Heinemann Electric Co.

HEINEMANN ELECTRIC COMPANY Heinemann Electric Company and American Federa- tion of Technical Engineers, AFL-CIO, CLC Case 22-CA-4772 December 4, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On July 28, 1972, Administrative Law Judge' John M Dyer issued the attached Decision in this proceeding Thereafter, Respondent filed exceptions and a supporting brief Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith 2 The Administrative Law Judge found that Respon- dent had violated Section 8(a)(1) of the Act by Supervisor Christopher Bromberg's interrogation of Suzanne Day concerning her umon sentiments We agree with this conclusion of the Administrative Law Judge 3 However, the Administrative Law Judge also found that by its discharge of Suzanne Day, Respondent violated Section 8(a)(3) and (1) of the Act since he found this discharge was because of her actual and suspected umon sympathies and activities We do not agree with that conclusion for the reasons we note below A recounting of the facts shows as follows Suzanne Day began her employment with Respon- dent as a stenographer on August 23, 1971 As she testified, she had no prior experience at this type of work and that she was told prior to her hire that she would be in a probationary period for 90 days, during which time she would be rated and her work progress reviewed after 30, 60, and 90 days on the job She was to work for four different men and it was estimated that she worked 10 percent of her time for Robert Warner, 20 percent for Amerigo Constan- tino, 30 percent for Christopher Bromberg, and the balance (40 percent) for Richard Kurtz Kurtz was designated her principal supervisor I The title of Trial Examiner was changed to Administrative Law Judge effective August 19 1972 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board s established policy not to overrule an Administrative Law Judge s resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products Inc 91 NLRB 544 enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings 723 With regard to Suzanne Day's umon-related activities the record reveals that shortly after Day began working at Respondent, she was approached by a fellow employee who asked her if she wished to attend a union meeting The Charging Union was at that time trying to organize certain of Respondent's employees 4 Day did attend this meeting and three other union meetings while she worked at Respon- dent These meetings were held in the evening, away from Respondent's premises, at a nearby motel On September 22, 1971, Day signed an authorization card The extent of Day's direct union activities at work, however, seems limited to her once asking a fellow employee, Edith Parker, to attend a union meeting about a week before the election It appears from the record that during Day's employment there was much discussion about the unionization attempts going on there, and Day herself had individual conversations with three different supervisors of Respondent on umon-related matters Day testified that the first of these conversa- tions was with Kurtz, her immediate supervisor, and was initiated by her During the conversation, Day testified she asked Kurtz his opinions on the Union so she could make a better judgment on it The second incident was the discussion Day had with Christopher Bromberg about a week before the union election of November 18 During the course of this incident occurred the interrogation found by the Administrative Law Judge to have violated Section 8(a)(1) of the Act Also in this conversation, Day characterized a letter sent by Respondent to its employees during the union campaign as "very childish " Bromberg, according to her credited testimony, was very upset at her calling the letter childish The third occasion on which Day discussed umon-related matters with one of Respondent's supervisors was a few days after the Bromberg interrogation but before the election At that time, Respondent's Product Sales Manager Lisnay5 told Day that he had been informed that some prounion people had been seen at Day's desk and he had seen them there also and so he wanted to be sure that no one was pressuring her about the Union Day testified that Lisnay spoke to her in a friendly way and she took his inquiry as an "act of friendship " Significantly, Day testified that in none of the three conversations did the supervisor involved ask her if 3 We correct however the Administrative Law Judge s inadvertent error that the interrogation lasted up to an hour According to Suzanne Day s own testimony the interrogation lasted about one half hour 4 On November 18 1971 the Charging Party did in fact win an election at Respondent and subsequently was certified as collective bargaining representative of an appropriate unit 5 Lisnay was supervisor of Edith Parker, the woman whom Day had asked to attend the union meeting 200 NLRB No 103 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she had signed an authorization card And in two of the three situations, the Bromberg situation exclud- ed, Day testified that she was never asked about her sentiments concerning the Union by the supervisor involved 6 Day further testified that in her conversa- tion with Bromberg, since she felt it was none of Respondent's business how she felt about the Union and since she did not want Respondent to know she was in favor of the Union, she attempted to give Bromberg the impression she was not in favor of the Union 7 As noted before, Kurtz had informed Day that at 30-day intervals during her 90-day probationary period she and her work would be reviewed Pursuant to that policy, at the end of her first 30 days, Day met