Clinton Electronics Corp.

National Labor Relations Board - Board Decisions

Sep 29, 2000

332 N.L.R.B. 479 (N.L.R.B. 2000)

CLINTON ELECTRONICS CORP 479
Clinton Electronics Corporation and United Steel-
workers of America, AFL–CIO–CLC. Cases 33–
CA–11536 and 33–CA–11725 (1–2)
September 29, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
On September 18, 1997, Administrative Law Judge
William J. Pannier III issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings,1 findings, and conclusions and
to adopt the recommended Order as modified.2
As further explained below, we agree with the judge
that the Respondent’s warning notice to employee Dan
Lee violated Section 8(a)(3). Contrary to our dissenting
colleague, we also agree with the judge that the state-
ments attributed to supervisors Bernadine Prock and
Betty Krueger violated Section 8(a)(1).
1. In February 1996 the Respondent issued a warning
notice to Lee, a union supporter, because of complaints
from employee Leonard Thomas Walsh that Lee was
harassing him. Lee’s conduct consisted of soliciting
Walsh, at work and at Walsh’s home, about joining the
Union.
While Walsh may have been annoyed at being solic-
ited about union matters at home, it is beyond dispute
that, as the judge observed, “home solicitation is not an
activity which is unprotected by the Act.” We also agree
with the judge that there is no evidence that Lee con-
ducted himself at Walsh’s home in a manner that would
warrant depriving his soliciting of the Act’s protection.
In its exceptions brief, the Respondent argues that the
“sole reason” it issued the warning notice was because
Walsh complained about Lee bothering him while Walsh
was working. Even accepting this assertion as true, the
Respondent still violated the Act.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify the recommended Order to comply with the
Board’s decision in Excel Container, 325 NLRB 17 (1997). We shall
modify the notice to include reference to the Sec. 8(a)(3) violation
found by the judge.
The Respondent’s handbook proscribes solicitations
“except when both the person doing the soliciting and the
person being solicited are on break, on meal time, or oth-
erwise are properly not engaged in performing their work
tasks.” Nonetheless, as the judge found, the record shows
that Respondent tolerated solicitations during work time
by employees with significant regularity. The applica-
tion of a valid no-solicitation rule in a discriminatory
fashion is a violation of the Act. Reno Hilton, 320 NLRB
197, 208 (1995). It follows, then, that the Respondent
violated the Act by disciplining Lee for soliciting for the
Union, while permitting solicitations for other purposes.
Westinghouse Electric Corp., 240 NLRB 905, 916
(1979), enfd as modified 612 F.2d 1072 (8th Cir. 1979).
Nor may the Respondent rely on Walsh’s annoyance
about being solicited while working, as there is no evi-
dence Lee’s soliciting activity differed in any significant
manner from the other soliciting the Respondent permit-
ted.
2. Supervisor Prock, in response to employee Bonnie
Smith’s query about what Prock thought of the Union,
replied, “[O]ff the record, Bonnie, it’s my opinion that
we could all be looking for a job.” The judge found that
this statement, which employee Holly Vineyard over-
heard, was a threat that employees could lose their jobs if
the Union succeeded. We agree.
Our dissenting colleague, examining the “context” of
Prock’s statement, lists an array of factors, which, in ef-
fect, he says neutralized or legitimized Prock’s state-
ments. However, threats of job loss violate Section
8(a)(1) “because these acts reasonably tend to coerce
employees in the exercise of their rights, regardless of
whether they do, in fact, coerce.” Central Transport v.
NLRB, 997 F.2d 1180, 1191 (7th Cir. 1993) (rejecting
employer’s claim that alleged comments were not threats
because they were merely “man-to-man confidence” and
“merely statements of opinion based on . . . . ‘gut feel-
ing.’”). That Prock couched her remarks in terms of her
opinion, is insufficient to mitigate their coercive effect.3
As the Supreme Court has acknowledged, the “Board has
often found that employees, who are particularly sensi-
tive to rumors of plant closings, take such hints as coer-
cive threats rather than honest forecasts.” NLRB v. Gis-
sel Packing Co., 395 U.S. 575, 619–620 (1969).
3. The judge found that supervisor Krueger unlawfully
interrogated employee Debbie Williams. We agree.
3 Standard Products Co., 281 NLRB 141, 151 (1986), cited by the
Respondent and our dissenting colleague, is distinguishable for the
reasons stated by the judge.
332 NLRB No. 47
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 480
Our dissenting colleague’s analysis relies in part on the
fact that Krueger’s statement was a declaration and not a
question. Such reasoning elevates form over substance.
Krueger stated to Williams on a Monday morning that
“she knew [Williams] went to the union meeting” held
over the weekend. No matter how framed, Krueger’s
statement clearly sought, even compelled, a response.
Just because a statement does not have a question mark
at the end does not detract from its coercive potential.
Again, our colleague lists an array of factors, which he
says neutralized this alleged interrogation. While con-
sideration of those contextual factors is not inappropriate
in the case of an interrogation allegation, we disagree
with the dissent’s ultimate conclusion that the circum-
stances do not suggest coercion. Certainly, a reasonable
person, confronted by her supervisor saying that she
knew that the employee had attended a union meeting,
would think twice and likely be disinclined to engage in
further union activities. That is garden variety 8(a)(1)
interference, restraint, or coercion.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Clinton
Electronics Corporation, Loves Park, Illinois, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
“(b) Within 14 days after service by the Region, post at
its Loves Park, Illinois place of business copies of the
attached notice marked “Appendix.”4 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 33, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since February 12,
1996.”

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

2. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER HURTGEN, concurring in part and dissenting
in part.
I concur with my colleagues’ adoption of the judge’s
decision except in the following respects. I would re-
verse the judge’s findings that the statements attributed
to supervisors Bernadine Prock and Betty Krueger vio-
lated Section 8(a)(1).
1. The complaint alleges that Prock “told employees
that they would lose their job if the Union came in.”
Employee Smith and supervisor Prock, who were
friends, engaged in a conversation on the production
floor in February 1996. Smith asked Prock for her opin-
ion of the Union and Prock replied, “[O]ff the record,
Bonnie, it’s my opinion that we could all be looking for a
job.”
Employee Vineyard, who was standing nearby, testi-
fied that she had overheard Prock say to Smith “if the
Union comes in then we would all be looking for jobs.”
Vineyard then intervened in the conversation between
Prock and Smith and asked Prock why she would say
something like that. Smith walked away. In response to
Vineyard, Prock replied, “[B]ecause we would all be
looking for jobs if the Union came in there.”
The judge credited the testimony of Vineyard and
Smith, and found a violation. I accept the credibility
resolution, but I disagree that the conversations with the
two employees were unlawful. In this regard, I note that
Prock’s remarks to Smith were made in the context of a
conversation between friends, and was a response to
Smith’s asking for Prock’s opinion regarding the Union.
In the same vein, Prock was careful to note that she was
conveying only her personal opinion and understanding.
Further, the remarks were made on the shop floor, not in
any managerial or supervisory offices. In these circum-
stances, it is difficult to believe that an employee would
reasonably think that Prock was conveying a Respondent
threat to terminate employees in retaliation for unioniza-
tion.
Turning to Prock’s conversation with employee Vine-
yard, I note that it occurred because Vineyard overheard
a small part of the aforementioned conversation between
Prock and Smith on the shop floor. Vineyard immedi-
ately asked Prock about the remark. Prock’s response
was somewhat similar to the one she had just made to
Smith. Inasmuch as the remark to Vineyard was made in
the same circumstances as the remark to Smith, and in-
asmuch as the former remark was lawful, I find that the
latter remark was lawful as well.
My colleagues state that “threats of job loss violate
Section 8(a)(1).” In my view, this puts the proverbial
CLINTON ELECTRONICS CORP 481
rabbit in the hat. The issue in this case is whether the
remarks were an employer threat of job loss. In my
view, all relevant circumstances should be considered in
deciding when a supervisor’s remark is a threat. My
position is supported by Standard Products Co., 281
NLRB 141, 151 (1986). In that case, the Board consid-
ered all of the relevant circumstances, including a “per-
sonal opinion” of the supervisor that he thought that the
plant would close down if the union were selected. The
Board determined that the supervisor’s remark did not
convey an employer threat. More particularly, in Stan-
dard Products, these relevant circumstances included the
fact that the employee initiated the conversation. In ad-
dition, there were two versions of the conversation in that
case, both of which included the words “personal opin-
ion.” In my view, this approach clearly indicates that the
words “personal opinion” must be a factor to be consid-
ered as part of the context.
To be sure, the intention of the speaker is not the criti-
cal test in resolving these 8(a)(1) issues. However, the
use of the words “personal opinion,” in context, are rele-
vant in determining the impact of the statement on a rea-
sonable employee.
In Central Transport v. NLRB, 997 F.2d 1180, (7th Cir
1993), cited by the majority, the administrative law judge
had concluded that [Shop Manager] “Carr’s threats were
more than mere personal expressions of opinion.” In this
regard, the judge had noted that: Carr had personally
hired the employees; Carr had made several statements in
a similar vein (including at the time he had hired em-
ployees); and Carr’s father was a regional manager for
the respondent.5 Clearly, Central Transport is distin-
guishable from the facts of the instant case and provides
no basis for finding Prock’s remarks to be unlawful.
2. Early in the union campaign, employee Debbie Wil-
liams had been uncertain whether to support the Union.
She asked Krueger, who was both her friend and supervi-
sor, whether she could discuss the situation with some-
one in the personnel department. A meeting was ar-
ranged for her with Employee Relations Supervisor Betty
Ploplys. Later, on a Saturday, Williams attended a union
meeting. On the following Monday, when she went into
the office to pick up a document, supervisor Krueger,
who was in the office, said that “she knew [Williams]
went to the Union meeting.” Williams responded that “I
thought it was our right to be able to do that.” Krueger
replied “yes it is” and dropped the matter.
I do not agree with the majority that Krueger’s state-
ment constitutes an unlawful interrogation. The test of
whether an unlawful interrogation has occurred is

5 Central Transport, 306 NLRB 166, 169 (1992).
whether, under all the circumstances, the alleged interro-
gation reasonably tends to restrain, coerce, or interfere
with the employees in the exercise of rights guaranteed
by the Act. Rossmore House.6 The Board has stated that
an appropriate analysis of whether there is an unlawful
interrogation must take into account the circumstances
surrounding the alleged interrogation and must not ig-
nore the reality of the workplace. Such analysis includes
circumstances such as the background, the nature of the
information sought, the identity of the questioner, and the
place and method of interrogation. Sunnyvale Medical
Clinic.7
Here, I first note that Williams had originally raised
her ambivalence about the Union with Krueger and had
also discussed it with Ploplys. Second, the remark was a
statement of something that was known. It was not a
question, and there is no evidence that it was designed to
elicit information.8 Third, Williams was not summoned
to an office to meet with high level officials. Rather, she
entered an office for work-related reasons and, by
chance, met Krueger, a low-level supervisor and her
friend, who happened to be in the office. The conversa-
tion was spontaneous and brief. Finally, I note Krueger’s
quick agreement with Williams that she had the right to
attend the meeting and that Krueger did not pursue the
matter further. I am persuaded that, based on the totality
of the circumstances, Krueger’s statement was not an
unlawful interrogation.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

6 269 NLRB 1176, 1177–1178 (1984), enf. sub nom. Hotel Employ-
ees, Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
7 277 NLRB 1217, 1218 (1985).
8 There is no allegation that the remark created an impression of sur-
veillance.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 482
WE WILL NOT coercively interrogate you concerning
your activities on behalf of United Steelworkers of
America, AFL–CIO–CLC, or on behalf of any other un-
ion.
WE WILL NOT threaten you with loss of jobs should
you select the above-named union or any other union to
be your collective-bargaining agent.
WE WILL NOT selectively and disparately enforce
our valid no-solicitation rule by enforcing it against so-
licitation on behalf of United Steelworkers of America,
AFL–CIO–CLC, or any other labor organization, while
allowing other types of solicitation to be conducted.
WE WILL NOT issue written warnings or otherwise
discipline you because of your support for or activity on
behalf of the above-named Union or any other labor or-
ganization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your rights
protected by the National Labor Relations Act.
WE WILL, to the extent not already done, within 14
days from the date of this Order, remove from our files
the first written warning notice dated February 9, 1996,
and issued on February 12, 1996, to Dan Lee and, also,
any reference to that warning notice and WE WILL,
within 3 days thereafter, or within 17 days of the date of
this Order if that first written notice has already been
removed, notify Dan Lee in writing that this has been
done and that the unlawful first written warning notice
will not be used against him in any way.

CLINTON ELECTRONICS CORPORATION
Sang-yul-Lee, for the General Counsel.
Norman R. Buchsbaum and Lynn K. Edwards, for the Respon-
dent.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Rockford, Illinois, on February 11 through
14, 1997. On May 1, 1996,9 the Regional Director for Region
33 of the National Labor Relations Board, (the Board), issued a
complaint and notice of hearing in Case 33–CA–11536, based
on an unfair labor practice charge filed on February 26, alleging
violations of Section 8(a)(1) and (3) of the National Labor Re-
lations Act (the Act). On July 1, the Regional Director issued a
complaint and notice of hearing in Case 33–CA–11725–1–2,
based upon an unfair labor practice charge filed on April 4,
alleging additional violations of Section 8(a)(1 and (3) of the
Act. By order dated August 20, the Regional Director consoli-
dated those cases for hearing and decision.
All parties have been afforded full opportunity to appear, to
introduce evidence, to examine and cross-examine witnesses,

