IEE/Schadow, Inc.

704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IEE/Schadow, Inc. and Donna Brelje. Cases 18-CA- 4712 and 18-CA-4802 November 1, 1976 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On June 22, 1976, Administrative Law Judge Rich- ard L. Denison issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a, supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional ,Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions I of the Administrative Law Judge and to adopt his recommended Order, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that the Respondent, IEE/Schadow, Eden Prairie, Minnesota, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modi- fied: Substitute the following for paragraph 2(a): "(a) Make whole Jeanie Henson, Jo Ellen Elias, and Donna Brelje for any loss of earnings they may have suffered as specified in `The Remedy,' in accor- dance with the formula established in F. W. Wool- worth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962)." 1 In the absence of exceptions thereto, we adopt pro forma the Adminis- trative Law Judge's findings regarding Bre1le's October 2 suspension. DECISION STATEMENT OF THE CASE RICHARD L. DENISON, Administrative Law Judge: This case was heard at Minneapolis, Minnesota, on March 11 and 12, 1976, based on charges filed on September 8 and December 2, 1975, and a complaint issued February 10, 1976, alleging that Respondent violated Section 8(a)(1) and (3) of the Act. The General Counsel and Respondent have filed briefs) Upon the entire record in the case , including my obser- vation of the witnesses, and upon consideration of the briefs, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a Minnesota corporation, is engaged in the manufacture, sale, and distribution of electrical component parts and related products at its principle office and place of business in Eden Prairie, Minnesota. During, the year ending December 31, 1975, a representative period, Re- spondent purchased and received at its Eden Prairie facil- ity, directly from points outside the State of Minnesota, goods and materials valued in excess of $50,000. During the same period Respondent manufactured, sold, and dis- tributed at its Eden Prairie facility products valued in ex- cess of $50,000 which were shipped directly to points out- side the State of Minnesota. On the basis of the above facts admitted in the answer, I find that Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION I find that International Brotherhood of Electrical Workers, Local No. 292, AFL-CIO, hereafter referred to as the Union, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues 1. Whether Respondent violated Section 8(a)(1) of the Act by: (a) Soliciting employees to meet with management in or- der to air their grievances, and by directing employees to solicit employee grievances. (b) Threatening Jeanie Henson with discharge because of her union activities on or about June 18. 2. Whether Respondent violated Section 8(a)(3) and (1) of the Act by: (a) Denying Jeanie Henson a wage increase on or about June 27. (b) Suspending Donna Brelje, Jo Ellen Elias, and Jeanie Henson for 2 days on or about September 5. (c) Suspending Donna Brelje for 18 days on or about October 2. (d) Discharging Donna Brelje on or about November 25. (e) Issuing various disciplinary warnings and repri- mands to employees Brelje, Elias, and Henson between June and October 1975. 1 Respondent's motion to correct the record, being unopposed, is granted 226 NLRB No. 112 IEE/SCHADOW, INC. B. A Description of Respondent's Operations, Supervisory Structure, Discipline Policy, and the Genesis of the Union Campaign Respondent manufactures electrical switches, utilizing a two-phase operation with each phase occupying a physi- cally distinct area of the plant. The switch itself is made in the switch assembly area, otherwise commonly known as the "Schadow side," from which it - passes to the "IEE side," or modular assembly area, where the switch is in- stalled in a chassis and the buttons are put in place. The custom of referring to the two manufacturing areas as "sides" is significant with respect to one of the issues in this case. It is undisputed that Tom Olson began his employ- ment with Respondent as production manager over the modular assembly area on March 31, 1975 2 He remained in this position until October 2 when he was reassigned to perform the same function over the switch assembly area, and Marlene Morgan was hired to fill the vacancy created by Olson's transfer. Both Olson and Morgan reported to General Manager Dwayne Kinney, or in his absence to Kinney's deputy, Sales Manager Herman Sinn. Assisting Olson and Morgan in overseeing their respective opera- tions were Supervisors Joanne Bliese (terminated Septem- ber 19 and replaced by Jackie Fritzke) and Marion Lundin. Following his arrival, Olson noticed the absence of any formal company rules. Since in his view there were several problem areas relating to employee conduct, namely, at- tendance, tardiness, smoking, and breaks, Olson formulat- ed a series of 11 standing assembly rules which were posted and explained to the employees in a meeting on May 7. Important to the issues in this case are the following rules: (1) Unnecessary absence from work will be consid- ered grounds for dismissal. You must call in by 9:00 a.m. (6) Smoking will be permitted in the lunchroom only, not in the washroom. (7) Employees will be on the production line, ready to work at starting time in the morning. Everyone except those designated to special clean up will remain on the production line until 5 minutes prior to closing time. (10) The use of abusive language directed to another employee or a supervisor will not be tolerated. The May 7 announcement also specified that "Commit- ting any of ... [prohibited acts] will be grounds for disci- plinary action ranging from reprimand to immediate dis- charge, depending on management's judgment as to the seriousness of the offense." It is undisputed, consistent with this notice, that although the enforcement of the rules involved various degrees of discipline, including the is- suance of verbal and written warnings and the use of sus- pensions, the type of discipline imposed by management remained entirely discretionary. Accordingly, there was no set number of warnings an employee had to acquire before 2 All dates are in 1975 unless otherwise specified. 