273 N.L.R.B. 1290 (N.L.R.B. 1984)

Vought Corp.

National Labor Relations Board - Board DecisionsDec 14, 1984

273 N.L.R.B. 1290 (N.L.R.B. 1984)

1299 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vought Corporation-MLRS Systems Division and International Union, United Automobile, Aero- space and Agricultural Implement Workers of America (UAW). Case 26-CA-10240 14 December 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 16 May 1984 Administrative Law Judge Donald R. Holley issued the attached decision. The General Counsel and the Respondent filed excep- tions and supporting briefs, and the Respondent filed an answering brief to the General Counsel's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions as modified. The judge found that the Respondent violated Section 8(a)(1) of the Act by requesting an employ- ee to keep it informed about other employees' union activities; maintaining and enforcing an overly broad no-distribution rule; coercively inter- rogating employees about union support or activi- ties; threatening employees with plant closure or reduction of the work force if they selected the Union to represent them; soliciting and promising to resolve employee grievances if employees would abandon support of the Union; altering an employ- ee's work assignments for supporting the Union; and threatening to discharge an employee for en- gaging in union solicitation. We affirm these find- ings. 2 The judge also recommended the dismissal of al- legations that the Respondent created an impres- sion of surveillance of employees' union activities in violation of Section 8(a)(1) of the Act; issued an 1 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 The Respondent excepted only to the judge's findings concerning its asking an employee to become an Informer, its maintenance and enforce- ment of the no-distribution rule, and its threat to discharge an employee In upholding the judge's finding as to the no-distribution rule, we do not rely on his citation to Intermedics, Inc , 262 NLRB 1407 (1982), but instead on our recent decision in Our Way, Inc , 268 NLRB 394 (1983), and on Stoddard-Quirk Mfg Go, 138 NLRB 615 (1962) Nor, in finding the violation, do we rely on his statement, in sec III,B,2, par 6, of his decision, that the Respondent's cancellation of the rule on 27 September 1983 constituted an acknowledgement it was unlawful oral warning on 5 May 1983 3 and a written warn- ing on 20 May to employee David Evans in viola- tion of Section 8(a)(3) and (1); and discharged Evans on 24 May, also violating Section 8(a)(3) and (1). The General Counsel excepted only to the judge's failure to find the latter three violations. We find merit in the General Counsel's exceptions. Evans was employed as a dispatcher at the Re- spondent's munitions production facility in Camden, Arkansas. His responsibility was to see that the production line received the proper hard- ware and materials needed to build MLRS (Multi- ple Launch Rocket System) launchers. This in- volved keeping an inventory on the SPLL (Self Propelled Loader Launcher) line storage bins, fill- ing out requisition request forms for the ware- house, and delivering the parts to the appropriate bins on the SPLL line. It is undisputed that Evans performed his work well before early March and had been complimented for oustanding work at least once. In early March, Evans contacted union repre- sentative R. T. Buttram to discuss unionization of the Respondent's facility. Evans met with Buttram on 8 or 9 March, and the Union thereafter con- ducted an organizational campaign among the plant's production employees. Evans served as chairman of the in-plant organizing committee, dis- tributed union literature and authorization cards, and discussed unionization with employees, and wore union insignia at work. It is undisputed the Respondent became aware of the union campaign and of Evans' participation almost immediately. On 11 March Production Supervisor Sonny Blair approached Evans and told him he had heard there was an organizational effort and that some employ- ees had met with a union representative. Blair told Evans that, based on their past close personal friendship, he thought he could count on Evans for any information he might need about the cam- paign. 4 The judge found Blair's statement violated Section 8(a)(1). On 15 March General Manager Harry LeCost met with Evans' immediate supervisor Donald Dahlke and Dahlke's superior Charles Simpson, and told them that Evans had been passing out in- formation and harassing people during working hours. 3 LeCost told the supervisors to explain to Evans what he could and could not do during working hours. Dahlke and Simpson met with Evans. Dahlke informed Evans that it had come to 3 All dates are in 1983 unless otherwise stated 4 Evans responded by telling Blair that if there was anything he thought Blair needed to know he would be sure to tell him 5 The meeting represents the first time the general manager had been involved in employee discipline 273 NLRB No. 161 VOUGHT CORP. 1291 his attention that Evans was handing out handbills and harassing employees during working hours, and he would be terminated if he did not stop. Dahlke told Evans that what Evans did on breaks, lunch, and before and after work was his personal time, but work was to be performed on worktime. Evans denied harassing employees and distributing materials during worktime. The judge observed the Respondent's no-distribution rule was unlawful be- cause it required prior company approval of mate- rial to be passed out, 6 and that the Respondent did not have a no-solicitation rule and discriminatorily permitted working time solicitation for churches, football pools, gifts, and antiunion activities. He concluded Dahlke's threat to Evans violated Sec- tion 8(a)(1) as it "imparted" the message he would be fired if he solicited for the Union on company time. On 17 March, while Evans was distributing handbills in the Respondent's parking lot, Superin- tendent Jim Coffin approached him and told him he could not hand out literature on company prop- erty. After Coffin departed, security personnel ar- rived and told Evans to stop his activity and leave company property. The judge found the mainte- nance and enforcement of the overly broad no-dis- tribution rule, described above, violated Section 8(a)(1). On 5 May Supervisor Dahlke gave Evans an oral warning regarding his work performance. Dahlke told Evans his production was slipping, as the storage bins Evans had been servicing were not fully stocked. Dahlke also stated that he had been told Evans was not doing his job. Evans admitted his bins were not filled, but explained that he had insufficient time to prepare all the necessary requi- sitions because he had to assume the job responsi- bilities of an employee who had recently been transferred from the department; 7 that the Re- spondent had recently instituted a time-consuming policy requiring Evans to obtain a production su- pervisor's signature on all requisitions to the ware- house; 8 that requisitions left for signature on Super- 6 The distribution rule in effect on 15 March 1983 prohibited "Repro- ducing, posting, or passing out typed or printed matenal other than Com- pany business without the permission of the Director of Professional Services" The rule provided for disciplinary action up to and including discharge 7 The employee, Jewel Jones, was a dispatcher whose primary respon- sibility was to complete requisitions for shortage items on the SPLL line The record indicates that her transfer occurred in March at approximate- ly the same time the slump in production on the SPLL line allegedly began There was disputed testimony as to whether Evans assumed all em- ployee Jones' job duties as dispatcher It is clear, however, Evans took over all of Jones' requisition writing duties for the SPLL line, which was about half her work 8 Before April 1983, Evans had been allowed to deliver the requisitions directly to the warehouse without prior supervisor y approval There was visor Dahlke's desk often piled up without being signed; and that there was a delay of up to 2 weeks in acquiring parts from the warehouse. 6 Evans also explained that employees on the SPLL line, where the depleted bins were located, worked overtime, yet he was not permitted to do so during the period of his alleged decline in productivity though he had previously been allowed overtime. 10 The record also shows that, shortly after Evans' 24 May discharge, Brad Byars, a SPLL line employee, apparently assumed some of Evans' job responsibil- ities, and three new employees were hired on the SPLL line to perform Evans' "other duties."11 Dahlke testified he issued the oral warning after the Respondent's production schedule slipped twice due to parts shortages. Dahlke claimed that he received repeated complaints from Superintend- ent Gilton and Floor Supervisor Blair concerning Evans' excessive talking and hardware parts short- ages on the SPLL line. According to Dahlke, the supervisors felt that the production decline oc- curred because of Evans' excessive talking in March and April. Dahlke stated, after receiving the complaints, he observed Evans performing his job and noticed he spent a lot of time talking to other employees. On 18 May employee Leland Patterson ap- proached Evans and informed him Jerry McClen- don, a new white employee, had shown up at the Respondent's facility in dress rather than work clothes.' 