High Energy Corporation

HIGH ENERGY CORPORATION 747 High Energy Corporation and International Brother- IT IS FURTHER ORDERED that the challenge to hood of Electrical Workers, Local 1448, AFL- the ballot of Robert Burket, cast in the election CIO. Cases 4-CA-11089 and 4-RC-14152 conducted in Case 4-RC-14152 on May 16, 1980, December 16, 1981 be overruled and the ballot counted, and that the Regional Director for Region 4 issue and serve on DECISION AND ORDER the parties a revised tally of ballots. If the revised tally of ballots indicates that the Union has re- BY MEMBERS FANNING, JENKINS, AND ceived a majority of the valid votes cast in the ~ZIJMMERMAN~~ election, the Regional Director shall issue a Certifi- On July 28, 1981, Administrative Law Judge cation of Representative. If the revised tally of bal- Robert M. Schwarzbart issued the attached Deci- lots indicates that the Union has not received a ma- sion in this proceeding. Thereafter, Respondent jority of the valid votes cast, the Regional Director filed exceptions and a supporting brief, and the shall set aside the election and order a new election General Counsel and the Charging Party filed to be scheduled at a time and place found appropri- briefs in answer to Respondent's exceptions. ate by the Regional Director. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- APPENDIX tional Labor Relations Board has delegated its au- NOTICE To EMPLOYEES thority in this proceeding to a three-member panel. The Board has considered the record and the at- POSTED BY ORDER OF THE tached Decision in light of the exceptions andNATIONAL LABOR RELATIONS BOARD briefs and has decided to affirm the rulings, find- An Aency of the United States Government ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as After a hearing at which all sides had an opportu- modified herein. nity to present evidence and state their positions, the National Labor Relations Board found that we ORDER have violated the National Labor Relations Act, as Pursuant to Section 10(c) of the National Labor amended, and has ordered us to post this notice. Relations Act, as amended, the National Labor Re- WE WILL NOT threaten to close our plant if lations Board adopts as its Order the recommended you select Local 1448, International Brother- Order of the Administrative Law Judge, as modi- hood of Electrical Workers, AFL-CIO, or any fled below, and hereby orders that the Respondent, other labor organization to represent you. High Energy Corporation, Parkesburg, Pennsylva- WE WILL NOT coercively interrogate you nia, its officers, agents, successors, and assigns, with respect to your union membership, activi- shall take the action set forth in the said recom- ties, or sympathies, or those of other employ- mended Order, as so modified: ees. 1. Insert the following as paragraph 2(b) and re- WE WILL NOT threaten you with the elimi- letter the subsequent paragraphs accordingly: nation of benefits, the imposition of stricter "(b) Expunge from its files any reference to the working conditions, or other reprisals, if you discriminatory discharge of Robert Burket on May select the above-named Union, or any other 12, 1980, and notify Burket in writing that this has labor organization, to represent you. been done and that evidence of this unlawful action WE WILL NOT olicit grievances or co- will not be used as a basis for future discipline plaints from you in order to discourage your ;gainst hm." ^plaints from you in order to discourage your ~~~~~against him." ~support for and activities on behalf of the 2. Substitute the attached notice for that of the above-named Union. Administrative Law Judge. ~Administrative Law Judge. WE WILL NOT offer to assist you or other- ' Respondent has excepted to certain credibility findings made by the wise encourage you to form a company union Administrative Law Judge. It is the Board's established policy not to to induce you to give up support for the overrule an administrative law judge's resolutions with respect to credi- above-named Union or any other labor orga- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, nization. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have WE WILL NOT unlawfully lay off, discharge, carefully examined the record and find no basis for reversing his findings. We shall modify the Administrative Law Judge's remedy to require or otherwise discriminate against you because that Respondent expunge from Robert Burket's employment records any of membership in or activity on behalf of the reference to his discharge and to require Respondent to notify Burket above-named Union, or any labor that its unlawful action will not be used as a basis for future disciplinether ga- against him. nization. 