705 progressing to any other level of discipline. Respondent began keeping tardiness and absence records immediately following the promulgation of the May 7 rules. On May 22 the first supervisors' meeting was held at which time the records of each employee were reviewed. Decisions con- cerning disciplinary action were made at this meeting, and the affected employees were notified shortly thereafter. Re- spondent utilized this same procedure henceforth until the month of October, holding similar supervisors' meetings on June 17, August 20, and October 1. Thereafter, the individ- ual supervisors were made responsible for keeping tardi- ness and absence records and for reporting problem cases on a day-to-day basis which were then acted upon by the production manager. The events which comprise this case occur, for the most part, in the context of an organizational drive and election campaign by the Union, which began on May 15 when employees Jo Ellen Elias, Jeanie Henson, Alice Havisto, and Donna Brelje began passing out authorization cards before work in the plant parking lot .3 The Union petitioned the Board for an election on May 21 (Case 18-RC-10507). Pursuant to a Stipulation for Certification Upon Consent Election signed June 13, an election was held on July 25, which the Union lost 72 to 11. After receiving various warnings, discussed below, employees Elias, Henson, and Brelje were each given 2-day suspensions on September 5. After further warnings, on October 2 Brelje received a sus- pension of 11 working days. On November 25 she was dis- charged. C. The Alle,ed Unlawful Solicitation of Grievances by Respondent's Supervision Production Manager Olson testified it was around the time of the May 7 meeting concerning the Company's new rules that he first learned of employee dissatisfaction with the Company's policy of requiring employees to work over- time over and above 40 hours per week. It is undisputed that such dissatisfaction existed. According to both Olson and Sales Manager Sinn, this employee unrest culminated in a rumor which was circulating in the plant on May 14 that the employees intended to leave their jobs at the end of their shift without working any overtime. This rumor caused Sinn, acting in the absence of General Manager Kinney, to call a meeting with the employees at 3 o'clock that afternoon in the cafeteria .4 Sinn began the meeting by saying that he understood there were some problems con- cerning mandatory overtime, and that he had also heard about the possibility of a walkout. Sinn stated that he did not think a walkout was necessary, and wanted to know what they could do to avert it. Both Olson and Sinn agreed that following Sinn's opening remarks the employees virtu- ally took over the meeting and from this point on it degen- erated into a chaotic session with the employees firing all 3 There is no dispute that Respondent became aware of the card distribu- tion activities of these employees on that day through the reports of supervi- sors to whom cards were offered. 4 Sinn testified that he learned of the rumor from Supervisor Joanne Bliese. Bliese, who testified as a witness for the General Counsel, was not questioned about either the rumor or the subsequent meeting even though the record shows that all supervisors attended. 706 DECISIONS OF NATIONAL LABOR; RELATIONS BOARD of their various complaints at Smn, and, in addition, argu- ing with each other. Both Olson and Sinn deny that Sinn solicited the employees' grievances. Sinn remembered Donna Brelje asking him if he knew that. mandatory over- time was against the law, to which he responded that the Wage and Hour. Commission had informed them that such was not the case. Jeanie Henson brought up the subject of wages and wanted to know when they were going to get raises. She asked why they did not get raises at regular intervals and compared the incentive program in effect on one "side" of the plant with the straight hourly program on the other "side." One of the other employees asked Sinn if he was afraid- that there was going to be a union in the Company, to which Sinn answered he was not afraid. By this time a number of individual debates had, begun among the employees themselves. As the, situation became more heated in this respect, Sinn decided that it would be better to have two people from each side of the plant to get to- gether with himself and Kinney when Kinney returned on Monday, May 19, in order to+ "discuss our problems and see if we could iron them out." The selection of the four employees who were,to attend this meeting was left up to the employees themselves. According to Olson and Sinn, there was no mention of a union in the process of suggest- ing that four employee representatives meet with manage- ment on May 19. Later that day the names of the four employees were left at Sinn's office. However, the May 19 meeting never took place because, on the morning of May 15, management became aware of the commencement of a union card-signing campaign, and was advised by legal counsel not to hold any such meetings with employees. Jeanie Henson testified, "I think ... [the meeting] was about June." Sinn wanted to know what all the problems were, what it was the "girls were so mad about ..." and then stated that he would like to get together with one girl from each side to get their problems straightened 'out. At another point in her testimony Henson indicated that Sinn suggested that he meant one girl from each side of the union question. After the meeting broke up, Henson and Helen Berndt were selected by the employees to attend the subsequent meeting with Kinney. Then Joanne Bliese in- structed Henson and Berndt to take a pencil and paper and make a list of the employees' complaints in order that they could be discussed at' the next meeting. No subsequent meeting was ever held.5 Donna Brelje's testimony concerning this meeting dif- fered considerably, from that of Henson. Her version was much closer to that given by Sinn in his testimony. After beginning the meeting with a short introductory remark, to the effect that he understood there were some problems and was curious to'know what they were,-Brelje agreed that the meeting became disorganized with bickering back and forth among the employees, and a lot of questions were fired at Sinn. She remembered Alice Havisto, asking Sinn if he was afraid of the Union coming in and' Sinn replying that he was not. The meeting ended with Sinn saying he 5 Bhese, a witness for the General Counsel, did not testify about this meeting or about the date Berndt was not called to testify Jo Ellen Elias, continuously employed by Respondent after April 12, 1974, was not ques- tioned concerning the employee meeting with Sinn would like a person or persons to gather all the complaints from the workers and then bring them to him. On cross- examination Brelje agreed that the subject of mandatory overtime arose at this meeting, but she could not recall whether Sinn raised the subject or whether it arose-from the workers. Unlike Henson, Brelje conceded that Sinn's suggestion for a future meeting with Kinney involved two people from the modular assembly side and two people from the switch assembly side, not a division of sides on the basis of union sympathies. Finally Brelje, who con- fessed having a poor memory concerning dates, testified at two points that the meeting occurred in August, . but on cross-examination changed the date to the end of June. I am persuaded that the employee meeting called by Sinn occurred on May 14, as Sinn and Olson testified. I also credit Sinn's version, corroborated by Olson, that the meeting was called for the purpose of attempting to avert a rumored work stoppage rather than to solicit the