with Kurtz to discuss her work progress At this time, she received a work rating of 48 out of 100 possible points on Respondent's scale of ratings for salaried employees and this total put her at the upper end of the marginal (below average) category 8 Day testified that Kurtz described her work at that time as not satisfactory but he told her not to worry because she had not been working there very long At the 60-day session, Kurtz was joined by Bromberg and Constantino Day at this time re- ceived a 56 out of 100 Although such a rating placed Day at the lower end of the "Good (Average)" category she admitted that she was told at that time that her work was still unsatisfactory Thereafter, at the 90-day session, on November 23, 1971, Day was told by Kurtz she had received a lower grade, 50 out of 100, which grade was the lowest in the "Good (Average)" category She was discharged at this time According to Day's credited testimony, she was also told by Kurtz that she was being let go because she had too many people around her desk and was making too many phone calls She also stated that Kurtz refused to discuss her work with her and simply said "you know why" when she asked about her discharge The Administrative Law Judge, in finding that her discharge violated the Act, characterized Day on the basis of her written ratings as an average employee who was reasonably competent He then noted that she was active in the Union and concluded that her "friendliness" with known union adherents was noticed by Respondent's supervisors and was in fact the reason for Bromberg's and Lisnay's conversa- tions with her Next, commenting on the fact of Bromberg's interrogation of Day and his anger at her 6 As the Administrative Law Judge correctly points out Bromberg admitted he directly asked Day her views on the Union and the reasons for the need of one 7 It also appears from the record that Day also tried to give this impression to Kurtz in her conversation with him characterization of Respondent's letter as childish, the Administrative Law Judge then noted that Kurtz in a pretrial affidavit had said that it was only because of the sentiments of the other supervisors that he discharged Day Concluding that the refer- ence to the "other supervisors" meant Bromberg, the Administrative Law Judge found that Day would not have been discharged except for (1) the fact that she attacked Respondent's letter as childish and (2) her apparent sympathies with known union proponents as alluded to by Respondent's complaint that there were too many people around her desk For the following reasons, we disagree with the Administrative Law Judge's conclusions Although, by her own credited testimony, Suzanne Day was involved with the affairs of the Charging Party, we think it has not been demonstrated that Respondent was aware of her sympathies Thus, Day attended four union meetings but these meetings were off company property in the evening time, and, as Day admitted, she did not make her presence at them known to Respondent's officials Secondly, with regard to Respondent's statement as a reason for her discharge that there were too many people around her desk, the Administrative Law Judge concluded that this was a reference to union adherents However, although it appears that certain known union proponents were seen by certain of Respondent's officials at Day's desk, it is also of record that other employees, not identified as union adherents, were also seen at her desk by Respon- dent's officials, and Day, herself, admitted that various employees would stop by her desk and talk to her "for a few minutes" when they were waiting to see Kurtz, whose office was directly behind Day's desk Thirdly, although Bromberg admitted that he heard union matters discussed at Day's desk, which was some 2 feet from his desk, in light of her admittedly conscious striving to ensure that Respon- dent's officials did not realize she was for the Union, we can not infer that Bromberg discovered her sympathies in these overheard conversations Fourthly, although it is true that three of Respon- dent's supervisors talked to Day at various times about union matters, it is also true that she, herself, initiated one of the conversations and that in two of the three conversations she was not asked her sentiments about the Union and did not divulge any either Although it is true with regard to the remaining conversation that the 8(a)(1) interrogation occurred herein, it is also true that Day was not 8 The Administrative Law Judge has fully set out the procedure and explanation of the rating system used by Respondent in his Decision Pertinent here are certain of Respondents grades Thus a 25-49 on Respondents scale is Marginal (Below Average)", a 50-74 is Good (Average) and 75-95 is Very Good (Above Average) HEINEMANN ELECTRIC COMPANY particularly singled out for questioning by Bromberg Rather, Bromberg admitted that he talked to a number of employees regarding their sentiments about the Charging Party And, as Day admitted with regard to her particular conversation with Bromberg, she consciously attempted to convey an antiunion sentiment to Bromberg In light of the foregoing we can not agree with the Administrative Law Judge that counsel for General Counsel has sufficiently shown that Respondent was aware or particularly suspicious of Day's union activities and thus discharged her because of them 9 However, the Administrative Law Judge included an additional factor demonstrating the illegality of Day's discharge on which we must now comment As noted above, the Administrative Law Judge credited a statement made by Kurtz in a pretrial affidavit that he would not have