2 Patterson told Evans he thought McClendon would soon be placed into a head su- pervisory position over Gary Wright, a black em- ployee who had recently been promoted to the top supervisory position in the department. Evans com- municated the rumor to at least three black produc- tion employees," and suggested they might want conflicting testimony regarding whether the signature of a production su- pervisor or that of any supervisor was sufficient to fulfill the requirement 9 The Respondent argues, if Evans had effectively carried out his re- sponsibility to prioritize the requisitions on Dahlke's desk, the shortage items on the SPLL line would have been obtained from the warehouse more quickly There is no dispute Evans failed properly to prioritize " Evans was allowed to work overtime prior to March, but was not scheduled for overtime after I March Employees on the SPLL line worked various durations of overtime dunng the period from March to 5 May Dahlke refused Evans' request to work overtime to deal with the SPLL line shortages Dahlke testified that putting Evans on overtime would have been futile because the warehouse did not work overtime during the period in question 11 Though Byars' testimony that the Respondent hired three new SPLL line employees to handle Evans' "other duties" is undisputed, he stated he did not know whether the employees handled only Evans' former duties 12 Evans is also white 13 Evans admitted relaying the rumor to Alexia Page and Nelson Hol- tman The credited testimony indicates that Evans also related the rumor to Martha Hopson Hopson testified Evans also repeated the rumor to employee Dewey Ross 1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to raise the McClendon promotion issue at the next meeting the Company had with its black employ- ees. 14 Hopson testified Evans told her, if black employ- ees did not help them get the Union, they would never get anywhere with the Company. Hopson stated the employees became angry and frustrated, and employee Ross became so upset he refused a supervisor's request to work overtime that day. The same day, according to Blair, Holliman and Hopson informed him of the McClendon rumor and asked if it was true." After checking with higher management, Blair told the black employees the rumor was not true. The record shows the rumor was common knowledge, and that rumors circulated around the plant frequently. On 20 May Dahlke and Blair met with Evans in the office of Human Resources Manager Phillip O'Connor. Dahlke gave Evans a written warning for allegedly intimidating and harassing employees on the production line." Dahlke read the warning to Evans and asked him to sign it. Evans replied the warning was "bullshit," and denied harassing anyone. He refused to sign the warning, stating he was not guilty. Dahlke then told Evans signing did not admit guilt, and that Evans had to sign the warning because it was going into his personnel file. Evans again refused to sign, saying, if the warning went into his file, it would be without his signature. Evans requested and received a copy of the warning. Dahlke then read the warning to Evans again and asked him to sign it. Evans repeated the warning was "bullshit" and once more refused. Ac- cording to Blair's evidently credited testimony, Evans stated, if the warning got into his file with- out his signature, "Dahlke, I'll have your ass." Dahlke repeated that he was only telling Evans what the employees had complained about. Evans leaned across the table, pointed his finger at Dahlke's face, and stated, "Dahlke, I'm telling you to get fucked . . . Dahlke, you're just trumping up these charges because I won't kiss your ass and do somebody else's job." Dahlke responded, "David, ' 4 It is undisputed that the Respondent had been meeting with black employees on a penodic basis to discuss work-related problems concern- ing job promotions and racial chscninination at the Respondent's facility 15 HoHunan testified he asked Blair if the rumor was true, but made no mention of being bothered or harassed by Evans Only Hopson specifical- ly complained Evans bothered her Blair acknowledged no other employ- ees complained to him about the rumor 16 The "Details of Violation" section of the warning stated On May 18, 1983, employee was discussing business other than work on company time, thereby keeping employees, on the assembly line, from completing their assigned tasks The Production employees have complained to the Production Supervisor that they are being harassed The "Consequences" section stated, "If the above infractions continue, the said employee will be terminated" it has nothing to do with you kissing anybody's ass." The conversation ended with Dahlke asking Evans to sign the warning once more, and Evans refusing. Dahlke testified he recommended Evans be dis- charged for allegedly insubordinate and threatening conduct, and that O'Connor and LeCost agreed. On 24 May Evans received a notice of termination for directing "abusive, derogatory, and threatening comments, to your supervisor." '7 The Respondent's progressive disciplinary system normally involves an oral warning, a writ- ten warning, a final warning, and, finally, suspen- sion or discharge. Supervisor Dahlke testified, however, the regular disciplinary system is not fol- lowed in situations such as that of Evans. The record shows that the Respondent had fired five employees in the past without first issuing a warn- ing. Four were discharged for fighting, and one for insubordination in refusing to work when his re- quest for 2 days off was denied by his supervisor. The undisputed testimony established that pro- fanity was used routinely by employees and super- visors at the facility, and that no employees had been disciplined for such conduct. Is On two occa- sions while wearing an "I'm for Vought" button, employee Crawford told Supervisor Manning he was "dumb, stupid, idiotic and was walking around with his head up his ass," and was not disciplined in any way. Evans is the only employee ever dis- charged by the Respondent for allegedly using abu- sive language or threatening a supervisor. Conclusions Contrary to the judge, we find the Respondent's 5 and 20 May warnings to Evans, as well as the Respondent's 24 May discharge of Evans, violated Section 8(a)(3) and (1) of the Act. The 5 May Oral Warning The judge found the 5 May oral warning for not keeping storage bins filled was not unlawful be- cause "[Ole record clearly reveals that the Re- " The "Details of Violation" section of the nonce read Company Rule V, 4—During a counseling session with you on Friday 20 May 1983, conducted by your supervisor, M Dahlke and witness S Blair (production supervisor), you displayed an attitude of total disrespect to your supervisor Dunng this discussion you direct- ed abusive, derogatory, threatening comments to your supervisor The "Consequences" section of the notice stated This gross act of insubordination, by use of verbal threats and abu- sive language directed at your supervisor, is a most serious offense and will not be tolerated by this Company Therefore, you are being discharged from the Company for your gross acts of misconduct and violation of Company Rules 18 Dahlke admitted employees at the facility "use curse words" and that Evans and other employees had previously "cursed" at him and not received a warning Dahlke also admitted he never warned any employee about the type of profanity he called "shop talk" VOUGHT CORP. 1293 spondent was experiencing shortages of line storage hardware items at or about the time Evans was warned," and because "Evans, who admittedly did engage in union-related discussions with other em- ployees during working time, had ceased by 5 May to perform his dispatcher functions with as much enthusiasm as he had shown before he became in- volved in the union organizational campaign." In reversing the judge, we are guided by the principles set forth in Wright Line. 19 Under Wright Line, the General Counsel has the initial burden of making a prima facie case that protected conduct was a "motivating factor" in the employer's disci- pline of the employee. Once the General Counsel has made such a showing, the burden shifts to the employer to establish it would have taken the same action absent such conduct. We examine initially the first prong of the Wright Line test. The Respondent became aware of the union organizational campaign and of Evans' active , participation, which included acting as chairman of the in-plant organizing committee, distributing union literature and cards, discussing the Union with coworkers, and wearing union insignia at work shortly after the campaign began. As previ- ously related, the judge found, and we agree, the Respondent committed three unfair labor practices against Evans individually: attempting to recruit him as a company informer, enforcing an unlawful no-distribution rule against him, and threatening him with discharge 15 March for lawful solicitation activities. Such conduct exhibits substantial union animus, as do additional uncontested findings of un- lawful activity directed against other employees, including coercively interrogating employees, threatening them with plant closure or reduction of the work force if they unionized, soliciting and promising to resolve grievances, and altering an employee's work assignments for supporting the Union. Given the evidence of animus, the timing of the warning coincident with Evans' union activity and only 7 weeks after an illegal threat to discharge him on account of it, as well as Evans' previous unblemished work record (including at least one commendation for outstanding performance), we find the General Counsel has established a strong prima facie case that the 5 May warning was moti- vated by Evans' union activity. We next consider whether the Respondent has met its burden of showing it would have warned Evans on 5 May notwithstanding his union activi- ty. The Respondent presented substantial testimoni- " 251 NLRB 1083 (1981), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Manage- ment Corp, 462 U.S. 393 (1983). al evidence that supervisors had complained about parts shortages on the SPLL line and Dahlke noted two successive instances of shortages before issuing the warning to Evans. While we accept the judge's finding that the SPLL line shortages occurred about the time that Evans was warned, we reject the conclusion the Respondent believed Evans was responsible. The judge failed to give proper weight to undisputed evidence that other factors caused the falloff in production. As previously detailed, Evans' job duties includ- ed maintaining an inventory on the SPLL line stor- age bins, completing requisition forms for needed line storage hardware, obtaining the required hard- ware from the plant warehouse, and delivering the parts to the proper bins on the SPLL line. During the entire period of the production decline, howev- er, Evans also performed the work of a recently transferred dispatcher who had filled out requisi- tions for the SPLL line, assuming close to 50 per- cent of the dispatcher's total responsibilities. Begin- ning in April, the Respondent initiated a time-con- suming policy requiring Evans to obtain a supervi- sor's signature on every requisition he made out, and it is undisputed requisitions accumulated on Dahlke's desk awaiting approval. 