times thereaf- ter, though admitting that the union campaign was peter- ing out by that time. ' , Porcelli was not Gach's immediate super i or ' Furthermore, his explnalion hai he ore butlIns ill lth Iess frequtin- cy after O()toher hecailse an lcctilon ss;.as pcinding is ohsi oulsx noi t cor rect, since no petilton s ias cer filed ltnor an elcctitoll cr shetduleld II West N yac k During his testimony he also changed the time his su- pervisors picked up and saw literature on his desk from a few times in July to every 2 weeks until shortly before his discharge. This testimony, as well as his testimony that he and Porcelli had an individual conversation about the Union once a week until his discharge, is highly sus- pect in view of the fact that he himself admits and I have found that the union campaign at West Nyack substan- tially ended in November 1979. Thus, it is highly unlike- ly that such frequent conversations about the Union would occur in such a situation. Finally, and most significantly, I rely upon Gach's tes- timony, to be discussed more fully infra, that before the incident leading to his discharge he never punched out a card of another employee. This testimony is contradicted by Shannon and Lesko, the General Counsel's own sup- porting witnesses. The General Counsel in fact candidly acknowledges that Gach was not telling the truth in this instance, but attributes this to the fact that "common ex- perience teaches us that it is difficult for anyone to admit wrongdoing." The General Counsel argues that this iso- lated lack of candor should not destroy the essence of Gach's testimony. I do not agree. I find that, rather than an isolated lack of candor, this testimony of Gach is but another example of Gach's propensity to contrive his tes- timony to fit into what he believes to be favorable to his case. Accordingly, based on the foregoing, I discredit Gach's testimony unless it is corroborated by other wit- nesses or admitted by witnesses of Respondent. I there- fore find that Gach did wear a union button until Octo- ber, but not thereafter. Although Porcelli denied ever seeing Gach wearing the button, I do not credit him in this regard, since I find it unlikely that Porcelli would fail to notice Gach wearing the union button that he wore from June to October. I discredit Gach's entire testimony with respect to his having any union literature on his desk and that Porcelli or any of Respondent's supervisors ever saw any such literature on Gach's desk. I also discredit Gach's testimony that he had any indi- vidual conversations with Porcelli concerning the Union, and that he, during the course of any conversations with Porcelli, expressed his (Gach's) support for the Union. I do find however that, in the summer months. Porcelli did have discussions about the Union with groups of em- ployees which included Gach, and that Porcelli made the comments about the Union attributed to him bh Gach at these group discussions, rather than at separate conversations with Gach. ' Sometime in August or September. Porcelli ap- proached employee Michael Lesko. At the time I.esko was wearing a union button. Porcelli asked Lesko what his thoughts were and what did he think the Union was going to do for him. Lesko replied that he was listening to .what they had to say to see if there was an thing beneficial for him. Porcelli then mentioned that signing a card might require Lesko to walk a picket line if there 1 7 Iliet in this regard l hai the conilletls attrilbutled I rio ',r llh b (iach xxctc lritlel t, s tirellclts iiimade ill I ft ' ,ileC lHis lli( IsrtlrctiouI tO siiplr\ ior, arl trlhuted h Rep,ellrie 1345 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was a strike. He added that Respondent had made mis- takes in the past and was trying to make things better for employees. Porcelli also said that he personally did not care one way or the other because whatever the employ- ees would get, he would get also. He concluded by stat- ing that he felt employees could do better without the Union and with the committees that they presently had, and that it was better to talk to management directly rather than to pay someone union dues to talk for the employees. 8 Sometime in January 1980, Porcelli was passing through the stock control area. Gach was present, along with a number of other employees. Porcelli observed some union literature on the coffee table. Porcelli joking- ly asked, "Who do these belong to?" No one answered, but some of the employees laughed. Porcelli took the lit- erature from the table and said that it was not an author- ized table. He added that if anyone wants a union table to let him know, and he would set one up. Porcelli then threw the literature in the garbage. 9 In February 1980 Hegmann was away on vacation, so Porcelli was filling in for Hegmann as branch manager in charge of the plant. Porcelli was filling in for Hegmann for the first extended period of time since August 1979. On February 10 or 11, Charlie McCarthy, group leader of the mainline layout department, informed Por- celli that he had received a number of complaints from employees that other employees were punching out more than one timecard. The employees were upset because this practice would enable those employees whose cards were punched by others to leave earlier and beat the rush and not have to wait in line in order to punch out. Respondent's personnel manual, entitled "YAYCO" sets forth in two separate places that such conduct is prohibited. The section of the manual dealing with time- cards provides that "Punching the card for another em- ployee is a serious offense for both employees and is cause for dismissal." Another section of the manual lists nine items as "of- fenses considered cause for dismissal without notice." One of these items is "falsification of time card entries or making entries on another employee's timecard." Porcelli discussed the problem with Tony Jemsky, de- partment head of mainline layout, and Dino Leone, de- partment head of mainline packing. At this meeting they decided to monitor the main timeclock, because that is the clock used by employees working in mainline and packing. 20 Porcelli testified that his purpose in monitoring the clock was to act as a reminder to employees that the ti- mecard policy was going to be enforced. On February 13, 1980, Porcelli and Jemsky positioned themselves at the main timeclock at closing time, and watched the em- ployees as they punched out. No employee was observed violating Respondent's rule on that day. ' Based on Lesko's undenied testimony. i9 Porcelli and Gach testified to essentially similar versions of the above conversation, except that Gach made no mention of anyone laugh- ing or Porcelli asking the question jokingly. Gach did not, however. deny that there was laughter, since as he was not asked such a question I therefore credit Porcelli's version as set forth above. 