let Day go except for the unfavorable opinions that the other supervisors had The Administrative Law Judge then inferred that the "other supervisors" to which Kurtz referred were in fact Bromberg only, and, having found that Respon- dent's written ratings demonstrated Day was a reasonably competent employee, the Administrative Law Judge concluded that Bromberg's unfavorable opinion was based on her attacking Respondent's antiunion letter as "childish " We cannot agree with the Administrative Law Judge that the "other supervisors" to which Kurtz referred necessarily meant Bromberg alone, since Day worked for two other people besides Kurtz and Bromberg a not inconsiderable 30 percent of her time Moreover, one of these men, Constantino, had been consulted regularly on Day's work progress Moreover, even if we were to assume that Kurtz' use of the phrase "other supervisors" did mean Brom- berg alone, we can not conclude that Bromberg's unfavorable opinion of Day was based on her attack on Respondent's letter since we have determined in disagreement with the Administrative Law Judge that the written ratings Day received on her work progress were such that an "unfavorable" opinion of her work was a reasonable opinion for Respondent to hold and a valia reason for her discharge Our disagreement with the Administrative Law Judge arises basically from a consideration of two factors which he inadvertently omitted from his analysis of Day's written ratings The first of these factors, already mentioned, is that Day admitted that at the 60-day session as well as the 30-day session, Respondent's supervisors characterized her perform- ance to date as "unsatisfactory " Significant it is that, even when Day received the 56 rating at the 60-day session, (a rating 6 points higher than her final rating), she was still termed unsatisfactory Hence, at all three sessions her ratings were unsatisfactory 725 And secondly, Harold Vickers, Respondent's person- nel manager and the man responsible for supplying numerical grades to each employee's rating, testified without contradiction that a new employee's progres- sion should be such that his rating would be between 60 and 75 after 90 days Day's rating was only 50 at the time of her discharge It is thus reasonable to conclude that Day's rating was not up to Respon- dent's standards at the end of her probationary period 10 In sum then, we find that the evidence presented does not show that Respondent violated Section 8(a)(3) of the Act in its discharge of Suzanne Day 11 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that Respondent, Heinemann Electric Company, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge' s recommended Order as so modified 1 Delete paragraph 1(a) and reletter the subse- quent paragraphs accordingly 2 Delete paragraphs 2(a), (b), (c), and (d) and reletter the subsequent paragraphs accordingly 3 Substitute the attached notice for that of the Administrative Law Judge IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges unfair labor practices not found here 9 The only evidence of Day s union activities at work was her solicitation of Edith Parker to attend a union meeting We have taken into account the fact that Parker was secretary to one of the three supervisors with whom Day spoke about the Charging Party but we do not impute knowledge to Respondent on this basis alone nor can we when we consider all the evidence presented on Respondent s alleged knowledge Nor do we find any unlawful implication in Kurtz statement to Day concerning her discharge, you know why Contrary to the Administrative Law Judge who assigned an antiunion sentiment to this statement , we find on the facts of this case that such a statement is too vague to support such an inference io This is so notwithstanding the Administrative Law Judges correct observation that Lay received no criticism of her work between the 60- and 90 day periods in light of the facts ( 1) that Day herself admitted that there had been no criticism by Respondent of her work either before the 30-day rating session or during the 30 to 60 day rating period and (2) that at the end of each Day s work was termed unsatisfactory ii We are mindful of certain inconsistencies in certain of Respondents attempts to categorize Day s use of the phones as excessive (i e , the varying statements of Kurtz and Bromberg as to whose line Day used) and in its comments on her ability to get along with others However , the conflicts in these particular defenses of Respondent raise suspicion in our minds at the most and such is not sufficient to support a finding of a violation of Section 8(a)(3) 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which the Company, the Union, and the General Counsel of the National Labor Relations Board participated and offered evidence, the Nation- al Labor Relations Board found that we violated the law and ordered us to post this notice and we intend to carry out the Order of the Board and abide by the following WE WILL NOT ask our employees about their union sympathies, activities, desires, or member- ship WE WILL NOT in the same or any similar manner interfere with, restrain, or coerce our employees in the exercise of their rights to self- organization, to form labor organizations, to loin or assist American Federation of Technical Engineers, AFL-CIO, CLC, to bargain collective- ly with representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection All our employees are free to become or remain union members HEINEMANN ELECTRIC COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 16th Floor, Federal Building, 970 Broad Street, Newark, New Jersey 07102, Telephone 201-645-2100 