9 Unless stated otherwise, all dates occurred during 1996.
and to file briefs. Based on the entire record,10 on the briefs
which were filed,11 and on my observation of the demeanor of
the witnesses, I make the following findings of fact and conclu-
sions of law.
I. INTRODUCTION
During the late summer of 1995, United Steelworkers of
America, AFL–CIO–CLC, a labor organization within the
meaning of Section 2(5) of the Act (the Union), initiated an
organizing campaign among Loves Park, Illinois, employees of
Clinton Electronics Corporation (the Respondent).12 A repre-
sentation petition was filed by the Union on February 6 and,
following a 5-day preelection hearing, a decision and direction
of election issued on March 27. No election was ever con-
ducted, however, because the Union requested withdrawal of its
petition, and that withdrawal was approved by the Regional
Director on April 17.
The complaints allege that, during the union’s campaign, Re-
spondent violated Section 8(a)(1) of the Act by specified state-
ments assertedly made to employees by particular admitted
supervisors. The complaint in Case 33–CA–11536 also alleges
that Respondent maintained an unlawful no-solicitation rule
and, in addition, that Respondent’s maintenance supervisor had
selectively and disparately enforced that rule, by prohibiting
union solicitations and distributions, during “early 1996.”
However, no arguments are advanced in the General Counsel’s
brief regarding the alleged unlawfulness of the rule. Moreover,
the only evidence concerning selective and disparate enforce-
ment of it arises from a first written warning notice dated Feb-
ruary 9 and issued to maintenance department employee Dan
Lee.
That warning notice is alleged also to have been motivated
by Lee’s assistance to the Union, as well as by his concerted
activities, and, thus, to have violated Section 8(a)(3) and (1) of
the Act. Similar unlawful motivation is alleged to have led to
issuance of a first written warning notice to forklift operator or
driver Debbie Williams on April 30.
10 The motion by Clinton Electronics Corporation to correct the re-
cord is granted, save for number 24 which was the date spoken by
counsel in framing the question reproduced there. For the most part the
motion is unopposed. To the extent that some corrections are opposed
except for item number 24, those corrections are consistent with my
notes and also with related portions of the record.
11 I deny the Motion to Strike Portions of the General Counsel’s
Brief. To the extent that it statements in the brief are inconsistent with
the record, I have reviewed the record and rely upon what is shown
there, as opposed to counsels’ characterizations of what is claimed to be
disclosed by the record.
12 Respondent has been a Delaware corporation engaged in the
manufacture and sale of cathode ray tubes, monitors, and other elec-
tronic products at Loves Park where it maintains an office and place of
business. It admits that at all material times it has been engaged in
commerce within the meaning of Sec. 2(2), (6), and (7) of the Act,
based on the admitted facts that, in conducting its business operations
during each of the 12–month periods ending May 1 and July 1, it sold
goods valued in excess of $50,000 which it shipped from its Illinois
facilities directly to points outside of Illinois and, further, during the
12–month period ending July 1 it purchased goods valued in excess of
$50,000 which it received at Loves Park directly from points outside of
the State of Illinois.
CLINTON ELECTRONICS CORP 483
Respondent denies that any of its actions or its supervisors’
statements to employees had been unlawful under the Act.
More specifically, it denies that either of the warning notices
had been motivated by considerations unlawful under the Act.
In addition, it moves to dismiss the allegations pertaining to the
warning notice issued to Williams and an asserted statement
made to her which purportedly created an impression of
surveillance of employees’ union activities, on the ground that
those allegations are not encompassed by either of the unfair
labor practice charges and, therefore, are barred at this point
from resolution under Section 10(b) of the Act.13 But, it is not
necessary to address that motion because a preponderance of
the credible evidence fails to establish that the alleged conduct
covered by the motion constituted a violation of the Act.
In that regard, certain principles should be addressed at the
outset with respect to resolution of the motivation for the warn-
ing notices. As discussed post, neither Lee nor Williams ap-
peared to be a wholly credible witness. Were the Board’s deci-
sions concerning discrimination mere character rewards, the
General Counsel might well be unable to prevail on the allega-
tions regarding the warning notices. But, Board resolutions of
discrimination allegations are not mere exercises in character
rewards.
“The underlying purpose of this statute is industrial peace.”
Brooks v. NLRB, 348 U.S. 96, 103 (1954). “A fundamental aim
of the . . . . Act is the establishment and maintenance of indus-
trial peace to preserve the flow of interstate commerce.” (Cita-
tion omitted.) First National Maintenance Corp. v. NLRB, 452
U.S. 666, 674 (1981). In short, the Act is intended to promote
not private purposes, but public ones. Accordingly, that a par-
ticular alleged discriminatee may be possessed of less than
good, even perhaps bad, character is not a basis for resolving
whether or not a respondent has directed conduct toward that
employee which disturbs the “maintenance of industrial peace”
and, in turn, disrupts “the free flow of interstate commerce.” Of
course, that is consistent with the law’s more general effort to
guard against the tendency of character evidence to “subtly
permit[ ] the trier of fact to reward the good man and to punish
the bad man because of their respective characters despite with
the evidence in the case shows actually happened.” Cal. Law
Revision Comm’n, Rep., Rec. & Studies, 615 (1964), quoted
with approval in Advisory Committee’s Note to Federal Rules
of Evidence Rule 404(a).
In evaluating “what the evidence in the case shows actually
happened,” obviously a lack of candor by alleged discrimina-
tees is one factor, which must be weighed. Nonetheless, the
ultimate question where discrimination is alleged is the actual
motivation of the respondent. See, Schaeff Inc., 321 NLRB
202, 210 (1996), enfd., 113 F.3d 264 (D.C. Cir. 1997), and
cases cited therein. In consequence, even where an alleged
discriminatee has been lacking in total candor, a preponderance
of the credible testimony and other evidence may still lead to a
conclusion that there has been unlawful motivation—that the
respondent took disciplinary action against that employee

13 A third allegation covered by Respondent’s motion to dismiss was
withdrawn by the General Counsel during the hearing and, conse-
quently, is no longer at issue.
which would not have been taken had the employee not been
active on behalf of, or at least sympathetic toward, a union.
See, Wright Line, 251 NLRB 1083 (1980), enfd., 662 F.2d 899
(1st Cir. 1981), cert. denied, 455 U.S. 989, approved in NLRB
v. Transportation Management Corp., 462 U.S. 393 (1983).
Here, such a showing has been made with regard to the mo-
tivation for the warning notice issued to Dan Lee. It has not
been made, however, with respect to the motivation for the
warning notice issued to Debbie Williams. Regardless of her
support for the Union, she disregarded a work rule and Respon-
dent’s officials credibly testified that she was issued a warning
notice solely for that reason, without regard to her prior union
support and activities. Furthermore, as discussed in succeeding
sections, it appeared that in her effort to construct a case against
Respondent, Williams added to a single unlawful statement
made to her, thereby attempting to portray Respondent in a
more unfavorable light. Consequently, while the evidence does
support Williams' testimony that she had been coercively inter-
rogated, as discussed in section III, infra, I do not conclude that
her accounts of other statements made to her by supervisors
were credible.
II. THREAT OF JOB LOSS ATTRIBUTED TO
BERNADINE PROCK
Coating Department Supervisor Bernadine Prock has been an
admitted statutory supervisor and agent of Respondent at all
material times. During February, coating department lab line
worker Bonnie Smith had received a subpoena in connection
with the representation hearing scheduled to commence on
February 15. She and Prock had been friends for a number of
years, going back to a time before the latter had been promoted
to supervisor. The two women engaged in a conversation in the
aisle on the production floor, between lines 3 and 4. As they
conversed, coating department utility employee Holly Vineyard
had been standing close enough to overhear their conversation.
Smith testified that she asked for Prock’s opinion of the Un-
ion and that Prock had replied, “off the record, Bonnie, it’s my
opinion that we could all be looking for a job,” but Prock did
not explain why she had said that. Vineyard testified that she
had overheard Prock say “if the Union comes in then we would
all be looking for jobs.” Both employees testified that Vine-
yard intervened, asking why Prock would say something like
that. Smith testified that Prock “started talking to [Vineyard]
and I walked away,” overhearing only that, “They were talking
about Bernie’s statement that she said.” However, Smith did
not describe any of the words exchanged between Prock and
Vineyard. Vineyard testified that, in response to her interven-
tion, Prock had said, “because we would all be looking for jobs
if the Union came in there.”
Prock agreed that she and Smith had been discussing the Un-
ion, though she did not recall who had initiated that discussion.
She admitted that she had said to Smith “that I was very con-
cerned that if they would get in and demand too much that the
Company would not be able to do it and it could possibly close.
That was a big concern.” Prock acknowledged that Vineyard
had intervened at that point, asking how Prock could say that.
To that question, Prock testified that she had replied, “Well, it’s
a concern of mine,” adding that, “my understanding of union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 484
shops is that they’re extremely strict. And I says, like with her
attendance, I says, Holly, you probably wouldn’t even have a
job.” According to Prock, Vineyard responded, “well, if a un-
ion got in here I would have sick days and personal days and I
wouldn’t have a problem at all.”14
Initially, Prock testified, “I think that was the end of our
conversation basically.” Asked if she had said that Respondent
would not agree to more benefits, sick time or leave, personal
days, however, Prock first did not answer directly, testifying, “I
can’t speak for the Company,” and then claimed, “I could not, I
do not recall saying that.” As a result, she never did deny
Vineyard’s testimony that, when she had said “if a union got in
here I would have sick days and personal days and I wouldn’t
have a problem at all,” Prock had retorted “that we would not
get personal or sick days.” Vineyard testified that, at that point,
“I just walked away.”
The complaint alleges that Prock “told employees that they
would lose their jobs if the Union came in,” thereby violating
Section 8(a)(1) of the Act. As set forth above, not only did
Vineyard testify that Prock had made that remark, but so too
did Bonnie Smith, a witness called by Respondent, testify that
Prock had said “we could all be looking for a job.” Both
women appeared to be testifying candidly as to Prock’s re-
marks. Indeed, Prock testified that she had said that Respon-
dent “could possibly close.”
“Both the courts and the Board have long recognized that the
threat of job loss (i.e., discharge, layoff, and plant closure) be-
cause of union activity is among the most flagrant kind of inter-
ference with Section 7 rights . . . .” Sheraton Hotel Waterbury,
312 NLRB 304, 305 (1993). “Indeed, the natural and likely
result of [such] threats . . . . [would be] to reinforce the employ-
ees’ fear that they would lose employment if they persisted in
their union activity.” Koons Ford of Annapolis, 282 NLRB
506, 508 (1986), enfd. mem., 833 F.2d 310 (4th Cir. 1987),
cert. denied, 485 U.S. 1021 (1988). Whether Prock said
“would” or “could” lose their jobs is not a dispositive consid-
eration. Such prefatory words as “possibly,” “likely,” or “may”
do not mitigate the affect on employees of the substance of a
threat of job loss being communicated to them. L’Eggs Prod-
ucts Inc., 236 NLRB 354, 388 (1987), enfd. in pertinent part,
619 F.2d 1337 (9th Cir. 1980).
Respondent does not truly dispute the foregoing principles.
Rather, it argues that the circumstances under which Prock
made her statements, first to Smith and, then, to Vineyard, were
such as to negate any coercive affects that job loss remarks
might otherwise convey: the conversation had started as a cas-
ual one between friends, one of whom only relatively recently
been appointed to her low-level supervisory position; the con-
versation had been of short duration and had been initiated by
the employee (Smith), was overheard by a second employee
(Vineyard), who was an open union supporter and the supervi-
sor advanced only a personal opinion heard only by those two
employees; the conversation had occurred on the plant floor,
not in an office, and had constituted only legitimate discussion

14 It is uncontroverted that Vineyard had one of the worst attendance
problems at Respondent and, further, had received warnings because of
her attendance.
and argument; and, the only two employees involved each testi-
fied that she had not felt threatened by Prock’s statements.
While a facially impressive array of factors, they are not so
persuasive, as defenses to a threat of job loss should employees
select a bargaining agent, as might appear at first blush.
In the first place, nothing in the Act, or in the case law inter-
preting and applying it, requires some minimum number of
employees to be interfered with, restrained, or coerced in order
for Section 8(a)(1) of the Act to be violated. Just as an em-
ployer’s unlawful discrimination against only some union sup-
porters and activists is not negated simply because that em-
ployer did not discriminate against all union supporters, Handi-
cabs, Inc., 318 NLRB 890, 897–898 (1995), enfd., 95 F.3d 681
(8th Cir. 1996), pending certiorari, so also the fact that not all
employees, or not even all union supporting employees, are
targeted for interfering, restraining, and coercive statements
does not somehow serve as a defense which negates the statu-
tory violation arising because of statements directed only to
some employees, or even to a single one of them.
Second, the Supreme Court has cautioned against relying
upon probes of employees’ “subjective motivations” during
questioning by counsel “many months after a card drive,” in
connection with those employees’ signed authorization cards.
NLRB v. Gissel Packing Co., 395 U.S. 575, 608 (1969). That
same concern would appear to apply with no less force to
probes of employees’ subjective reactions to threats and other
unlawful statements. Indeed, it is well-settled that subjective
reactions of particular employees are not a determinative con-
sideration in assessing whether Section 8(a)(1) of the Act has
been violated by an employer’s statements and conduct. See,
e.g., Swift Textiles, 242 NLRB 691, fn. 2 (1979).
The test under Section 8(a)(1) “is not whether the language
or acts were coercive in actual fact, but whether the conduct in
question had a reasonable tendency in the totality of the cir-
cumstances to intimidate.” NLRB v. Nueva Engineering, Inc.,
761 F.2d 961, 965 (4th Cir. 1985). “The issue is whether, ob-
jectively, [an employer’s] remarks reasonably tended to inter-
fere with the employee’s right to engage in [a] protected act,”
Southdown Care Center, 308 NLRB 225, 227 (1992), and Sec-
tion 8(a)(1) is violated whenever “the employer’s conduct tends
to be coercive or tends to interfere with the employees’ exercise
of their rights.” NLRB v. Okun Brothers Shoe Store, 825 F.2d
102, 105 (6th Cir. 1987), cert. denied, 485 U.S. 935 (1988).
See also, Sioux Products, Inc. v. NLRB, 684 F.2d 1251 (7th Cir.
1982). In short, in evaluating violations of Section 8(a)(1) of
the Act, it matters not whether the employee to whom state-
ments are made happens to be a Caspar Milquetoast or, perhaps
like Smith and Vineyard, a rough old cobb whom no one could
intimidate. Any other rule would reduce the test for violating
Section 8(a)(1) to a rule of employee reaction, rather than a rule
of law, leaving no predictability as to which statements and
conduct would constitute a violation of the Act. It also would
encourage the very probes of employees’ subjective reactions
which the Supreme Court appears to have cautioned against.
Third, it is no defense that Smith and Prock had been friends
and that their conversation had been of only short duration. As
to the latter, an unlawful threat can have a naturally coercive
affect on employees whether uttered during a brief exchange or
CLINTON ELECTRONICS CORP 485
during a prolonged dialogue. Respondent has cited no case
where the test under Section 8(a)(1) of the Act has been made
contingent upon the duration of the conversation in which a
threat is uttered. Beyond that, “social relationships in them-
selves are not a sufficient basis to lift acts of illegal interference
from the scope of [Respondent’s] responsibility.” NLRB v. Big
Three Industries Gas & Equipment Co., 579 F.2d 304, 311 (5th
Cir. 1978), cert. denied, 440 U.S. 960 (1979). After all, as the
Court went on to point out in that case, “Friends can unlawfully
threaten their friends. Indeed, warnings of Company retaliation
cast as friendly advice from a familiar associate might be more
credible, hence more offensive to [Section] 8(a)(1) than gener-
alized utterances by distant company officials.” See also,
NLRB v. Dover Corp., 535 F.2d 1205, 1209 (10th Cir. 1976),
cert. denied, 429 U.S. 978 (1976); Seligman and Associates,
Inc. v. NLRB, 639 F.2d 307, 309 (6th Cir. 1981); Caster Mold
& Machine Co., Inc., 148 NLRB 1614, 1621 (1964).
Fourth, the foregoing rationale is not without application to
Respondent’s argument that Prock had been a newly appointed,
low-level supervisor with no apparent authority to carry out
closure of the Loves Park facility nor, so far as the evidence
reveals, to select union supporters for layoff or discharge. That
argument misses the point. As coating department supervisor,
even a newly-appointed one, Prock would be perceived by
employees as being in a position to be privy to information
from higher management—information that likely would not be
available to non-supervisory personnel. Given that situation,
“Employees were entitled to assume that there was some basis
in fact for [Prock’s] statements” to them. Gray Line of the
Black Hills, 321 NLRB 778, 792 (1996). And the friendship of
Prock and Smith would make it seemingly more likely to the
latter, as well as to Vineyard, that the former would be more
willing to share such knowledge, about Respondent’s inten-
tions, and more likely to disclose accurate information gained
from being privy to the intentions of Respondent’s higher offi-
cials. Consequently, “warnings of Company retaliation . . . .
from a familiar associate might be more credible,” NLRB v. Big
Three Industries, supra, to Smith and Vineyard because
Prock—a supervisor, albeit a relatively newly-appointed, low-
level one—seemingly would have greater access to higher
management’s intentions than would the two employees.
Fifth, Respondent’s position is not aided by the facts that
Smith had initiated the conversation and that Vineyard had not
been a participant during the initial phase of it. As to the latter,
a supervisor’s remarks have no less a coercive affect upon em-
ployees who overhear them, than they do upon employees to
whom such remarks are directed. See, Frontier Hotel & Ca-
sino, 323 NLRB 815 (1997), and cases cited therein. See also,
Perko’s, Inc., 236 NLRB 884, fn. 2 (1978). In any event,
though Vineyard overheard Prock’s initial threat, that threat had
been directed to Smith who, of course, was an employee within
the meaning of Section 2(3) of the Act. Thus, the “overheard”
defense is not so persuasive as Respondent seeks to portray,
when the entirety of the situation is considered. Beyond that, as
described above, Prock endorsed for Vineyard the earlier threat
made to Smith, after Vineyard had intervened and questioned
Prock’s reason for having made the threat. Thus, not only had
Prock become aware of what Vineyard had heard, but Prock
effectively repeated the threat directly to Vineyard.
As to the undisputed fact that Smith had initiated the conver-
sation, employee initiation of conversations does not provide a
justification under the Act for unlawful statements, which su-
pervisors choose to make during those ensuing conversations.
See, NLRB v. General Electric Co., 418 F.2d 736, 755 (2d Cir.
1969), cert. denied, 397 U.S. 965 (1970); NLRB v. Randall P.
Kane, Inc., 581 F.2d 215, 218 (9th Cir. 1978). Supervisors are
not at liberty to use employee initiation of conversations as an
open invitation to utter threats and other statements, which
inherently interfere with, restrain, and coerce those employees
in the exercise of their rights under Section 7 of the Act.
Where a supervisor chooses to do so, she/he may not rely upon
an employee’s initiation of the conversation to escape the Act’s
prohibitions. Rock-Tenn Co., 238 NLRB 403, 403 (1978).
Sixth, Respondent argues that the conversation did not occur
in an office, but on the shop floor, and, in any event, can fairly
be characterized as merely a “casual” one. To be sure, Respon-
dent points in its brief to cases where the Board has agreed that
supervisory statements about possible closure did not rise to the
level of threats, in part because those statements had been made
during conversations characterized as “casual.” Standard
Products Co., 281 NLRB 141, 151 (1986) and Gem Urethane
Corp., 284 NLRB 1349, 1361 (1987). Still, neither case turned
wholly upon the “casual” nature of the conversation at issue.
Here, based upon Smith’s above-quoted description, Prock had
said only that it was her “opinion,” rather than her “personal
opinion.” Such a distinction may seem like legerdemain, at
first thought. But, the “personal opinion” conclusion reached in
Standard Products was based significantly upon the subsidiary
conclusion that the supervisor there was speaking “not as a
spokesperson for management.”
Here, while Prock said that it was her “opinion,” according
to Smith, the absence of any qualifier leaves the employee-
listener uncertain as to whether the job loss warning is a per-
sonal view of Prock or, instead, a view based upon something
said to Prock by higher management. That is, measured by the
content of Prock’s remarks, it cannot be said that an employee
would naturally conclude that Prock had been expressing
merely a personal opinion as opposed to an opinion informed
by what she had heard from her superiors.
The holding of Gem Urethane is even less pertinent to the
situation presented here. There, the statement had been made
in an essentially social setting: during a ride home from work.
Coupled with the employee’s inability to “recall anything be-
yond [the supervisor’s] reply or other surrounding circum-
stances,” that factor led to the conclusion that the supervisor’s
statement had been “not made in an atmosphere of fear or coer-
cion.” That simply cannot be said to have been the situation in
the instant case.
Rather than being made away from the workplace, Prock’s
job-loss warning was made on Respondent’s plant floor, be-
tween aisles 3 and 4. True, that location was not an office set-
ting. But, that distinction is relevant when evaluating interroga-
tions, not threats. In attempting to draw such a distinction Re-
spondent “confuse[s] the standards applicable to threats with
those applicable to coercive interrogation.” (Citation omitted.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 486
NLRB v. Champion Laboratories, Inc., 99 F.3d 223, (7th Cir.
1996). Respondent has cited no case holding that an alleged
threat becomes less an unfair labor practice because made on
the plant floor, instead of in an office.
It also should not escape notice that in Champion Laborato-
ries the alleged threat had been but a supervisor’s “impromptu
paraphrase of what another . . . . worker had already said,” and
had been spoken, essentially “in bantering terms.” Id. Nothing
in any of the witnesses’ description of Prock’s statement to
Smith and, then, to Vineyard can be characterized as “banter-
ing.” To the contrary, Prock testified that she had been con-
cerned about job loss. Nor is there evidence that loss of jobs
had been a subject of previous discussion at Respondent.
Seventh, Respondent argues that the conversation had
amounted to no more than “legitimate arguments and discus-
sions during a union campaign[.]” Certainly that might be said
of Prock’s above-quoted remarks about Vineyard’s prospects
for continued employment should the employees become un-
ionized—a statement not alleged as a threat. Yet, in the cir-
cumstances, that cannot be said about a warning of potential job
loss should the employees choose to become represented by the
Union. Prock claimed that she had prefaced her job-loss state-
ment with the qualifications if the Union “get[s] in and de-
mand[s] too much,” leaving Respondent “not . . . . able to do it
and it could possibly close.” But, Prock did not advance that
explanation convincingly. It appeared to be nothing more than
her own belated effort to extricate herself from the job-loss
statement, which she actually had made.15
Vineyard made no mention of Prock having explained the
reason for her job-loss threat. Smith, Respondent’s own wit-
ness, testified that Prock had not said why she was saying, “we
could all be looking for a job” if the employees chose represen-
tation by the Union. Accordingly, Prock’s threat of job losses
can hardly be characterized fairly as part of “legitimate argu-
ments and discussions[.]” To do so would be to confer legiti-
macy on every threat by an employer regarding the conse-
quences of unionization, regardless of the effects of those
threats on the employees to whom made.
Certainly employers and their agents are allowed under the
Act to make predictions about the consequences of unioniza-
tion. Still, in doing so, such “prediction[s] must be carefully
made on the basis of objective fact to convey an employer’s
belief as to demonstrably probable consequences beyond its
control.” Schaumberg Hyundai, Inc., 318 NLRB 449, 450
(1995), citing NLRB v. Gissel Packing Co., supra. However,
that test is hardly satisfied by a warning of job loss, unaccom-
panied by any explanation for that warning. Nor, when made
without the qualifications, which Prock appeared to be attempt-
ing to add when testifying, does her threat pertain to conse-
quences beyond Respondent’s control.