20 That timeclock is used by more than 100 employees The next day, February 14, Porcelli and Leone sta- tioned themselves 5 or 6 feet from the timeclock and again watched employees punch out. At 4:15 p.m. Gach approached the timeclock.2' Porcelli observed Gach punch out one card and then put another card into the timeclock. Porcelli then went over to Gach and took the two cards from Gach before he could punch the second card. Porcelli looked at the two cards and saw that Gach had punched the card of employee Tom Fullem. Porcelli then asked Gach, "Didn't you see me standing there?" Gach replied, "Yes I did." Porcelli stated that he could not believe that Gach had done what he did. Gach's re- sponse was, "It's no big deal." Porcelli then told Gach that he would speak to him in the morning. Fullem, who had been in the office, came out and headed for the exit. He asked if Gach had punched him out and Gach said that he had done so.22 The employees then went outside, at which time Gach informed Fullem of what had transpired. Fullem got rather agitated and went in to see Porcelli. Fullem asked what happened. Porcelli responded, "Apparently Tom, somebody punched your time card out." Porcelli said that he was holding the cards and would speak to Fullem in the morning. Fullem asked if his card would be in the rack the next morning and Porcelli replied that it would. Fullem came back to speak to Porcelli 3 to 5 minutes later. Fullem told Porcelli that he wanted his timecard back immediately, that he was tired of this harassment and would go to the Labor Board if his card was not re- turned. Porcelli, after a discussion with Jack Romaine, warehouse manager, told Fullem again that his card would be in the rack the next morning and the matter would be discussed at that time. About 4:25 p.m., employees Shannon and Lesko walked up to the timeclock together. There were no other employees on line. Shannon, about 3-4 feet in front of Lesko, told Lesko, "Don't worry about it, I got you." Shannon removed both his and Lesko's timecard. As he was about to punch out the first card, Porcelli came over and said, "I wouldn't do that if I were you." Shannon responded, "Why not, Mike [Lesko] was right there and why make him walk all the way to the clock." Porcelli then ordered Shannon not o do it and added, "I just nailed your buddy Gach." Shannon and Lesko then passed the cards back and forth between them, and final- ly each punched out his own card.2 3 The next morning a five-way conference call was held with Porcelli and various other higher management rep- resentatives. The incidents involving Gach and Fullem were discussed, and a tenative decision was reached, sub- ject to hearing from the employees themselves and get- ting their sides of the story. The tentative decision was that Gach was to be terminated and Fullem given a 4- day suspension. Porcelli explained that the differences in " At the time, there eere 30-40 employees on line waiting to punch out. ' Gach punched out Fullem's card because Fullem was going to give Gach a ride home, so Gach had expected that Fullem would be able to save time by not having to wait in line. and could go directly to the parking lot to get his car. ':1 Based on a composite of the testimony of Shannon. l.esko. Leone and Porclli 1346 PRENTICE-HALL. INC. penalty were decided upon because Gach had openly defied Porcelli by punching out Fullem's card in front of Porcelli, and that, although Respondent believes that Fullem had been aware of what Gach had done, Fullem had not been present and had not admitted any involve- ment. That afternoon, Porcelli met with Fullem. Fullem began by apologizing for losing his temper the day before, and denied any knowledge that Gach had punched his card. Fullem also added that it was no big deal since he never left the building. Porcelli asked Fullem if he did not think tampering with timecards is a serious offense. After again repeating that it was no big deal, Fullem finally relented and conceded that it was a serious offense. Porcelli then informed Fullem that he was suspended for 4 days. Gach was then called into Porcelli's office. Porcelli asked Gach again if he admitted punching out Fullem's card, knowing that it was against company policy, and if he saw Porcelli standing there when he punched out Fullem's card. Gach answered yes to all of the both questions, and repeated again his belief that it was no big deal.24 He made no apology for his actions. Porcelli then informed Gach that he could not believe that Gach had punched out someone else's card right in front of Porcelli. Gach repeated that in his view it was no big deal. Porcelli replied that punching out another's card is a serious offense. Gach asked if it was as serious an offense as assaulting an employee. Gach referred to an incident in January involving employee Paul Cranka. Porcelli re- plied that he was unaware of the facts concerning Cranka and that he was there only to discuss Gach's situ- ation. 25 Porcelli concluded by informing Gach that he was ter- minated in view of his flagrant violation of violating a company rule, of which he was admittedly aware, in front of Porcelli. Porcelli then wrote up a removal from payroll form for Gach which reads as follows: "Employ- ee terminated for flagrant violation of Company rule- Visibly punching out a fellow employee. (Time Card)." The following week Gach requested and was granted an opportunity to meet with Hegmann, who by this time had returned from vacation. Gach began by saying that he was terminated, and Hegmann responded that he was aware of it. Gach admitted to Hegmann that he had in fact punched out another employee's card, in front of Porcelli, and that he was aware that he was not sup- posed to so do. Gach repeated that it was no big deal. 4 Gach also explained that he punched out Fullem's card in order to beat the rush. '" In early January Cranka had physically assaulted Gach. without any provocation. When the incident was investigated by Respondent. Cranka was very apologetic about his actions. and broke down into tears. He ex- plained that he was very distraught at the time of the incident, since his brother had recently died. In addition. Cranka was scheduled to retire in a month after 25 years of service These circumstances were all explained to Gach by Respondent's officials, and Gach was asked if he wanted to he responsible for Cranka's discharge in siese of the above mitigating fac- tors. Gach replied that he did not ant to he responsible for anyone losing his job. Accordingl. Respondent decided to suspend Granka for I day. It should he noted that one of the grounds for immediate dismissal listed in Respondenl's manual is fighting or other physical iolence toard other employees on premises Hegmann responded that it happened to be a very big deal and he should know it. Hegmann continued that he was sorry, that there is nothing he could do, that Gach was terminated, and that he (Hegmann) agreed with the termination. 26 Hegmann wished Gach luck and the con- versation ended. 