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN M DYER, Trial Examiner The American Federa- tion of Technical Engineers, AFL-CIO, CLC, herein called the Union or Charging Party, filed the charge in this matter on January 26, 1972, alleging that Hememann Electric Company, herein called the Company or Respondent, violated Section 8(a)(1) and (3) of the Act in discharging Mrs Suzanne M Day on November 23, 1971 1 The Regional Director for Region 22 issued the complaint in this matter on March 15 , 1972, alleging, in addition to the standard jurisdictional and commerce allegations, that Respondent violated Section 8(a)(3) and (1) by its discharge of Mrs Day and violated Section 8(a)(1) through Supervisor Christopher Bromberg's mterro- gation of employees regarding their union membership and activities Respondent's March 23, 1972, answer admitted the jurisdictional and commerce allegations and the supervisory status of Marketing Engineer Christopher Bromberg, the then product research manager , Richard S Kurtz, and Product Sales Manager Eugene Lisnay Respondent stipulated to the Union's status during the hearing and in its answer admitted it discharged and did not reinstate her, stating that she was a probationary employee and the discharge followed the designation by the employees of the Union as their bargaining agent Respondent claimed it had no knowledge of her union activity, sympathies, or membership and denied that the discharge was unlawful Respondent denied that Christo- pher Bromberg engaged in unlawful interrogation , stating that he asked some questions out of curiosity In resolving the issues in this case I have credited Mrs Day's testimony on several disputed issues and discredited the contrary testimonies of Bromberg and Kurtz, finding that their testimonies in some respects were in conflict with Respondent's records and in one area were contradictory of one another Kurtz further contradicted flatly a crucial statement in a prior affidavit, and his explanation of the answer was inadequate Mrs Day appeared to search her memory and I regard her as a truthful witness despite the fact that she appeared to stretch the truth in one area I do not credit Bromberg and Kurtz where their testimony differs from that of Mrs Day Therefore I deny Respon- dent's reserved trial motion to dismiss the proceeding All parties were afforded full opportunity to appear, to examine and cross-examine witnesses , and to argue orally at the hearing held in Trenton, New Jersey, on May 2 and 3, 1972 All parties have filed briefs which have been fully considered On the entire record in this proceeding, including my evaluation of the reliability of the witnesses based on the evidence received and my observation of their demeanor, I make the following FINDINGS OF FACT I THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent is a New Jersey corporation with its principal office and plant in Trenton, New Jersey, where it is engaged in the manufacture, sale, and distribution of electrical equipment and related products Respondent annually manufactures, sells, and distributes goods and materials valued in excess of $50,000 which are shipped by it in interstate commerce directly to points outside the State of New Jersey I Unless otherwise stated all dates herein refer to 1971 HEINEMANN ELECTRIC COMPANY Respondent admits and I find that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act Respondent admits and I find that the Union herein is a labor organization within the meaning of Section 2(5) of the Act II THE UNFAIR LABOR PRACTICES A Background and Undisputed Facts Richard Kurtz, who is now the manager of the Company, has been with Respondent since 1946 In August Respondent was looking for a stenographer to work for Kurtz, Bromberg, and two other men Personnel Manager Hal Vickers screened a number of employees and sent Suzanne Day to Kurtz for an interview Kurtz explained that she would be working for himself, Christo- pher Bromberg, Mr Constantino, and Mr Warner, and that her principal duty would be in answering correspond- ence He gave her a test and told her what the benefits were, that she would have a 3-month probationary period during which she would be rated at 30, 60, and 90 days, and that, in addition to whatever help he could give her, the two secretaries who were in or near the same room would help tram her for the job She was informed that others were being interviewed and she would be notified if they selected her A few days later she was hired and began work on August 23 Her desk was outside Kurtz' office and was parallel to and some 2 feet away from the desk of Christopher Bromberg Warner and Constantino had offices some 25 or more feet away It was estimated that she worked about 10 percent of her time for Warner, 20 percent for Constantino, 30 percent for Bromberg, and the balance for Kurtz In ascertaining the abilities and attitudes of its salaried employees, Respondent uses rating sheets which provide five gradations in eight categories Employees are rated annually or semiannually, but new employees are rated at 30, 60, and 90 days during their 90-day probationary period The supervisor rates the employee from poor to excellent in the following categories quality of work, quantity of work, knowledge of the job, dependability, cooperation, initiative, organization of work, and personal characteristics When the rating was completed the sheets were sent to the personnel department where the personnel manager gave them a numerical value with various characteristics being weighted in their value to Respon- dent On the total point value, under 25 was considered poor or unsatisfactory, 25 to 49 below