employ- ees' grievances in order to thwart an embryonic union cam- paign. This analysis is further confirmed by the credible testimony of Brelje, that the only mention of a union was the-oblique question by Alice Havisto concerning whether Sinn was afraid of having a union. I find that the union references raised in this guarded context were not suffi- cient to put Respondent on notice that its employees were on the verge of embarking on an' organizational' drive. Since there is no other evidence which might reasonably have put Respondent upon, notice that a union campaign was forthcoming, I find that Respondent did not, through Sinn, unlawfully solicit employee grievances at this meet- ing or afterwards as alleged-in the complaint. I do not credit Henson's testimony, unsupported by Bliese, who tes- tified for the General Counsel, that following the meeting Bhese instructed her to circulate among the employees with a pencil and paper in order to make a list of their com- plaints. D. The Testimony of Joanne Bliese One of those in attendance at the May 22, June 17, and August 20 meetings was Joanne Bliese, supervisor over the approximately 38 employees in the modular assembly area until her discharge on September 19. Called as a witness for the General Counsel, Bliese testified that at the first such supervisory meeting following the distribution of the union cards on May 15, she was questioned concerning how she thought each employee would vote on the union question in addition to questions concerning each employee's work. Bliese testified that Henson, Brelje, and Elias were discussed at almost every meeting, and that dur- ing the August meeting Herman Sinn stated, "We want to get what we can on Jeanie and Donna and Jo Ellen. We want to get-some kind of evidence on them because if they are here next year they will surely start with the union bit." Bliese testified further that at the time Henson, Brelje, and Elias were suspended on September 5, she reported to Sinn a remark made to her by employee Mary Tuggle to the effect that it would be nice if the three employees did not return to the plant any more because they bothered people. Sinn then suggested that maybe a few of the girls should state this viewpoint in' the form of a suggestion and place it IEE/SCHADOW, INC. in the suggestion box. Immediately thereafter, Bliese then went to Tuggle and authorized her to get up a petition against Henson, Brelje, and Elias. On cross-examination by Respondent's counsel, Bliese's credibility came under strong attack on the basis of alleged dishonesty and bias against the Company. Bliese admitted that her discharge on September 19 occurred because of her failure to report that the Company had overpaid her for work performed at home. Bliese also agreed that subsequent to her termina- tion she had told Mary -Tuggle that she was going to get even with the Company if it was the last thing she ever did. Bliese also expressed a desire to assist Brelje who had ap- peared at her unemployment hearing. I have carefully con- sidered Bliese's admitted bias against Respondent, the cir- cumstances surrounding her discharge, and her expressed intention to retaliate against the Company, in evaluating her credibility. I do not credit her testimony concerning Respondent's intention to manufacture reasons to termi- nate Brelje, Henson, and Elias. E. The Threats of Discharge to Henson and Bre je, the Denial of a Wage Increase to Jeanie Henson, and the Written Warning Issued to her in August It is undisputed that it has been the consistent practice of Respondent to give wage increases on a purely discre- tionary basis, both with respect to the time the increase is given and as to the amount of the increase given to each deserving employee. Jeanie Henson testified that starting in about May she discovered through conversations with fellow employees that they had received raises while she had not. According to Henson, she then inquired of Super- visor Joanne Bliese, in the presence of employee Diane Jeurissen, concerning the reason why she had not been called into the office and given a raise. Bliese replied only, "You know why." 6 Having obtained no explanation from Bli ese concerning this matter, Henson requested an inter- view with Herman Sinn. In his office, in the presence of Tom Olson, Sinn said 'that two people had reported that Henson was smoking in the bathroom- against company rules, that she had been harassing people, and that her work was not good enough. He said if he could prove these charges Henson would', be dismissed and that there would be no raises given to her as long as these charges were against her? Henson also testified that, during the June 27 conversa- tion, Sinn accused her of blocking the doors to the plant. Later, in August, Henson received a written warning from Sinn for harassing people by blocking the doors to the building, in that when Henson was passing out union cards in the parking lot she delayed people from coming into the 6 Bhese did not testify about this incident Diane Jeurissen was not called as a witness. 7 Almost immediately after giving this version of the conversation, which Henson testified occurred on June 27, she related a similar prior conversa- tion with Sinn in his office at an unspecified time in which she testified Sinn "implied" that if he found out a report that Henson was smoking in the bathroom was true she would be discharged Henson then changed her testimony again, pursuant to 'a leading question by General Counsel, and agreed that Sinn had actually, said she would be discharged if Sinn discov- ered that the reported smoking incident was true. 707 plant unless they accepted a union card. Sinn also raised the subject of Henson smoking in the bathroom, and again said that if they found out this was true she would be dis- charged, and for her to go home and think about it. On cross-examination Henson denied ever having passed out union cards at entrances to the plant. She stated that she limited her card distribution activities to the employee caf- eteria. She did recall, however, receiving the written warn- ing on August 8. Tom Olson testified that at a supervisors' meeting on May 22, attended by Olson, Sinn, Kinney, Bliese, and Lun- din, Bliese reported that Henson and Brelje were pressur- ing employees into signmg union cards by, blocking the door until employees accepted a card. On May 23 Olson reprimanded Brelje and Henson separately about this mat- ter. Concerning Henson, Olson said, in the presence of Su- pervisor Marion Lundin, that he had found out she was pressuring employees into signing cards by blocking them from coming through the door without taking a card, and, in addition, she had been spreading false rumors about supervisors showing favoritism to some of the employees. Olson warned that if this conduct continued she would be subject to further disciplinary action. Henson denied en- gaging in the conduct which Olson attributed to her. Olson denied ever having threatened Henson with discharge on or about June 18 for engaging in activities on behalf of