27 Neither Shannon nor Lesko was disciplined in any way for their actions involving the timecards on the same day as the incident with Gach. Porcelli explained that he did not discipline these employees because they did not actually punch out any one else's card. Porcelli further testified that he thought that Shannon and Lesko were passing the cards back and forth between them to tease him, in view of the fact that Porcelli believed that they were aware of what had happened to Gach. Por- celli claims that in his judgment they never intended to punch out anyone else's card, and his warnings to them related to not fiddling with the cards, rather than not to punch out anyone else's card. When asked why he did not warn Gach as he had done with Shannon and Lesko, Porcelli answered that he did not get a chance to tell Gach not to do it. Shannon and Lesko were both active union supporters. Both of them wore union buttons regularly, and in fact Shannon continued to wear his button for I or 2 months after Gach ceased wearing his button in October. In ad- dition, Shannon and Lesko were both seen by Porcelli distributing union literature outside the plant to employ- ees. According to Porcelli, the reason for the difference in penalty between Fullem and Gach was that, although Porcelli believed that Fullem was aware of the fact that Gach punched his card, he could not prove it, and Fullem had denied any involvement. Fullem also wore a union button from time to time. Respondent's personnel handbook, as noted, listed nine items as justifying dismissal without notice, including punching another employee's timecard. In the past 5 years, Respondent's records revealed four discharges for the items enumerated therein. One employee was termi- nated on January 30, 1976, and the reason given on Re- spondent's termination form was, "Employee needed constant supervision. On 1/30/76 he had words with two department heads and refused to work." Another employee was terminated on August 13, 1976, according to Respondent's termination form for "Insub- ordination, and employee used abusive language to De- partment Head." 2" A third employee was terminated on March 3, 1978, allegedly because, according to Respondent's termination form, the employee refused an order, became verbally abusive to. and threw a broom handle at a supervisor. Finally, one employee named Thomas Doran, a layout clerk, was terminated on December 3, 1979. His termina- tion form reads, "left building and had someone punch :' In fact. egmainn had also signed Ihe !terniniatioln firnms filled out h% I'orcclli. referred Io above :@ I discredit Gach's teslim nin that iegnian ni told hin ail this m etllng if he (Hegmiann) had been drouid at l t' tinie the Ictrmiltioll ,tl d probably not haxe occurrced 2 The dep;artment head in ha case as PI'rclhi 1347 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his time card." The record is silent concerning what if anything happened to the person who punched Doran's timecard. In fact, the record does not indicate whether the person who punched Doran's card was an employee of Respondent, or in fact whether or not Respondent ever became aware of who had punched out Doran's card. About 10 years ago, Respondent terminated four or five night-shift employees for punching each other out. The record revealed no other evidence of any other employees being terminated or otherwise disciplined for punching out another employee's timecard. Hegmann admitted on cross-examination that the main reason for Respondent's rule against punching out an- other employee's card was to prevent employees from cheating Respondent out of money by falsifying their time worked. The General Counsel presented a number of witnesses who testified that they had either observed other em- ployees, and/or they themselves had actually engaged in punching out timecards of other employees, and that on some occasions various of Respondent's supervisors in- cluding Porcelli were present. However, none of these witnesses could testify with certainty that any of Re- spondent's supervisors ever actually observed another employee punching out a card other than his own. Re- spondent's supervisors all deny ever having observed an employee punching out a card of another employee while they were a supervisor.2 9 The General Counsel, while admitting that his wit- nesses did not establish that any supervisor actually ob- served "dual punching," requests that an inference be drawn from the testimony of these witnesses that super- visors were present that Respondent was in fact aware of such occurrences at least "on a couple of occasions." I do not agree, and find that the record does not establish that at any time, prior to Gach's incident, a supervisor of Respondent ever observed an employee of Respondent punching out another employee's card. Shortly after Gach's discharge, Respondent posted a memo above the timecard dated February 20, 1980. The memo states that, as stated in company policy, the time- card is the official and legal vehicle for hours worked at this warehouse. After stating that each employee must punch his or her own card, the notice goes on to state, "punching the card of another employee is a serious of- fense for both employees and is cause for dismissal with- out notice." The notice was signed by Hegmann. It was stipulated that no such notice had ever been posted at Respondent's premises before. i. ANALYSIS A. Alleged Inlerrogations The complaint in Case 2-CA-17149 (filed by Gach) al- leges that, on various dates from September 1979 through February 1980, Respondent, by Porcelli, interro- gated its employees concerning their activities on behalf of the Union. The General Counsel, however, in his '~ Leone admitted that. hill he as an employee before being pro- moted to supervisor, he did obsere arious employees punching out more than one card. brief, makes no reference to this paragraph in the com- plaint, and does not specify which comments of Porcelli he is alleging to constitute unlawful interrogations. In fact, his brief makes no reference to any unlawful inter- rogations allegedly committed by Respondent. However, since the brief does not contain any request to withdraw this allegation of the complaint, I must assume the omission of any reference to this allegation to be an inadvertent error by the General Counsel, and will consider whether the record supports such a violation. It appears from the complaint that Porcelli's alleged weekly conversations with Gach were contemplated as unlawful interrogations. As noted, I have discredited Gach and found that Porcelli had no individual discus- sions with him pertaining to the Union. I did find, how- ever, that Porcelli did make some comments to groups of employees about the Union, wherein Gach was present. However, in none of these conversations did Porcelli make any remarks which could even remotely be consid- ered as interrogations. I therefore find no unlawful inter- rogations with respect to any of these conversations. However, I have found above that Porcelli ap- proached employee Lesko while the latter was wearing a union button, and asked him what his thoughts were and what did he think the Union was going to do for him. Even though Lesko was an openly declared union adher- ent, Respondent was not free to probe directly or indi- rectly into his reasons for supporting the Union. Such probing tends to have a coercive effect, whether or not the employee is an openly declared supporter of the Union. 30 I find therefore that Porcelli, by asking what Lesko's thoughts were concerning the Unions and what he thought the Union could do for him,32 was probing into Lesko's reasons for supporting the Union in violation of Section 8(a)(1) of the Act." : I do not agree with Respondent's contention that this conduct constitutes an isolated violation not warranting a remedial order. I have also found above that Porcelli asked a group of employees who owned the union literature that he had found on a table. This statement by itself might be con- sidered an unlawful interrogation, and the fact that the question was asked in a jocular or friendly fashion or that it was accompanied by laughter, as I have found, would not necessarily render the question noncoercive. 