259 NLRB No. 97 HIGH ENERGY CORPORATION 747 High Energy Corporation and International Brother- IT IS FURTHER ORDERED that the challenge to hood of Electrical Workers, Local 1448, AFL- the ballot of Robert Burket, cast in the election CIO. Cases 4-CA-11089 and 4-RC-14152 conducted in Case 4-RC-14152 on May 16, 1980, December 16, 1981 be ov e r ruled and the ballot counted, and that the Regional Director for Region 4 issue and serve on DECISION AND ORDER the parties a revised tally of ballots. If the revised By MiMBER, FANNING, JENKINS, ANDtally of ballots indicates that the Union has re- BY MEMBERS FANNING, JENKINS, AND^ ^ ZIMMERMAN ~~~ceived a majority of the valid votes cast in the election, the Regional Director shall issue a Certifi- On July 28, 1981, Administrative Law Judge cation of Representative. If the revised tally of bal- Robert M. Schwarzbart issued the attached Deci- lots indicates that the Union has not received a ma- sion in this proceeding. Thereafter, Respondent jority of the valid votes cast, the Regional Director filed exceptions and a supporting brief, and the shall set aside the election and order a new election General Counsel and the Charging Party filed to be scheduled at a time and place found appropri- briefs in answer to Respondent's exceptions. ate by the Regional Director. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- APPENDIX tional Labor Relations Board has delegated its au- NOTICE To EMPLOYEES thority in this proceeding to a three-member panel. POSTDB ORDEROTE The Board has considered the record and the at- N ONAL B O RELTOF THE tached Decision in light of the exceptions andNAn LABOR of BOARD briefs and has decided to affirm the rulings, find- A n ^ency of the United States Government ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as A ft e r a hearing at which all sides had an opportu- modified herein. nity t o present evidence and state their positions, the National Labor Relations Board found that we ORDER have violated the National Labor Relations Act, as Pursuant to Section 10(c) of the National Labor amended, and has ordered us to post this notice. Relations Act, as amended, the National Labor Re- WE WILL NOT threaten to close our plant if lations Board adopts as its Order the recommended you select Local 1448, International Brother- Order of the Administrative Law Judge, as modi- hood of Electrical Workers, AFL-CIO, or any fied below, and hereby orders that the Respondent, other labor organization to represent you. High Energy Corporation, Parkesburg, Pennsylva- WE WILL NOT coercively interrogate you nia, its officers, agents, successors, and assigns, with respect to your union membership, activi- shall take the action set forth in the said recom- ties, or sympathies, or those of other employ- mended Order, as so modified: ees. 1. Insert the following as paragraph 2(b) and re- WE WILL NOT threaten you with the elimi- letter the subsequent paragraphs accordingly: nation of benefits, the imposition of stricter `(b) Expunge from its files any reference to the working conditions, or other reprisals, if you discriminatory d isc h a r ge o f R o be r t B u r k et on May select the above-named Union, or any other 12, 1980, and notify Burket in writing that this has labor organization, to represent you. been done and that evidence of this unlawful actionW grievances or com- will not be used as a basis for future discipline p f y i o to d a ;gis i." j *plaints from you in order to discourage your 2. Substitute the attached notice for that of the su p p o r t f o r a n d a c t i v it ie s o n b e h a l f o f t h e Administrative Law Judgtabove-named Union. Ad ministrative Law Judge. W E W ILL NOT offer to assist you or other- ' Respondent has excepted to certain credibility findings made by the wise encourage you to form a Company Union Administrative Law Judge. It is the Board's established policy not to to induce you to give Up support for the overrule an administrative law judge's resolutions with respect to credi- above-named Union, or any other labor orga- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, nization. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have WE WILL NOT Unlawfully lay off, discharge, carefully examined the record and find no basis for reversing his findings. We shall modify the Administrative Law Judge's remedy to require or Otherwise discriminate against you because that Respondent expunge from Robert Burkel's employment records any of membership in or activity On behalf of the reference to his discharge and to require Respondent to notify Burket, l,^.,n ^,«.^ T ; ^ . la»», 1 u ^ that its unlawful action will not be used as a basis for future disciplineabove-named Union, Or any Other labor orga- against him. nization. 