15 Of course, subjective or actual intent by a supervisor, for her
statements to employees, is not determinative under Section 8(a)(1) of
the Act. See, Carry Co. of Illinois, Inc. v. NLRB, 30 F.2d 922, 934 (7th
Cir. 1994); NLRB v. Puerto Rico Rayon Mills, Inc., 293 F.2d 941, 945–
946 (1st Cir. 1961); Waco, Inc., 273 NLRB 746, 748 (1984). “The test
is not the actual intent of the speaker or the actual effect on the lis-
tener.” Smithers Tire, 308 NLRB 72, 72 (1992).
It should not escape notice that, once Vineyard had entered
the conversation, it is undisputed that Prock had said that, even
if the Union became the bargaining agent for Respondent’s
employees, they “would not get personal or sick days.” That
particular remark is not alleged in either complaint as a viola-
tion of the Act. Even so, in light of Respondent’s “legitimacy”
argument, its uncontroverted utterance should not merely es-
cape notice.
“There is no more effective way to dissuade employees from
voting for a collective-bargaining representative than to tell
them that their votes for such a representative will avail them
nothing.” The Trane Co. (Clarksville Mfg. Div.), 137 NLRB
1506, 1510 (1962). Such statements—even when applied to
specific benefits sought by employees, rather than to complete
unwillingness to enter into a collective-bargaining contract with
a union—have a natural “effect of discouraging the organiza-
tional efforts of the employees,” Madison Industries, Inc., 290
NLRB 1226, 1230 (1988), because they convey to “employees
that they [have] nothing to gain from supporting the Union,”
American Telecommunications Corp., 249 NLRB 1135, 1138
(1980), and “constitute[ ] an unlawful expression to employees
of the futility of selecting the Union as their collective-
bargaining representative.” American Furniture Co., 293
NLRB 408, fn. 2 (1989).
The fact that Prock made those remarks, as part of a conver-
sation during which she also threatened job loss if Respon-
dent’s employees became unionized, deprives whatever shred
of force is left to Respondent’s “legitimate arguments and dis-
cussions during a union campaign” argument. Prock’s other
remarks during that conversation were not all legitimate ones.
Instead, her undisputed “would not get personal or sick days”
statement naturally inhibited employees from selecting a bar-
gaining representative and, accordingly, served to reinforce the
natural deterrent to employees, in exercising their statutory
right to freely choose whether or not to be represented, of her
job -loss threat.
Finally, Respondent argues that Prock had been doing no
more than expressing her own opinion about the consequences
of its employees becoming represented. This factor has been
touched upon above, in connection with Respondent’s “casual
conversation” defense. Still, it deserves independent considera-
tion because it is advanced as an independent defense. As
shown by Standard Products Co., supra, “personal opinion” of
a supervisor has been held to be one factor, which has been
held to militate against a conclusion of unlawful threat. Yet, in
other situations a supervisor’s expression of “personal opinion”
has been held insufficient to mitigate coercive effect. Gray
Line of the Black Hills, supra; L’Eggs Products Inc., supra, 236
NLRB at 388, and case cited therein.
As concluded above, there was nothing so plain about
Prock’s job-loss warning to Smith and, then, to Vineyard that it
can be concluded that they would perceive her as voicing an
opinion, which was truly “personal.” Beyond that, while the
Board has held that “generally, a supervisor may lawfully ex-
press his or her personal views of or experience with union-
ism,” Baddour, Inc., 281 NLRB 546, 548 (1986), it also has
made clear that such expressions cannot be made without limi-
tation: “the Act does not preclude a supervisor from expressing
CLINTON ELECTRONICS CORP 487
opinions or pronouncing antipathy to unions so long as the
statements are not coercive.” (Footnote omitted; emphasis
added.) Wilker Bros. Co., 236 NLRB 1371, 1372 (1978).
A threat of job loss in the event of unionization, of course, is
coercive, as discussed above. There is no evidence that Prock
said anything to Smith or Vineyard from which it could be
concluded that an employee would naturally have understood
that, in uttering that warning, Prock had been merely engaging
in personal speculation, as opposed to expressing a threat based
upon information which she had learned by virtue of her rela-
tively newly-acquired position as coating department supervi-
sor. Viewing all of the foregoing considerations in their total-
ity, they do not outweigh the coercive tendency that Prock’s
job-loss threat would naturally have on employees’ exercise of
their statutorily protected right to decide freely whether or not
to become represented. Therefore, I conclude that, by Prock’s
statement that employees could lose their jobs if the Union
came in, Respondent violated Section 8(a)(1) of the Act.
III. STATEMENTS ATTRIBUTED TO BETTY KRUEGER
Three violations of Section 8(a)(1) of the Act are alleged to
have been committed by Shipping and Receiving Department
Supervisor Betty Krueger, an admitted statutory supervisor and
agent of Respondent: asking an employee if she had attended a
union meeting, telling an employee not to associate with certain
employees because the were engaging in union activities, and,
on or about April 29, giving the impression that employees’
union activities were under surveillance. That third allegation
arises from events, which occurred in connection with the al-
legedly unlawful warning notice issued to Williams. Accord-
ingly, it will be addressed in the succeeding section where the
motivation for the warning notice is discussed.
As to the interrogation, paragraph 5(b) of the complaint in
Case 33–CA–11725–1–2 alleges that the unlawful conduct was
“ask[ing] an employee if she had attended a union meeting.”
But the brief filed on behalf of the General Counsel argues, in
support of that particular allegation, in terms of creating the
impression of surveillance, though no motion to amend the
complaint’s allegation has been made.
The facts upon which the interrogation allegation is based
are relatively straightforward. Shipping and receiving depart-
ment forklift operator Debbie Williams attended her first meet-
ing sponsored by the Union on a Saturday during February.
She testified that, on the following Monday, when she went
into an office to pick up a glass list, Krueger had been there.
Betty Krueger was Williams’s immediate supervisor. Accord-
ing to Williams, Krueger said, “That she knew I went to the
union meeting,” and when Williams responded, “I thought it
was our right to be able to do that,” Krueger replied, “yes, it is,”
without saying anything else. Krueger denied having said that
she understood that Williams had been to a union meeting.
As set forth in section I, and as discussed further below and
in the succeeding section, Williams did not always appear to be
testifying with candor. However, in connection with her de-
scription of Krueger’s statement about having attended one of
the Union’s February meetings, Williams did seem to be testi-
fying credibly. “It is no reason for refusing to accept every-
thing that a witness says, because you do not believe all of it;
nothing is more common in all kinds of judicial decisions than
to believe some and not all.” NLRB v. Universal Camera Corp.,
179 F.2d 749, 754 (2d Cir. 1950). Furthermore, Krueger, her-
self, did not always appear to be testifying credibly. One point
on which she appeared to be less than candid was her denial
that she had made the statement to Williams that “she knew that
[Williams] went to the union meeting[.]” Moreover, there are
three objective considerations, which tend to support Wil-
liams’s testimony that Krueger had made that remark.
First, Krueger admitted that she had been told by Mary
Vogt—employee of Respondent who also worked at the
V.F.W. Hall where the Union held at least some of its meetings
with Respondent’s employees—that Vogt had seen Williams at
a union meeting: “I am not sure if that was a weekend that she
told me at home, or whether it was a Monday morning.” Thus,
Krueger admittedly had been made aware of the fact that Wil-
liams had attended the Union’s meeting. It also should not
escape notice that Vogt seemingly had gone out of her way to
report that fact to Krueger—during the “weekend” while
Krueger had been at home or, alternatively, on the following
“Monday morning.”
Second, Williams and Krueger had worked together for a
number of years during which they had developed a social rela-
tionship, attending the same functions during their nonwork
time. Each one acknowledged having been a friend of the other
during February. In consequence, it would not have been il-
logical for Krueger having received Vogt’s report, to raise with
Williams the subject of the latter’s attendance at the union
meeting. That becomes an even more natural occurrence in
light of the final factor.
During the initial phase of the Union’s campaign to organize
Respondent’s employees, Williams had been uncertain as to
whether or not she wanted to support the Union. At one point
she asked Krueger if it would be possible for her (Williams) to
discuss the subject with someone from Respondent’s personnel
department. In fact, such a meeting was arranged for Williams
with Employee Relations Supervisor Betty Ploplys, also an
admitted statutory supervisor and agent of Respondent. Given
the friendship of Williams and Krueger, and given the further
fact that Krueger had been involved in arranging for Williams
to meet with Ploplys to discuss unionization, it would not have
been illogical for Krueger—having learned from Vogt that
Williams had attended a union meeting—to comment to Wil-
liams on her attendance at that meeting.
In sum, I credit Williams’s description of her Monday ex-
change with Krueger. Nevertheless, the issue remains as to
whether that exchange constituted an interrogation and, then, as
to whether it had violated the Act.
Obviously, the above-quoted description by Williams does
not contain a question: “That she knew I went to the union
meeting.” Even so, as every attorney knows, there is more than
one way to frame a statement so that, in reality, it constitutes a
question. So, too, under the Act. See, e.g., NLRB v. Laredo
Coca Cola Bottling Co., 613 F.2d 1338, 1342 (5th Cir. 1980),
cert. denied, 449 U.S. 886 (1980); Gray Line of the Black Hills,
supra, 321 NLRB at 792–793. Krueger’s statement obviously
invited some response by Williams—one which either con-
firmed or denied the statement which Krueger made. Accord-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 488
ingly, while not the conventionally encountered type of interro-
gation, Krueger’s remark is no less essentially a question than
would have been the fact had she asked directly whether Wil-
liams had attended the Union’s meeting.
That does not necessarily make such a question an unfair la-
bor practice, however. “To fall within the ambit of [section]
8(a)(1), either the words themselves or the context in which
they are used must suggest an element of coercion or interfer-
ence.” Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d 1255,
1267 (7th Cir. 1980). See also, Sioux Products, Inc. v. NLRB,
supra; NLRB v. Champion Laboratories, Inc., supra. “We cate-
gorize as ‘interrogations’ within the meaning of [section]
8(a)(1) only those questions which, by word or context, suggest
an element of coercion or interference.”
To evaluate whether or not specific questioning is coercive
or constitutes interference, a number of objective factors must
be evaluated, see, e.g., Bourne v. NLRB, 332 F.2d 47, 48 (2d
Cir. 1964); NLRB v. Rich’s Precision Foundry, 667 F.2d 613,
624 (7th Cir. 1981), no one of which is determinative. NLRB v.
Ajax Tool Works, Inc., 713 F.2d 1307, 1314 (7th Cir. 1983) (per
curium). Accordingly, the inquiry to be conducted is a fact-
intensive one.
Respondent identifies several factors which, it argues, negate
any conclusion of coercion or interference: Williams and
Krueger had a longstanding “amicable and friendly relation-
ship”; their conversation during February had been a “casual”
one; Krueger “is only an immediate, low-level supervisor, not a
high-ranking company official”; and Krueger’s inquiry had not
been “a pressing inquiry,” but had consisted merely of “isolated
comments.” Yet, just as “[f]riends can unlawfully threaten
their friends,” NLRB v. Big Three Industries, supra, so also can
they seemingly coercively interrogate their friends. Moreover,
it hardly is accurate to characterize Krueger’s exchange with
Williams as merely a “casual” one.
So far as the evidence discloses, the first thing that Krueger
had said to Williams on that February Monday was that “she
knew [Williams] went to the union meeting.” Aside from Wil-
liams' response and Krueger’s reply to it, there is no evidence
that any other subject had been discussed, nor words ex-
changed. As a result, the entire exchange had pertained to Wil-
liams' attendance at the Union’s meeting. Accordingly, it is
difficult to characterize the subject as having been raised during
the course of an otherwise casual conversation.
There is no evidence that, at the time of their February ex-
change, Williams had any idea of how Krueger could have
learned that Williams had attended the union meeting on the
preceding Saturday. Thus, although there is no allegation that
an impression of surveillance had been created during this con-
versation, Krueger’s remark would naturally give rise to con-
cern in the mind of an employee as to how her supervisor could
have learned about her attendance at a union meeting. For,
such a statement reveals knowledge by an employer’s agent
which, in turn, implies that the employer may be “closely moni-
toring the degree and extent of [employees’] organizing efforts
and activities.” (Footnote omitted.) United Charter Service,
306 NLRB 150, 151 (1992). Consequently, the statement
would naturally lead an employee to become apprehensive
about continuing to pursue union activity. Furthermore, the
fact that a low-level supervisor knew about that union activity,
in the absence of any indication as to the source of that knowl-
edge, would naturally lead an employee to fear that higher
management might also be aware that the employee was engag-
ing in statutorily protected activity—indeed, that it had been
higher management personnel who had passed that information
along to the employee’s immediate supervisor.
Viewed from an employee’s perspective, moreover, the sub-
ject of union meeting attendance had been one, which Krueger
raised abruptly. That is, Williams had attended a union meet-
ing on a Saturday and Krueger had raised the subject of that
attendance on the very next workday. The timing of Krueger’s
statement, in relation to the day on which Williams had at-
tended the Union’s meeting, is a further factor, which would
naturally add to an employee’s apprehension. So, too, is the
abruptness with which Krueger raised the subject. As pointed
out above, that appears to have been the very first subject,
which Krueger mentioned on that Monday, on her first encoun-
ter with Williams that day.
To be sure, the Monday conversation was of brief duration,
Williams admitted that she had attended the Union’s meeting,
and, in effect, asserted her perceived right to do so. Yet, these
factors are not so exculpatory as might appear at first blush. In
the first place, since Williams effectively acknowledged having
attended the meeting, there was not much more information for
Krueger to obtain by prolonging her inquiry. Her first com-
ment to Williams yielded confirmation of Vogt’s report. Sec-
ond, both as an objective matter and from her appearance when
describing the Monday exchange, Williams seemed to have
been caught off guard when told that Krueger knew about her
attendance at the meeting. As a result, her response—“I
thought it was our right to be able to do that”—appears to have
been more reflexive, rather than an indication that she was not
being intimidated by Krueger’s revelation of knowledge and
inquiry.
If anything, that response appears to be a defensive one,
rather than the defiant assertion by an employee of a statutory
right. As with Krueger’s initial statement, Williams also ap-
pears to have been seeking confirmation by Krueger as to an
employee’s right to attend a meeting. Accordingly, Williams’s
response indicates concern about what was being said to her,
instead of a lack of intimidation bred by Krueger’s revelation of
knowledge and inquiry.
Certainly, Krueger was a low-level supervisor. Still, no case
has been cited which holds that low-level supervisors are inca-
pable of coercively interrogating employees. Rather, that is but
one indicium to be weighed in evaluating whether or not inter-
rogation is coercive or interfered with employees’ rights under
Section 7 of the Act. Even taking into account the status of
Krueger as a supervisor, as pointed out above, Williams had no
way of knowing whether or not Krueger had obtained her
knowledge from higher management and, if not, whether or not
Krueger might communicate what she knew to higher man-
agement.
Prior to having attended the Union’s meeting, Williams had
discussed the Union with Ploplys and, as well, with Krueger.
However, such discussion had involved the pros and cons of
unionization. They were conducted to aid Williams in deter-
CLINTON ELECTRONICS CORP 489
mining whether or not she wanted to support the Union. At no
point prior to attending her first union meeting and to the fol-
lowing Monday, so far as the record discloses, did Williams
actually make known to any of Respondent’s agents that she
had decided to support the Union. True, she later did begin
openly supporting the Union. But, at the time of Krueger’s
question about Williams having attended the Union’s February
meeting, the latter cannot be said to have been its supporter,
much less an open supporter of the Union. At that point, there
is no evidence that Krueger had any independent knowledge as
to Williams' union sympathies.
As pointed out above, Krueger effectively asked for confir-
mation that Williams had attended a union meeting in an office,
not on the plant floor. At no point did Krueger inform Wil-
liams of the purpose for raising the subject of the latter’s atten-
dance at that meeting. Although one can speculate about
Krueger’s intention, no legitimate reason is provided by the
record for Krueger to have revealed what she had learned and
to seek confirmation from Williams.
It is accurate that Krueger made no other unlawful state-
ments to Williams during their brief exchange. Even so, there
has been no holding that a litany of unlawful statements must
accompany an interrogation for it to be coercive. To be sure,
Krueger did agree that Williams had a right to attend union
meetings. Yet, significantly, at no point did Krueger assure
Williams that no reprisals would be taken against the latter for
having confirmed the report that she had attended the Union’s
meeting. Indeed, Krueger did not even inform Williams that
the latter need not confirm or deny Krueger’s announcement of
knowledge that Williams had attended the union meeting.
Krueger was not a high-ranking official of Respondent. But,
she was the immediate supervisor of Williams and, as such,
possessed power over the latter’s day-to-day work and the
evaluation of it. On that Monday, Krueger sought to have a
lone employee confirm or deny having attended a union meet-
ing. No other subject was discussed. The exchange occurred in
an office. The employee was not at that time a union activist.
No purpose for asking for confirmation or denial was advanced
to that employee. The employee was never informed that she
was free to refrain from confirming or denying that she had
attended the Union’s meeting. The employee was not assured
that there would be no reprisals for confirming that she had
attended the union meeting. The employee reacted defensively,
protesting that she believed that she had the right to attend a
union meeting. Certainly, there have been more blatant in-
stances of coercive interrogation disclosed by the cases. Yet,
that is a question of degree. Here, a preponderance of the evi-
dence establishes that an employee would naturally have been
coerced by the totality of the circumstances in which Krueger
interrogated Williams and, further, that such interrogation had a
natural tendency to interfere with the exercise of rights guaran-
teed by the Act. Therefore, I conclude that the interrogation
was coercive and violated Section 8(a)(1) of the Act.
A second violation of Section 8(a)(1) of the Act is that
Krueger allegedly “told the employee not to associate with
certain employees because they were engaging in Union activi-
ties.” The basis for that allegation is somewhat obscured.
Krueger’s conduct is alleged to have occurred on an “unknown
date in mid-February 1996[.]” However, Williams testified
about several conversations during which Krueger supposedly
had mentioned the Union: an occasion when Krueger “had told
me one day to stay away from Cookie Quam because she was
up on the line unionizing,” other occasions when Krueger “just
always told me about association, the people you associate
with,” and a day during November when employee Tom
Camacho had been fired and Krueger purportedly had made an
announcement “about the [U]nion being dead. They finally got
rid of Tom Camacho. The [U]nion is dead now.” In the brief
filed on behalf of the General Counsel, moreover, there appears
the assertion that, “Debbie Williams testified that Krueger fre-
quently told her to step away from known union supporter Dan
Lee (Tr. 245).” These situations raise issues well beyond what
either complaint alleges.
In the first place, there is no testimony on page 245 of the
transcript, which would support the above-recited quotation in
the brief. That page does recite testimony by Williams that
Krueger “always made comments about Dan Lee” and, further,
that Krueger had regularly made “different comments to me
about Dan scraping [duck] shit off the ceiling or off the roof,”
16 adding, “That’s where the [U]nion got him.” At no point on
that page of the transcript, nor elsewhere in William's testi-
mony, is there an account by her that she had been “frequently
told . . . . to stay away from known union supporter Dan Lee”
by Krueger. Nor by any other supervisor or agent of Respon-
dent. Krueger’s derisive remarks—“That’s where the [U]nion
got him”—is not alleged as a violation and, in any event, seems
to be akin to name-calling about a union and its supporters,
which is neither unlawful nor objectionable conduct. See, e.g.,
Salvation Army Residence, 293 NLRB 944, 944 (1989), and
cases cited therein.
Williams did testify that Krueger had made the remark about
Camacho. But, those comments cannot fairly be characterized
as telling an employee “not to associate with certain employees
because they were engaging in union activities.” Further, Wil-
liams placed those statements as having occurred during No-
vember of 1995, not during “late January or early February,
1996,” as the complaint in Case 33–CA–11725–1–2 pleads. No
motion to amend either complaint has been made to add those
statements as an allegation. The Board has held that adminis-
trative law judges should not, in effect, amend complaints, even
to add unpled statements admitted by a respondent’s agent.
Medicine Bow Coal Co., 217 NLRB 931, fn. 2 (1975). And, in
the final analysis, there is a larger problem with William's de-
scriptions.
As pointed out above and in section I, Williams did not al-
ways appear to be testifying with candor. Whether Krueger’s
February interrogation led Williams to begin reading into re-
marks made on other occasions more than actually had been
stated by Krueger or, as seems more likely, Williams sought to
buttress the case against Respondent in connection with its