the Union. He insisted that the only verbal warning he ever gave to Henson occurred on May 23 following Bliese's re- port at the supervisory meeting on May 22. Brelje's testimony supported that of Olson with respect to the timing of the disciplinary interviews. She testified that about 2 weeks after the,cards were distributed she was warned by Olson in his office, with Lundin present, that she had been disturbing nonumon people by preventing them from entering the plant and that if it continued she would lose her employment. I therefore find that it was Olson, not Sinn, who first warned Henson about allegedly blocking employees from entering the plant. This inter- view, like that with Brelje, occurred on May 23. Since the testimony of Brelje and Henson is mutually corroborative, except as to the date, I find that Olson did threaten both employees with discharge during this, interview. Finally, the fact that no witnesses were produced to substantiate Olson's assertion that Brelje and Henson had been inhibit- mg employees' entrance into the plant persuades me that these verbal warnings were motivated by a desire to inhibit the employees' activities on behalf of the Union, thus con- stituting a violation of the Act. This conclusion is rein- forced by Olson's testimony which clearly shows that he made no investigation into his supervisor's report before reprimanding Brelje and Henson. Furthermore, the record shows that he verbally warned them about these incidents before they were afforded an opportunity to deny their occurrence or give any explanation whatsoever. Herman Sinn denied having a wage review interview with Jeanie Henson on June 27. Instead, he insisted that -the interview occurred on August 8. Based on the,records in evidence, I find August 8 to be the correct date. Some- time shortly prior to this interview he, reviewed Henson's file and inquired of her supervisor concerning any specific problems relating to Henson. It was at this time that Olson 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD learned about Henson's alleged smoking in the restrooms. According to Olson, he then proceeded to investigate the incident,, and succeeding in finding two employees who had observed smoke emanating from a bathroom cubicle Henson was occupying at the time. On August 8 Henson was called to Sinn's office and was told that she was not eligible for an increase in pay at that particular time, but instead would receive a written warning. She was told that her productivity was lower than that of which she was ca- pable and that she had broken the rules of the Company by smoking in the bathroom. Henson denied having broken the no-smoking rule, whereupon Sinn announced that he would conduct an'independent investigation of the matter. After obtaining signed statements from the witnesses, Mary Jo Ristow and Susanne Johnston, Sinn presented Henson with her warning the following week denying her an increase in pay. I am convinced that Respondent's denial of a wage in- crease to Henson occurred on August 8 not June 27, and that it was actually prompted by her union activities and not by any breach of company rules. I am not convinced that Sinn actually conducted the independent investigation as he testified. On cross-examination Sinn stated that he prepared in advance for Henson's interview at sometime between August 1 and August 8. It was during this prepa- ration that he learned about the smoking incident. How- ever, it is clear that, although time permitted, no investiga- tion was conducted prior to Henson's interview. At the interview, it was only after Henson was told that she would be denied an increase and given the reasons for this action that she was afforded an opportunity to deny the conduct attributed to her. Furthermore, the written warning notice, dated August 8, 1975, signed by Olson, contains a written notation at the top, "8/8 Permanent Records HS," clearly showing that the warning notice was placed in Henson's permanent records on that date. Under these circumstanc- es I do not believe Sinn's testimony that he conducted an independent investigation into the smoking incident after the August 8 interview, and subsequently denied Henson's raise.8 I find that the denial of Henson's wage increase and the simultaneous issuance to her of a written warning under the circumstances presented violated Section 8(a)(1) and (3) of the Act. The written warning notice, Joint Exhibit 1(g), clearly bases the issuance of the warning and the deni- al of the increase in part upon reprimands Henson had received in the past, which would include the May 23 repri- mand by Olson found earlier in this Decision to have been discriminatorily issued. This consideration, together with the placing of the already prepared warning in Henson's file without any advance investigation, and Respondent's failure to present any direct evidence of misconduct on Henson's part, persuades me that a discriminatory purpose lay behind Respondent's action. 8 In my view, R. Exh. 1(g) does not support the inference urged by coun- sel for Resondent in his brief to the effect that the warning notice prepared on August 8 was simply placed in her file after the investigation confirmed that Henson had been smoking in the bathroom Moreover, a more objec- tive procedure, in any event, would be to investigate the circumstances of the alleged misconduct prior to accusing the employee and performing the work of drafting the warning notice F. The Suspensions of Henson, Elias, and Bre je on September 5 On September 5 Herman Sinn met individually with Henson, Elias, and Brelje (with Tom Olson and Marlene Morgan present) and suspended them for 2 days.' Sinn testified that the reason he gave the three employees was "creating dissension among employees and talking about the management of the company." According to Sinn he based this action on reports from the managers and super- visors, comments from employees, and comments gleaned from the suggestion box, some of which were anonymous. Elaborating, Sinn testified that Joanne Bliese had told him that girls on the line had complained that Henson cau- tioned them to slow down. He named employees Gerry Sprank, Marie Zaschke, and Mary Tuggle as those who personally complained to him about Jeanie Henson, and Karen Jensen and Mary Ann Oestreich as the employees who complained about Jo Ellen Elias and Donna Brelje. The suggestion box comments accused Elias and Brelje of spending a great deal of time with one another, talking and disrupting people. Sinn testified he traced the anonymous criticisms to Karen Jensen, Mary Ann Oestreich's sister. Mary Ann Oestreich testified that on September 3 Brelje said "sooie, sooie, pig, pig" as Supervisor Joanne Bliese walked by. Bliese did not hear the remark, but Oestreich reported the incident to Sinn that day. Sinn's reaction was to ask Oestreich if she would swear to the incident. Oest- reich, who displayed obvious hostility toward the alleged discriminatees while testifying, related other "disre- spectful" comments made in the lunchroom including criti- cisms