259 NLRB No. 97 HIGH ENERGY CORPORATION 747 High Energy Corporation and International Brother- IT IS FURTHER ORDERED that the challenge to hood of Electrical Workers, Local 1448, AFL- the ballot of Robert Burket, cast in the election CIO. Cases 4-CA-11089 and 4-RC-14152 conducted in Case 4-RC-14152 on May 16, 1980, December 16, 1981 be ov e r ruled and the ballot counted, and that the Regional Director for Region 4 issue and serve on DECISION AND ORDER the parties a revised tally of ballots. If the revised By MiMBER, FANNING, JENKINS, ANDtally of ballots indicates that the Union has re- BY MEMBERS FANNING, JENKINS, AND^ ^ ZIMMERMAN ~~~ceived a majority of the valid votes cast in the election, the Regional Director shall issue a Certifi- On July 28, 1981, Administrative Law Judge cation of Representative. If the revised tally of bal- Robert M. Schwarzbart issued the attached Deci- lots indicates that the Union has not received a ma- sion in this proceeding. Thereafter, Respondent jority of the valid votes cast, the Regional Director filed exceptions and a supporting brief, and the shall set aside the election and order a new election General Counsel and the Charging Party filed to be scheduled at a time and place found appropri- briefs in answer to Respondent's exceptions. ate by the Regional Director. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- APPENDIX tional Labor Relations Board has delegated its au- NOTICE To EMPLOYEES thority in this proceeding to a three-member panel. POSTDB ORDEROTE The Board has considered the record and the at- N ONAL B O RELTOF THE tached Decision in light of the exceptions andNAn LABOR of BOARD briefs and has decided to affirm the rulings, find- An ^ency of the United States Government ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as A ft e r a hearing at which all sides had an opportu- modified herein. nity t o present evidence and state their positions, the National Labor Relations Board found that we ORDER have violated the National Labor Relations Act, as Pursuant to Section 10(c) of the National Labor amended, and has ordered us to post this notice. Relations Act, as amended, the National Labor Re- WE WILL NOT threaten to close our plant if lations Board adopts as its Order the recommended you select Local 1448, International Brother- Order of the Administrative Law Judge, as modi- hood of Electrical Workers, AFL-CIO, or any fied below, and hereby orders that the Respondent, other labor organization to represent you. High Energy Corporation, Parkesburg, Pennsylva- WE WILL NOT coercively interrogate you nia, its officers, agents, successors, and assigns, with respect to your union membership, activi- shall take the action set forth in the said recom- ties, or sympathies, or those of other employ- mended Order, as so modified: ees. 1. Insert the following as paragraph 2(b) and re- WE WILL NOT threaten you with the elimi- letter the subsequent paragraphs accordingly: nation of benefits, the imposition of stricter `(b) Expunge from its files any reference to the working conditions, or other reprisals, if you discriminatory discharge of Robert Burket on May select the above-named Union, or any other 12, 1980, and notify Burket in writing that this has labor organization, to represent you. been done and that evidence of this unlawful actionW grievances or com- will not be used as a basis for future discipline p f y i o to d a ;gis i." j *plaints from you in order to discourage your 2. Substitute the attached notice for that of the su p p o r t f o r a n d a c t i v it ie s o n b e h a l f o f t h e Administrative Law Judgtabove-named Union. Ad ministrative Law Judge. W E W ILL NOT offer to assist you or other- ' Respondent has excepted to certain credibility findings made by the wise encourage you to form a Company Union Administrative Law Judge. It is the Board's established policy not to to induce you to give Up support for the overrule an administrative law judge's resolutions with respect to credi- above-named Union, or any other labor orga- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, nization. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have WE WILL NOT Unlawfully lay off, discharge, carefully examined the record and find no basis for reversing his findings. We shall modify the Administrative Law Judge's remedy to require or Otherwise discriminate against you because that Respondent expunge from Robert Burkel's employment records any of membership in or activity On behalf of the reference to his discharge and to require Respondent to notify Burket, l,^.,n ^,«.^ T ; ^ . la»», 1 u ^ that its unlawful action will not be used as a basis for future disciplineabove-named Union, Or any Other labor orga- against him. nization. 259 NLRB No. 97 HIGH ENERGY CORPORATION 747 High Energy Corporation and International Brother- IT IS FURTHER ORDERED that the challenge to hood of Electrical Workers, Local 1448, AFL- the ballot of Robert Burket, cast in the election CIO. Cases 4-CA-11089 and 4-RC-14152 conducted in Case 4-RC-14152 on May 16, 1980, December 16, 1981 be ov e r ruled and the ballot counted, and that the Regional Director for Region 4 issue and serve on DECISION AND ORDER the parties a revised tally of ballots. If the revised By MiMBER, FANNING, JENKINS, ANDtally of ballots indicates that the Union has re- BY MEMBERS FANNING, JENKINS, AND^ ^ ZIMMERMAN ~~~ceived a majority of the valid votes cast in the election, the Regional Director shall issue a Certifi- On July 28, 1981, Administrative Law Judge cation of Representative. If the revised tally of bal- Robert M. Schwarzbart issued the attached Deci- lots indicates that the Union has not received a ma- sion in this proceeding. Thereafter, Respondent jority of the valid votes cast, the Regional Director filed exceptions and a supporting brief, and the shall set aside the election and order a new election General Counsel and the Charging Party filed to be scheduled at a time and place found appropri- briefs in answer to Respondent's exceptions. ate by the Regional Director. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- APPENDIX tional Labor Relations Board has delegated its au- NOTICE To EMPLOYEES thority in this proceeding to a three-member panel. POSTDB ORDEROTE The Board has considered the record and the at- N ONAL BORDERTOF THE tached Decision in light of the exceptions andNAn LABOR of BOARD briefs and has decided to affirm the rulings, find- An ^ency of the United States Government ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as A ft e r a hearing at which all sides had an opportu- modified herein. nity t o present evidence and state their positions, the National Labor Relations Board found that we ORDER have violated the National Labor Relations Act, as Pursuant to Section 10(c) of the National Labor amended, and has ordered us to post this notice. Relations Act, as amended, the National Labor Re- WE WILL NOT threaten to close our plant if lations Board adopts as its Order the recommended you select Local 1448, International Brother- Order of the Administrative Law Judge, as modi- hood of Electrical Workers, AFL-CIO, or any fied below, and hereby orders that the Respondent, other labor organization to represent you. High Energy Corporation, Parkesburg, Pennsylva- WE WILL NOT coercively interrogate you nia, its officers, agents, successors, and assigns, with respect to your union membership, activi- shall take the action set forth in the said recom- ties, or sympathies, or those of other employ- mended Order, as so modified: ees. 1. Insert the following as paragraph 2(b) and re- WE WILL NOT threaten you with the elimi- letter the subsequent paragraphs accordingly: nation of benefits, the imposition of stricter `(b) Expunge from its files any reference to the working conditions, or other reprisals, if you discriminatory discharge of Robert Burket on May select the above-named Union, or any other 12, 1980, and notify Burket in writing that this has labor organization, to represent you. been done and that evidence of this unlawful actionW grievances or com- will not be used as a basis for future discipline p f y i o to d a ;gis i." j *plaints from you in order to discourage your 2. Substitute the attached notice for that of the su p p o r t f o r a n d a c t i v it ie s o n b e h a l f o f t h e Administrative Law Judgtabove-named Union. Ad ministrative Law Judge. W E W ILL NOT offer to assist you or other- ' Respondent has excepted to certain credibility findings made by the wise encourage you to form a Company Union Administrative Law Judge. It is the Board's established policy not to to induce you to give Up support for the overrule an administrative law judge's resolutions with respect to credi- above-named Union, or any other labor orga- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, nization. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have WE WILL NOT Unlawfully lay off, discharge, carefully examined the record and find no basis for reversing his findings. We shall modify the Administrative Law Judge's remedy to require or Otherwise discriminate against you because that Respondent expunge from Robert Burkel's employment records any of membership in or activity On behalf of the reference to his discharge and to require Respondent to notify Burket, l,^.,n ^,«.^ T ; ^ . la»», 1 u ^ that its unlawful action will not be used as a basis for future disciplineabove-named Union, Or any Other labor orga- against him. nization. 259 NLRB No. 97 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner tally of ballots served on the parties immediately follow- interfere with, restrain, or coerce you in the ing the election showed that of approximately 78 eligible exercise of rights guaranteed under Section 7 voters 76 cast ballots, of which 35 were cast for the of the National Labor Relations Act, as Union, 35 were cast against the Union, and 6 ballots amended. were challenged. There were no void ballots, but the WE WILL offer Robert Burket immediate challenged ballots were sufficient in number to affect the and full reinstatement to his former job or, if results of the election. 4The Union filed timely objections . to conduct affecting the results of the election. In its ob- his job no longer exists, to a substantially jections, the Union alleged that in the critical period equivalent position, without prejudice to his before the election5 the Respondent discharged or per- seniority or other rights and privileges previ- manently laid off its employee Robert Burket for engag- ously enjoyed, and WE WILL make him whole, ing in union activity, and threatened employees at var- with interest, for any loss of pay or other ious times that the plant would be closed if they selected benefits he has suffered since his discriminato- the Union as bargaining representative. On January 23, ry discharge. 