16 Witnesses for both sides testified that during the fall of 1995, as
had occurred during prior years, maintenance employee Lee had been
assigned to refurbish and repair the plant’s roof, as described without
contradiction by Maintenance Supervisor Daniel Long, an admitted
statutory supervisor and agent of Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 490
motivation for her warning notice, her testimony regarding
those other asserted statements by Krueger simply did not ring
true as she was testifying. Her accounts were vague and am-
biguous, contrasting sharply with her quite precise accounts of
other events, such as being asked by Krueger for confirmation
as to whether she had attended a union meeting.
That impression, formed as Williams testified, is confirmed
by a review of the record of her testimony. For example, as
quoted above, she claimed that Krueger “just always told me
about association, the people you associate with,” but was un-
able to provide even a single specific date for such a comment
by Krueger. Moreover, she seemed unable to supply the cir-
cumstances in which even one of those asserted remarks had
been made. Asked about Krueger’s supposed statement about
Quam, Williams testified, “I couldn’t tell you if it was ’95 or
’96.”
Krueger denied that she had made the comments about
Quam and about Williams not associating with “people.” Wil-
liams’ testimony about those supposed remarks was not credi-
ble. There is no other credible evidence of Krueger having told
any employee “not to associate with certain employees because
they were engaging in union activities.” Therefore, I shall dis-
miss that allegation.
IV. THE WARNING NOTICE ISSUED TO DEBBIE
WILLIAMS
The discussion in the immediately preceding section forms a
natural backdrop for analysis of the allegedly unlawfully moti-
vated first written warning notice issued to Debbie Williams on
April 30, though doing so at this point disturbs the strict
chronological order of events. That warning notice states, in
pertinent part, that Williams had been observed by two manag-
ers taking a morning break from 9:20 to 9:35 on April 29; that
break times are ten minutes “AS REITERATED AT THE
DEPARTMENT MEETING OF WEDNESDAY, APRIL 17,
1996”; that the length of Williams’s morning break on April 29
violated that rule; and, that further violations could result in
additional disciplinary action, including discharge. Pursuant to
Respondent’s usual procedure, the notice is signed by her su-
pervisor, her manager, and a representative of industrial rela-
tions, in this instance Employee Relations Supervisor Ploplys.
It was issued to Williams during a meeting on April 30 attended
by Krueger, her supervisor, by Materials Manager Leonard J.
Winkeler, an admitted statutory supervisor and agent of Re-
spondent; and by then-head of the personnel department, Per-
sonnel Director Ken Judson.
None of the statements in the warning notice is inaccurate.
On page nine of Respondent’s handbook, distributed to all em-
ployees, is stated that employees receive “a ten-minute paid rest
break in the morning and in the afternoon.” At a department
meeting conducted on April 17—which Williams and other
shipping and receiving department employees, as well as their
supervisor, Krueger, attended—Winkeler did reiterate the
handbook rule that breaks were to be limited to ten minutes in
duration. Williams admittedly did take a longer than the 10-
minute morning break on April 29. She agreed that she had
been observed doing so by Coating Manager Blanche Hutchi-
son and by then-Sealing and Exhaust, and Salvage and Screen
Manager Martha Ellen Bahling. Page 28 of the handbook states
that Respondent “strives to use a uniform system of discipline”
and provides for a “1ST WRITTEN WARNING” as the initial
disciplinary step “[f]or most violations of Company rules and
policies[.]” In short, on its face, the situation appears to be one
where an employee properly was disciplined for concededly
violating a work rule.
The General Counsel, however, alleges that the excessive
break period had been no more than a pretext for issuing a
warning notice to an employee because of her known support
for the Union. As concluded in section V, infra, Respondent
had unlawfully issued a warning notice, dated February 9, to
maintenance employee Dan Lee. So, there is some basis for
concluding that Respondent had not been reluctant to utilize its
disciplinary procedure as a means of discriminating against the
Union’s supporters. Yet, there is more to consider with regard
to the warning notice issued to Williams almost 3 months later.
By April 30 the Union’s campaign had ended. As described
in section I, the Union had requested withdrawal of its
representation petition and that request had been approved over
a week before the warning notice was issued to Williams. To be
sure, retaliation for past union support is not an unheard of
motivation for disciplining an employee, even though the union
activity had concluded. See discussion, American Petrofina
Company of Texas, 247 NLRB 183, 190 (1980). See also, Hu-
man Resources Institute, 268 NLRB 790, fn. 2 (1984) and Day-
ton Hudson Department Store Co., 324 NLRB 33 (1997) (con-
cern with renewal of a union’s campaign).
The record also reveals that Respondent had experienced an
organizing campaign by a different labor organization some-
time before the one conducted by the Union. Like the Union’s
campaign, that earlier campaign also had not resulted in selec-
tion of a bargaining agent by Respondent’s employees. If noth-
ing else, nevertheless, that overall sequence of successive union
campaigns served to show Respondent that conclusion of an
unsuccessful organizing campaign by one union did not mean
that a future organizing campaign would not occur. Thus, be-
yond retaliation, employer discipline can be motivated by an
intent to deter “any further employee activity aimed at changing
working conditions.” Owens-Corning Fiberglass Corp. v.
NLRB, 407 F.2d 1357 (4th Cir. 1969).
There are several factors present which do tend to support
the allegation that the April 30 warning notice to Williams had
been unlawfully motivated. She had become a supporter of the
Union before its campaign had terminated. That support con-
cededly had become known to Respondent’s officials. As con-
cluded in section III, she had been subjected to coercive inter-
rogation by her immediate supervisor Betty Krueger. An
unlawful warning notice had been issued to another supporter
of the Union less than 3 months before the one issued to Wil-
liams. Even so, those facts are not conclusive evidence of
unlawful motivation.
“If an employee provides an employer with sufficient cause
for [discipline] by engaging in conduct for which he would
have been [disciplined] in any event, and the employer [disci-
plines] him for that reason, the circumstance that the employer
welcomed the opportunity to [discipline] does not make it dis-
criminatory and therefore unlawful.” (Footnote omitted.)
CLINTON ELECTRONICS CORP 491
Klate Holt Co., 161 NLRB 1606, 1612 (1966). Obviously, in
the context presented here, the operative or crucial phrase in
that quotation is “the employer [disciplines] him for that rea-
son[.]” Respondent argues that its warning notice had been
motivated solely by the excessive break and would have issued
to any employee, union supporter or not, in the circumstances.
The testimony supporting that argument was provided by Mate-
rials Manager Winkeler, the immediate supervisor of Supervi-
sor Krueger and, accordingly, the intermediate supervisor of
Williams.
He had conducted the above-mentioned April 17 departmen-
tal meeting, discussed further below, during which the 10-
minute restriction on breaks had been reiterated. It had been to
him, following the morning break on April 29, that Coating
Manager Hutchison reported having seen Williams taking a
break in excess of 10 minutes, as also discussed further below.
After having been informed by Hutchison of William's ex-
cessively long morning break, Winkeler testified that he spoke
with his immediate superior, then-Director of Manufacturing
Dave Salamone, an admitted statutory supervisor and agent of
Respondent during that period. Salamone did not appear as a
witness, though Director of Operations Thomas D. Clinton, also
an admitted statutory supervisor and agent of Respondent, testi-
fied that, as of the hearing, Salamone continued to work for
Respondent as its director of sales. It had been during their
conversation on April 29, according to Winkeler, that the deci-
sion had been made to issue a written warning notice to Wil-
liams. As to that decision, Winkeler testified, “we discussed
what we needed to do and what I had, I had my mind made up
that I felt it was, the violation required a written warning. And
I discussed that with him and we agreed that that’s the action I
would take.”
There is no inherent illogic to that account of the decision
and the reasons underlying it. As discussed in section V, infra,
however there also had been a logical appearance concerning
the warning notice issued to Lee. But, as concluded in that
section, when the surface plausibility of that reason is pierced
by more careful examination of the evidence, it loses its plausi-
bility and unlawful motivation is revealed. Of course, as set
forth in section I, it is the actual motivation of the disciplining
employer which is at issue where there are allegations of dis-
criminatory motivation. As a result, it is to the evidence under-
lying Respondent’s defense to Williams’ warning notice that
discussion must turn.
With respect to the sequence of events which assertedly led
Winkeler to learn about the excessively long morning break of
Williams on April 29, Winkeler testified that he had been told
by Manager Hutchison that she and Bahling had seen Williams
exceed the 10-minute limit during the latter’s morning break
that day. Both of those managers did testify to having been in
the finishing or satellite cafeteria, on their own break, where
Williams was taking her break. Both managers testified to
having observed Williams take a break of more than 10-
minutes.
Hutchison testified that, after having left the breakroom, “I
looked up [William's] manager [Winkeler] and told him that
she had been on extended break.” Bahling testified that,
“When I left the break area I ran into [William's] supervisor,
Betty Krueger” and reported to Krueger having seen Williams
taking more than 10 minutes for break. Krueger agreed that she
had received that report from Bahling. Both Winkeler and
Bahling testified that, later that day, he had talked to her about
Hutchison’s report and that she had confirmed having seen
Williams taking an excessively long break that morning.
After Winkeler spoke with Salamone and they made the de-
cision to issue the warning notice to Williams, he informed
Krueger that he intended to do so. As set forth above, on the
following day the warning notice was issued to Williams during
a meeting with Krueger, Winkeler, and Judson. There is noth-
ing inherently illogical about the foregoing sequence of events
provided by Respondent’s officials. Still, the General Counsel
has adduced evidence, which facially might appear to under-
mine Respondent’s defense concerning the motivation for the
warning notice.
First, there is evidence that prior to April 20 Respondent had
been tolerating morning and afternoon breaks, which exceeded
10 minutes in length. For example, former salvage department
and coating department employee Mark McIntire and, also,
former salvage department and coating department employee
Nora St. Germain each testified to having been allowed to leave
a minute early for breaks and to having been allowed to return a
minute late from breaks, thereby enabling employees to spend a
full ten minutes on their breaks. Holly Vineyard testified that
coating department employees had been taking 15 and some-
times 20-minute breaks. And Williams testified not only that
shipping and warehouse employees ordinarily took 15-minute
breaks, but also that supervisors, specifically Krueger, had been
aware of those excessively long breaks and had told employees
that they could take them. Indeed, Krueger conceded that em-
ployees “tend to backslide” with regard to break lengths.
One indicium of unlawful motivation is treatment of union
supporters differently than has been the treatment accorded
ordinarily to other employees. “Proof of discriminatory motive
is critical, although it can in some situations by inferred from
the mere fact of differences in treatment.” (Citation omitted.)
Teamsters v. United States, 431 U.S. 324, 335, fn. 15 (1977).
“Illegal motive has been held supported by . . . . variance from
the employer’s ‘normal employment routine.’” McGraw-
Edison Co. v. NLRB, 419 F.2d 67, 75 (8th Cir. 1969). Nonethe-
less, there is one fact here, which precludes the testimony re-
counted in the preceding paragraph from supplying meaningful
evidence of inconsistent treatment of Williams.
On April 17, almost 2 weeks before Williams was observed
taking her excessively long morning break, Winkeler had con-
ducted a departmental meeting, admittedly attended by Wil-
liams, during which he specifically reminded the assembled
employees to confine their breaks to no more than ten minutes
in length. In other words, whatever had been the practice being
allowed with regard to break lengths prior to April 17,
Winkeler had told Williams and the other assembled employees
on April 17 to observe the length of breaks as specified in the
handbook. Certainly, there is nothing unlawful under the Act
in discontinuing a practice of toleration of excessively long
breaks. There is no principle requiring that “misconduct once
tolerated at all must be tolerated forever.” NLRB v. Eldorado
Mfg. Corp., 660 F.2d 1207, 1214 (7th Cir. 1981). See also,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 492
Washington Materials, Inc. v. NLRB, 803 F.2d 1333, 1340 (4th
Cir. 1986).
Nevertheless, there also is evidence of two other facts,
which, in other circumstances, might cast doubt upon the
weight to be accorded to Winkeler’s April 17 reiteration of the
rule, as a legitimate defense. The first is that there were seem-
ing discrepancies in the accounts of Respondent’s witnesses as
to what had led Winkeler to make that reiteration.
Respondent’s managers attempt to conduct departmental
meetings on a monthly basis, subject to business needs.
Winkeler testified that, before such meetings, he had always
asked Supervisor Krueger “if there’s anything that she would
like me to bring up,” and, further, that before the April 17 de-
partmental meeting, “she requested for me to just review with
them and point out to them that, to, that breaks are ten minutes
long and she felt that some people may have been abusing it
and asked me that I review that, which I did.” Krueger agreed
that she had “told him, yes. I told him that” she desired to have
the subject of breaks discussed during that April 17 meeting.
Manager Bahling, however, testified that, during a meeting
with managers prior to April 17, then-Director of Manufactur-
ing Salamone had instructed the managers that he “wanted each
one of us to bring up in our meetings that breaks were ten min-
utes. We all were told to do [that] and we did.” Neither
Winkeler nor Krueger made reference to such an instruction by
Salamone. Even so, their account of how the subject of break-
lengths had come to be raised on April 17 is not necessarily
contradictory of Bahling’s testimony. As an objective matter,
Salamone could have issued his directive. Winkeler could have
asked Krueger if there was anything she wanted to have dis-
cussed. And she could have mentioned the length of breaks,
without adding that the subject was one which Salamone had
directed the managers to raise during their departmental meet-
ings.
It must not be overlooked that the General Counsel’s dis-
criminatory motivation allegation, for William's warning no-
tice, is neither enhanced nor diminished even assuming that
there is a direct contradiction among Respondent’s witnesses as
to what led Winkeler to reiterate the break-length rule on April
17. However he came to do so, there is no dispute that
Winkeler had reiterated the rule during the departmental meet-
ing that day. There is no allegation that, in doing so, Respon-
dent had somehow violated the Act. “An employer’s decision
to enforce its rules more stringently in the future is within its
discretion and does not suggest discriminatory treatment.”
(Citation omitted.) Camvec International, 288 NLRB 816, 821
(1988). Certainly there is no basis for inferring that it had been
Williams to whom Winkeler had truly been aiming his April 17
statements about breaks. Nor can it be inferred that, in reiterat-
ing the rule, he had somehow anticipated that Williams, alone
of all the assembled employees, would choose to thereafter
disregard the rule. Accordingly, the important fact is that
Winkeler did make the announcement and Williams admittedly
had heard him say it.
The other factor which might case doubt upon the weight to
be accorded Winkeler’s April 17 reiteration of the rule, as an
element of Respondent’s defense, is evidence that reiteration of
the break-length rule had been made at previous department,
perhaps commonly, but employees had continued disregarding
the rule after those previous meetings. For example, Williams
testified that, during past departmental meetings, Winkeler had
“said be careful of your ten minute break,” and that he had
“always said that.” Similarly, Coating Department Manager
Hutchison explained that “we remind them at different times,
you know, hey, breaks are getting a little bit out of hand. You
get a ten minute break in the morning, you get a ten minute
break in the afternoon.”
Of course, absent any other evidence, that testimony would
diminish considerably, if not obliterate altogether, the weight to
be accorded Winkeler’s April 17 reiteration of the rule. But,
there is evidence of additional facts, which distinguish
Winkeler’s April 17 reiteration from ones made by him at past
departmental meetings—and, in the process, which also further
illustrates the unreliability of Williams.
At that April 17 departmental meeting, testified Winkeler, “I
remember distinctly . . . . that . . . . Betty [Artz], who was sit-
ting off to my left . . . . said, well, . . . . I’ve always been taking
fifteen minute breaks.” According to Winkeler, “I said, wait a
minute, Betty. The handbook says ten minutes and effective
immediately it is ten minutes, no matter what other breaks
we’ve been doing . . . .” Williams was confronted with ques-
tions about this April 17 exchange. In the end, she never truly
disputed that it had occurred. But, she claimed that she lacked
recollection as to whether or not the exchange between
Winkeler and Artz had taken place. And she did so in quite
unconvincing fashion:

Q. And wasn’t there a worker who asked, well, we’ve been
getting 15 minutes, Mr. Wink[e]ler? Did you say [sic] a lady
say from the—who was in that meeting we’ve been taking 15
minutes—
A. I don’t remember.
Q. —and now you’re going to cut us back to ten?
A. I don’t remember that.
Q. Do you deny that she said it?
A. I’m not denying it, because I don’t remember it.
Q. Do you know a person named Betty Art[z]?
A. Yes.
Q. Did you hear Ms. Art[z] say that?
A. I don’t remember.
Q. You don’t remember whether it was her or you don’t re-
member the question?
A. I don’t remember if anyone said anything like that.
Q. But you don’t deny that they might have said that?
A. They could have said it, yes.

Winkeler appeared to be testifying truthfully about his April
17 exchange with Artz. That exchange distinguishes what he
said during that particular departmental meeting from what he
might have said about break lengths during prior departmental
meetings. For, on April 17 he was confronted with the specific
fact that employees had been taking 15-minute breaks and he
specifically instructed the employees to stop doing so. More-
over, despite her above-quoted seeming evasions, I am con-
vinced that Williams had heard the exchange and had under-
stood Winkeler’s instruction. Nonetheless, thereafter she chose
CLINTON ELECTRONICS CORP 493
to simply ignore what she had been told and continued taking
15-minute breaks. On April 29 she was caught doing so.
In sum, whatever past disregard of prescribed break lengths
had taken place and whatever past tolerance Respondent had
shown of that practice, there is no basis for concluding that
Respondent’s unwillingness to tolerate an excessively long
morning break by Williams on April 29 had displayed a vari-
ance from what had become normal routine. Winkeler’s April
17 reiteration of the rule, accompanied by his exchange with
Artz, left no room for continued disregard of the rule and, con-
sequently, obliterates any argument that issuance of the warn-
ing notice to Williams on April 30 had represented inconsistent
treatment. The fact that Respondent had tolerated excessive
break lengths prior to April 17 did not oblige it to continue
doing so thereafter, NLRB v. Eldorado Mfg. Co., supra, and the
April 17 exchange between Winkeler and Artz had made plain
to all of the assembled employees, including Williams, that the
practice of excessive break lengths no longer would be toler-
ated.
The second area in which evidence has been adduced which
appears to undermine Respondent’s defense is testimony by
Williams concerning certain April 29 statements by Krueger.
While on her break that morning, Krueger had been carrying a
brown supermarket-type bag. According to Williams, follow-
ing the break, she had been “working in the warehouse” when
Krueger approached and asked if the truck parked behind the
cafeteria was assigned to Williams. Williams said that it was
not.
Following some further inconsequential conversation, ac-
cording to Williams, Krueger “said that I had a brown bag that I
had taken to break. She wanted to know what the brown bag
was,” and “I told her it was my personal stuff.” Then, Williams
testified, “She asked me, she told me that I had a list that I was
showing people in the cafeteria and they were looking at it or
something.” After it dawned on her what Krueger was talking
about, testified Williams, she explained to Krueger that it was
an address list for her son’s graduation and “took it out and
showed it to her.”
According to Williams, after looking at the list, Krueger
“just handed it back to me. And then she wrote something
down—the paper. But then she said according to Williams,
after looking at the list, Krueger “just handed it back to me.
And then she wrote something down—the paper. But then she
said that Blanche Hutchison and Ellen Bahling had seen me
take a 15-minute break. And I said, yeah.” “I didn’t think
anything about it,” Williams testified, “I started to drive away
and then I stopped her and asked her was there a problem with
my 15 minute break. And she said that, well, you know what’s
been going on at Amrock [sic].”17 Williams testified that she
had been puzzled by that remark:

I didn’t understand it because that’s not what, I just
asked her about my break. And she said, I asked her, well,
what do you, what do you mean about, what are you talk-

17 Though there is only scant evidence concerning it in the record,
Krueger testified that Amerock “is a big corporation” located “on the
west side of Rockford” where another labor organization had unsuc-
cessfully conducted an organizing campaign.
ing about with Amrock [sic] And she said, well, they are
trying to get a union in there. And I looked at her and I
said, well, what’s that go to do with me? Williams testi-
fied that Krueger said nothing further—“we just dropped
it”—and the conversation concluded.