average or marginal, 50 to 74 average or good, 75 to 95 very good or above average, and 96 to 100 points excellent or exceptional After attaching the numerical value the rating sheets were sent back to the supervisor so that he could be apprised of the score Testimony established that Kurtz, as the principal supervisor of Mrs Day, met with Christopher Bromberg and Constantino about 3 weeks after she was hired (on or before September 17) and discussed the rating they should give Mrs Day Kurtz met with her on September 17 and went over the rating form with her She was rated below average in quantity of work and knowledge of the job, 727 above average in cooperation and personal characteristics, and average in quality of work, dependability, initiative, and organization of work with a total point score of 48, the upper end of the marginal category Mrs Day said that after discussing the rating with her, Kurtz said she should not worry about the rating because she had only been there a month and although her work wasn't completely satisfactory she had time to improve She testified that during her first 30 days of employment Kurtz said nothing to her about her work, the first discussion being at this performance rating session The 60-day rating was again prepared by Kurtz, Bromberg, and Constantino, and all three of them met with her and discussed the ratings They rated her again above average in cooperation and personal characteristics and average in the other six categories which gave her a point total of 56, placing her in the good or average category of employees The discussion apparently took about an hour and the areas where she could improve her work were pointed out to her She became a bit upset and shed a few tears over some of the criticism but pointed out that she had not had the assistance of, or the instruction from, the other two secretaries in learning the work and that she was forced to proceed on a trial-and-error basis and retype the work when her errors were discovered She stated that Bromberg agreed that she had not received assistance or instructions from the other secretaries The men encour- aged her, stating they felt she could do the work B Contested Testimony The performance rating at the 90-day level was marked average in all categories, which was a downgrading from the previous above-average marks in cooperation and personal characteristics She received a total point value of 50 and was discharged Mrs Day said she was called into the office by Kurtz who told her he had an unpleasant duty to perform but was discharging her because she had too many people around her desk and was making too many phone calls She testified she was shocked by the discharge and Kurtz agreed in his testimony that she appeared shocked She said she protested to him that no one had said anything to her about being discharged or had said anything about her work, which she felt she had brought up to a satisfactory level Kurtz said he didn't want to talk about her work and, concerning her discharge, said "you know why " Kurtz did not deny making this remark to her but said when he discharged her that the quantity and quality of her work was not up to the Company's standard and was not satisfactory He said he offered to go over the various points with her but she declined He added that her attitude was not as desirable as it should be for a company employee Mrs Day testified that some time after her 30-day review Kurtz called her into the office and said he had received complaints from others, although he had none himself, that she was using the phone too much and either getting or making too many phone calls, and he wanted her to cut down on the number and the time taken in the phone calls She agreed to do so Kurtz testified that during the 30- and 60-day reviews the 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subject of phone calls was mentioned to her with the admonition that she had been making too many phone calls and was on the phone too long and should curtail such activities He further testified that she used his phone and that at times he was prevented from making phone calls Christopher Bromberg testified that for approximately half of her employment she shared his telephone line and for the other part of her employment she shared a telephone line with an engineer named Laucius Bromberg testified that she was on the phone too long and made too many phone calls and at times he was prevented from making phone calls He said he did not discuss the length of her telephone calls with her, although working beside her, but took it up with Kurtz since he felt Kurtz was her immediate supervisor On one occasion he said he never asked her to cut her telephone calls short but then reversed himself and said sometimes he did and that she always complied with his request His answer was unclear as to whether he had any hesitancy about asking her to get off the line He answered something to the effect that Kurtz was her supervisor The testimony of Kurtz concerning her use of his phone and the testimony of Christopher Bromberg concerning her using his phone and what phone lines were available to her is contradictory According to Bromberg it was his line or Laucius' that was being used and not Kurtz' It is clear that the testimony of one of these men is erroneous as to line use I believe both Kurtz and Bromberg exaggerated the phone use by Mrs Day I credit her testimony that Kurtz spoke to her about phone use after the 30-day review and as a reason for discharge but at no other times The oral testimony of Kurtz, Bromberg, and Constantino is to the effect that Mrs Day's work was below average and did not come