20 It is also not contested Evans experienced delays of up to 2 weeks in receiving the requested parts. At the same time the Respondent increased Evans' job responsibilities, it refused to allow him to work overtime to catch up, though it had fre- quently permitted him overtime before March 1. By contrast, employees on the SPLL line worked substantial overtime during the period from March to May, thus aggravating the shortage situation. Fi- nally, there was evidence that, in addition to the employee who took over Evans' position, three new employees were hired to work on the SPLL line, shortly after Evans' termination, to perform Evans' "other duties," suggesting, if not demon- strating conclusively, the shortages stemmed, and were known to have been, from insufficient man- power. Accordingly, we find the Respondent failed to meet its burden of rebutting the General Counsel's prima facie case, and conclude the Respondent's oral warning to Evans violated Section 8(a)(3) and (1) of the Act. 20 Although Evans did not contradict the Respondent's assertion that he failed properly to prioritize the requisition requests submitted to Dahlke, the Respondent failed to establish that the omission contributed significantly to the production decline. Indeed, the Respondent gave no reason for altering its policy to require supervisory approval of the re- quests, nor did it present any reason they could not have been signed ex- peditiously—especially since Evans had routinely been entrusted with the responsibility previously. 1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The 20 May Warning On 20 May Evans received a written warning for allegedly intimidating and harassing employees on the production line. Two days before, Evans re- lated a rumor to three or four black employees that a white employee might be promoted over a black and suggested they take the issue up at the next meeting the blacks had with management. In con- cluding the issuance of the warning was not unlaw- ful, the judge stated that "by his actions on May 18 Evans disrupted the work of at least four (4) pro- duction employees, and it is clear that the situation was brought to Supervisor Blair and Superintend- ent Gilton's attention." The General Counsel con- tends that Evans engaged in protected concerted activity on 18 May, and that Evans did not disrupt production, and thus that the warning violated the Act. In determining whether the 18 May warning was lawful, we must decide (1) whether Evans' commu- nications with black employees constituted protect- ed concerted activity and (2) if so, whether his comments so interfered with production as to lose their protected status.21 The Board recently stated it would find an em- ployee's activity concerted only where it was en- gaged in with or on behalf of other employees, and not "solely by and on behalf of the employee him- self." 22 The Board further stated, "Once the activi- ty is found to be concerted, an 8(a)(1) violation will be found if, in addition, the employer knew of the concerted nature of the employee's activity, the concerted activity was protected by the Act, and the adverse employment action at issue (e.g., dis- charge) was motivated by the employee's protected concerted activity." 2 3 In Mushroom Transportation Co. v. NLRB," the Third Circuit stated: It is not questioned that a conversation may constitute a concerted activity although it in- volves only a speaker and a listener, but to qualify as such, it must appear at the very least it was engaged in with the object of initiating or inducing or preparing for group action or that it had some relation to group action in the interest of the employees." Concerted efforts by employees to alleviate ra- cially discriminatory employment conditions have 27 See Millers Discount Dept. Stores, 198 NLRB 281 (1972), enfd 496 F.2d 484 (6th Cir 1974) 22 Meyers Industries, 268 NLRB 493, at 497 (1984) 23 Ibid 24 330 F 2d 683, 685 (3d Cir 1964) 25 Accord Root-Carlin, Inc , 92 NLRB 1313, 1314 (1951), Cox Enter- prises, 264 NLRB 878, 879 (1982) long been held protected activity," so long as they do not interfere with another important labor law principle such as the rule of exclusive representa- tion. 2 7 We find employee Evans was engaged in pro- tected concerted activity in communicating the McClendon rumor to black employees on 18 May. His remarks related to group action concerning possible racial discrimination by the Respondent, as Evans specifically urged the employees to bring the issue to management's attention. The content of the remarks was protected since it concerned the topic of a racial discrimination, which had aroused the attention and concern of employees in the pro- duction department, and which was the subject of periodic meetings between management and em- ployees aimed at resolving the problem." We do not agree with the judge that Evans' re- marks disrupted the production of four employees and thus lost the protection of the Act. Only two employees confronted management regarding the rumor they had heard, and only Hopson testified to telling Blair she was being bothered by Evans." The other employee, Holliman, merely asked Blair if the rumor was true and then returned to work. There is no record evidence clearly indicating Hol- liman and Hopson were on working time when they approached Blair, and certainly none showing that what would have been at most a brief absence from their duties disrupted or interfered with pro- duction. In any case, Evans' remarks would not reasonably tend to incite employees or otherwise impede production, particularly since he advised the black employees to raise the issue with manage- ment in a future scheduled meeting concerning racial discrimination. We conclude, therefore, as follows: (1) Evans' remarks to the black employees constituted pro- tected concerted activity; (2) the comments did not, nor did they have the reasonable tendency to, disrupt production; (3) the Respondent was aware of the remarks; and (4) the Respondent issued a written warning to Evans on 20 May because of his protected statements. 3 ° Accordingly, contrary 26 Honeywell, Inc, 250 NLRB 160, 161 fns 6 and 7 (1980), enfd mem 107 LRRM 3213 (3d Ch. 1980) 27 Frank Briscoe, Inc v NLRB, 637 F 2d 946 (3d Ch. 1981) 28 It is immaterial whether the rumor was accurate R J Liberia inc. 235 NLRB 1450, 1453 (1978) We also observe that the rumor passed on by Evans was common knowledge among employees, that rumors were often circulated in the plant, and that Evans did not instigate the rumor, but merely passed it on 29 Hopson's testimony that employee Ross became so upset by the rumor that he refused to work overtime is of questionable validity and relevance Neither Ross nor representatives of management testified he refused to work overtime on 18 May or, if he did, why he did Assuming he did refuse, there is no evidence management knew why he refused, or that Evans was responsible for the refusal 3 ° Meyers Industries, supra at 497, Wright Line, supra VOUGHT CORP 1295 to the judge, we find the Respondent's 20 May warning to Evans violated Section 8(a)(3) and (1) of the Act. The 24 May Discharge The judge found that Evans was discharged for insubordination, having allegedly used abusive lan- guage and threatened Dahlke during the 20 May meeting in which Evans received a written warn- ing, notwithstanding undisputed evidence of two instances in which employee Crawford used pro- fanity and was not disciplined. Both instances in- volved Crawford telling Supervisor Manning that he was "dumb, stupid, idiotic, and walked around with his head up his ass." The judge stated: "In comparing the Crawford-Manning situation to the situation under discussion, the General Counsel is clearly engaging in an apples and oranges compari- son, as it is clear that Crawford did not threaten Manning while making his demeaning remarks." He concluded that the General Counsel failed to sustain the Wright Line burden of establishing that Evans' participation in union activilles was a "mo- tivating reason" for the discharge. Contrary to the judge, we find the General Counsel's prima facie case is overwhelming. We have previously detailed Evans' union activity and the five unfair labor practices committed against him, including the 15 March discharge threat, the 5 May oral warning, and the 20 May written warning that included a threat to discharge. Indeed, Evans received the il- legal 20 May warning during the very meeting at which he is alleged to have been insubordinate. We further find the Respondent has failed to show Evans' conduct would have resulted in dis- charge had he not engaged in union and protected concerted activity. In discharging Evans, the Respondent admittedly departed from its established progressive discipli- nary system involving an oral warning, a written warning, a final warning, and, finally, suspension or discharge. Five other employees had previously been fired without first receiving an oral or written warning: four for fighting and one for insubordina- tion in refusing to work after denial of a request for 2 days off. The undisputed testimony reveals that profanity by employees and supervisors at the plant was common. Dahlke admitted employees at the facility "use curse words" and that Evans had previously "cursed" when talking to him. In addi- tion, Dahlke admitted he had never warned Evans or any other employee about the type of profanity described as "shop talk." No one at the Respond- ent's facility had ever been discharged for using abusive language. Nor are we able to agree with the judge that employee Crawford's abusive, pro- fane conduct toward Supervisor Manning was less objectionable than Evans' response to Dahlke. We do not interpret Evans' statement, "Dahlke, I'll have your ass," as a threat to do any more than file a grievance or Board charge or to report Dahlke to higher management. We conclude that Evans did not engage in insubordinate conduct on 20 May, and his discharge therefore violated Section 8(a)(3) and (1) of the Act." In light of our finding of three additional unfair labor practices, and to correct certain inadvertent errors, we shall issue new conclusions of law, an amended remedy, and a new Order and notice to employees. CONCLUSIONS OF LAW 1. By requesting an employee to keep it informed about other employees' union activities; maintain- ing and enforcing an overly broad no-distribution rule; coercively interrogating employees about union support or activities; threatening employees with plant closure or reduction in the work force if they selected the Union to represent them; solicit- ing and promising to resolve employee grievances if employees would abandon support of the Union; altering an employee's work assignments for sup- porting the Union; and threatening to discharge an employee for engaging in union solicitation, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. 