Krueger denied having said anything to Williams about Am-
erock and, also, having said did Williams know that employees
were trying to get a union into Amerock. As to what she had
said to Williams, Krueger testified, “I told her what Ellen
Bahling had told me, that she had extended her break. And yes.
I did talk to her about it. I did say to her, I did tell her that she
had taken a long break,” and, further, “I told her that I knew
that she—that Ellen had told me that she had been there for
over ten minutes, more like 15, or even beyond.”
Krueger agreed that she had mentioned the brown bag to
Williams: “I told her that Ellen had mentioned about this brown
bag in the work area. And I asked her if she would mind telling
me what was in it.” Although Krueger never denied expressly
having asked Williams about a list, she did testify that she did
not believe that she had been told by Bahling that Williams had
produced a piece of paper while in the cafeteria on morning
break. Asked if she had mentioned a list to Krueger, while
speaking to Krueger on April 29, an obviously puzzled Bahling
answered, “A list? No,” and then testified, “We did not talk
about a list.”
The General Counsel places somewhat heavy reliance upon
the brown bag and list in support of an allegation that, on April
29, Respondent “created an impression among its employees
that their union activities were under surveillance.” Yet, there
is no evidence that brown bags had been involved in the Un-
ion’s organizing campaign among Respondent’s employees.
Nor is there evidence that brown bags had played any part in
the organizing campaign at Respondent, which had preceded
the one conducted by the Union. Further, there is no evidence
that brown bags had been a feature of an organizing campaign
at Amerock, nor in any other organizing campaign conducted in
the Rockford area. There is no evidence that any of Respon-
dent’s employees, including Williams, had perceived brown
bags as somehow associated with union support or activity.
And no cases have been cited in which brown bags were an
aspect of union activities by employees. Even if a few such
cases do exist, there is no basis for concluding that, during the
Board’s history, brown bags have been ordinarily associated
with organizing campaigns.
In sum, there is no basis for inferring that Krueger’s admitted
question about what was in the brown bag would naturally lead
an employee to conclude that Respondent was “closely moni-
toring the degree and extent of [her] statutorily protected efforts
and activities.” United Charter Service, supra. In fact, by
April 29 there had been approval of the withdrawal of the Un-
ion’s representation petition and there is no evidence whatso-
ever that any organizing activity continued at Respondent.
Moreover, there is no evidence that an employee would natu-
rally have concluded that Hutchison and Bahling’s presence in
the satellite cafeteria during the morning of April 29 had meant
anything other than that they were taking their breaks there. Of
course, as discussed above, conclusion of the Union’s organiz-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 494
ing campaign would not necessarily preclude an employer’s
discriminatory motivation. However, that fact, coupled with
the absence of any evidence of some other form of statutorily
protected activity in progress, would diminish, if not altogether
obliterate, a reasonable perception by an employee that
Krueger’s question about the bag somehow pertained to activity
protected by the Act.
Beyond that, Krueger’s inquiry about the brown bag appears
to have been the product of nothing more than simple curiosity.
Bahling testified that she had observed Williams carrying the
bag during the morning break on April 29 and, further, had
mentioned it to Krueger, “Just as a matter of the conversation.
We’re conversation [sic] and I’m telling her about the over stay
of the break. I said she had a large brown, like a shopping bag
with her.” Krueger testified that, in the past, she had only ob-
served Williams carrying “like a folder that she carried bowling
papers in”—“I think it was green,” she testified, and similar to,
“but thinner” than the accordion-type folder displayed to her
during the hearing. Accordingly, there was an inherent logic to
Krueger’s explanation for having raised the subject of the
brown bag with Williams and having asked what was in it.
Williams did testify that she had carried brown shopping
bags at “certain times” in the past at Respondent, whenever “I
have to go to the bathroom or if I feel I might need to go to the
bathroom, I have the bag with me.” Even if true, Williams
never claimed that either Bahling or Krueger had seen her car-
rying such a bag prior to April 29. And Krueger denied having
been aware that Williams had carried around a brown bag on
occasion. Thus, there is no basis for concluding that there had
not been a logical reason for either Bahling or Krueger to take
note of the brown bag being carried by Williams while on break
during the morning of April 29.
As quoted above, William’s claimed that, in addition to the
brown bag she had been asked by Krueger about the list. Even
if true, that would not have been a naturally perceived reference
to something connected with a union. Williams testified that
she had run “two different” football pools at Respondent during
1995 and had taken orders for “Girl Scout cookies [and] Market
days,” a food sale program from which local schools derive
financial benefit. Presumably, such conduct involved recording
on paper the people who participated and the particulars of their
participation. So, it would not have been all that unusual for
Williams to display lists. In these circumstances, even if Wil-
liams had brandished a list during her April 29 morning break
and even if Krueger had inquired about it, there is no logical
basis for concluding that an employee would naturally have
connected such an inquiry to union activities, especially as the
Union’s campaign had terminated by April 29.
In any event, like the supposed Amerock-related statements,
which Krueger expressly denied having made to Williams, it
appeared to me that the purported “list” related remarks which
Williams described was testimony by Williams created out of
the whole cloth. It should not escape notice that, having heard
Winkeler’s reiteration of the break-length rule less than two
weeks earlier, as well as his exchange with Artz, it would have
made no sense on April 29 for Williams, as she claimed, to
have asked Krueger if there was “a problem with my 15 minute
break.” I think she well knew that length of her break was a
problem and constructed a conversation containing comments
by Krueger, which might absolve her (Williams) from the
warning notice which she eventually received on the following
day. That is, it appeared that Williams attributed those April 29
remarks to Krueger to make it seem that the warning notice had
been unlawfully motivated. Therefore, I do not credit her tes-
timony about Krueger asking about the list and making state-
ments about Amerock. Further, I conclude that the evidence
concerning Krueger’s inquiry about the brown bag does not
establish an impression of surveillance. In these circumstances,
the evidence does not support the April 29 impression of sur-
veillance allegation and I shall recommend that it be dismissed.
Shorn of any direct evidence of unlawful motivation for Wil-
liam's April 30 warning notice, the record is left with evidence
that, at best, could only support an inference of such motiva-
tion. A third area in which evidence has been adduced which
might undermine Respondent’s defense, and also supply an
inference of unlawful motivation, involves the quantum of the
penalty imposed upon Williams—a written warning notice—in
light of the seeming insignificance of the offense committed,
overstaying a break on a single occasion. To be sure, the Board
and its administrative law judges are not free to substitute their
business judgment for that of respondents. See, e.g., Douglas
Aircraft Co., 308 NLRB 1217, 1224 (1992). Nevertheless, “if
the employee is a good worker and his breach of the work rules
trivial, the more rational explanation for the [discipline] may be
invidious motivation.” Neptune Water Meter Co. v. NLRB, 551
F.2d 568, 570 (4th Cir. 1977). See also, Electric-Flex Co. v.
NLRB, 570 F.2d 1327, 1332 (7th Cir. 1978); NLRB v. Florida
Medical Center, Inc., 576 F.2d 666, 672 (5th Cir. 1978).
As set forth above, the first step in Respondent’s stated dis-
ciplinary procedure is a first written warning notice. Still, there
is some basis for finding that verbal warnings have been a more
usual past disciplinary measure for overstaying a break, at least
for a first discovered infraction. But, as Winkeler explained,
more was involved here than merely an extended break.
He testified that, “I made a decision and got a concurrence
from Mr. Salamone” that a written warning should issue to
Williams. His reason for that disciplinary measure, testified
Winkeler, had been “that I made it clear, perfectly clear the
week before or two weeks before [that breaks were limited to
ten minutes] and that she went and did it [took an extended
break] in front of two managers. It was blatant.” Obviously,
there is a basis for such a conclusion: Williams had attended the
April 17 departmental meeting and I am convinced that she
heard the Winkeler’s exchange with Artz; she took an extended
break during the morning of April 29; and, she did so notwith-
standing the fact that she knew that two managers were present
in the finishing or satellite cafeteria. Clearly, “blatant” is an apt
characterization of her conduct, viewed from an objective per-
spective. Indeed, insubordination may be an even more accu-
rate one.
Beyond that, it should not be overlooked that overstaying a
break is not so trivial an offense, in the circumstances of Re-
spondent’s operations, as might be the fact in some other situa-
tions. General Counsel’s witness Vineyard explained that,
because breaks are staggered, employees returning late from
breaks cut into the length of breaks which employees, sched-
CLINTON ELECTRONICS CORP 495
uled for succeeding breaks, have available to them for break:
“I had told [Supervisor Prock] that there were some people who
were coming back late from their break, making my break
shorter, making it difficult for everybody to get bathroom
breaks.” Thus, there is support for Winkeler’s testimony that
the 10-minute break rule is “as important as any other rule, if
you ask me.” And there is no basis for concluding that issuance
of a first written warning notice, the stated first step in Respon-
dent’s disciplinary procedure, had been disproportionate disci-
pline for the offense committed by Williams during the morn-
ing of April 29.
A fourth consideration with respect to Respondent’s defense
are the roles played by various supervisory officials in what,
after all, is no more than simply the issuance of a warning no-
tice to an employee. For example, there is some evidence that
ordinarily it is a supervisor, not a manager, who makes deci-
sions concerning issuance of warning notices to Respondent’s
employees. But, here it had been Winkeler who had made the
decision to issue the first written warning notice to Williams on
April 29. Still, Krueger testified that before she disciplined an
employee, she ordinarily “had to contact my manager,” as well
as the personnel department. Winkeler corroborated that testi-
mony by Krueger, explaining that when discipline is meted out
to an employee in his department, usually the supervisor comes
to him and the discipline occurs only “with my concurrence.”
Accordingly, Winkeler’s involvement in discipline of Williams
was not so extraordinary as otherwise might be the fact.
Beyond that, it had been to Winkeler that Hutchison had re-
ported the excessive break taken by Williams. And it had been
Winkeler who had reiterated the break-length rule on April 17
and who had specifically cautioned Artz, and the other assem-
bled employees, including Williams, that 15-minute breaks
would not be tolerated. In a meaningful sense, therefore, it had
been Winkeler’s own direction that Williams had disregarded.
Viewed in that light, his involvement in the disciplinary deci-
sion is not all that extraordinary. Certainly there is no evidence
that managers have never disciplined employees of Respon-
dent.
To be sure, neither of the managers who had observed Wil-
liams in the cafeteria on April 29 had said anything to her about
the excessively long break which she was taking. Beyond that,
neither of them was the manager who issued the warning notice
to Williams, although they had been the ones who had wit-
nessed her infraction of the rule. However, with regard to not
having said anything to Williams during the course of the
break, Bahling testified, “That’s not our job,” because, “If we
see something wrong, another worker in another area we will
report it to the manager or the supervisor of that person, but we
don’t take it upon our self to counsel the person.” “I think it’s
called the chain of command,” she testified when questioned
further about the subject. Obviously that testimony applies
with equal force to any question regarding why neither Hutchi-
son nor Bahling had been the official who issued the written
warning to Williams. Neither was the intermediate supervisor
of Williams; that supervisor was Winkeler.
It is accurate that while Employee Relations Supervisor
Ploplys had signed the warning notice, it had been her superior,
Judson, who had attended the meeting during which the warn-
ing notice was issued to Williams. Yet, all of Respondent’s
officials, who appeared as witnesses and who were questioned
about the subject, testified that someone from the personnel
department approves discipline decisions before they are im-
plemented. And someone from that same department sits in
whenever the discipline is administered to the employee.
It is undisputed that by April Respondent was beginning to
experience the affects of a business downturn and was in the
process of downsizing its personnel complement. As a result,
Ploplys testified, “at that time, I was meeting with all of the
people and supervisors, that were giving me the names of peo-
ple that wanted the layoff,” with the result that she was too
busy with other duties to attend the meeting with Williams: “I
was all over the plant, meeting with people.” So, Judson re-
placed her during the meeting with Williams. That testimony
by Ploplys is logical. It was not contradicted by any other tes-
timony, nor is it contrary to any other evidence adduced by the
parties. As a result, Judson’s participation in the April 30 dis-
ciplinary meeting is not a factor, which detracts from Respon-
dent’s defense.
What does appear unusual, at least based upon the evidence
adduced, is that Winkeler chose to discuss William's infraction
with then-Director of Manufacturing Salamone before making
the final decision to issue a warning notice to her. There is no
evidence that a manager contemplating disciplining an em-
ployee ordinarily would confer first with the director of manu-
facturing about the subject. Nevertheless, it would be difficult
to conclude that a false defense is shown merely on the basis of
that single fact, much less to also infer unlawful motivation
from it.
It is hardly uncommon in human affairs for people to talk
over proposed courses of action with someone else; if for no
other reason than to hear the logic of what is planned by think-
ing out loud about it. Further, as he testified, Winkeler ap-
peared to have been particularly perturbed at learning, on April
29, that Williams had chosen to disregard an instruction which
he had given her and other employees less than two weeks ear-
lier. It would not be particularly surprising for someone in his
position to, in effect, let off steam by expressing that perturba-
tion to someone else, such as Salamone.
Beyond that, it should not be overlooked that Winkeler ad-
mittedly knew that Williams had been one of the Union’s sup-
porters. By April 29 the Union’s campaign had concluded, but
both unfair labor practice charges had been filed and those
charges remained pending matters. Viewed from Respondent’s
perspective, it was not unlikely that another charge would be
forthcoming should a warning notice be issued to Williams. In
such circumstances, it would not be illogical for a manager to
confer with his superior, with whom he might not ordinarily
confer, before disciplining Williams, to try to confirm that his
lawfully motivated action would not leave Respondent vulner-
able to an allegation of an unfair labor practice—that is, to
“prepare[e] for a possible unfair labor practice charge . . . .”
Mac Tools, Inc., 271 NLRB 254, 255 (1984). No less applica-
ble to this type of situation, arising under the Act, is the reason-
ing expressed more recently in an age discrimination setting:
“No inference of guilt can be drawn from awareness of one’s
legal obligations; to do so would be to promote the ostrich over
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 496
the farther-seeing species.” Partington v. Broyhill Furniture
Industries, Inc., 999 F.2d 269, 271 (7th Cir. 1993).
Finally, Director of Operations Thomas Clinton acknowl-
edged that he had been spoken to by Salamone and Winkeler
about their intention to issue the warning notice to Williams:
“They come [sic] up to me, talked to me, asked me, explained
the situation and I agreed with it.” Clinton claimed that it was
not unusual for such conversations to occur and that his subor-
dinates commonly discussed with him their intentions to issue
warning notices to employees under his ultimate supervision.
True, he was not able to “recall” a single instance of such prior
discussions. Still, he appeared to be testifying credibly about
those prior discussions. And even if there never had been such
a prior conversation—even if Clinton was gilding the lily—the
reasoning in the immediately foregoing paragraph applies with
no less force to Salamone and Winkeler’s advance notice to
Thomas Clinton, than it does to Winkeler’s conversation with
Salamone. After all, were Respondent disposed to avoid possi-
ble litigation over a clear violation of one of its rules, Clinton
presumably was the logical official to make such a tactical
decision which, in the final analysis, would be viewed as a
condonation.
In sum, Respondent’s evidence underlying its defense to
William's warning notice is logical and has been presented by
witnesses who were credible. Whatever past infraction of the
break-length rule had been tolerated was negated by Winkeler’s
April 17 remarks to Williams and to other assembled employ-
ees. While Williams had been the target of unlawful interroga-
tion approximately 2 months earlier and had become a known
supporter of the Union, Supervisor Krueger—who engaged in
that unlawful interrogation—was not involved in the actual
decision to issue the first written warning notice to Williams.
Nor, given William's lack of candor, is there any direct evi-
dence of unlawful motivation for issuance of the warning notice
to her. She did violate the rule. Two managers caught her
doing so. No evidence of unlawful motivation can be inferred
from the sequence of events that led to the decision to issue a
first written warning notice to Williams. Therefore, I conclude
that a preponderance of the credible evidence does not support
a conclusion of unlawful motivation and I shall recommend that
the allegation pertaining to William's warning notice be dis-
missed
V. THE WARNING NOTICE ISSUED TO DAN LEE
A contrary result has been shown to be warranted with re-
spect to the first written warning notice dated February 9, and
issued to Dan Lee on February 12. That warning notice states,
in pertinent part, “Complaints have been brought to our atten-
tion that you violated the solicitation policy on page 27—policy
2 of the Company handbook.” That section of Respondent’s
handbook reads, “All solicitations is [sic] prohibited except
when both the person doing the soliciting and the person being
solicited are on break, on meal time, or otherwise are properly
not engaged in performing their work tasks.”
Paragraph 6(c) of the complaint in Case 33–CA–11536 re-
cites that rule. Then, paragraph 8 of that complaint pleads that,
“By the conduct described above in paragraph 6, Respondent
has been interfering with, restraining, and coercing employees
in the exercise of the rights guaranteed in Section 7 of the Act
in violation of Section 8(a)(1) of the Act. However, no argu-
ment is advanced in support of the allegation that the rule, it-
self, violates the Act. On its face, the rule does no more that
prohibit solicitation whenever either employee—solicitor or
solicitee—is working. A no-solicitation rule is lawful so long
as its prohibition is confined to “periods when employees are
performing actual job duties, periods which do not include that
employee’s own time such as lunch and break periods.” Our
Way, Inc., 268 NLRB 394, 395 (1983). As published, Respon-
dent’s rule specifically excludes break and “meal times,” as
well as times when employees “otherwise are properly not en-
gaged in performing their work tasks,” from the breadth of its
proscription. Consequently, Respondent’s no-solicitation rule
is not overly bread and, as published, does not violate the Act
for any reason.
In view of that conclusion, there is no basis for concluding
that the February warning notice issued to Lee had been based
upon an unlawfully broad no-solicitation rule. Nevertheless,
the evidence shows that the rule had been relied upon as the
basis for issuing a first written warning notice to Lee. In con-
sequence, the issue becomes whether violation of the rule had
been the sole motivation for issuing that warning notice to Lee
or, alternatively, whether the rule had been utilized as a pretext
for retaliating against Lee because of his union activity or as a
means of deterring other activity by Lee which is protected by
the Act.
Lee had begun working for Respondent during late 1977. He
worked in the maintenance department. By 1996 he had be-
come subject to the immediate supervision of Maintenance
Supervisor Daniel Long, an admitted statutory supervisor and
agent of Respondent, and to the intermediate supervision of
Manager John Errico. Respondent concedes that Lee had been
a supporter of the Union and, further, that it had been aware of
Lee’s support for the Union by the time that it issued the first
written warning notice to him.
It also is uncontroverted that on Monday, February 5, Lee
had left the maintenance department and had gone to the yoke
pinning department where he engaged in a conversation with at
least one of the yoke pinners, Leonard Thomas Walsh, about
the Union. It is that exchange with Walsh which is the assert-
edly sole basis for issuance of the warning notice to Lee on the
following Monday, February 12. As described above, Respon-
dent has a valid rule, which prohibits employees from soliciting
when either the solicitor or solicitee is working. Lee claimed
that, when he had spoken with Walsh on February 5, he had
thought that Walsh had been on break. Walsh denied that he
had been on break at that time and testified that he had been
working.
As discussed in section I, in evaluating an allegation of dis-
crimination, the ultimate issue is the actual motivation for the
assertedly unlawful action. More specifically, at issue is the
actual motivation of the official or officials who made the deci-
sion to take an allegedly unlawful action. Advanced Installa-
tions, Inc., 257 NLRB 845, 854 (1981), enfd. mem., 698 F.2d
1231 (9th Cir. 1982). “The state of mind of the company offi-
cials who made the decision . . . . reflects the company’s motive
for” discipline. Abilene Sheet Metal, Inc. v. NLRB, 619 F.2d
CLINTON ELECTRONICS CORP 497
332, 336 (5th Cir. 1980). As to that issue, however, the record
is not altogether clear as to exactly who had made the decision
to issue the warning notice to Lee.
The notice is signed by Operations Manager Thomas Clin-
ton, by employee relations supervisor Ploplys and by mainte-
nance supervisor Long. Long testified that, during the morning
of Friday, February 9, he had been summoned to the personnel
department where he met Director of Personnel Judson, Super-
visor Ploplys and Dayton Larson, the manager of the yoke pin-
ning department. Only Long described with specificity what
had occurred during that meeting.
According to him, Judson said that another worker had filed
a complaint against Lee with Prefinishing and Yoke Pinning
Supervisor Emma Hall: “He said that Dayton Larson had come
to him with a complaint that one of . . . . Emma Hall’s employ-
ees at that time was being solicited and had a complaint about
it, he’d filed a formal complaint.” Long testified that Judson
further said that the employee, who was not named during that
meeting, had reported “that Dan Lee had been in the [yoke
pinning] department” where he solicited the unnamed employee
and that the latter “had gotten upset with [Lee] and came
through Emma to Dayton and registered a complaint that he did
not want to be bothered at his work station when he was work-
ing.”
“We had talked about, we’d talked about and decided at the
time that we should give [Lee] a written warning,” testified
Long, because, “we had had some problems with Dan Lee
walking throughout the plant. I’d had complaints from three
different managers at the time about him being in their area,
talking and bothering employees. And also we [now] had a
formal complaint at the same time from another employee that
we thought was very serious.” The three managers identified
by Long were Bahling, Hutchison, and then-manager of Coat-
ing, Dave Coke. Coke did not appear as a witness. Still,
Bahling and Hutchison were called as witnesses and both testi-
fied to having complained, during early 1996, about Lee having
wandered into their departments and having engaged in conver-
sation with employees working there. But, those earlier in-
stances are not dispositive of Respondent’s motivation for hav-
ing decided to issue the first written warning notice to Lee dur-
ing February. For, “an employer cannot carry its burden of
persuasion by merely showing that it had a legitimate reason
for imposing discipline against an employee.” Hicks Oils &
Hicksgas, 293 NLRB 84, 85 (1989). See also, Douglas Aircraft
Co., 308 NLRB 1217, 1221 (1992), and cases cited therein.
Long advanced internally contradictory testimony, with re-
spect to who had actually made the decision to issue the warn-
ing notice to Lee. At one point Long testified, “The decision
was made by me. I believe it would normally be my decision.
It was a first written warning.” Yet, at other points Long con-
tradicted that testimony, claiming that, no, he had not actually
made the decision, but had merely made a “suggestion” that
Lee receive a warning notice: “It was my suggestion and this is
what happened.” If true, however, that latter testimony leaves
up in the air who had been the actual decision-maker. That
uncertainty is not clarified by other testimony given by Long in
connection with the decision to issue a warning notice to Lee:
“we’d talked about and decided at the time that we should give
him a written warning,” and, “We made that decision on the
fact that we had had some problems with Dan Lee walking
throughout the plant.”
According to Long, It had been Judson’s idea “that we would
have to talk about” disciplining Lee, after which he and Judson
“conferred back and forth with one another” and “Judson con-
sulted with our counsel on whether this was the appropriate
action to take.” Of course, as set forth in section IV, there is
nothing inherently wrongful about consulting with counsel
about a decision to discipline a union supporter. Still, from this
particular portion of Long’s testimony, it would appear that
Judson had either made the decision to discipline Lee or, at
least, had participated in making it or, at least, had suggested
that Lee be disciplined. But Judson was never called as a wit-
ness by Respondent, though there was neither evidence nor
representation that he was not available to be called as a wit-
ness. Thus, there is no testimony from him which could clarify
Long’s internally contradictory testimony as to who had made
the actual decision to issue the warning notice to Lee during
this supposed four-supervisor meeting on February 9.
Aside from the absence of clarification of Long’s internally
contradictory account as to who had actually made that deci-
sion, to the extent that Judson made or participated in that deci-
sion, Respondent’s failure to call him as a witness warrants an
adverse inference with regard to the validity of its defense. As
set forth above, “the crucial inquiry must be directed to the
state of mind of the official who had made the decision to
effectuate” an allegedly unlawful disciplinary decision. Ad-
vanced Installations, Inc., supra. Failure to call such a deci-
sion-maker, to provide firsthand evidence concerning his moti-
vation, warrants an inference adverse to a respondent regarding
its motivation. Douglas Aircraft, supra, 308 NLRB at 1221.
That situation is not corrected by the testimony of Ploplys
and Larson, both of whom were called as witnesses by Respon-
dent. For, neither one of them described a meeting such as
Long testified had occurred. Both of them did describe a meet-
ing with Judson during which a decision was made to issue the
warning notice to Lee. But, neither Ploplys nor Larson placed
Long as having attended that meeting. As a result, rather than
corroborating the testimony given by Long, Ploplys and Larson
gave testimony, which tended to contradict that of Long. Be-
yond that, Larson’s description of that three-supervisor meeting
created additional contradictions in Respondent’s defense.
Larson testified that, by the time of this meeting, he had spo-
ken with Walsh about the latter’s complaint concerning Lee, as
discussed further below. As a result of that conversation, Lar-
son testified, “I brought the subject to the attention of ken
Judson and Betty Ploplys,” reporting that Lee had been, “Inter-
fering with an employee during his work period.” Larson ac-
knowledged that, as a manager, he possessed authority to disci-
pline employees, but explained that, “Generally we get in touch
with Betty for more minor infractions.”
Of course, as described in section IV, that would be the
course followed when materials manager Winkeler decided to
issue a warning notice to Williams almost 3 months later. Yet,
Judson had become involved in the warning notice issued to
Williams only because Ploplys had not been available to par-
ticipate in the meeting during which the warning notice was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 498
issued to Williams. There is no evidence that Winkeler had
sought him out in connection with the actual decision to issue a
warning notice to Williams. But, Larson testified that he had
conferred with both Judson and Ploplys about whether or not to
issue a warning notice to Lee. At no point did Larson explain
why he had chosen to confer about that decision with Judson,
as well as with Ploplys. More significantly, despite the “chain
of command” discussed in section IV at Respondent, Larson
had not been Lee’s manager—that had been Errico. Yet, it had
been Larson, not Errico, who supposedly had participated in the
decision to issue the warning notice to Lee.
One may speculate that Judson’s involvement had been oc-
casioned because of Lee’s support for the Union. Yet, infer-
ence can only be taken so far. To reach that conclusion with
regard to Larson’s decision to confer with Judson, as well as
Ploplys, about the decision to issue a warning notice to Lee
would be to exceed the bounds of inference and, instead, to
supply a defense which Respondent has not advanced. That is
not allowed, inasmuch as an “employer alone is responsible for
its conduct and it alone bears the burden of explaining the mo-
tivation for its actions.” Inland Steel Co., 257 NLRB 65,
(1981). As a result, unexplained is Larson’s reason for having
chosen to confer with Judson, as well as Ploplys, about the
decision to issue the warning notice to Lee and also, of course,
Larson’s involvement in the decision to issue a warning to Lee.
According to Larson, during his meeting with Judson and
Ploplys, “I simply stated that one of my employees wanted to
make a complaint,” and, “They decided that they were going to
give him a warning.” Obviously, that account is at odds with
the procedure followed in disciplining Williams almost 3
months later and, also, with the general testimony of Respon-
dent’s witnesses about how warning notices come to be issued
to employees. For, ordinarily it is the supervisor or manager
who makes the decision, with the personnel department merely
ascertaining if discipline is warranted, as opposed to making
the actual decision with respect to the discipline to be imposed.
Moreover, it should not escape notice that if that had been all
that had been said in arriving at that decision, not only did
Judson and Ploplys rely upon a vague and summary account of
Lee’s offense, but also there was no basis for concluding that,
at that time, either Judson or Ploplys had been aware of Lee’s
wanderings in other departments, as described by Bahling and
Hutchison.
In addition to the confusion regarding who had made the ac-
tual decision to issue a warning notice to Lee, and to the further
confusion concerning precisely how that decision had come to
be made, Respondent’s defense suffers further confusion upon
review of its witnesses’ accounts of the events, which had led
to the decision to discipline Lee. Three basic facts are not in
dispute. Walsh had complained to Supervisor Hall during the
morning of February 9. Hall then reported to Larson what
Walsh had told her. Finally, Larson then spoke with Walsh.
Beyond that, Respondent’s evidence is not consistent.
Larson did not describe with particularity his conversation
with Hall. He testified merely that she had talked with him
about Walsh’s complaint and, as a result, “It was my under-
standing that [Walsh] was complaining about being bothered by
Union sympathizers . . . .” So far as it goes, that description is
an accurate one, though it hardly is an adequate description of
what Walsh had complained about. That appears to be cor-
rected by Larson’s description of his ensuring conversation
with Walsh. But, as will be seen, Larson’s account of that con-
versation does not altogether square with the one provided by
Walsh, when the latter was called as a witness for Respondent.
Larson testified that, “I asked [Walsh] if he wanted to make
a complaint about that subject and offered him the opportu-
nity,” and Walsh “decided that, yes, he did want to make a
complaint,” because, “He wanted the harassment or whatever
you want to call it discontinued.” As to what had been meant
by “harassment,” Larson testified that Walsh had “said that Dan
Lee had talked to him during work period, kept him from his
work. He’d been bothered by union sympathizers outside the
plant on his way to work and that he’d been bothered by people
coming to his house on weekends or times when he was not at
work.” Thus, Larson’s account portrays talking to Walsh dur-
ing work, thereby keeping him from working by doing so, as
the primary subject of Walsh’s complaint of “harassment.”
But, that was not Walsh’s description of his complaint.
Larson “came up and asked me about the situation and I said,
yeah, I want to be left alone,” Walsh testified, explaining that
he had said to Larson, “What I told Emma Hall, the supervisor.
That I was stopped on the way coming to work and then I men-
tioned having been bothered at work on that Monday.” (Em-
phais added.) Thus, although Walsh did tell Larson about the
work-time solicitation of February 5, his testimony about what
he had said does not show that work-time interference had been
the primary “harassment” which he reported to Larson, as the
latter attempted to portray it during his above-quoted descrip-
tion of his conversation with Walsh. The distinction is not an
insignificant one.
Hall testified that she had told Larson, “That he had, Len had
come to me and complained and it was a formal complaint and
he was complaining that he was being bothered at work as well
as not getting in to the parking lot without being slowed down
that morning.” Yet, when she described what Walsh had said
to her, before she had spoken with Larson, Hall advanced a
description, which shows that Walsh’s reference to work inter-
ference had not necessarily been based principally upon what
had occurred on Monday, February 5:

A. Len Walsh. Had come to me and told me that [Lee] was
bothering him and I said, is this a complaint and he said, yes,
this is a formal complaint that I’m putting against him.

. . . .

Q. And what did Mr. Walsh say to you?

A. That he was tired of being bothered at home and that that
particular morning he was slowed down getting in to the
parking lot by people passing out papers and Dan Lee
talking to him and keeping him from performing his pinning
job.

Now, Lee had been one of the people who had been talking
to employees as they attempted to enter the parking lot on Feb-
ruary 9. So from Hall’s above-quoted more specific description
of what Walsh had said to her that morning, it is unclear that
Walsh had been complaining about work interference that
CLINTON ELECTRONICS CORP 499
morning, by trying to talk to employees while they were enter-
ing Respondent’s parking lot, or, alternatively, about a solicita-
tion on Monday, February 5. Indeed, Hall never claimed that
she had asked Walsh anything about what had occurred on
February 5. Nor did she testify that he had volunteered any
description of what Lee supposedly had said to him on that day.
The foregoing testimony by Larson and by Hall somewhat
sets the table for Walsh’s testimony concerning what had oc-
curred when he arrived for work on Friday, February 9. He
testified:

Friday at the end of that week I was coming to work and Mr.
Lee and some other fellow that I had seen in the parking lot,
or at the edge of the parking lot handing out flyers,stopped me
as I was pulling in to the parking lot to ask me if I’d thought
more about joining the Union. Now, since I’d started work-
ing at [Respondent] I was told the policy is, punch in and be at
your seat five minutes prior to your starting time. Well, my
car already had bad car trouble within the past week. And the
car was not acting up to my specifications.

I was driving a beater. And I didn’t appreciate, one, being
stopped from pulling into the parking lot in order to punch in
and go to work and two, I had already made myself clear on
two occasions that I wasn’t interested in whatever they were
selling, the Union movement or whatever. And I did not ap-
preciate being stopped as I was coming to work.

As a result, by the time that he had punched in that morning,
Walsh was perturbed, according to his own account, not by any
solicitation during the preceding Monday, but by the fact that
on that occasion and on another occasion he had made clear
that he would not support the Union, but nevertheless he was
again being solicited to support it, in the process possibly caus-
ing his car to malfunction and possibly being caused to report
late for work.
That was the message which he testified that he then con-
veyed to Supervisor Hall after punching in on February 9, al-
though he did also mention to her the preceding Monday’s
solicitation: “I told her, look, I got bothered Monday and I
figured maybe he got the message and would leave me alone.
People been knocking on my door every day at home and now
they’re going to interfere with me pulling in to the parking lot.
Possibly making me late.” After pointing out that Hall had
been aware of his car problems, Walsh testified that “she knows
I take my work seriously. I don’t like punching in late to work.
I usually show up early.”
“So, that’s when I made a formal complaint,” testified
Walsh. As to what he had complained about to Hall, Walsh
testified:

I said that I was pulling in and Dan Lee from maintenance and
some other fellow, he was tall, had a beard, I’d seen him
around the parking lot before handing out flyers, stepped in
my way as I was pulling in to the parking lot and Dan asked
me if I thought more about joining the Union and I said, look,
I gotta get to work. I rolled up my window and I proceeded
and they got out of my way and I kept going.

I said, I have [u]nion experience. I’ve worked in places and I
know, this is out of line. You don’t bother, you don’t keep
people from coming to a job, you don’t interfere with them
while they’re performing their job. If you’re a friend of theirs
and you can talk to them, you know, subtle manner, during a
break, I don’t know if that’s quite legal, but it could be ac-
ceptable in some cases, but just to out and out interfere with
someone coming to work or doing their work, I know flat out
that’s wrong.

The singular telling thing about that recitation, in the context of
the instant case, is that while Walsh alluded to having been
“bothered Monday,” and to interference “with them while
they’re performing their job,” he never described to Hall any-
thing which had occurred on Monday, February 5, and his ac-
count cannot truly be said to have constituted a complaint about
anything which had occurred on that day. Nor did Walsh tes-
tify to having provided such a description to Hall when he testi-
fied regarding what he had asked her to do. Rather, he testified
only,

Well, first I asked her. . . I mentioned that they had, that peo-
ple had been coming or knocking on my door, bothering me
at home. I have an unlisted phone number. How do they
know where I live, in the first place. And she said she would
ask about that.