1981, the Regional Director, in furtherance of his Report WE WILL expunge from our files any refer- on Objections to Election and Challenged Ballots, dated ences to the disciplinary discharge of Robert July 9, issued his Order that certain objections to the Burket on May 12, 1980, and WE WILL notify election and determinative challenges to ballots in Case Burket in writing that this has been done and 4-RC-14152 be resolved in consolidated hearing with that evidence of this unlawful action will not Case 4-CA-11089. be used as a basis for future discipline against All parties were given full opportunity to participate, bhim. ue asabssfrftrdicpieaa to introduce relevant evidence, to examine and cross-ex- amine witnesses, and to file briefs. Briefs, filed by the General Counsel, the Respondent, and the Union, have HIGH ENERGY CORPORATION~ been carefully considered. DECISION Upon the entire record of the case and my observation of the witnesses and their demeanor, I make the follow- STATEMENT OF THE CASE ing: ROBERT M. SCHWARZBART, Administrative Law FINDINGS OF FACT Judge: These cases were heard in Philadelphia, Pennsyl- vania, on February 2-5, 1981, upon a complaint issued I. THE BUSINESS OF THE RESPONDENT July 9, 1980,' pursuant to a charge filed by International Brotherhood of Electrical Workers of America, Local The Respondent, High Energy Corporation, a Penn- 1448, AFL-CIO, herein the Union. Specifically, the sylvania corporation, is engaged at its Parkesburg, Penn- complaint alleges that High Energy Corporation, herein sylvania, facility in the manufacture of ceramic and oil- the Respondent, violated Section 8(a)(l) of the Act by filled capacitors.7 During the year ending July 9, 1980, a repeatedly threatening its employees that the plant would representative period, the Respondent received gross be closed if they selected the Union as their bargaining revenues valued in excess of $1 million and purchased representative; by coercively interrogating employees materials and supplies valued in excess of $50,000 direct- concerning their own union sympathies and activities and ly from points outside the Commonwealth of Pennsylva- those of other employees; and by soliciting grievances to nia. discourage employee support for the Union.2 The complaint further alleges that the Respondent vio- Parkesburg, Pennsylvania, location, excluding all other employees. lated Section 8(a)(3) and (1) of the Act by discharging including guards and supervisors as defined in the Act. Robert Burket because of his union sympathies and ac- Four ballots were challenged by the Union and two by the Employ- tivities. The Respondent, in its answer, denies the com- 5 In Goodyear Tire and Rubber Company, 138 NLRB 453 (1962), the mission of unfair labor practices. Board defined the critical period before an election as the interval from Pursuant to a petition filed by the Union in Case 4- the date of the filing of the petition to the time of the election. Conduct RC-14152 and a Stipulation for Certification Upon Con- occurring during this period found to have interfered with the employ- ees' freedom of choice at the polls may be grounds for setting aside the sent Election, approved on April 25 by the Regional Di- ees freedom ordingly, ince at the present case, the critical period is from rector for Region 4, a representation election by secret April 8, when the petition was filed, to May 16, the date of the election. ballot was conducted on May 16 among the employees 6 In the Report on Objections to Election and Challenged Ballots, the of the Respondent in an agreed bargaining unit.3 The Regional Director overruled so much of Objection 2 as alleged that the Employer had shown or played coercive slides, movies, and tape record- ings containing antiunion propaganda, and concluded that Objection 1, All dates hereinafter are within 1980, unless stated to be otherwise. the remaining allegation of Objection 2, and Objection 3, and the six de- Although not specifically alleged in the complaint, the Union argues terminative challenged ballots should be consolidated herewith for hear- in its brief that the Respondent also violated Sec. 8(a)(l) of the Act by ing threatening more stringent working conditions if the employees selected 7 Capacitors are electrical components that are used in transmitters, sat- the Union as their bargaining representative. ellites, and various electronic products. Basically, on receiving a small The stipulated appropriate bargaining unit is as follows: charge, capacitors build up greater charges of electricity. The Respond- All production and maintenance, warehouse, shipping, quality con- ent, through different technologies, produces both ceramic and oil-filled trol, welders, and clerical employees employed at the Respondent's capacitors. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner tally of ballots served on the parties immediately follow- interfere with, restrain, or coerce you in the ing the election showed that of approximately 78 eligible exercise of rights guaranteed under Section 7 v o t e rs 76 c ast ballots, of which 35 were cast for the of the National Labor Relations Act, as Union, 35 were cast against the Union, and 6 ballots amended. were challenged. There were no void ballots, but the WE WILL offer Robert Burket immediate challenged ballots were sufficient in number to affect the and full reinstatement to his former job or, if r es ul t s o f t h e el ec t io n . T h e Uni o n f i led tim e ly o bjectio n s to conduct affecting the results of the election. In its ob- his job no longer exists, to a substantially jections, the Union alleged that in the critical period equivalent position, without prejudice to his before the election' the Respondent discharged or per- seniority or other rights and privileges previ- manently laid off its employee Robert Burket for engag- ously enjoyed, and WE WILL make him whole, ing in union activity, and threatened employees at var- with interest, for any loss of pay or other ious times that the plant would be closed if they selected benefits he has suffered since his discriminato- the Union as bargaining representative. On January 23, ry discharge. 1981, the Regional Director, in furtherance of his Report WE WILL expunge from our files any refer- on Objections to Election and Challenged Ballots, dated ences to the disciplinary discharge of Robert July 9, issued his Order that certain objections to the Burket on May 12, 1980, and WE WILL notify election and determinative challenges to ballots in Case Burket in writing that this has been done and 4-RC-14152 be resolved in consolidated hearing with that evidence of this unlawful action will not Case 4-CA-11089.1 be used as a basis for future discipline against All parties w er e given fu ll opportunity to participate, him. to introduce relevant evidence, to examine and cross-ex- amine witnesses, and to file briefs. Briefs, filed by the HIGH ENERGY CORPORATION General Counsel, the Respondent, and the Union, have been carefully considered. DECISION Upon the entire record of the case and my observation of the witnesses and their demeanor, I make the follow- STATEMENT OF THE CASE ing: ROBERT M. SCHWARZBART, Administrative Law FINDINGS OF FACT Judge: These cases were heard in Philadelphia, Pennsyl- vania, on February 2-5, 1981, upon a complaint issued I. THE BUSINESS OF THE RESPONDENT July 9, 1980,' pursuant to a charge filed by International Brotherhood of Electrical Workers of America, Local The Respondent, High Energy Corporation, a Penn- 1448, AFL-CIO, herein the Union. Specifically, the sylvania corporation, is engaged at its Parkesburg, Penn- complaint alleges that High Energy Corporation, herein sylvania, facility in the manufacture of ceramic and oil- the Respondent, violated Section 8(a)(l) of the Act by filled capacitors. 7 During the year ending July 9, 1980, a repeatedly threatening its employees that the plant would representative period, the Respondent received gross be closed if they selected the Union as their bargaining revenues valued in excess of $1 million and purchased representative; by coercively interrogating employees materials and supplies valued in excess of $50,000 direct- concerning their own union sympathies and activities and ly from points outside the Commonwealth of Pennsylva- those of other employees; and by soliciting grievances to nia. discourage employee support for the Union. 2 The complaint further alleges that the Respondent vio- Parkesburg, Pennsylvania, location, excluding all other employees, lated Section 8(a)(3) and (1) of the Act by discharging including guards and supervisors as defined in the Act. Robert Burket because of his union sympathies and ac- Four ballots were challenged by the Union and two by the Employ- tivities. The Respondent, in its answer, denies the com- ". In Goodyear Tire and Rubber Company, 138 NLRB 453 (1962), the mission of unfair labor practices. Board defined the critical period before an election as the interval from Pursuant to a petition filed by the Union in Case 4- the date of the filing of the petition to the time of the election. Conduct RC-14152 and a Stipulation for Certification Upon Con- occurring during this period found to have interfered with the employ- sent Election, approved on April 25 by the Regional Di- ees' freedom of choice at the polls may be grounds for setting aside the election. Accordingly, in the present case, the critical period is from rector for Region 4, a representation election by secret April 8, when the petition was filed, to May 16, the date of the election. ballot was conducted on May 16 among the employees I In the Report on Objections to Election and Challenged Ballots, the of the Respondent in an agreed bargaining unit. 3 The Regional Director