2. By issuing an oral warning on 5 May and a written warning on 20 May to employee David Evans, and by discharging Evans on 24 May, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. AMENDED REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative 31 Even if Evans' statements were insubordinate, it would not alter our conclusion about the illegality of his discharge The Board has long held an employer cannot provoke an employee by its unlawful conduct to a point where he commits an act of insubordination and then rely on the act to discipline the employee NLRB v M & B Headwear Go, 349 F 2d 170, 174 (4th Or 1965), Max Factor & Co, 239 NLRB 804, 817 (1978), enfd 640 F 2d 197 (9th Cir 1980) TRW-United Greenfield Division, 260 NLRB 73, 82 (1982) Evans' statements to Dahlke were made immediately after receiving an unlawful warning for allegedly interfering with production and harassing other employees Evans was justifiably outraged and accused Dahlke of trumping up the charges The Respondent's unlawful conduct clearly provoked Evans' emotional response, and we refuse to allow the Re- spondent to take advantage of its Illegal action by raising the defense of insubordination 1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD action designed to effectuate the policies of the Act. We shall, inter alia, order the Respondent to offer David Evans immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without preju- dice to his seniority or any other rights or privi- leges previously enjoyed, and to make him whole for any loss of earnings he may have suffered as a result of the discrimination practiced against him. Backpay shall be computed as prescribed in E W Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). We shall order the Respondent to remove from its files any reference to the unlawful warnings issued to Evans on 5 and 20 May 1983, as well as to his discharge, and to notify him in writ- ing that this has been done and that the warnings and discharge will not be used against him in any way. ORDER The National Labor Relations Board orders that the Respondent, Vought Corporation-MLRS Sys- tems Division, Camden, Arkansas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Requesting employees to keep it informed about other employees' union activities. (b) Maintaining and enforcing a no-distribution rule prohibiting reproducing, posting, or passing out typed or printed material other than company business without company permission. (c) Coercively interrogating employees about union support or activities. (d) Threatening employees with plant closure or reduction in the work force if they select the Union to represent them. (e) Soliciting and promising to resolve employee grievances if employees would abandon support of the Union. (f) Altering an employee's work assignments for supporting the Union. (g) Threatening to discharge an employee for en- gaging in union solicitation. (h) Discharging, issuing oral or written warnings to, or otherwise discriminating against any employ- ee for engaging in union or protected concerted ac- tivity. (i) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer David Evans immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings or other benefits resulting from his discharge, in the manner set forth in the remedy section of this decision. (b) Remove from its files any reference to the unlawful warnings and discharge and notify the employee in writing that this has been done and that the warnings and discharge will not be used against him in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Camden, Arkansas facility copies of the attached notice marked "Appendix."32 Copies of the notice, on forms provided by the Re- gional Director for Region 26, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt 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 altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. CHAIRMAN DOTSON, dissenting in part. Unlike my colleagues, I would adopt the judge's dismissal of charges regarding Evans' second warn- ing notice and discharge. I agree with the judge that Evans' spreading rumors and interrupting the work of others during non-breaktime is not privi- leged against legitimate discipline. And, while my colleagues interpret Evans' threatening remarks to Dahlke to refer to filing a grievance or a Board charge, I see no warrant for such speculation con- cerning Evans' personally abusive comments. Pro- tected activity does not become a mantle of immu- nity from discipline for abusive conduct which would not be tolerated in the normal course of events. Accordingly, I would affirm the judge's 22 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 Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board' VOUGHT CORP. 1297 conclusions regarding Evans' insubordination and threats. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT request you to keep us informed about other employees' union activities. WE WILL NOT maintain and enforce a no-distri- bution rule prohibiting reproducing, posting, or passing out typed or printed material other than Company business without Company permission. WE WILL NOT coercively question you about your union support or activities. WE WILL NOT threaten you with plant closure or reduction in the work force if you select the Union to represent you. WE WILL NOT solicit and promise to resolve your grievances if you will abandon your support for the Union. WE WILL NOT alter your work assignments for supporting the Union. WE WILL NOT threaten to discharge you for en- gaging in union solicitation. WE WILL NOT discharge, issue oral or written warnings to, or otherwise discriminate against you for engaging in union or protected activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer David Evans immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL notify him that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way. VOUGHT CORPORATION—MLRS SYS- TEMS DIVISION DECISION STATEMENT OF THE CASE DONALD R. HOLLEY, Administrative Law Judge. On an original charge filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) (the Union) on June 3, 1983, 1 the Regional Director for Region 26 of the Na- tional Labor Relations Board (the Board) issued a com- plaint on July 20 which alleged, inter aim, that Vought Corporation-MLRS Systems Division (Respondent) had engaged in conduct which violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). By answer, which was timely filed, Respondent denies it has engaged in the unfair labor practices described in the complaint. The case was heard in Camden, Arkansas, on October 13 and 14, 1982. All parties appeared and were afforded full opportunity to participate. At the commencement of the hearing, the General Counsel was permitted to amend the complaint to correct the spelling of Respond- ent's name, and to allege that Respondent had engaged in additional violations of Section 8(a)(1) of the Act during the months of September and October through the conduct of its supervisors and/or agents Phillip O'Connor and James Rudolph; and by issuing a warning to employee David Evans on March 15, 1983. Subse- quent to the close of the hearing, the General Counsel and Respondent filed briefs which have been carefully considered. On the entire record, and from my observation of the demeanor of the witnesses when they appeared to give testimony, I make the following FINDINGS OF FACT I. JURISDICTION Respondent maintains an office and place of business in Camden, Arkansas, where it is engaged in the manu- facture of nonguided missile launchers. It is admitted that in the course and conduct of such business, it annually purchases goods and materials in an amount exceeding $50,000 from suppliers located outside the State of Ar- kansas, and it annually sells and ships to customers locat- ed outside said State products and goods valued in excess of $50,000. It is admitted, and I find, that Re- spondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. STATUS OF LABOR ORGANIZATION It is admitted, and I find, that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A Background Respondent employs approximately 450 employees at its Camden, Arkansas facility, which consists of three All dates herein are 1983 unless otherwise indicated 1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD production buildings, an administration building, and a remote ammunition storage site called the LC-12 area. Most of its employees work in its metal parts building where it manufactures its principal product, a rocket or missile launcher, which is a track vehicle. It is undisputed that at all times material the employees at the Camden facility were supervised and directed by, inter aim: Harry LeCost, general manager; Phillip O'Connor, human resources manager; Charles Simpson, operations control manager; Donald Dahlke, production control supervisor; James Coffin, superintendent; Leland lton, superintendent; Tommy Thompson, production manager; and Sonny Blair, supervisor.2 David Evans, the alleged discriminatee in this case, was hired by Respondent as a general assembler, labor grade 2, at $4.80 per hour on June 14, 1982, and re- mained in Respondent's employ until he was discharged on May 24, 1983. Respondent utilizes an assembly line in its main production area, the metal parts building. The line is referred to in the transcript as the spill line. Actu- ally the correct name of the line is the SPLL (Self Pro- pelled Loader Launcher) line. While assigned to work on the SPLL line, Evans was accorded what he considered to be special treatment as he was sent in November 1982 to White Sands, New Mexico, with Supervisor Tom Alston to repair a vehicle damaged in testing. On his return, he was informed that the supervisor in charge of testing, and Billy Smith, senior vice president of Re- spondent, felt he had done an outstanding job as well as representing the Company on a personal basis while at White Sands Within 5 months of his date of hire, Evans was pro- moted from labor grade 2 to the position of dispatcher, a labor grade 16 position which paid $6.01 per hour. His duties as a dispatcher were to inventory the line storage bins on the SPLL line, to fill out requisitions for needed line storage hardware, and to obtain the line storage hardware from the warehouse and place it in appropriate bins. It is undisputed that Evans performed credibly as a dispatcher until March 1983. At some point near the first of March, Evans submit- ted a bid for a supervisory position On March 6 or 7, Donald Armstrong, a black employee, was selected to fill the supervisory position. Sonny Blair, a supervisor in the metal parts buildings, then a friend of Evans, testified Evans told him that not getting the job was bad enough, but to be beat out by a "nigger" was another thing. Bradley Byars, an employee, testified Evans made a simi- lar comment to him when Armstrong got the job.3 Immediately after he learned that Armstrong had been selected for the supervisory position he had sought, Evans contacted the Union and was put in contact with 2 It is admitted, and I find, that at all times material each of the named individuals were supervisors and agents of Respondent within the mean- ing of Sec 2(11) and (13) of the Act In addition, it is admitted, and I find, that