1 However, the evidence revealed that, after asking this question and receiving no response, Porcelli told the em- ployees that this was not the proper place for union lit- erature and offered to set up another table for the distri- bution of literature. Thus, it is apparent that the purpose :"' 1I1T 4utomoive Elecrical Prdluct Division, 231 NLRB 878 (1977). " Shlow. Inc.. d/b/a Vallev CubAh l'7 Co.. 228 NLRB 1355 (1977). Te I7.-ntlho U, i.. Jordan 11calth Cenlter. 235 Nl.RB 1113 (1978) I upra: Valler C'uble. upra: Jordan lealth Center. vupru, Ethyl Corporauion,. 231 NLRB 431 (1977). " Carolina A.4mericun lEtis. Inc.. 219 NLR B 457 11975). In this con- inectioll. I ould note that, as set forth in subsequenit portions of this De- cisioti, I find that Respindent has iolated Sec. 8(a)1) and (3) of the Act by its conduct conlcerning Calanimis Thus. an argument hb Respondent that its inerrogatilon should be considered an isolated iola:lion is further ulldernined by this finding. ': Jodlr liiql. 245 NI RH 714 ( 1979): Ethl ( orpioration. upra 1348 PRENTICE-HALL., INC of Porcelli's questioning was not to ascertain which em- ployees were engaged in union activity, but merely to inform the employee or employees who put the literature on the unauthorized table that this was not the proper place for it, and to arrange with said employee or em- ployees for an authorized table which Porcelli agreed to furnish, in order to display union literature and materi- als. 36 I find that the employees would reasonably tend to so regard the above-cited remarks of Porcelli, and that his question and comments were not coercive or unlawful.37 I have also found that Porcelli questioned Calamis in June, about her signing a union card. Since this incident occurred in June, more than 6 months from either of the charges filed herein, no violation can be found with re- spect to Porcelli's comments at that time. In August, Porcelli, observing that Calamis was not wearing her union button as per usual, asked her where her button was and then laughingly said that he could see why she was not wearing it, since it did not match her outfit. It is clear that Porcelli's questioning in this in- stance was more rhetorical than inquisitorial,." and was not designed to elicit a response from Calamis concern- ing her union sympathies or activities. Accordingly, I find that Porcelli's questioning of Calamis about where her union button was does not constitute a coercive in- terrogation in violation of the Act. B. The Disciplinary Warning Issued to Calamnis It is undisputed that Respondent issued to Calamis an oral warning on December 20, 1979, and a written warn- ing on January 4, 1980, confirming the matters discussed on December 20. The General Counsel asserts that the warnings were motivated by Calamis' activities on behalf of the Union, as well as by her engaging in the protected concerted activity of complaining to management about Respondent's institution of a new screening policy for telephone calls. Respondent asserts that its warning to Calamis was motivated solely by her "abuse" of her su- pervisor. Since the disposition of this allegation turns on em- ployer motivation, it is necessary to apply the test of causation formulated by the Board in Wright Line. a Di- vision of Wright Line Inc., 251 NLRB 1083 (1980). It is admitted by all of Respondent's officials involved in the disciplinary action of Calamis that they were aware that Calamis was an active union adherent. 9 Union animus of Respondent is established by the aforementioned unlawful interrogation by Porcelli. Re- spondent's hostile antiunion campaign literature, as well as by Supervisor Binaghi in late August, referring to Ca- lamis as having become a real agitator. 4" :" II is noted that the conlplaiit doe nol allege nor loe, the General Counsel conlend that PIorcclli conduct in remoming the union I hteraliurc from the Ilhle %%as in ovilation of hc Act. " ludivox. Hutr, (Corporation, 234 NRIt 428 (1978): BBlth IElretril Sr- tens. tIn., 233 NRI 72 (1477) :~ Bath Iluctriual. supra. ' Thu. Hegmann. DiMeglio. and P'letrs all adnmit to siuch knu ledge, and I ha,.e found thlat DiMeglio observed Calantis distribhutig Iltlhoriza- tion card, Io emplowescs Allhough he coillersai llon bhtv.een Binaghi alil d Calllnils made 1no specific reference to the Utnion i ices of the fel I ht tilre cotrersalloll It is true that most of the union activity ceased in Oc- tober or November, and that Calamis was disciplined in December when there was virtually no union activity going on at Respondent's Nyack premises. However, the testimony of Respondent's branch manager, Hegmann, in my judgment constitutes a significant admission that Ca- lamis' union activity was a motivating factor in Respond- ent's decision to discipline her. Thus, in the written warning prepared by Hegmann. he stated. "I don't know what has happened in the past six months, but your attitude has indeed created tensions among the Traffic Office employees and those incidents must stop." When asked by his own attorney on direct examination about whether he warned Calamis about in- cidents other than abuse of a supervisor, Hegmann talked about the fact that he had mentioned the past 6 months and that, when he returned from being ill in August, he heard and was surprised that employees were wearing union buttons." When asked about this testimony on cross-examination, Hegmann became flustered and could only offer the rather feeble explanation that he had no idea why he had earlier testified that Calamis' attitude was equated with the wearing of union buttons. Finally, at another point in his testimony, Hegmann of- fered a different and clearly contrived explanation of what he meant by "attitude" in his memo and in his oral warning to her. Hegmann testified that he was referring to the fact that, when he returned from being out of work for 3 months, he noticed that Calamis was not as friendly to him as she once had been. It strains credibil- ity to believe that any employer would issue a disciplin- ary notice to an employee for a decrease in friendliness. If Hegmann were in fact referring to Calamis' unfriendli- ness to him when he used the term attitude, there would be no reason for him to mention that she was causing tension in the department. Moreover, Hegmann specified a 6-month period, where her attitude had allegedly cre- ated tension. The alleged unfriendliness to him, based on his testimony, could have only occurred for a 3- or 4- month period after he returned to work. The only logi- cal explanation for Hegmann's use of the 6-month period in his warnings to her is the fact that the union campaign began in June, which was not coincidentally 6 months before the warnings were issued to her. Thus, in my judgment the evidence establishes that Hegmann's use of the phrase "attitude creating tension in the department," in connection with his warnings to Calamis, referred to her engaging in activities on behalf of the Union. ', Accordingly, I find that the General Counsel has dem- onstrated that Calamis' union activity was a motivating factor in Respondent's decision to issue her a warning occurred at the heighl tof Respondeti's antrunion campaign. and no olher explanation Aas offered hb Resppondenlt. I infer that inaghi