overruled so much of Objection 2 as alleged that the Employer had shown or played coercive slides, movies, and tape record- ings containing antiunion propaganda, and concluded that Objection 1, All dates hereinafter are within 1980, unless stated to be otherwise. the remaining allegation of Objection 2, and Objection 3, and the six de- 2 Although not specifically alleged in the complaint, the Union argues terminative challenged ballots should be consolidated herewith for hear- in its brief that the Respondent also violated Sec. 8(a)(l) of the Act by ig threatening more stringent working conditions if the employees selected I Capacitors are electrical components that are used in transmitters, sat- the Union as their bargaining representative. ellites, and various electronic products. Basically, on receiving a small ' The stipulated appropriate bargaining unit is as follows: charge, capacitors build up greater charges of electricity. The Respond- All production and maintenance, warehouse, shipping, quality con- ent, through different technologies, produces both ceramic and oil-filled trol, welders, and clerical employees employed at the Respondent's capacitors. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner tally of ballots served on the parties immediately follow- interfere with, restrain, or coerce you in the ing the election showed that of approximately 78 eligible exercise of rights guaranteed under Section 7 v o t e rs 76 c ast ballots, of which 35 were cast for the of the National Labor Relations Act, as Union, 35 were cast against the Union, and 6 ballots amended. were challenged. There were no void ballots, but the WE WILL offer Robert Burket immediate challenged ballots were sufficient in number to affect the and full reinstatement to his former job or, if r es ul t s o f t h e el ec t io n . T h e Uni o n f i led tim e ly o bjectio n s to conduct affecting the results of the election. In its ob- his job no longer exists, to a substantially jections, the Union alleged that in the critical period equivalent position, without prejudice to his before the election' the Respondent discharged or per- seniority or other rights and privileges previ- manently laid off its employee Robert Burket for engag- ously enjoyed, and WE WILL make him whole, ing in union activity, and threatened employees at var- with interest, for any loss of pay or other ious times that the plant would be closed if they selected benefits he has suffered since his discriminato- the Union as bargaining representative. On January 23, ry discharge. 1981, the Regional Director, in furtherance of his Report WE WILL expunge from our files any refer- on Objections to Election and Challenged Ballots, dated ences to the disciplinary discharge of Robert July 9, issued his Order that certain objections to the Burket on May 12, 1980, and WE WILL notify election and determinative challenges to ballots in Case Burket in writing that this has been done and 4-RC-14152 be resolved in consolidated hearing with that evidence of this unlawful action will not Case 4-CA-11089.1 be used as a basis for future discipline against All parties w er e given fu ll opportunity to participate, him. to introduce relevant evidence, to examine and cross-ex- amine witnesses, and to file briefs. Briefs, filed by the HIGH ENERGY CORPORATION General Counsel, the Respondent, and the Union, have been carefully considered. DECISION Upon the entire record of the case and my observation of the witnesses and their demeanor, I make the follow- STATEMENT OF THE CASE ing: ROBERT M. SCHWARZBART, Administrative Law FINDINGS OF FACT Judge: These cases were heard in Philadelphia, Pennsyl- vania, on February 2-5, 1981, upon a complaint issued I. THE BUSINESS OF THE RESPONDENT July 9, 1980,' pursuant to a charge filed by International Brotherhood of Electrical Workers of America, Local The Respondent, High Energy Corporation, a Penn- 1448, AFL-CIO, herein the Union. Specifically, the sylvania corporation, is engaged at its Parkesburg, Penn- complaint alleges that High Energy Corporation, herein sylvania, facility in the manufacture of ceramic and oil- the Respondent, violated Section 8(a)(l) of the Act by filled capacitors. 7 During the year ending July 9, 1980, a repeatedly threatening its employees that the plant would representative period, the Respondent received gross be closed if they selected the Union as their bargaining revenues valued in excess of $1 million and purchased representative; by coercively interrogating employees materials and supplies valued in excess of $50,000 direct- concerning their own union sympathies and activities and ly from points outside the Commonwealth of Pennsylva- those of other employees; and by soliciting grievances to nia. discourage employee support for the Union. 