about unfairness to the girls on the part of "the big shots in the office." Mary Tuggle testified that Jeanie Henson remarked both before and after the union campaign that the Company was lousy to work for, and that she hated it. On one occa- sion during the union campaign Tuggle requested a trans- fer because of "harassment" from Henson. Tuggle did not specify how Henson had harassed her, but she repeated the matter to Sinn and observed that she was thinking of quit- ting. Sinn responded that Tuggle should stay because Hen- son probably wanted her to quit. Tuggle also testified that during the union campaign she heard Henson tell Mary Zaschke to slow down since she would not be getting any more pay for what she was doing. Elias testified that Sinn said she was suspended for talk- ing about the Company, and may have used the word "dis- sension." She agreed that in conversations she may have said the Company was unfair, and may have made dispar- aging remarks to fellow employees about the Company's wages, but that everyone talked about such things. She agreed that at lunchtime she heard Donna Brelje remark that the employees deserved more wages and it would be - nice to get a union in to straighten out the Company. Elias acknowledged that, in advocating the Union's cause, Brel- je, Henson, and herself expressed dissatisfaction with the Company to anyone who would listen. Usually these dis- cussions occurred in the lunchroom. 9 Olson did not refer to the September 5 suspensions in his testimony. Morgan testified only that she was present, but said nothing IEE/SCHADOW, INC. 709 Henson and Brelje testified similarly to Elias. Henson testified that on one occasion Bliese moved her work posi- tion because she said Tuggle had complained that Henson was harassing her. Bliese did not recount what Henson was supposed to have done to Tuggle. Henson denied having told anyone to slow down. She denied having made any statements against the Company to Tuggle, but agreed she had talked to Tuggle about the Union. Henson agreed that she had said the Company'was unfair, the way the Compa- ny was being run, and the way, wage increases were given out, during her lunchtime discussions with Elias, Brelje, and others. She denied making remarks about individual members of management. Brelje admitted having said "oink, oink, pig, pig," as Joanne Bliese passed by, but could not remember the date. I find that Respondent violated Section 8(a)(1) and (3) of the Act by suspending Elias, Henson, and Brelje on Sep- tember 5. It is clear from the testimony of Tuggle and Oestreich that the criticisms leveled at Respondent by Eli- as, Henson, and Brelje were for the most part set in a con- text of their day-to-day efforts to persuade employees of the need for a union in the plant. A number of the inci- dents upon which Sinn ostensibly relied clearly did not occur immediately prior to the issuance of the suspensions. In sum I am persuaded from a consideration of all the evidence presented on this issue that the "dissension" which Sinn disliked being spread among the employees was in fact Elias', Henson's, and Brelje's aggressive advocacy of the Union's cause. He, therefore, sought to pointedly dem- onstrate that such campaign rhetoric was not welcome in Respondent's plant by suspending Elias, Henson , and Brel- je on September 5, and I so find. G. The Verbal Reprimands to Elias on August 21 and September 18, and the Written Warning Issued to Her on October 2 Jo Ellen Elias began her employment with Respondent on April 12 and was continuously employed until she quit on February 6, 1976. She worked on the switch assembly or Schadow side under Marion Lundin. She assisted in pass- ing out union cards at the outset of the organizing drive on May 15, at which time she offered a union card to Supervi- sor Lundin. She served as a union observer at the NLRB election. On August 15, Elias received a verbal reprimand in the office of Production Manager Tom Olson. Olson stated that he was issuing her a warning for tardiness and for throwing bugs at Sherrie Volgelgesang which terrified Volgelgesang to the point that she screamed . Olson testi- fied that the warning to Elias was given on August 21, and I find this testimony to be correct since the record of the verbal warning is dated 8/21, which was 1 day following the August supervisory meeting. Elias admitted having been tardy and having thrown bugs at Volgelgesang. There is no evidence of disparate treatment . I find that the Gen- eral Counsel has failed to prove that Elias was repri- manded for an unlawful purpose. On October 2 Marlene Morgan gave Elias a written warning for tardiness and the poor performance of her sta- tion aid job. The warning notice specified that further de- terioration in her performance would result in further disci- pline up to and- including discharge , and that one more tardiness would result in termination. Elias' attendance record shows that following her suspension in September she had been tardy six times between September 12 and 24. Concerning her work performance, Elias acknowledged that Marion Lundin had spoken to her on September 18 about errors she had made in her work. Elias' job is impor- tant because it involves the weighing of trays of parts and setting up home work. Thus her work affects the pay em- ployees receive. Elias agreed that Lundin told her to -be more careful keeping track of the daily slips, and about checking to see that the correct parts were circled. On Oc- tober 2 Morgan reviewed the errors Elias had made; 21 between September 1 and 17, of which only 2 were discov- ered by Elias on rechecking, and 20 errors after September 18, of which Elias discovered only 2 in rechecking. Morgan showed Elias the list of errors. Elias did not deny making the errors, but simply said it was human to make mistakes. Subsequent to the October 2 warning Elias' performance and attendance improved, and she received no further warnings. The record does not reveal any evidence which would establish a relationship between the October 2 writ- ten warning to Elias and Respondent's suspension of Elias on September 5, which I have found to be unlawful. I find that Respondent did not violate the Act in issuing a written warning to Elias on October 2. H. Donna Bre je 1. The warnings issued to Brelje on June 20 and August 21, and her suspension on October 2 Donna Brelje began her employment at IEE/Schadow on March 21 in the switch assembly area under Supervisor Marion Lundin. She continued to work in this phase of the Company's operations until her termination on November 25. There is no question concerning the fact that Brelje was one of the employees responsible for initiating the Union's organizational drive, and that Respondent knew of her ac- tivities, commencing on May 15 when she and Elias dis- tributed the first authorization cards' to employees and of- fered cards to Bliese and Lundin. Later Elias and Brelje served as union observers at the July 25 election . Brelje's difficulties with Respondent began about 2 weeks after the union drive began when