wit, referring to her union aclltities %herl he called Calatrni a agitator While neither Ihis renlark noir Rspondeni's campaign lilerature is alleged toi he iola- risc (of tile Act, stich ctluc, ;lthlroigh l t lnil; a ful. nliax still he Iled Ino ios o ali n ll InlilS aiII11 h parl of Retpolldent (;(itlrl uattrlr (orporl- irn. 241 NI. RIt Ih6 (1971q ' It is noted thalt Calamis wril o,)e of the emplo)tees wXh), regularly torc t lillllior bullOlils 1 M conctlusioll in his regard i frlher btlressed h) lItnagh is refer- 'nCC e 1 ('alin ais l ]lti Aulgtl 1 al "agitllator 1349 DECISIONS OF NATIONAL,. IABOR RELATI()NS BOARI) As noted, the General Counsel also alleges that a moti- vating factor in Respondent's decision to issue Calamis a warning was her participation in protected concerted ac- tivity apart from her union activities. Respondent takes the position that Calamis did not engage in protected concerted activity, and that her complaints about Respondent's institution of a new screening policy was merely the expression of a purely personal gripe. Super Market Service Corporation, 227 NLRB 1919 (1977); Snap-On Tools Corporation, 207 NLRB 238 (1973). Respondent further argues that Calamis was not disci- plined for engaging in this activity even if it were to be deemed concerted. Finally, Respondent asserts that, even if her complaints were deemed concerted and she was disciplined because of them, her "shouting at her super- visor in front of other employees and her intransigent re- fusal to acknowledge and accept application of the screening policy to her constituted opprobrious conduct and eliminated her protection from the very reasonable discipline of a mere written warning. "4 Dealing first with the issue of protected concerted ac- tivity, I find there is little doubt that Calamis was engag- ing in protected concerted activity when she made her complaints about the screening policy and that Respond- ent was fully aware of that fact. After being informed of the new policy Calamis, dis- cussed it with employees Bonnano and Koch, and one of these employees stated her objection to the policy and its potential adverse affect on her situation. The three em- ployees then decided to go to DiMeglio to complain about the continuation of this policy. The fact that Cala- mis did all the talking to DiMeglio, and that neither Koch nor Bonnano ever made any complaints to man- agement about the matter, is not significant. It is well settled that the lack of formal organization or the fact that Calamis was not formally appointed as spokesman for the employees does not affect her protect- ed concerted status. Carbet Corporation, 191 NLRB 892 (1971). The Board has held that "even individual protests are protected as concerted activity if the matter at issue is of moment to the group of employees complaining and if the matter is brought to the attention of management by a spokesman, voluntary or appointed for that purpose, so long as such person is speaking for the benefit of the in- terested group."44 I find that Calamis was complaining to management on behalf of herself as well as the other two employees, and that Respondent was aware of same and perceived that the complaint made by Calamis was for the benefit of the interested group. Thus, after the incident of December 14, when the three employees attempted to register their complaints to management, DiMeglio reported to Peters that she had said to the employees, "I told them if they want to dis- cuss it, they can come in when you come back. Peters re- " -Idtlanli Steel Ctpun. 245 NLRH 814 (1979); SuccevJu/ Crcaluonr hIc.. 202 NI.RB 242 (1973): orge Division. Borg Warer Corporation. 155 N.RB 1I)87 (1965). " lugh II. Wilson Corporation, 171 NLRB 1040 (ib8), enfd. 414 2d 1345 (3d Cir. 1h96): Carbet , pro. sponded whenever the girlĀ„ want to come back. they can talk to me." (Emphasis supplied.) Hegmann, who issued the warning, testified that he was told by Peters and DiMeglio that the three employ- ees had gone in together to see DiMeglio, and that "they" wanted to speak to her and Peters about the inva- sion of privacy. Finally, Hegmann at the December 20 meeting with Calamis, and in the memo of January 4, 1980, referred to the fact that she, Calamis, Koch, and onnano had come to see DiMeglio to discuss screening of phone calls. Accordingly, I find that Calamis was engaged in pro- tected concerted activity while complaining to manage- ment about its institution of the phone call screening policy. Such conduct continued, I further find, when Ca- lamis, at the December 20 meeting with Hegmann, re- peatedly insisted on maintaining her position that Re- spondent's conduct constituted an invasion of privacy. Respondent's assertion that the disciplinary warning issued to Calamis was not related to this activity, but was solely attributable to her alleged "abuse" of her su- pervisor is not supported by the evidence. It is clear that the meeting and the memo were substantially devoted to the issue of Calamis' view of Respondent's new policy and Hegmann's unsuccessful attempts to persuade her that it was management's right to institute such a proce- dure. Hegmann's testimony that the only "warning" that he gave to Calamis pertained to her "abuse" of a super- visor is contradicted by his own later testimony as well as that of Peters. Thus, Hegmann admitted and his memo confirms that he told Calamis that these incidents, such as her position concerning Respondent's phone call policy, must stop. He explained "that it was not a warn- ing, it was just explained to her that these incidents should be cut out, the warning was mainly given on the abusing of the supervisor." (Emphasis supplied.) Peters in her testimony concerning the warning stated that the biggest thing was the abuse of her supervisor, but also the invasion of privacy to phone calls was one of the two topics. The distinction drawn by Hegmann in his testimony between a warning and an admonition that these inci- dents must stop or be cut out is elusive and tenuous at best, and contrary to a reasonable reading of the memo as well as the events of the meeting. Clearly, all the inci- dents discussed at the meeting were involved in the warning and not just the event Respondent seeks to iso- late. The fact that the particular sentence in the memo referring to the threat to take drastic action, including termination, was coupled with a reference to the abuse of supervision does not exclude any of the other topics mentioned by Hegmann from being part of the warning. In fact, the sentences preceding the threat of further action, in the same paragraph, refer to the personal phone call issue as well as Calamis' "attitude." as inci- dents that must stop. Accordingly, I find that the General Counsel has es- tablished that Calamis' pressing complaints about Re- spondent's new phone policy and her refusal to accept management's explanations for it were motivating factors in Respondent's decision to issue her a disciplinary warn- 1350 PRENTICE-HALL. INC ing. Datapoint Corporation, 246 NLRB 234 (1979); Fair- mont Hotel Company, 230 NLRB 874 (1971). 