up to average during the entire time she was there Bromberg and Kurtz said she appeared to make an effort to understand the work during her first 30 days but that her willingness and cooperation decreased thereafter and became worse during the last 30 days of employment It would be anticipated that this testimony would be reflected in the ratings which these gentlemen gave her for the 30-, 60-, and 90-day rating periods But as set forth above in the areas of cooperation and personal characteristics she was rated above average at the 30- and 60-day ratings and average for the 90-day rating Kurtz testified at one point that he had spoken to her about her attitude at the 30-day rating but when it was pointed out to him that he testified her attitude went down thereafter he changed his testimony and said it had been mentioned at the 60-day rating session If this were true it should have been reflected in the rating she received, but, as stated, it was an above-average rating When the apparent discre- pancy between the rating sheets and the testimony was pointed out to Bromberg he replied that the rating sheets were a tool and not the best In this area I find that the rating sheets prepared at the respective periods are a more reliable guide than the testimony of Kurtz, Bromberg, and Constantino, and the categories and qualities are clear and not ambigious If Suzanne Day was a below-average employee why was her rating form not marked in that manner9 The answer is supplied by Mrs Day's union activities and her being observed with known prounion employees, plus her interview with Bromberg and the reason given her for her discharge with the cryptic "you know why " Mrs Day testified that she thought her work had improved and was current since the 60-day rating and that she had receive no criticism between the 60- and 90-day periods As Kurtz acknowledged , she was shocked when told she was being discharged The downgrading of Mrs Day in the cooperation and personal characteristics categories is suspect when viewed in the light of Bromberg and Lisnay's questioning of her concerning the Union during this rating period Her above-average rating in these two categories at the 60-day level also contradicts Kurtz' testimony that her cooperation went down after the 30-day rating Kurtz' oral testimony that he was prepared to discharge her at the 90-day period is contradicted by his pretrial sworn affidavit in which he said, "I probably would have not let her go if it wasn't for the unfavorable opinions that the other supervisors had " I do not credit Kurtz' confused contrary oral testimony that he personally had decided to discharge Mrs Day The above statement indicates that Bromberg's discharge recommendation was relied on, and from the testimony discussed below it seems clear that his opinion was based on Mrs Day's statements and conversations with known union proponents and her criticism of a company letter discussing the Union signed by Bromberg's father who was the president of Respon- dent After several weeks' employment Mrs Day questioned Kurtz about the Union and what it could do for the employees Kurtz testified she said she had heard rumors about a union and asked if she had to sign a card and how he felt about the Union He said he replied that it was something personal and he was not at liberty to give her any advice or judgement and this was the only time the Union was mentioned between them It was not alleged or litigated that in the conversations Kurtz violated the Act, but I credit Mrs Day's version of the incidents She said she told Kurtz she had heard a lot about the Union and wanted to know his views so she could weigh both sides and better judge whether she wanted a union She testified that their discussion in the office lasted about an hour and touched on whether there should be timeclocks , items to be negotiated and whether they start from scratch, company benefits such as sick leave, a health insurance program, and whether the costs would switch under a contract She also testified that when she was late one morning on another occasion Kurtz told her that on a personal basis, such as the Company was then on, such things could be overlooked but that if a union were in the picture she might be docked for the time Approximately 2 weeks after she began work, fellow employee Loretta Wasihshen asked her to attend a union meeting She went and attended three other meetings and joined the Union Somewhere around the time of the union election (November 18) Loretta and employee Kathy Sefannelli talked to her, and Loretta asked Suzanne to talk to Edith Parker, Product Sales Manager Lisnay's secretary, and ask Parker to attend a union meeting Mrs Day did so This testimony is uncontradicted HEINEMANN ELECTRIC COMPANY 729 Mrs Day testified that approximately a week before the election Christopher Bromberg said he wanted to talk to her about something important and asked how she felt about the Union She said she really didn't know and didn't have anything to say to him about it He insisted on talking to her and took her into Kurtz' office Kurtz was not in the office at that time Again Bromberg asked how she felt about the Union and she replied she really didn't have anything to say about it He said he had been going around talking to other people trying to get an idea and wanted to know how she felt She said she hadn't been there long enough and didn't know everybody' s reasons for wanting a union and if he really wanted to know he should ask people who had been there longer He mentioned the letter the Union had sent to the employees She responded that the letter the Company had sent was very childish at which