Tom Olson orally reprimanded her in his office for allegedly blocking the entrance to the plant, as discussed earlier in this Decision in connection with a similar reprimand to Henson that same day. On June 20, following a supervisors ' meeting on June 17, at which it was decided to issue verbal warnings to several employees whose records indicated the existence of atten- dance problems, Brelje received a verbal warning in Olson's office for unexcused absences on Friday, June 13, and Monday, June 16. Brelje told Olson she took her chil- dren to the doctor on June 13, and on June 16 attended the NLRB representation hearing. Brelje gave the Company no advance notice concerning these absences nor was any evidence presented to show Brelje sought to have these ab- 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sences excused after the fact.10 Four other employees, whose union sympathies were not identified and who had similar records of absences or tardiness during the review period ending June 17, also received verbal warnings. Un- der these circumstances, I find no unlawful conduct on the part of Respondent relating to Brelje's June 18 verbal warning." On August 21 Brelje received a written warning notice for absences and tardiness, signed by Olson and read to her by Sales Manager Sinn in his office in Olson's pres- ence. Brelje testified that- Sinn said, "I'm presenting you this because we believe that you've missed, you know, a lot of work, or enough work to deserve this," after which she read the warning notice and agreed. The remainder" of the interview consisted of "small talk." 12 This warning was is- sued to Brelje immediately after the August 20 supervisors' meeting at which all employees attended and records were received. The Company's records show that employees Berndt, Froemming, Mellgren, and Oestreich also received written warnings following the meeting. There is no evi- dence that these persons' union sympathies were known to Respondent. Brelje's record shows that she was tardy 17 times and absent 1 full day and 2 half days following her last warning on June 18. I find that Respondent did not violate the Act by giving Brelje a written warning on Au- gust 21. As discussed elsewhere in this Decision, Donna Brelje was unlawfully suspended for 2 days on September 5. On October 1 Respondent's supervision and management met and reviewed employees' absence and attendance records for the period since August 20. This was the first such meeting attended by Morgan and Fntzke. Olson attended in his new capacity as production manager over the switch assembly area. At this meeting it was decided to suspend Brelje, to terminate 3 employees, and to issue 19 verbal and 7 written warnings.13 According to Brelje's direct testi- mony, she was called to Marion Lundin's office on Octo- ber 2 and, in Lundm's presence, Marlene Morgan stated Brelje was being suspended for 11 working days for miss- ing too much work and for excessive tardiness. Brelje pro- tested this was not fair because people working around her were missing twice as much work and nothing was done to them. Morgan ended the conversation by responding that this was none of Brelje's business. 10 Brelje omitted any reference to this warning from her direct testimony, but when reminded on cross-examination quickly remembered the incident and the events which prompted the absences Under these circumstances I find her testimony, that she could not remember whether or not she notified the Company that she would be absent those days, evasive and incredible 11 Between the June 17 and August 20 supervisors' meetings, Diane Braunworth was terminated on July 16 after failing to report for work an entire week without calling in Valarie Lipinski was discharged on July 10 for having been late once and absent 3 days in I week. 12, I credit this version by Brelje of the August 21 warning interview since it coincides with Olson's testimony, I do not rely on the inconsistent second version she gave later in her direct testimony, in which she claimed she protested to Sinn that the warning was unfair It appears that Brelje con- f2ised this portion of her testimony with her subsequent account of the October 2 suspension interview which she protested as unfair because she claimed other absent employees had not been disciplined 13 One of the written warnings was issued to Jo Ellen Elias No supervi- sors' meetings to review tardiness and attendance records were held after this meeting Thereafter, discipline was initiated by the supervisors responsi- ble. Marlene Morgan testified that Brelje's tardiness and at- tendance record revealed that for a short period of time after receiving a written warning on August 21 Brelje's rec- ord improved, but then reverted to her former pattern. It was decided to suspend her. In addition, according to Mor- gan, she received a report 'from Herman Sinn that while Brelje was absent on October 1 Brelje telephoned Sinn and attempted to "coerce" Sinn into agreeing to pay Brelje 4 weeks' severance pay in exchange for dropping the charges she had filed with the Board and terminating her employ- ment.i4 Thus, when Morgan suspended Brelje for 11 days, she described Brelje's offer as "despicable" and based the suspension, in part, on this incident. On cross-examination Brelje conceded that she had of- fered to quit in return for 4 weeks' severance pay, but de- nied saying that she would drop her charges with the Board. Nevertheless, she also testified that when Morgan described her compromise offer as "despicable" she retort- ed that it may have'been despicable but at least it was a try. I credit Sinn and Morgan's account over that of Brelje, who onutted any mention of this incident in her direct tes- timony despite its being one of the bases for her suspen- sion as shown on the suspension notice.15 Brelje's record shows that between her August 21 written warning and October 2 she was absent 4-1/2 days and tar- dy 6 days. Except for one absence and one tardiness, all of these infractions occurred after September 15. Thus, Morgan's appraisal of Brelje's record as having shown a temporary improvement followed by a sharp decline to her former habits is correct. An examination of the records of other employees reveals no disparate treatment. Indeed, one employee, Anderson, was terminated for having seven tardinesses and five absences between September 12 and October 1, a record similar to that of Brelje. Therefore, to the extent that Respondent based Brelje's suspension on her record of tardiness and absences, I find no unlawful motive behind the Company's action. Neither do I con- clude that Respondent violated the Act by attributing Brelje's suspension, in part, upon her severance pay pro- posal. The processes of the Board are remedial, designed to make whole employees who are the victims of conduct pro- scribed by the Act, not to punish those responsible, nor to create circumstances resulting in the enrichment of those who seek the Board's assistance. Respondent clearly did not penalize Brelje for using the Board's procedures by suspending her, in part, for the proposal which she made to Sinn. Rather, the Company properly, in this instance, ob- jected to Brelje's abuse of the processes of the Board in attempting to use her charge to obtain a consideration to which she was not entitled on any basis. Although Respon- dent could have simply rejected Brelje's proposal without further action, to find that Respondent acted unlawfully by penalizing Brelje's conduct, encourages similar abuses. I find that Respondent did not violate the Act by suspending Brelje on October 2. 