5 Respondent's contention that Calamis' conduct, even if protected and concerted, lost its protection by virtue of her alleged "opprobrious conduct." I find to be without merit. As the Board has held, "where as here the con- duct in issue is closely intertwined with protected activi- ty, the protection is not lost unless the impropriety is egregious." Union Carbide Corporation, 171 NLRB 1651, fn. I (1968); Fairmnnont otel, supra. Under no stretch of the imagination can Calamis' con- duct, of merely raising her voice to DiMeglio, without any profanity or other derogatory comments in an admit- tedly stressful situation where her mother was ill, be con- sidered egregious misconduct justifying a loss of protect- ed status of her activities. I find the cases cited by Re- spondent to be inopposite and find that the protected nature of her conduct was not lost by her raising her voice to her supervisor. Having found that the General Counsel has established that Calamis' union and/or protected concerted activities were motivating factors in Respondent's decision to issue her a warning, the burden now shifts to Respondent to demonstrate that it would have taken the action it took against Calamis, even in the absence of such union and concerted activities. I find that Respondent has fallen short of demonstrating that it would have done so. In this regard, I note that Respondent has not shown that any similar disciplinary action was ever taken against an employee for merely raising her voice to a supervisor. As noted, Respondent was fully aware that Calamis' mother was ill and her failure to receive a phone call in- forming her of such illness resulted from the institution of Respondent's new phone system. Since Respondent was cognizant of the fact that Calamis was justifiably upset when she made the initial complaint to DiMeglio, during which time she raised her voice to DiMeglio, it is hardly likely that Respondent would issue an oral and a written warning threatening discharge of an 8-year em- ployee with a spotless record, unless there were other reasons or incidents involved in its decision. Since I have found that these other reasons were the motivating fac- tors in Respondent's decision to issue her a warning, in- cluding her union activities as well as her engaging in other protected concerted activities, I conclude that Re- spondent has violated Section 8(a)(1) and (3) of the Act by its oral and written warnings issued to Elizabeth Cala- mis. C. The Discharge of Sandy Gach In evaluating the legality of Respondent's actions in terminating Gach, it is once again necessary to utilize the test of causality set forth by the Board in Wright Line, Supra. The General Counsel urges that the evidence is suffi- cient to establish that Gach's union activity was a moti- vating factor in Respondent's decision to discharge him. I do not agree. M!, s1 conclusMIo i this regard is further supported hb tlcgmrnanns ad- Irisslni that he could not tinderstalldil \ch\ Clanlis, ind lol t accept lis exprrlan ioil oi li the Teasoi foIr th ns pnlic. aid that he ssils hol hrced h5 the facl that C('.lamis could rio t ccep such xplanatlri a , The General Counsel recognizes in his brief that the legality of Gach's discharge turns largely on questions of credibility, particularly pertaining to Gach's alleged union activity and Respondent's knowledge of same. Since I have found above, contrary to Gach's testimony. that his union activity was limited to the signing of a card (not shown to have been known by Respondent). and the wearing of a union button until October. I do not find as alleged by the General Counsel that Respond- ent in general, or Porcelli in particular, was aware that Gach was an active union supporter.'" Absent such a finding, there is little basis for accepting the General Counsel's theory that Gach's discharge was a result of a "set up" engineered by Porcelli. The General Counsel points to the fact that Porcelli was in charge of the plant in February, and argues that his animus towards the Union is established by antiunion remarks to Betty Calamis' husband, his interrogation of Lesko, and his throwing union literature in the garbage in January. He urges that Porcelli with such an attitude. now in charge of the plant for a short time, decided to "set up" Gach for discharge in reprisal for his alleged union activity. With respect to the animus issue, it should be noted that while Porcelli did unlawfully interrogate Lesko, as found above, during this same discussion he told Lesko that he personally did not care one way or the other (about the Union getting in), because whatever the employees would get he would get also. Similarly, when he threw out the union literature, he informed the employees present that where the literature was at the time was not a proper place for it, and that he would be glad to set up an authorized table for the displaying of union literature. Therefore, Porcelli has not exhibited substantial personal animosity towards the Union, and the animus of Respondent found above in connection with the warning to Calamis is not in my view sufficient to warrant an inference that Respondent would go so far as to "set up" for discharge Gach, who was a relatively inactive union supporter, 4 to 5 months after the union campaign had virtually ceased. 7 The General Counsel also relies heavily on the cir- cumstances of the discharge to establish that Respond- ent's actions were unlawfully motivated. He argues that Gach's transgression was a minor offense, frequently en- gaged in by other employees and, although technically violative of Respondent's rules, did not violate the rationale behind such rules. Thus, the General Counsel somewhat persuasively points out that Hegmann, Re- lh I note that a numhber of Respondent',, e mpoxecs wore unllion hulttoll, X7 Roik/uald-Bamnerr Pri,t Works,. Fie.. 231 NI.RB 05 ( 977): U/,. inc Woir/d i'tide. Ic.. 243 NI.RB 425 (1979) Ihe Gleneral Coulnsel argues that Potrcllis' finding tih union literature in (iach', departmet i Ja1nu- ar 5 demrnlstrate, that he nilton campaign was still acttic at Ihtat inic do noi agree All iof the s itlesses ,to testified on the uhbirc. hllher called h the (;General C'ouncsl or Resprndenl . testified thliat I uoti campaigni had irlialls suhsldd h. at the lalest. No,enlher Ii fTclt. (;ac,1 Iliiiself conceded that this \a, so. and sadniilled 1ithat he1. l[ s.earillg hiis Ililin bulttl Il ()ctoher. the onJir [ltirill aC l . II ll i.* iggIl 11 h\ hin hichi I Iha. c fouill nd Rcponilltt to hail e been irs, 1 hu,, I li Ihe prsentce of Ihe uniln litert iur ri ., ah]e i JuaT It iio}tll p.