he became upset and asked how it was childish She said "the Company was listing things employees had as if to say children this is what you have and if you go to the Union you won't have it " The conversation continued for about an hour and broke up shortly after Kurtz returned to the office and left after getting some papers Bromberg testified that in November he asked Mrs Day about her union sympathies On direct examination he testified that his conversation with her started at her desk following several conversations with other people who hao been around her desk He testified that there was a lot of discussion going on at the Company and he asked for her views of the Union He took her into Kurtz' office because he didn't thank it was to the interest of everyone around to hear what they were saying He stated they talked about it for a few minutes with him asking what she thought of the attempt to organize He stated she said she didn't see the need for it They talked a bit about the union letter and she said the Company's letter was childish He testified he told her that he didn't see the need for the Company's letter as it was written and that the conversation between them remained friendly He testified that they were only in there a few minutes and that Kurtz came in and the conversation broke up During cross-examination Bromberg testified that he had seen Kathy Stefannelh and Loretta Wasilishen at Mrs Day's desk and knew probably prior to the election that Loretta was active on behalf of the Union Bromberg admitted that he talked to Mrs Day on that occasion because he had heard conversation at the desk concerning the Union from some of the people who were around her desk Several days later Product Sales Manager Lisnay, an admitted supervisor, came to her desk and asked if she had any questions he could answer for her about the Union and she said she had found out everything that she wanted, having already talked to Kurtz, and there was nothing further she needed to know Lisnay told her that certain people had come into his office saying they had seen prounion people at her desk and he had seen it too and he wanted to be sure that no one was pressuring her about the Union She told him that none of the union people were pressuring her Lisnay told her that if the Union got in it could hurt the Company He talked for a while and again asked for assurance that no one was pressuring her about the Union She told him that no one was and she was getting tired of people wanting to know her opinion He asked what she meant and she told him that Chris Bromberg wanted to know how she felt about it He told her that he wished he had known it because Bromberg had no right to talk to her about the Union Lisnay identified some of the prounion people as Loretta and Kathy Lisnay testified that Mrs Day had never worked for him and that on a day when Kurtz was out of town it was reported to him that there was a lot of activity at her desk and he took it upon himself to approach her and asked if anybody was bothering her about joining the Union She replied that no one was, and he did not recall asking how she felt about the Union During cross-examination he testified that he didn't know there were people at her desk but was merely told that there was activity at her desk He testified that he wasn't certain as to who told hun but admitted it might have been his secretary, Edith Parker This is the same Edith Parker whom Mrs Day asked to go to a union meeting C Conclusions General Counsel has presented a prima facie case made up of the facts that Mrs Day while employed was an average employee, reasonably competent, and received such ratings in contemporary written marks contrary to the later oral testimony offered by Respondent She was active in the Union and her friendliness with known union adherents was not only noticed by company supervisory personnel including Christopher Bromberg and Eugene Lisnay but was commented on by them and indeed was the reason for their conversations with Mrs Day Additionally we have the fact that Mrs Day, while speaking to the president's son, criticized as childish the antiunion letter written by the president of the Company, while the son, Christopher Bromberg, was unlawfully interrogating Mrs Day, and that such criticism caused him to become resentful and angry This I credit over his statement that the conversation was friendly throughout Moreover Kurtz, the immediate supervisor of Mrs Day, acknowledged that he would not have discharged her except for the sentiments of the other supervisors I conclude that this reference is to Christopher Bromberg under these circumstances Mrs Day was told by Kurtz that she had too many people around her desk, an obvious reference to known union proponents Loretta and Kathy, and that she knew why she was being discharged The logical conclusion is that Mrs Day would not have been discharged except for her apparent sympathies with known union proponents and the fact that she attacked Respon- dent's antiumon letter as childish Respondent's defense that she was a below-average employee is refuted by the Company's record evidence and Kurtz' statement I therefore conclude and find that Mrs Day was discharged in violation of Section 8(a)(3) and (1) of the Act Respondent in its answer agreed that Christopher Bromberg was a company supervisor It is clear that his questioning of Mrs Day concerning her union sentiments and sympathies was unlawful and without any lawful motive or intent Christopher Bromberg's interrogation of 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mrs Day violated Section 8(a)(1) of the Act in that it occurred without any of the