security officers Donnie Pipkin and Glenda Burns were, at all times material, agents of Respondent within the meaning of Sec 2(13) of the Act 3 Evans denied making such a comment to either individual and con- tended, Instead, that he had no hard feelings because Armstrong had two college degrees and was better qualified while he was Just a high school graduate I was not impressed with Evans' denial and I credit Blair and Byars R. T. Buttram, an International representative. Shortly thereafter, on March 8 or 9, Evans met with Buttram and, acting together, they initiated a unionization cam- paign at Respondent's facility. From the time he met with Buttram forward, Evans, who acted as the chairman of the organization commit- tee at the plant, openly sought to cause employees to join the Union by distributing union literature in the parking lots, by distributing union authorization cards among the employees, by discussing unionization with the employees, and by wearing at work items which had the UAW insignia on them. Shortly after the union campaign began, a segment of Respondent's employees organized an "I'm for Vought" campaign and such employees held several meetings, sold I'm for Vought buttons or badges to employees, and distributed petitions in the plant which were signed by employees who desired to join the I'm for Vought com- mittee and/or to meet with Respondent management. During the period extending from early March through mid-October the General Counsel has alleged and contends that Respondent violated the Act in numer- ous respects. The allegations and the evidence offered to prove them are discussed below. B. The Alleged 8(a)(1) Violations 1. Paragraphs 7(a) and (b) of the complaint allege that about March 11, Respondent, acting through Sonny Blair, created an impression that its employees' union ac- tivities were under surveillance by Respondent and asked an employee to ascertain and divulge to Respondent the union membership, activities, sympathies, and desires of other employees. The General Counsel sought to prove the allegations through the testimony of Evans. Evans testified that after he contacted the Union on March 6 or 7, he and unnamed employees met with International Union Representative Buttram on March 8 or 9. He claims that on March 11 Sonny Blair ap- proached him while he was in the engineering area of the metal parts building, indicating he would like to talk to him. Evans claims they sat down on a rocket box and that Blair, after indicating he had heard an organization attempt was underway and some employees had met with a union representative, commented that he knew that, based on their past close, personal friendship, he could count on him for any information he might need concerning the matter. Evans claims he replied if there was anything he thought he needed to know he would be sure to tell him. Blair denied the conversation ever occurred. Noting that the record reveals Blair and Evans were close friends when the union campaign began, and that it also reveals that Respondent officials learned of the unionization attempt immediately after it was instituted, I credit Evans rather than Blair. In my view, the testimo- ny in question does not justify a finding that Respondent, through Blair, sought to create an impression that it was engaging in surveillance of its employees' union activi- ties. Instead, the violation committed was that it, through Blair, violated Section 8(a)(1) by requesting that Evans become a company informer. VOUGHT CORP 1299 2. Paragraph 8(a) of the complaint alleges that Re- spondent has maintained an unlawful no-distribution rule since December 3, 1982, and paragraph 8(b) of the com- plaint alleges that such rule was unlawfully enforced on March 17, 1983 The record reveals Respondent distributes its company rules to new employees at their time of hire, requiring them to sign an acknowledgment that they have received a copy of such rules. Employees violating the rules are subject to disciplinary action up to and including dis- charge. Rule V,6, prohibits: Reproducing, posting, or passing out typed or print- ed material other than Company business without the permission of the Director of Professional Serv- ices. The record reveals the above-described rule was promul- gated on a date prior to December 3, 1982. Human Re- sources Manager O'Connor testified without contradic- tion that the rule under discussion was canceled on Sep- tember 27, 1983, and that notice of such action was posted on all company bulletin boards arid Respondent's supervisors were instructed to I ell their employees the rule had been canceled. The record reveals that Evans commenced to assist Union Representative Buttram distribute union literature in the facilities' parking lots at the metal parts building and building M-3 shortly after employees met with But- tram on March 8 or 9. Evans testified that he went to the parking lot of building M-3 at approximately 6.30 p.m. on March 17 to distribute union literature. When Superintendent Jim Coffin arrived at the lot, Evans of- fered him a piece of literature, telling him he would ap- preciate his support in the organizational drive. After commenting that he bet Evans would appreciate his sup- port, Coffin told the employee he could not distribute lit- erature on company property. Evans replied he could under Federal law. According to Evans, security officer Donnie Pipkin approached him several minutes after Coffin left and told him he would have to leave compa- ny property. After Evans told Pipkm he had the right to distribute under Federal law, Pipkin indicated he was un- aware of it and would have to check with his supervisor. Shortly after Pipkin left, Evans indicated that secunty officer Burns and three other guards arrived at the park- ing lot in two cars. Evans claims Burns then told him he would have to stop doing what he was doing and leave company property. He indicated he then told Burns he had the right under Federal law to distribute literature in the parking lot and claims Burns said she did not know the law and would contact Mr. Cary, her supervisor. According to Evans, one of the guards, whose last name is Steward, commented in Burns' presence that he wished she would turn him loose on Evans as he would kick his "ass" and get him out of there. Coffin did not dispute Evans' version of the event when called as a witness, and Pipkins and Stewart were not called to testify. Burns claimed during her testimony that two rather than three guards accompanied her to the parking lot on the occasion under discussion. She denied she told Evans he could not pass out literature and had to leave, and claimed, Instead, that she merely asked the employee what his name was and who he worked for According to Burns, Evans replied by stat- ing he was within his rights and, if she continued to harass him, he could sue her and her boss. She claimed she was later told by her boss that Evans was within his rights and she was to return to headquarters. Burns denied she was aware at the time that a company rule prohibited distribution of literature on company proper- ty. Finally, she indicated, she thought the incident oc- curred on March 16 rather than March 17. Evans was the more impressive witness, and I credit his version of what occurred when Burns was present rather than the version she gave. By canceling the no-distribution rule set forth above on September 27, 1983, Respondent, in effect, acknowl- edged the rule was unlawful. As no evidence was offered by Respondent to show any business justification for the rule, I find it was unlawfully broad. Accordingly, I find that by maintaining and enforcing the rule under discus- sion, Respondent violated Section 8(a)(1) of the Act as alleged. Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962); Essex International, 211 NLRB 749 (1974); and Interme- dics, 262 NLRB 1407, 1408 (1982). 3. Paragraph 9 of the complaint alleges that on June 9, 1983, Respondent, through the acts of Jim Coffin, unlaw- fully interrogated an employee, threatened plant closure and loss of jobs if the employees selected the Union as their bargaining representative, and unlawfully solicited complaints and grievances and promised employees in- creased benefits and improved terms and conditions of employment. James Crawford, a machine operator, testified that during the months of March and April he was on the employees for Vought committee and wore an I'm for Vought button. By June 9, his sentiments had changed and he had traded the I'm for Vought button for a UAW badge. Crawford claims that on June 9, as he was leav- ing the bathroom, Coffin asked him what he was doing wearing the UAW badge. When he replied he had a right to wear the badge, he claims Coffin told him he had been talking to the president of Vought in Dallas and the latter had said if the Union came in they were going to say, "Fuck the investment" and they would move the plant to Dallas. Crawford claims he then told Coffin, "Mr. Coffin, you just broke federal law." Ac- cording to Crawford, Coffin then stated, "Well, we'll cut the work force back to one third," and Crawford re- plied, "Again, you have broken the Federal law. It is against the law for you to threaten to move the plant be- cause of union organization." At that point, Crawford claims Coffin stated: "Well, they can't move M-3, but we can cut the work force back here." At some point in the conversation, Crawford claims Coffin asked him what he was dissatisfied about, and Crawford indicated he was dissatisfied with an evaluation prepared by his su- pervisor, Jimmy Don Manning. According to Crawford, when he indicated he had discussed the evaluation with Manmng's superior, Superintendent Leland Gilton, Coffin told him, "Well, let me get you a meeting with Mr. Thompson. I'll have a meeting set up with him. 1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD You're too valuable an employee to be wearing that union badge." While Coffin denied he had any conversation with Crawford concerning the Union, he admitted he learned Crawford had a grievance and that he informed the em- ployee he would help him resolve it He testified that after telling Crawford he would assist him, he spoke with Leland Gilton and Thompson concerning the matter and informed them Crawford used to be a good worker, but had fallen on his "ass." When O'Connor ap- peared as a witness during Respondent's presentation of its case, he testified that on October 10 Respondent posted a notice placed in the record as Respondent's Ex- hibit 3 to dispel a rumor circulated by Crawford regard- ing a statement allegedly made by Coffin. The text of the notice is as follows: RUMOR: VOUGHT CORPORATION WILL CLOSE THE MLRS PLANT IN CAMDEN, AR- KANSAS IF THE UNION IS VOTED IN TO REPRESENT CERTAIN EMPLOYEES, CON- CERNING WAGES, HOURS OF WORK AND WORKING CONDITIONS. FACT: VOUGHT CORPORATION-MLRS DI- VISION HAS NO INTENTION TO CLOSE ITS DEDICATED MLRS FACILITY IN CAMDEN, ARKANSAS. OUR INVESTMENT OF OVER 50 MILLION DOLLARS WAS BASED ON OUR OPTIMISM THAT WE COULD WIN GOVERNMENT CONTRACTS, AND PRO- VIDE JOBS FOR ALL OF US FOR THE FUTURE. AS YOU KNOW, COMPETITIVELY BID GOVERNMENT CONTRACT AWARDS ARE BASED ON MANY FACTORS: WAGES PAID, MATERIAL AND EQUIPMENT COSTS, QUALITY AND RELIABILITY OF THE PROD- UCT AND MEETING DELIVERY SCHED- ULES. WE AS A UNITED TEAM WORKING TO- GETHER CAN MAKE THIS HAPPEN! At the time of the hearing, Crawford was still em- ployed by Respondent. He was a very positive witness and there is no doubt in my mind that he testified truth- fully. I credit his account of his June 9 conversation with Coffin, and I find that Respondent, through Coffin's June 9 actions, unlawfully interrogated Crawford by asking him what he was doing wearing a UAW button, unlaw- fully threatened plant closure and/or reduction of the work force if employees selected the Union as their bar- gaining representative, and unlawfully solicited Craw- ford's grievances and/or complaints, promising to at- tempt to resolve them to cause him to abandon his sup- port of the Union. Such conduct violates Section 8(a)(1) as alleged. 