[ . o \li hen It S pillu there) is hii abut iso altd sIlj c cot Itroi ;ill Ir l I reaffirm i \ conclusionl i ilt Ih illiOl ,itiprlgn 'iis , irtlillIN titmit for 11Ollh), prnwr tlo (JilL', dli ahtllz 1 51 DECISIONS OF NATIONAL LABOR RELATl(IONS BOARD spondent's branch manager, admitted that the purpose of its rule against punching out another's timecard was to prevent an employee from cheating the Company out of money. Thus, since Gach admittedly was not cheating Respondent of money, its actions in discharging him, a 10-year employee with a good record, according to the General Counsel, must be considered suspect. However, the General Counsel overlooks the fact that there was a reason for Respondent suddenly to enforce its rule. There is no evidence to contradict Respondent's testimony that its decision to commence enforcing the rule was motivated by complaints made by employees about employees punching out other employees cards, and not having to stand in line while punching out their cards. Thus, absent evidence that Respondent monitored the timecards to seize on Gach's actions as a pretext, and in view of the fact that the discharge was pursuant to an established legitimate company rule known to Gach, the General Counsel has not met his burden of establishing an unlawful motive.48 Although it is true as the General Counsel asserts that Gach did not personally benefit from his actions in punching out Fullem, and Respondent was not financial- ly damaged by such conduct, however, this factor alone is insufficient to sustain the General Counsel's burden of proof. Gach was aware that he was violating Respond- ent's rule, and there is no evidence that Respondent tol- erated such conduct in the past. T. V. Cable of Savannah, 218 NLRB 838 (1975). Moreover, Gach was not terminated for merely punching another employee's card, but also for doing it defiantly in front of Porcelli and in front of the other employees in line, some of whom it is reasonable to assume had complained to management about such prac- tices. Thus, I find that Porcelli reasonably believed that Gach acted improperly and that, while the penalty of discharge appears rather harsh in these circumstances, this is insufficient to establish a violation. S & W Motor Lines, Inc., 236 NLRB 938 (1978). Thus, as has been stated many times by the Board and by the courts, the Board cannot substitute its judgment for that of the employer as to what constitutes reason- able grounds for discharge. ' It is immaterial whether the discharge was arbitrary, unfair, or unreasonable, as long as it is not discriminatorily motivated. Anthony Forest Products Co., 231 NLRB 976 (1977). The General Counsel, in attempting to establish the ex- istence of such discriminatory motivation, argues that disparate treatment has been demonstrated by the evi- dence of record. He points to the fact that Respondent's records establish that employee Doran was terminated in 1978 for having his timecard punched. The General Counsel argues that the absence of any evidence of disci- plinary action taken against the person who punched out Doran's card establishes that Respondent did not dis- charge or discipline in any way an employee who was caught engaging in the same conduct as Gach: i.e., punching out someone else's card. However, I do not concur with the General Counsel's analysis of this evi- ' lowcr Buirng (,ompan,: 1,nc.. 241) NIRIt 870) (179). as J Ray McDermott & Co., ,nc.. 233 NLRB 946 (1977): .IL.R.B. Blue Rel/. Ic., 219 F.2d 796. 798 (5th Cir. 1955). dence. The fact that Respondent's records revealed no disciplinary action taken by Respondent, other than with respect to Doran, does not necessarily establish disparate treatment. The record contains no evidence as to who punched out Doran's card. whether it was an employee of Respondent, or even whether Respondent ever became aware of who punched out Doran's card. Thus, I find that this evidence does not establish that Respondent tolerated conduct similar to that engaged in by Gach, and failed to take any disciplinary action as alleged by the General Counsel. The General Counsel also relies upon the incident in- volving Shannon and Lesko, and Respondent's failure to take any disciplinary action against them. It is true that there are similarities between the conduct engaged in by Gach and by Lesko and Shannon. I have found that Shannon intended to punch out Lesko's card, and that Shannon and Lesko baited Porcelli by passing cards back and forth between them, which conduct in fact could be considered more defiant of supervisory authority than that of Gach. Furthermore, Porcelli warned Shannon before he punched out the two cards, while failing to warn Gach. However, the record also revealed significant differ- ences between the two incidents. Most importantly nei- ther Shannon nor Lesko actually punched out anyone else's card, while Gach admittedly did so, in full view of Porcelli. While Porcelli warned Shannon before he punched any cards, while not warning Gach, Porcelli's testimony that he did not get a chance to do so is believ- able. Thus, Gach took one card out of the rack and punched it, and since Porcelli was not aware of whose card he was going to punch or had punched, there was no reason to warn him. It was only when Gach removed a second card from the rack and began to punch it did Porcelli intervene and ascertain that he had in fact punched Fullem's card. In Shannon's case, however, he pulled two cards initially out of the rack and said to Lesko that he would punch him out. Thus, it was clear to Porcelli that Shannon was going to punch out two cards and he therefore warned him not to do so. I am somewhat troubled by Porcelli's testimony con- cerning his reasons for not disciplining Shannon or Lesko. Porcelli admitted that, in his view, Shannon and Lesko were attempting to bait and harass him by passing timecards back and forth between them, and yet he did not discipline either one of them. On the other hand Por- celli relies heavily on Gach's having defied him by fla- grantly punching out another card in front of him. This seeming inconsistency raises some suspicions in my mind as to Porcelli's a tions in discharging Gach, but mere suspicion cannot constitute proof of an unfair labor prac- tice. 51, Most significantly. however, both Shannon and Lesko were more active union adherents than Gach. Thus. they wore union buttons for a longer period of time than Gachl did, and were seen by Porcelli distributing union literature, while Gach never engaged in this activity. Therefore. it is unlikely that any disparity between the "~ I.a .uIllnr ('o//lc,. 230 NI R 107h (1)77) 1352 PRENTICE-HAI.L, INC treatment of Shannon and Lesko as opposed to Gach can be attributed to Gach's minimal and remote union activi- ty. To the contrary, the fact that Shannon and Lesko. more active union adherents than Gach, were not disci- plined detracts from rather supports any inference of dis- criminatory motivation on the part of Respondent.5 ' The General Counsel also urges that Respondent's de- cision merely to suspend Fullem rather than terminate him also constitutes evidence of disparate treatment. Por- celli explained the differences in punishment by noting that, although he suspected that Fullem had been fully aware of Gach punching out his card, Porcelli could not prove it, since Fullem denied any involvement, contrary to Gach, who freely admitted his knowing violation of Respondent's rule, and his doing so in front of Porcelli. This is not an irrational distinction, and I find no evi- dence to support the assertion that this distinction was made in any way on the basis of Gach's union activity. ' Accordingly, based on the foregoing, I am not per- suaded that the General Counsel has established that the insubstantial and remote union activity of Gach was a motivating factor in Respondent's decision to terminate him. Therefore. I shall recommend dismissal of this alle- gation of the complaint.53 ' IWe(rcrn Crt. Inc. d/b'hu W.twern (Car .urting litme. 