safeguards which are necessar- y to exempt such interrogation from a finding of violation Here Bromberg noticed her talking with proumon advo- cates, overheard some of the conversations, and thereupon inquired as to her umon sentiments despite her protesta- tions that she did not want to discuss it She was taken into a supervisory office and the interrogation continued for up to an hour It is clear, particularly in the light of Bromberg's further admission that he interrogated other employees, that this was an unwarranted intrusion into an employee's protected private affairs and constitutes a violation of Section 8(a)(1) of the Act III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent as set forth in section II, above, have herein been found to constitute unfair labor practices in violation of Section 8(a)(3) and (1) of the Act, and, occurring in connection with Respondent's business operations as described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce IV THE REMEDY Having found that Respondent discriminatorily termi- nated Suzanne M Day on or about November 23, 1971, because of her actual and suspected umon sympathies and activities, I recommend that Respondent offer her immedi- ate and full reinstatement to her former position or, if that position no longer exists, to a substantially equivalent position without prejudice to any seniority or rights and privileges she may enjoy Respondent shall make her whole for any loss of pay she may have suffered by reason of the discrimination against her, by payment to her of a sum equal to that which she would have received as wages from the date of her discharge until she is fully reinstated, less any net interim earnings Backpay is to be computed on a quarterly basis in the manner established by the Board in F W Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co, 138 NLRB 716 I further recommend that Respondent, upon request, make available to the Board payroll and other records to facilitate checking the amounts of backpay and any other rights due Suzanne Day Respondent also engaged in interrogation of its employ- ees concerning their umon membership, activities, or sympathies, and I recommend that Respondent be ordered to cease and desist from violating the Act in the same manner or any manner similar to these violations On the basis of the foregoing findings and the entire record, I make the following CONCLUSIONS OF LAW 1 Heinemann Electric Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the meaning of Section 2(5) of the Act 3 By discriminatorily terminating Suzanne Day on or about November 23, 1971, and not thereafter reinstating her to her position, because of her actual and suspected union sympathies and activities, Respondent engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act 4 Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act by interrogat- ing employees concerning their union membership, activi- ties, and sympathies Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended 2 ORDER Respondent, Hememann Electric Company, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discharging employees and refusing to reinstate them in order to discourage these employees and other employ- ees from being or becoming union members (b) Interrogating employees concerning their union sympathies, activities, desires, or membership (c) In the same or any similar manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization , to form labor organiza- tions, to join or assist American Federation of Technical Engineers, AFL-CIO, CLC, to bargain collectively with representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection 2 Take the following affirmative action which is necessary to effectuate the policies of the Act (a) Offer to Suzanne Day reinstatement in accordance with the recommendations set forth in the section of this Decision entitled "The Remedy " (b) Make Suzanne Day whole for any loss of pay she may have suffered by reason of Respondent's discrimina- tion against her according to the recommendations set forth in the section of this Decision entitled "The Remedy " (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and the rights and privileges accorded to Suzanne Day as set forth in the section of this Decision entitled "The Remedy " (d) Notify immediately the above-named individual, if 2 In the event no exceptions are filed as provided by Sec 102 46 of the 102 48 of the Rules and Regulations be adopted by the Board and become Rules and Regulations of the National Labor Relations Board the findings its findings conclusions and Order and all objections thereto shall be conclusions and recommended Order herein shall as provided in Sec deemed waived for all purposes HEINEMANN ELECTRIC COMPANY presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act (e) Post at its Trenton, New Jersey, plant and office copies of the attached notice marked "Appendix "3 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by Respondent's authorized representative, shall be posted by Respondent 3 In the event that 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 National Labor Relations Board shall read `Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board 731 immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material (f) Notify the Regional Director for Region 22, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith 4 4 In the event that this recommended Order is adopted by the Board after exceptions have been filed this provision shall be modified to read Notify the Regional Director for Region 22 in writing within 20 days from the date of this Order what steps the Respondent has taken to comply herewith