4. At the commencement of the hearing, the General Counsel amended the complaint to allege that on Sept- meber 21, 1983, Phillip O'Connor interrogated an em- ployee regarding his union membership and activities and granted a benefit to such employee to encourage his withdrawal of union membership. Employee Crawford testified that after he told Coffin he was dissatisfied with the evaluation written by his foreman, Manning, O'Connor asked him on September 8 why he had not been to his office to see him. According to Crawford, O'Connor then suggested he come to his office on Monday, September 12, at 2 p.m. Crawford tes- tified that when he went to O'Connor's office on Monday, September 12, O'Connor told him he disagreed with the employee evaluation and would set up a meet- ing for Monday, September 19, with Production Manag- er Tommy Thompson, Superintendent Leland Gilton, Supervisor Jimmy Don Manning, the employee, and himself. Crawford indicated no meeting was held on September 19, but that on September 21 O'Connor told him, "Why don't you come to my office at 2 p.m. and we'll just tear the damned thing up." According to Crawford, when he went to O'Connor's office that after- noon, O'Connor sent a secretary for his records and, while she was gone, O'Connor showed him an LM-2 report, which contained the salaries of International Union representatives, indicating he wanted him to look at it to see what his money would be going for if the Union came in. O'Connor then showed him that Archie Buttram received $55,000 per year. Crawford testified O'Connor then said, "I would like to know what hap- pened to you . . you used to think so positive . . . you used to be against unions when you came out here. It seems like you're thinking negative now." Crawford claims he responded, "No sir, I feel like I'm thinking positive now." When the secretary returned with Craw- ford's records, he claims O'Connor took out the Febru- ary and June evaluations, indicated he disagreed with both of them, and tore them up. Crawford indicated that during the meeting he was wearing a UAW cap, a UAW button, a penholder with UAW insignia, and a UAW belt buckle. He testified that as he was leaving O'Con- nor's office, the latter stated, "[Y]ou're wearing a damned UAW belt buckle too." O'Connor's account of the Crawford evaluation matter was markedly different from the version given by the employee. O'Connor indicated that, at some point, Billy Smith, Respondent's senior vice president, visited the plant, and Crawford sought him out as he entered the men's room in the metal parts building to tell him he had received a bad evaluation from his supervisor and his machine, which had been leaking oil, had not been fixed. O'Connor testified Smith told him and Plant Manager Harry LeCost he wanted Crawford's complaints checked out and taken care of, if true. O'Connor claims he was in the plant the next week and, on speaking with Crawford, learned he was no longer operating the machine with the oil leak. He indicated he asked Crawford about the eval- uations and was informed the employee was upset be- cause a recent evaluation he had received from Jim Man- ning was contradictory to one he had previously gotten from Jim Smith. O'Connor claims he told Crawford to go to Leland Gilton, the superintendent, and try to work the problem out. O'Connor testified he heard nothing further from Crawford until he and LeCost were walk- ing through the plant about 3 or 4 weeks before the hearing in this case (October 13 and 14, 1983). On that VOUGHT CORP 1301 occasion, O'Connor recalls that LeCost approached Crawford and asked him if his machine still leaked oil According to O'Connor, after Crawford told LeCost he no longer worked on that machine, the employee in- formed him Gilton did not fix his evaluations. O'Connor claims he then asked Crawford if he wanted a meeting with him and, when the employee said yes, he told him to come to his office at 2 o'clock and they would talk about it. O'Connor testified that, at the time in question, he was aware that Crawford had filed an unfair labor practice charge against Jim Coffin, and this caused him to be cau- tious in his discussion with Crawford. He indicated that, when Crawford came to his office at the appointed time, he informed him he did not want him to construe any- thing he may do that day to have any effect on how he felt about him or his union activity. He claims Crawford stated he understood that completely, and he continued by stating he could not care less whether Crawford voted union or no union. According to O'Connor, Craw- ford replied, "I know that." O'Connor testified he had just received the UAW LM-2 report before meeting with Crawford and agreed that he showed it to Crawford, indicating it contained the salaries of representatives. In response to Crawford's inquiry, he showed him the figure for Buttram's salary. He claims that after looking at the document Crawford commented it looked like they were in the wrong busi- ness. O'Connor indicated that when his secretary brought him Crawford's file, he removed the Jim Smith and Manning evaluations, noted there were conflicting statements in them, and indicated to Crawford that he in- tended to tear them up. He claims Crawford asked if he could look at his personnel file to see if there were any more evaluations in it, and that he tore up the two eval- uations and threw them in the wastebasket in the em- ployee's presence. O'Connor did not recall whether Crawford was wear- ing a UAW button and hat on the occasion in question. He denied he asked the employee what had happened to him and that he commented he used to be positive. He also denied saying, "You're wearing a damned UAW belt buckle too" and claimed that, instead, he said, "I see the UAW is giving out belt buckles . . that's a good-looking belt buckle." He claims Crawford respond- ed, "Yes, it is. It's a good one too," and the meeting ended as Crawford wished him a good day and he re- plied, "I'll see ya." I credit employee Crawford's claim that O'Connor in- jected the discussion of his union sentiments into the September 21 discussion, and credit the employee's claim that O'Connor ended the meeting by commenting on his "damn" UAW belt buckle. While O'Connor maintained his composure when called as a witness by the General Counsel, he was visibly hesistant and tentative when de- scribing his September 21 meeting with Crawford. I credit Crawford where his testimony conflicts with that given by O'Connor, and I find that on September 21, 1983, Respondent, acting through O'Connor, interrogat- ed an employee concerning his union sentiments and thereby violated Section 8(a)(1) of the Act. Although O'Connor claimed he tore up the Crawford evaluations because they had not been properly placed in the em- ployee's file but should have been retained by the super- visors who prepared them, the entire series of events, starting with Coffin and ending with destruction of the evaluations, convinces me O'Connor destroyed the docu- ments in an attempt to cause Crawford to switch his alle- giance back to Respondent. By engaging in such action I find, as alleged, that Respondent solicited and resolved an employee's grievance to cause him to abandon his support of the Union and it thereby violated Section 8(a)(1) of the Act. In addition, it is clear and I find that through O'Connor's action and conduct Respondent in- terrogated Crawford concerning his union sentiments in violation of Section 8(a)(1). 5. At the commencement of the hearing, the General Counsel amended the complaint to allege that on Octo- ber 10, 1983, Supervisor James Rudolph placed restric- tions on an employee's duties and responsibilities because he had engaged in union activities. Employee Leland Patterson testified, without contra- diction, that on October 11 his immediate supervisor, James Rudolph, told him he had been instructed from higher up that he was not to be dispatched to Atlantic Research Corporation any more. When the employee asked why, Rudolph said, "[I]t is because of union activi- ties or what you wear." At the time, Patterson was wearing a UAW cap, a UAW button, and UAW belt buckle. Patterson asked Rudolph if he would put it in writing, and the latter replied, "No." When called as a witness by the General Counsel, O'Connor stated Rudolph is the supervisor of the ship- ping area He indicated he evaluates employees, can send employees home early, approves absences for sickness for 1 day, gives employees permission to work overtime, and can recommend that employees be discharged. I find that James Rudolph is a supervisor within the meanning of Section 2(11) of the Act. By altering an employee's work assignments because the employee displayed his support of the Union by weanng items containing union insignia, Respondent interfered with, coerced, and re- strained the employee in the exercise of his Section 7 rights and thereby violated Section 8(a)(1) of the Act. Virginia Power Co., 260 NLRB 408, 409 (1982). C. The Alleged Unlawful Warnings Given to Evans on March 15 and May 5 1. The March 15 warning It is undisputed that on March 15 General Manager LeCost called Evans' immediate supervisor, Dahlke, and Dahlke's boss, Charles Simpson, to his office and told them Evans had been passing out information and harass- ing people during working hours. The supervisors were told they were to counsel Evans and tell him what