14 Sinn's testimony about his conversation with Brelje is in accord with Morgan's account of what Sinn relayed to her Sinn told Brelje that he was in no position to make that type of decision on the phone, and that he would check into the matter and call her back. He did not do so i5 This notice also alerted Brelje that "any additional attendance prob- lems or any problems relating to your overall performance will result in discharge " IEE/SCHADOW, INC. 711 2. The events leading to Brelje's discharge on November 25 On October 3, the first full day of her suspension, Brelje called Morgan and arranged to pick up her paycheck from the receptionist at the front door of the plant. Later, against Morgan's express instructions not to enter the plant itself because she was on suspension, Brelje accompanied by her three puppies entered through the shipping entrance and was discovered by Manager Morgan visiting with em- ployees in the cafeteria. Morgan told Brelje to come to -her office. Brelje responded that she did not want to talk to Morgan, and had dust come to get her check, but Morgan insisted, and eventually Brelje arrived. Morgan reminded Brelje that she was supposed to enter the front-door, and Brelje protested that she was not talking to the girls on the production floor. Then Morgan gave Brelje her paycheck, instructed her to leave, and Brelje departed through the assembly area and out the shipping door.16 On October 21, the day following Brelje's return to work, Morgan talked to Brelje in the cafeteria.- Brelje requested a raise. When Morgan explained that she was already mak- ing 25 cents an hour more than the coil-winder,job-normal- ly paid, Brelje requested to be permitted to transfer back to her former job, known as the plunger automat, an incentive job at which Brelje had-previously made $3.50 an hour. Morgan agreed to consider the matter. On the morning of October 24, Morgan discovered Brelje reading at her work station instead of monitoring her machines, which manu- factured coil springs for the plunger automat machines. Morgan came uponrBrelje's inattention to her work as the result of a report from Trudy Sund that her plunger auto- mat was not operating properly. Nevertheless, later that afternoon in a conference in the cafeteria, Morgan granted Brelje's transfer request. Morgan also reprimanded Brelje for- reading-when she should have been attending her ma- chines. Brelje's attendance record reveals that following her sus- pension she was tardy on November 3 and 24, and absent for 1-1/2 days on both, November 20 and 21. Early in No- vember Respondent experienced considerable difficulty with its plunger automat machines, resulting in a high number of defective assemblies. Brelje acknowledged at- tending a meeting with Trudy Sund, Herman Sinn, and Marlene Morgan in which, this problem was discussed. Morgan remembered the date of the meeting as November 19.11 Morgan reminded Brelje' and Sund about the instruc- tions she had issued that the four plunger automat opera- 16 Brelje omitted this incident from her direct testimony, but readily ad- nutted on cross-examination that she had defied Morgan 's instructions when she came to the plant to get her check. Brelje's account differs only in that she claimed she entered and left by the employee entrance To the limited extent the reasons differ, I credit Morgan Throughout her testimony Brelje was not a candid witness. She omitted important incidents relating to her difficulties with the Company, which she was later forced, on cross- examination, to concede occurred. At other times her memory suddenly failed when questioned about unfavorable aspects of her case I do not credit her testimony, where controverted, except as specifically noted 17 This meeting was prompted by a disturbance in the plant earlier that day Brelje testified that certain of the employees became upset because their seating arrangement at their work stations had been changed Two employees walked off the job, and Brelje endeavored to speak to Sinn and Morgan about the matter about 1 p in in Sinn's office. Brelje protested that tors were to record the number of jams, the number of rejects, and the amount of downtime on their timeslips. On the morning of November 25, Marion Lundin reported to Morgan that Donna Brelje had failed to record the request- ed information, even after Lundin had reminded her. Brel- je testified that when Lundin confronted her, about the matter she replied- that it would take too much time, her percentage would be reduced, and she was not being paid to record the information. When Morgan approached Brel- je about her failure to follow the instructions, Brelje an- swered that she had forgotten. At noon Morgan met with General Manager Kinney, and reviewed BrelJe's record and conduct since the day of her suspension. In addition to her tardiness and absence record, the incidents of Brelje's reading at her machine and her refusal to record the plunger automat data were discussed. Morgan's recom- mendation that Brelje be dismissed was accepted. The ter- mination interview -took place in Herman Sinn's office with Morgan present. Morgan stated that because of continued tardiness and her poor attitude Brelje was terminated. The General Counsel contends that the record consid- ered as a whole reveals that Respondent seized on Brelje's tardiness and absence record and-other incidents relating to her conduct as a pretext for ridding itself of a trouble- some union activist. Respondent urges that the evidence disproves the General Counsel's theory, specifically in that Respondent failed to avail itself of earlier opportunities to terminate Brelje. After carefully weighing the evidence of BrelJe's conduct and record against the entire record, I find that the General Counsel has failed to prove that Donna Brelje was discharged in violation of Section 8(a)(3) and (1) of the Act. I am aware that the finding in an earlier portion of this Decision that the suspensions of Henson, Elias, and Brelje on September 5 by Sales Manager Herman Sinn for "causing dissension" were motivated by these employees' union activities can be argued to have a "carry over" effect with respect to Respondent's motive concerning its subse- quent actions, thereby giving rise to further argument that Respondent's subsequent conduct was motivated, at least in part, by unlawful purpose. However, this line of conten- tion can be overextended. Moreover, there exists an equal- ly valid perspective, based on the foibles of human nature, that