250 N RIB 509 (1980) 2 Thus. Fullem wore a union button as did Gach, and since I haxc found that Gach's ulnion actiits consisted of no more hanl the .earing of a button, there is no reason to infer that Respondent sould treat Gach more harshly than Fuller because of union considerations 53 The General Counsel contends that the underlying facts i Wright Line. supra. are "strikingly similar" to those presented in Gach's case, and relies heavily upon right Lin,, t) support finding f a violaion. It is true. as the General Counsel poitnis olit, that there does exist soic ignifi- cant similarities between the facis in right Line and the facts herein Thus, the discriminatee in l'right Line. as here. as discharged allegedly foir violating a company rule against falsificaliorn f tinecards: the rule violation caused no loss to the companls lnor did it result iln arii economi gain Ito the individual. In fact, the Board D)cision in Wh'right Ltnc made the observation. hich couldl be equally made herein, that h action of the Employer is epeciall suspect i light of the ork recoird of the dis- criminatee (Gach's work record was identical to that of the discrimntlatee in Wright Line), and the fact that the timesheet discrepancies neither inured to his benefit nor sersed to affect the Emploscr's production system In addition, the Board in Wright Linc, relied in part n the re- spoident's general union animus, a factor also present ill the instalt silual- tion Iloxwcser. there also exists substantial differences hbet en the facts of the t io cases, As:hich in my judgmenlt a;rralll the clclu Iiol hich I make, that Wright Line, is clearly dstinguishahle fron tihe inslanl case Thus. the dicrinilnatee i Wright Lini,. c nltrar t Gch, u.as acknol I- edged by the responldenl to he a "UllloUn kingpin," and per,onalla had been the target f uion anlius during al actual elecllill campaign Moreover, he was the sole larget tof the emploer's plan Io check tinc- sheets, also cntrars to the instant siluationl here the decisitln to check timcards usas nlade oli the basis oif complaints nade hy olther emplosee,. anrid other emp>ee' actions -ere also monitored. In additio l th e Board relied in Wright Line o the timing of the discharge. hich iccurred shortly after complertionl f the unilon election No such rli;llce Call he made herein. since there sa;s 1(i l u iorl eectiltln and (lchl's, niiilrnl a llirn activites ended 4 months prior to his discharge Finall 5 . i B 'rilghf , the Hoiard placed substantial reliance i1i csidelce of dipaalalc retrlimlll oif other erplie)cs uhlt co(lmmitted tIh salle of fecils ai le dcrinitlln.lll and ucre nllt termilnated As uItcLd coitlrlrNs Ih (itelceral C( oIslsl colltentolnln, I ha c n;lade Ioti lis tfilding Oli the facts Of this ireoltd Thereforc. I d nt agree ith th (lieral Cuisel 1l1l irli/l 1iO, mandates the finding hal Rsponrdeit siled ultilasN full hereti aid I r1t'- firnm ms coUllcliusi lil tI; the disch;lrge I (ach \, i 1 I\I .1lII oii Sec 8(a)l) i or() of the Act CONCI USIONS OF L.As 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has violated Section 8(a)(1) of the Act by interrogating its employees concerning their thoughts about the Union and concerning their reasons for sup- porting the Union. 4. Respondent has violated Section 8(a)(1) and (3) of the Act by issuing Elizabeth Calamis an oral warning on December 20, 1979, and a written ekarning on January 4. 1980, because of her activities and support on behalf of the Union and because she engaged in other protected concerted activity of pressing complaints about Respond- ent's institution of a new screening policy for its employ- ees' phone calls. 5. Respondent did not violate Section 8(a)(1) or (3) of the Act by its discharge of Sandy Gach. Til. R MI:i) Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. I shall recommend that it cease and desist there- from and take certain affirmative action designed to ef- fectuate the policies of the Act. I shall also recommend that Respondent be ordered to remove from the person- nel file of Elizabeth Calamis, and to rescind, its oral and written warnings issued to her on December 20, 1979, and January 4, 1980. respectively, and make provision that these warnings shall not be used as a basis for fur- ther disciplinary action against her. Wolverine World Wide, Inc.. 193 NLRB 441 (1971). Upon the forgoing findings of fact, conclusions of law. and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER s The Respondent, Prentice-Hall, Inc., West Nyack, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their thoughts about or their reasons for joining or supporting District 65, affiliated with United Automobile. Aero- space and Agricultural Workers of America. herein called the Union. (b) Issuing oral or written warnings to its employees. or otherwise discriminating against its employees. be- cause of their activities and support on behalf of the Union or becluse said employees engage in protected concerted activityv Ill h c CXlt ito csx ptplltn, art filed Is prox Iled hN Sec 102 4 oit ilhe Rules 1IId RKCgtlklinl 'I t11 Nat1- tllonal I.alhr Rellitil s li.oalrl. the Itllrn igs, aIdlilsit. til cconirlll dcr l ()rder herein, shall a pro ided IIt Sec 102() 4S ti c RIls 11d Rcgiuliirti , he l tpiedl h l ilh Boalld .nlil hl/llt its I ltillng. c.ttilUtLnl~. .It1t ()rd r. .111I ill l c.lllpa It lrte sh1ll h 1letLt'ei VI1i Ie l pi flrpis-, 1 353 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Remove from the personnel file of Elizabeth Cala- mis, and rescind, its oral and written warnings issued to her on December 20, 1979, and January 4, 1980, respec- tively, and make provision that these warnings shall not be used as a basis for further disciplinary action against her. (b) Post at its place of business in West Nyack, New York, copies of the attached notice marked "Appen- dix." 5 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent's representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 2, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT Is ALSO ORI)ERIFI) that the complaints be dismissed insofar as they allege violations not specifically found herein. :" In the een that this Order is enforced by a Judgment of a United States Court of Appeals. the words i the notice reading "'osted by Order of the National l.abor Relations Board" shall read "posted l'ursu- ant It) a Judgment of the United Staltes Courl of Appeals Irnforcinlg an Order of the Nalional abor Relations Board" APPENDIX No liciE To EPl oYI I-S PosI HY ORDI)R OI il1 NATIONA LAOR Rl ,IAl'IONS BOARI) An Agency of the United States Government After a hearing at which all parties had the opportunity to present their evidence, it has been decided that we violated the law in certain respects. We have been or- dered to post this notice. We intend to carry out the Order of the Board and abide by the following: WtI wit NOT interrogate our employees con- cerning their thoughts about or their reasons for joining or supporting District 65, affiliated with United Automobile, Aerospace and Agricultural Workers of America, or any other union. Wl WIL. NOF issue oral or written warnings to our employees, or otherwise discriminate against them, because of their activities on bchl;alf of the Union, or because they engage in other protected concerted activity. WE Wit . NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. Wti wiit remove from the personnel file of Eliz- abeth Calamis, and rescind, our oral and written warnings issued to her on December 20, 1979, and January 4, 1980. respectively, and make provision that these warnings shall not be used as a basis for further disciplinary action against her. PRFNICNIt -HAl l, INC. 1354 Copy with citationCopy as parenthetical citation