he could and could not do during working hours. At approximately 1 p.m., Dahlke and Simpson met with Evans in the manufacturing conference room, which is presumably located in the metal parts building where Evans works. Evans and Dahlke described the meeting, and the General Counsel placed a written sum- mary of the meeting prepared by Dahlke in evidence as 1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel's Exhibit 6. It appears that during the meeting Dahlke informed Evans that it had been report- ed to him that he was passing out information and har- assing personnel during working hours and, if such activ- ity did not cease, he would be terminated. Dahlke in- formed the employee that what he did on breaks, lunch, before and after work was his personal time, but, on worktime, work was to be performed. Evans asked who he had been harassing and Dahlke refused to tell him. Indeed, Dahlke testified he had not been told who Evans had harassed. Evans then denied he had harassed anyone or distributed any material during working time, and in- formed Dahlke and Simmons he knew the law better than they did and would comply with it. While he had Evans' audience, Dahlke told him he had not been wear- ing safety glasses in work areas and he had a defective partial sticker on his vehicle and would have to obtain a new sticker at the metal parts building gate. Noting he had not been issued any safety glasses, Evans agreed to obtain a pair, and he indicated he would obtain a new sticker from security. While Dahlke sought to justify his March 15 actions by claiming that Superintendent Leland alton and Su- pervisor Sonny Blair complained to him frequently in early March that they were experiencing shortages of line hardware items such as nuts, bolts, washers, rivets, and other small items which Evans was to keep in the line storage bins, and they had noticed that Evans was spending an inordinate amount of time talking to em- ployees rather than working, I do not credit that portion of Dahlke's testimony. Dahlke indicated very clearly that he was told by LeCost to tell Evans what the general rules were to be on March 15, and he failed to indicate that LeCost mentioned Gilton, Blair, or shortages when he told him to talk to the employee. The sole subjects mentioned by LeCost were passing out handbills and harassing personnel. It is clear to me, and I find, that LeCost was referring to Evans' union activities, and Le- Cost's message to Dahlke and Simpson was to tell the employee he could not engage in such activities during working time. Under Board law, Dahlke's discussion with Evans on March 15 would have been perfectly legal if Respondent had a rule which prohibited all forms of solicitation in its plant during the time employees were supposed to be working. Here, however, the General Counsel estab- lished through the testimony of Evans, employee James Crawford, and Dahlke himself, that prior to March 15, 1983, employees had solicited during working time for contributions to churches, football pools, a gift for Su- perintendent Gilton's wife, moneys for a woman whose house had burned down, and various other things More- over, the record reveals that during March 1983 and thereafter, antiunion employees solicited other employees during working time to join the I'm for Vought commit- tee and to attend its meetings, and it permitted them to solicit the signatures of employees who desired to meet with Human Resources Manager O'Connor to discuss their problems. Significantly, the employees who solicit- ed for the I'm for Vought Committee and for the visit(s) to O'Connor's office were admittedly not told they would be fired if they continued to engage in such activ- ity. In sum, the record in the instant case reveals that Re- spondent had no rule prohibiting solicitation at its facility on March 15, 1983. While it had a rule prohibiting the distribution of literature which had not been approved by Respondent, that rule was invalid and unlawful for the reasons set forth, supra. In the circumstances de- scribed, I find that the real message Dahlke imparted to Evans on March 15 was that he would be fired if he so- licited for the Union on company time As other forms of solicitation were not then punished by discharge, I find that Respondent, through Dahlke's actions on March 15, Interfered with, restrained, and coerced Evans in the exercise of his Section 7 rights and thereby violat- ed Section 8(a)(1) of the Act as alleged. 2. The May 5 situation David Evans' immediate supervisor, Dahlke, testified that after Production Superintendent Gilton and Floor Supervisor Blair complained to him repeatedly that they were experiencing line hardware shortages and felt the situation existed because Evans was talking too much rather than filling his bins, he observed Evans while he was performing his job and noted he spent a lot of time talking to other employees. According to Dahlke, after Respondent's production schedule slipped two times be- cause of parts shortages, he gave Evans an oral warning concerning his work performance. Thus Dahlke testified that on May 5, 1983, he approached Evans and informed him he felt his production was slipping as his bins were not fully stocked, and he had been informed he was not doing his job. Admitting his bins were not fully stocked, Evans informed his supervisor that several factors had caused the situation Dahlke was complaining about. He indicated one problem was that he had insufficient time to prepare all the necessary requisitions for needed hard- ware because he was then performing the job of writing requisitions which had previously been performed by Jewel Jones, a female employee who had recently been transferred to another job, that another problem was a requirement that he seek out and obtain the signature of a production supervisor before he could submit requisi- tions; another problem was the fact that he had left req- uisitions on Dahlke's desk for signature and Dahlke let them pile up before he signed them; another problem was that his departments had been working some over- time but he was not given authority to work overtime to enable him to keep the bins in his department fully stocked; and, finally, he claimed that it was taking stores up to 2 weeks to fill some of his requisitions. While the General Counsel claims that Dahlke gave Evans an oral warning on May 5 for discriminatory rea- sons, I find he offered insufficient evidence to prove the violation alleged. The record clearly reveals that Re- spondent was experiencing shortages of line storage hardware Items about the time Evans was warned, and my careful review of the record convinces me that Evans, who admittedly did engage in union-related dis- cussions with other employees during working time, had ceased by May 5 to perform his dispatcher functions VOUGHT CORP 1303 with as much enthusiasm as he had shown before he became involved in the union organizational campaign. Noting that Dahlke made no mention whatsoever of Evans' union activities or sentiments while warning him on May 5, I find that by issuing the warning Dahlke did not engage in conduct which violates Section 8(a)(1) of the Act as alleged D The May 20 Written Warning and the May 24 Termination The record reveals that on May 18, 1983, Leland Pat- terson, Evans' father-in-law, informed Evans that Jerry McClendon, a new white employee, who was coming to work in dress clothes rather than work clothes, was, in his opinion, being groomed for a supervisory position which would place him over Gary Wright, a black em- ployee who had recently been promoted to a supervisory position at LC-12, the ammunition storage area After hearing the rumor, Evans admittedly relayed it to Alexa Page and Nelson Holliman, two black production em- ployees According to Evans, he suggested to Holliman and Page that they might want to bring the McClendon matter up at the next meeting the Company had with its black employees 4 A Respondent witness, Martha Hopson, indicated during her testimony that Evans' aci ions on May 18 were not as limited as he claims. She testified that, in ad- dition to discussing the McClendon rumor with Page and Holliman, he also discussed it with her and another black employee named Dewey Ross Hopson claims that after telling her the Company intended to place a newly hired white man over Gary Wright, Evans told her if the black people did not help them get the Union in there, they would never get anywhere with the Company. Ac- cording to Hopson, the blacks all became angry and frus- trated and Ross became so upset that he refused his su- pervisor's request that he work overtime that day. Al- though Evans denied he mentioned the rumor under dis- cussion to Hopson on May 18, Supervisor Blair testified Hopson confronted him with the rumor that day, and Hopson testified she subsequently agreed to give O'Con- nor a written statement concerning the affair. It is clear to me, and I find, that Evans discussed the McClendon rumor with Hopson on May 18 as she claims. Supervisor Blair testified that on May 18 Holliman and employee Martha Hopson informed him of the McClen- don rumor and asked if he would find out if it was true. To check out the rumor, Blair contacted Superintendent Gilton, informed him of the rumor, and indicated that one of the employees had informed him that, when tell- ing black employees of the rumor, Evans had made a comment like, "[Sjee what Vought is doing to you col- ored employees." After talking to Blair, Gilton testified he contacted O'Connor at Human Resources and learned the rumor was not true. Gilton then informed Blair the rumor was not true, and Blair told Holl man and Hopson the McClendon rumor was not true--that McClendon was Just being trained to take over the job vacated by 4 The record reveals that Respondent was meeting with Its black em- ployees periodically at the time to discuss their problems Gary Wright when he was promoted to his supervisory position. On May 20, 1983, Dahlke was summoned to O'Con- nor's office where he was informed Evans had harassed production employees on May 18 and he was to give the employee a written warning that he would be terminated if he continued to engage in such activity. After leaving O'Connor's office, Dahlke prepared the written warning placed in the record as General Counsel's Exhibit 4. The "Details of Violation" section of the warning states: On May 18, 1983, employee was discussing business other than work on company time, thereby keeping employees, on the assembly line, from completing their assigned tasks The Production employees have complained to the Production Supervisor that they are being harassed. The "Consequences of continued misconduct and follow- up action to be taken" section of the warning