although Respondent is liable for the acts of each su- pervisor one may display a propensity to violate the Act, and another may not, or a given supervisor may act unlaw- fully at one time and properly on other occasions. Thus, in many situations, such as presented by the, instant case, where the evidence shows that in isolated instances Re- spondent acted in violation of the Act, it does not always follow that an unlawful pattern of retaliation is revealed.18 the employees involved felt they were being treated like school children, and that if an explanation had been made in advance the incident probably would not have happened According to Brelje, Morgan asked who would make the best supervisor on the Schadow side, and Brelje answered she would like to try. Morgan countered that Brelje had "everything, going for you" except she had missed a lot of work Brelje insisted she had improved, and Morgan agreed, "yes, you have " Morgan remembered having a conver- sation with Donna Brelje and Trudy Sund after two girls quit when their tables had been rearranged, but denied discussing Brelje as a potential su- pervisor I credit Morgan is I have considered the testimony concerning Donna Brelje's having con- versed with Al Marchato, a consultant on employee benefit programs from Continued 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record clearly shows that following the September 5 suspension Brelje continued to incur frequent tardinesses and absences. Her attitude was one of defying her supervi- sors' instructions and substituting her own judgment for theirs as displayed by the paycheck incident and her refus- al to record the plunger automat data. I conclude that Re- spondent did not violate the Act in discharging Donna Brelje on November 25. CONCLUSIONS OF LAW 1. Respondent 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 meaning of Section 2(5) of the Act. 3. By denying Jeanie Henson a wage increase and giving her a written warning on August 8, and by suspending Jeanie Henson, Jo Ellen Elias, and Donna Brelje for 2 days on September 5, Respondent violated Section 8(a)(1) and (3) of the Act. 4. By threatening Jeanie Henson and Donna Brelje with discharge on May 23, because of their union or protected concerted activities, Respondent violated Section 8(a)(1) of the Act. 5. The unfair labor practices of the Respondent affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not violated the Act in any respect other than those specifically found. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Because the Respondent discriminatorily denied Jeanie Henson a wage increase on August 8, and discriminatorily suspended Jeanie Henson, Jo Ellen Elias, and Donna Brel- je on September 5 for 2 days, I find it necessary to order the Respondent to make these employees whole for any loss of pay, plus interest at 6 percent per annum, they in- curred by reason of the discrimination practiced against them in accordance with established Board formulas. I shall also order the Respondent to delete from its records any references recorded therein concerning the actions found herein to be discriminatory. Finally, I shall order the Respondent to post an appro- priate notice with respect to the violations found to have occurred. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: the parent corporation, ITT I find that General Counsel has failed to prove that Marchato is an agent of Respondent for purposes of this proceeding, and further find, based on the state of the record, that any inference that Breije's discharge was in any way related to her having been seen talking to Marchato is pure speculation ORDER 19 The Respondent, IEE/Schadow, Inc., Eden Prairie, Minnesota, its officers, agents, successors, and,.assigns, shall: 1. Cease and desist from: (a), Warning employees, suspending employees, or deny- ing employees wage increases, or otherwise discriminating against them with regard to the hire and tenure of their employment or any other term or condition of employment because of their union or protected concerted activities, or in any other manner interfering with, restraining, or coerc- ing employees in the exercise of rights guaranteed in Sec- tion 7 of the Act except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. (b) Threatening employees with discharge because of their union or protected concerted activities. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Make whole Jeanie Henson, Jo Ellen Elias, and Donna Brelje for any loss of earnings they may have suf- fered as specified in "The Remedy." (b) Rescind and delete from its personnel records any personnel actions or recorded references to the written warning given Jeanie Henson on August 8, the denial of Jeanie Henson's wage increase, and the suspensions of Jeanie Henson, Jo Ellen Elias, and Donna Brelje. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records, and all other records necessary to ana- lyze whatever amount of backpay may be due under the terms of this Order. (d) Post at its plant at Eden Prairie, Minnesota, copies of the attached notice marked "Appendix." 20 Copies of said notice, on forms provided by the Regional Director for Region 18, after being duly signed by an authorized representative of Respondent, shall be posted by Respon- dent 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 the Respondent to insure that said notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director for Region 18, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed in all other respects. 19 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 20 In the event that the Board's 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." IEE/SCHADOW, INC. 713 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportunity to present their evidence, it has been decided that we violated the law and we have been ordered to post this notice. We intend to carry out the Order of the Board and abide by the following: WE WILL NOT warn, suspend, or deny wage increases to employees, or otherwise punish employees because they engaged in union activities or concerted activities for their mutual aid or protection. WE WILL make whole Jeanie Henson , Jo Ellen Elias, and Donna Brelje for any loss of earnings they may have suffered by reason of the discrimination prac- ticed against them. WE hereby rescind our actions in denying Jeanie Henson a wage increase and issuing a written warning to her on August 8, 1975, and in suspending Jeanie Henson, Jo Ellen Elias, and Donna Brelje on Septem- ber 5, 1975, and will remove any documentation relat- ing to these actions from their personnel files. WE WILL NOT threaten employees with discharge be- cause of their union or protected concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights. All our employees are free to engage in union activities or concerted activities for the purpose of collective bar- gaining or other mutual aid or protection . Our employees are also free to refrain from any or all such activities, ex- cept to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. IEE/SCHADOW, INC.