And I just told her, look, I want to make a complaint about be-
ing harassed at work. I didn’t think that the Company could
do anything about getting harassed at home but this was start-
ing to interfere with my work, getting to work. Being on
time.

Again, while Walsh did mention “being harassed at work” and
“interfere[nce] with my work,” it is plain from his recitation of
his complaint that he was protesting not being able to “get[ ] to
work. Being on time,” not being interfered with while actually
working, as would have been a complaint about the incident of
Monday, February 5.
If it cannot be said that Respondent’s officials had learned
from Walsh on February 9, what had taken place on Monday,
February 5, it is logical to inquire how they might have learned
about Lee’s solicitation on the latter date. The short answer is
that, by February 9, Hall and Larson already had known that the
solicitation had occurred. On Monday, February 5, both of
them knew that Lee had been in the department (yoke pinning)
where he should not have been. They had observed him talking
to Walsh while the latter was supposed to be working. They
did nothing whatsoever to have Lee disciplined for interfering
with Walsh’s work—at least, not until they learned that the
discussion had pertained to the Union.
Larson testified that, on February 5, “I saw [Lee] having a
conversation with one of my employees,” Walsh, “during a
work period, yes. At [Walsh’s] work station.” Hall also testi-
fied that, on February 5, she had observed Lee come into the
yoke pinning department, talk to two of the employees working
there and, then, engage in a conversation with Walsh. Despite
having perceived a seeming impropriety by Lee, however, ad-
mittedly neither official had said anything to Lee about his
presence in the yoke pinning department, not about his conver-
sation with employees working there. In contrast to what
Hutchison and Bahling would do upon observing Williams
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 500
taking an excessive morning break on April 29, as described in
section IV, there is no evidence that either Hall or Larson had
said anything before February 9, to Supervisor Long nor to
Manager Errico about Lee’s conversations on February 5 in the
yoke pinning department with employees working there.
“I normally do not make a big deal about it if someone stops
and says hello to someone, as I did not in this case,” Larson
tried to explain. But, he estimated that Lee’s conversation with
Walsh had lasted, “Perhaps ten minutes. Perhaps a little
longer.” Hall estimated that Lee had spoken with the two other
employees for “maybe, I’ll say five minutes” or, even,
“longer,” and, then, that Lee had talked to Walsh “maybe three
minutes, four minutes.” Surely conversations of such length
can hardly be characterized merely as “say[ing] hello to some-
one[.]”
To be sure, there is no evidence that any official of Respon-
dent had known until Friday, February 9, that Lee had been
soliciting Walsh’s support for the Union during the February 5
conversation. Even so, the operative question is whether Re-
spondent’s officials had been concerned about the “solicitation”
aspect of that Monday conversation or, instead, about the “Un-
ion” aspect of it. For, despite the existence of Respondent’s no-
solicitation rule, the record discloses significant credible evi-
dence that solicitations—for sports and other pools, for school-
related events such as Market Days and for Girl and Boy Scout
sales—occurred with significant regularity at Respondent’s
facility. It further shows that some employees had participated
in such activities during work time and, in fact, that supervisory
personnel had participated in such activities on occasions when
employees involved were supposed to be working.
Beyond that, as quoted above, neither Long nor Larson—the
only two officials who tried to explain Respondent’s motivation
for having issued the warning notice to Lee—ever truly did
claim that Respondent’s officials had acted on February 9 be-
cause of a sudden disclosure that day that Lee had been solicit-
ing Walsh in the yoke pinning department on February 5. In-
stead, as quoted above, they testified that Lee had been issued a
warning notice, because of a “complaint” by Walsh. Yet, as the
latter’s above-quoted testimony shows, on February 9 Walsh
had not been protesting anything that had taken place on Febru-
ary 5. His complaints were about being solicited at his home
and about being delayed getting into Respondent’s parking lot
on February 9.
True, Walsh did mention having talked to Lee on February 5
and he also mentioned interference with his work. Even so, the
former appeared more directed to his prior communications to
Lee and other union supporters that he did not want to support
the Union. And his comments about work interference were so
general and ambiguous that it cannot be said with any certainty
that he was complaining about any work interference other than
the possibility that the parking lot encounter would interfere
with his being able to start work on February 9. Viewed as an
objective matter, it cannot be concluded that anything which he
said on February 9 to Hall and, then, Larson would have en-
abled an employer to understand that Walsh’s work had been
interfered with on February 5 by the solicitations of Lee on that
day. The remarks by Walsh were simply too general and, so far
as the evidence discloses, Respondent’s officials made no effort
that day to obtain from Walsh a specific description of what
had occurred on the preceding Monday.
In contrast to the seemingly credible appearance and testi-
mony of Winkeler, Hutchison, and Bahling in connection with
the warning notice issued to Williams on April 30, Larson and
Long gave testimony about Lee’s warning notice which was
sometimes internally contradictory, other times uncorroborated
and, in a few instances, at odds with objective considerations.
As they testified, it was my impression that Larson and Long
were not being candid. I do not credit them.
Of course, as pointed out in section I, neither did Lee appear
to be testifying candidly. His explanation for even being in the
yoke pinning department on February 5 is contradicted by the
undisputed evidence about the work, which had been assigned
to him at that time. His description of the work which he pur-
portedly had been performing there, greasing a conveyor, is
contradicted by the uncontested evidence that conveyor greas-
ing could not be accomplished while that department was oper-
ating, nor could it be accomplished in so short a period and in
the manner which Lee described. Still, as set forth in section I,
the ultimate issue here is Respondent’s actual motivation for
issuing a first written warning notice to Lee, not Lee’s charac-
ter, except to the extent that his character for veracity affects
the reliability of his testimony. However, Lee’s testimony is
not necessary to conclude that Respondent had been unlawfully
motivated in issuing that warning notice to him.
Respondent concedes that Lee had been a supporter of the
Union. Respondent further admits that it had known of his
support at the time that it issued the warning notice to him.
That is one objective indicium of unlawful motivation. Con-
cepts & Designs, 318 NLRB 948, 952-953 (1995), enfd., 101
F.3d 1243 (8th Cir. 1996), and cases cited therein. At that time,
the Union’s campaign was in progress at Respondent. When he
received the warning notice, Lee attempted to deny having
engaged in any misconduct. But, Respondent’s officials were
unwilling to listen to his denials and, further, were unwilling to
even identify the employee who had complained about Lee.
Thus, Lee was unable to present a defense and, in any event,
Respondent’s officials were unwilling to listen to any that he
did present. Those are additional objective indicia of unlawful
motivation. For they show “that Respondent was not truly
interested in whether misconduct had actually occurred” on
February 5, Handicabs, Inc., supra, 318 NLRB at 897. More-
over, the very vagueness of Walsh’s February 9 references to
earlier comments to him by Lee about supporting the Union,
and the lack of any evidence that any of Respondent’s officials
had made an effort to find out in greater detail about the cir-
cumstances of Lee’s comments to Walsh about the Union, are a
further objective indication of unlawful motivation, since they
demonstrate that Respondent “did not engage in any independ-
ent investigation of” Walsh’s remarks, but “relied solely on
[Walsh’s] complaint.” Handicabs, Inc. v. NLRB, 95 F.3d 681,
685 (8th Cir. 1996), petition for certiorari pending.
In the face of the foregoing evidence, which establishes
unlawful motivation for Respondent’s decision to issue a first
written warning notice to Lee, the evidence presented by Re-
spondent as to motivation was not credible. In consequence,
Respondent has failed to satisfy its burden of going forward
CLINTON ELECTRONICS CORP 501
with evidence showing that, absent his union activities, Lee
would have been issued a first written warning notice on Feb-
ruary 12. Furthermore, in the circumstances, the very fact that
Respondent has advanced a defense, which is not credible, is
additional evidence of its unlawful motivation. To be sure,
aside from Prock’s threat of job loss and Krueger’s interroga-
tion of Williams, there is no independent evidence that Re-
spondent harbored animus toward Lee for supporting the Un-
ion. Still, “[e]ven without direct evidence, the Board may infer
animus from all the circumstances.” (Citations omitted.) Elec-
tronic Data Systems, 305 NLRB 219, 219 (1991). Respondent
may not have harbored the most virulent animus possible to-
ward Lee for supporting the Union. Nonetheless, to conclude
that animus exists, it is not essential to show that an employer
harbors the most extreme animus possible. As pointed out in
another, but not totally unrelated, context, “a piece of fruit may
well be bruised without being rotten to the core.” Cooper v.
Federal Reserve Bank of Richmond, 467 U.S. 867, 880 (1984).
What appears to have occurred with respect to Lee is that,
upon hearing Walsh’s complaints about home solicitation and
being delayed at the parking lot entrance, Respondent’s offi-
cials seized upon Walsh’s reference to the February 5 solicita-
tion and used it as a spring board to aid Walsh, and possibly
also to ensure his continued opposition to the Union, by issuing
a warning notice to Lee, thereby demonstrating to Walsh that
Respondent was willing to help him, by acting on his com-
plaints, and possibly also to somewhat cool Lee’s activism.
However, Respondent’s officials had known on February 5 that
Lee had been talking with Walsh during the latter’s work time,
but had done nothing about what they had observed. Solicita-
tions were not uncommonly conducted at Respondent’s facility
during working time. Seizing upon a “colorfully valid reason”
which could “ostensibly justify” disciplining Lee, United States
Rubber Co. v. NLRB, 384 F.2d 660, 662–663 (5th Cir. 1967);
see also, Red Ball Motor Freight, Inc., 253 NLRB 871, 872
(1980), enfd., 660 F.2d 626 (5th Cir. 1981), cert. denied, 456
U.S. 997 (1982), after having ignored that conduct for most of
that work week, tends to show that Respondent’s motivation
had been unlawful.
As to the conduct about which Walsh did complain on Feb-
ruary 9, there is no contention, nor evidence to support a con-
tention, that the parking lot entrance solicitation had been so
conducted as to deprive Lee and other handbillers of the Act’s
protection on February 9. “It is well established that an em-
ployer cannot legally interfere with a union’s solicitation of
employees when it takes place on a public street and does not
obstruct the ingress or egress from the Employer’s premises.”
First National Bank of Pueblo, 240 NLRB 184, 184 (1979).
Although Walsh’s entrance to Respondent’s parking lot may
have been delayed by the union solicitors, Walsh admitted that
they stepped aside when he, in effect, asked them to do so.
There is no contention, nor evidence that Lee and those with
him actually obstructed ingress to the parking lot in a manner,
which deprived their activity of the Act’s protection.
While being solicited at one’s home may be distasteful to
some employees, such contacts, of necessity, are contemplated
by the Board’s rule in Excelsior Underwear, 156 NLRB 1236
(1966). That rule promotes “fair and free choice of bargaining
representatives” by, inter alia, “allowing unions the right of
access to employees that management already possesses.”
NLRB v. Wyman-Gordon Company, 394 U.S. 759, 767 (1969).
So, it follows that home solicitation is not an activity, which is
unprotected by the Act. And, as above, there is neither conten-
tion nor evidence that home solicitation had been conducted
here by Lee and the Union’s other supporters in a manner
which exceeded the Act’s protection.
Therefore, in the totality of the circumstances, I conclude
that a preponderance of the credible evidence establishes that
Respondent’s actual motivation for issuing a first written warn-
ing notice to Lee had been rooted in his support for, and activ-
ity on behalf of, the Union. In consequence, issuance of that
warning notice to Lee violated Sections 8(a)(3) and (1) of the
Act and, also, constituted selective and disparate enforcement
of a valid no-solicitation rule which independently violated
Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
Clinton Electronics Corporation has committed unfair labor
practices affecting commerce by issuing a first written warning
notice to Dan Lee because of his support for, and activities on
behalf of, United Steelworkers of America, AFL–CIO–CLC, in
violation of Sections 8(a)(3) and (1) of the Act, and by selec-
tively and disparately enforcing a no-solicitation rule against
union solicitations, by threatening job loss if employees se-
lected the above-named labor organization as their collective-
bargaining agent, and by coercively interrogating an employee
about her union activities, in violation of Section 8(a)(1) of the
Act. However, it has not violated the Act in any other manner
alleged in the complaints.
REMEDY
Having concluded that Clinton Electronics Corporation has
engaged in unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and, further, that it be
ordered to take certain affirmative action to effectuate the poli-
cies of the Act. With respect to the latter, there has been some
indication that warning notices are expunged from its files after
a year, if an employee commits no additional violations of
company rules. Thus, the unlawfully motivated warning notice
to Dan Lee may already have been expunged. Nonetheless, to
ensure that expunction is accomplished, Clinton Electronics
Corporation shall be ordered, to the extent that it has not al-
ready done so, see, e.g., Colorflo Decorator Products, 228
NLRB 408, 420 (1977), enfd. mem., 582 F.2d 1289 (9th Cir.
1978), to remove from its files, within 14 days from the date of
this Order, the first written warning notice, and any reference to
the first written warning notice, dated February 9, and issued to
Dan Lee on February 12, 1996. It shall notify Lee, within 3
days after doing so, or within 17 days of the date of this Order
if the warning notice and all references to it have already been
removed from its files, that this has been done and that that the
first written warning notice shall not be used against him in any
way.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 502
Upon the foregoing findings of act and conclusions of law,
and upon the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended 18
ORDER
Clinton Electronics Corporation, Loves Park, Illinois, its of-
ficers, agents, successors and assigns, shall
1. Cease and desist from:
(a) Selectively and disparately enforcing its valid no-
solicitation rule by applying it against solicitations on behalf of
the United Steelworkers of America, AFL–CIO–CLC, or by
any other labor organization, while disregarding other types of
solicitations; threatening employees with loss of jobs should
they choose to become represented by that union, or by any
other labor organization; and, coercively interrogating employ-
ees concerning their activities on behalf of that union or any
other labor organization.
(b) Issuing a first written warning notice to, or otherwise dis-
criminating against, Dan Lee, or any other employee, because
of support for and activity on behalf of the above-named union
or on behalf of any other labor organization.
(c) In any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) To the extent that it has not already done so, within 14
days from the date of this Order, remove from its files the first
written warning notice dated February 9, and issued on Febru-
ary 12, 1996, to Dan Lee, and all references to it, and within 3
days thereafter, or within 17 days from the date of this Order if
the notice and all references to it have already been removed,
notify Lee in writing that this has been done and that the warn-
ing notice shall not be used against him in any way.
(b) Within 14 days after service by the Region, post at its
Loves Park, Illinois place of business copies of the attached
notice marked “Appendix.”19 Copies of the notice, on forms
provided by the Regional Director for Region 33, after being
signed by its duly authorized representative shall be posted by
Clinton Electronics Corporation and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by it to ensure that the notices
18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
19 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
shall be taken by it to ensure that the notices are not altered,
defaced or covered by any other material. In the event that,
during the pendency of these proceedings, Clinton Electronics
Corporation has gone out of business, or closed the Loves Park
facility involved in these proceedings, it shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by it at any time since
August 26, 1995.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to steps that it has
taken to comply.
IT IS FURTHER ORDERED that the complaints be, and
they hereby are, dismissed insofar as they allege violations of
the Act not found herein.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

After a trial at which all parties had an opportunity to present
evidence, the National Labor Relations Board has found that
we violated the National Labor Relations Act and we have been
ordered to post this Notice.

The National Labor Relations Act gives all employees the fol-
lowing rights:

To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT coercively interrogate you concerning your
activities on behalf of United Steelworkers of America, AFL–
CIO–CLC, or on behalf of any other union.
WE WILL NOT threaten you with loss of jobs should you
select the above-named union or any other union to be collec-
tive-bargaining agent.
WE WILL NOT selectively and disparately enforce our valid
no-solicitation rule by enforcing it against solicitation of behalf
of the above-named union, or any other, while allowing other
types of solicitation to be conducted.
WE WILL NOT in any lie or related manner, interfere with,
restrain, or coerce you in the exercise of your rights protected
by the National Labor Relations Act.

CLINTON ELECTRONICS CORPORATION