states. If the above infractions continue, the said employee will be terminated After preparing the above-described written warning, Dahlke called Evans to his office and, in the presence of Supervisor Blair, told Evans the meeting was a discipli- nary action; that they had complaints that he had been intimidating or harassing people on the floor and they needed to take action to stop this Dahlke then read the contents of the warning and asked Evans to sign the warning. Evans stated this was a "bunch of shit" and stated he had not been harassing anyone on the floor. Stating he was not guilty, he said he would refuse to sign the warning. According to Evans, Dahlke then told him that by signing he did not admit guilt, but he had to Fign it because it was going in his personnel file. Evans again indicated he would not sign the warning and informed Dahlke that, if the warning went in his file, it would go without his signature. In addition, he stated if the docu- ment was going in his file he should be given a copy. When Evans indicated he wanted a copy of the warn- ing, Dahlke handed him the original copy and Evans took it to a secretary outside the office and asked that she copy it for him. Dahlke and Blair's account of what happened after the secretary returned with a copy of the May 20 warning differs markedly from the account of events described by Evans during his testimony. Evans claims that, when he returned to the office, Dahlke asked him to sign the warning again and he re- fused, telling the supervisor it was Just a "bunch of shit" trumped up against him because of his union activities. He claims Blair commented at that time that he had some complaints that he had been harassing people and interfering with their work, and that caused him to say. What have I been harassing them about? Have I been talking to them about hunting, fishing, fucking, biting? What have I been talking about? Bring somebody up here and let them say to me what I have been harassing them about. And if I am guilty, of harassing or stopping work, then I will sign this 1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reprimand, but until you can prove to me that I am guilty of doing this, I will not have nothing to do with it. According to Evans, the meeting ended after he made the above-quoted comments and Dahlke told him as he was leaving that what took place in the room was pri- vate and confidential and should stay there. Blair testified that, after Evans left the room where the meeting was held, he and Dahlke remained so they could document what had been said during the meeting. Ac- cording to Blair, when Evans returned to the room with a copy of the warning, Dahlke read the warning to the employee again and Evans stated again that it was "bull- shit" and he did not do it. Blair testified Dahlke then said, "Hey, I'm just telling you what the people on the floor complained about," and Evans responded by saying he did not do it and if it got in his file without his signa- ture, "Dahlke, I'll have your ass." Blair claims Dahlke again stated he was just telling Evans what they com- plained about, and that, at that point, Evans leaned across the table, pointed his finger at Dahlke's face, and stated: "Dahlke, I'm telling you to get fucked . . . Dahlke, you're just trumping up these charges because I won't kiss your ass and do somebody else's job." Ac- cording to Blair, Dahlke responded by saying, "David, it has nothing to do with you kissing anybody's ass." Blair claims the conversation ended with Dahlke asking Evans to sign the warning once more, and with Evans refusing to sign again. At that point, Blair indicated Dahlke thanked Evans and the employee left. Dahlke testified that Evans' actions during the May 20 meeting made him mad and caused him to recommend that he be discharged because he had been insubordinate and had threatened him. O'Connor and LeCost con- curred in the recommendation, and on May 24 Evans was called to the administration building where Jesse McHenry (O'Connor's subordinate), in Dahlke's pres- ence, informed him he was terminated by reading the "Notice of Disciplinary Action" which was placed in the record as General Counsel's Exhibit 5. The "Details of Violation" section of the notice provides: Company Rule V, 4 —During a counseling session with you on Friday, 20 May 1983, conducted by your supervisor, M. Dahlke and witness S. Blair (production supervisor), you displayed an attitude of total disrespect to your supervisor. During this discussion, you directed abusive, derogatory, and threatening comments to your supervisor. The "Consequences" section of the notice states: This gross act of insubordination, by use of verbal threats and abusive language directed at your super- visor, is a most serious offense and will not be toler- ated by this Company. Therefore, you are being dis- charged from the company for your gross acts of misconduct and violation of Company Rules. During his testimony, Dahlke admitted that Respond- ent's progressive disciplinary system normally involves an oral warning, a written warning, a final warning, and finally suspension or discharge. He claimed the regular system is not followed in situations such as the Evans sit- uation. While Dahlke admitted employees at the facility curse and that Evans had previously cursed when talking to him, he indicated he had never warned Evans or others about the type of cursing he described as shop talk. Anticipating the possibility that Evans said what Dahlke and Blair claim he said during the May 20 meet- ing, the General Counsel adduced testimony through Evans, Martha Estes, and James Crawford which reveals that profanity is routinely uttered by employees, and by supervisors as well, while they are working at the facili- ty. In addition, Crawford credibly testified that on two occasions when he was wearing an "I'm for Vought button" and while arguing with his immediate supervi- sor, Jimmy Don Manning, he told Manning he was dumb, stupid, idiotic, and he was walking around there with his head up his "ass." Crawford indicated Manning did not discipline him in any way because he made such remarks.5 Human Resources Manager O'Connor admitted during his testimony that Evans is the only employee it had dis- charged for using abusive language or threatening a su- pervisor. With respect to the progressive disciplinary warning system, he indicated Respondent fired employ- ees for fighting, although they were given no oral or written warnings, and it had previously fired one em- ployee for insubordination without giving the individual a warning. The employee fired for insubordination had requested that he be permitted to take 2 days off, and when the supervisor denied the employee's request, he indicated he would take the time off any way. While the General Counsel claims, in effect, that Re- spondent was still treating Evans disparately when it issued the May 20 written warning, I am unable to agree. My review of the record convinces me that by his ac- tions on May 18 Evans disrupted the work of at least four production employees, and it is clear that the situa- tion was brought to Supervisor Blair and Superintendent Gilton's attention. In the circumstances, I find that Re- spondent lawfully reprimanded the employee for his ac- tions. With respect to the discharge issue, it is clear and I find that, by using abusive language and threatening Dahlke dunng the May 20 meeting, Evans was guilty of insubordination. Participation in union activity does not insulate an employee from discharge if he is insubordi- nate, particularly in a situation such as the one presented here where the insubordinate acts did not occur while the employee was participating in protected concerted activity at the time. The General Counsel contends, however, that, as the record reveals that swearing is an everyday occurrence in Respondent's plant, and he has 5 Manning denied that Crawford made such remarks, indicating he would not be working for him if he had I do not credit Manning's denial The record reveals that Manning gave Crawford a bad evaluation after the remarks were made and I note that Manning made no attempt to relate what Crawford did say when complaining about a dull drill bit situation Crawford was by far the more impressive witness, and I be- lieved him VOUGHT CORP 1305 shown through the testimony of Crawford that Supervi- sor Manning imposed no discipline on Crawford when he used abusive language and informed him he was walking around with his head up his "ass," that I should find Evans was treated in disparate fashion. I find his ar- gument to be without merit. In comparing the Crawford- Manning situation to the situation under discussion, the General Counsel is clearly engaging in an oranges and apples comparison, as it is clear that Crawford did not threaten Manning while making his demeaning remarks. Moreover, I note that Crawford was punished to some extent as the record reveals that his remarks to Manning caused the latter to prepare an evaluation which Craw- ford did not enjoy. In sum, I find the General Counsel has failed to sustain the burden placed on him by Wright Line, 251 NLRB 1083 (1980), he has failed to establish, prima facie, that Evans' participation in union activities was a "motivating reason" in Respondent's decision to discharge him. I find that David Evans was discharged for cause and recom- mend that the allegation that he was discharged in viola- tion of Section 8(a)(3) of the Act be dismissed. CONCLUSIONS OF LAW 1. Vought Corporation-MLRS Systems Division, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By unlawfully interrogating employees concerning their union activities and sentiments, requesting that an employee keep it informed of the union activities of other employees, threatening plant closure and/or reduc- tion of the work force if its employees obtain union rep- resentation, soliciting employee grievances and promising to resolve them to cause employees to abandon their sup- port of the Union, destroying adverse employee evalua- tions to cause employees to abandon their support of the Union, altering work assignments because employees support the Union and/or display its logo on their appar- el, threatening to terminate employees for engaging in union solicitation while imposing no punishment on em- ployees engaged in other types of solicitation, and main- taining and enforcing an unlawfully broad no-distribution rule, Respondent has violated Section 8(a)(1) of the Act. 4 Respondent has not violated the Act except as ex- pressly indicated in this decision. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and to take certain affirmative action necessary to effectuate the policies of the Act. [Recommended Order omitted from publication.]