2 The complaint further alleges that the Respondent vio- Parkesburg, Pennsylvania, location, excluding all other employees, lated Section 8(a)(3) and (1) of the Act by discharging including guards and supervisors as defined in the Act. Robert Burket because of his union sympathies and ac- Four ballots were challenged by the Union and two by the Employ- tivities. The Respondent, in its answer, denies the com- ". In Goodyear Tire and Rubber Company, 138 NLRB 453 (1962), the mission of unfair labor practices. Board defined the critical period before an election as the interval from Pursuant to a petition filed by the Union in Case 4- the date of the filing of the petition to the time of the election. Conduct RC-14152 and a Stipulation for Certification Upon Con- occurring during this period found to have interfered with the employ- sent Election, approved on April 25 by the Regional Di- ees' freedom of choice at the polls may be grounds for setting aside the election. Accordingly, in the present case, the critical period is from rector for Region 4, a representation election by secret April 8, when the petition was filed, to May 16, the date of the election. ballot was conducted on May 16 among the employees I In the Report on Objections to Election and Challenged Ballots, the of the Respondent in an agreed bargaining unit. 3 The Regional Director overruled so much of Objection 2 as alleged that the Employer had shown or played coercive slides, movies, and tape record- ings containing antiunion propaganda, and concluded that Objection 1, All dates hereinafter are within 1980, unless stated to be otherwise. the remaining allegation of Objection 2, and Objection 3, and the six de- 2 Although not specifically alleged in the complaint, the Union argues terminative challenged ballots should be consolidated herewith for hear- in its brief that the Respondent also violated Sec. 8(a)(l) of the Act by ig threatening more stringent working conditions if the employees selected I Capacitors are electrical components that are used in transmitters, sat- the Union as their bargaining representative. ellites, and various electronic products. Basically, on receiving a small ' The stipulated appropriate bargaining unit is as follows: charge, capacitors build up greater charges of electricity. The Respond- All production and maintenance, warehouse, shipping, quality con- ent, through different technologies, produces both ceramic and oil-filled trol, welders, and clerical employees employed at the Respondent's capacitors. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner tally of ballots served on the parties immediately follow- interfere with, restrain, or coerce you in the ing the election showed that of approximately 78 eligible exercise of rights guaranteed under Section 7 v o t e rs 76 c ast ballots, of which 35 were cast for the of the National Labor Relations Act, as Union, 35 were cast against the Union, and 6 ballots amended. were challenged. There were no void ballots, but the WE WILL offer Robert Burket immediate challenged ballots were sufficient in number to affect the and full reinstatement to his former job or, if r es ul t s o f t h e el ec t io n . T h e Uni o n f i led tim e ly o bjectio n s to conduct affecting the results of the election. In its ob- his job no longer exists, to a substantially jections, the Union alleged that in the critical period equivalent position, without prejudice to his before the election' the Respondent discharged or per- seniority or other rights and privileges previ- manently laid off its employee Robert Burket for engag- ously enjoyed, and WE WILL make him whole, ing in union activity, and threatened employees at var- with interest, for any loss of pay or other ious times that the plant would be closed if they selected benefits he has suffered since his discriminato- the Union as bargaining representative. On January 23, ry discharge. 1981, the Regional Director, in furtherance of his Report WE WILL expunge from our files any refer- on Objections to Election and Challenged Ballots, dated ences to the disciplinary discharge of Robert July 9, issued his Order that certain objections to the Burket on May 12, 1980, and WE WILL notify election and determinative challenges to ballots in Case Burket in writing that this has been done and 4-RC-14152 be resolved in consolidated hearing with that evidence of this unlawful action will not Case 4-CA-11089.1 be used as a basis for future discipline against All parties w er e given fu ll opportunity to participate, him. to introduce relevant evidence, to examine and cross-ex- amine witnesses, and to file briefs. Briefs, filed by the HIGH ENERGY CORPORATION General Counsel, the Respondent, and the Union, have been carefully considered. DECISION Upon the entire record of the case and my observation of the witnesses and their demeanor, I make the follow- STATEMENT OF THE CASE ing: ROBERT M. SCHWARZBART, Administrative Law FINDINGS OF FACT Judge: These cases were heard in Philadelphia, Pennsyl- vania, on February 2-5, 1981, upon a complaint issued I. THE BUSINESS OF THE RESPONDENT July 9, 1980,' pursuant to a charge filed by International Brotherhood of Electrical Workers of America, Local The Respondent, High Energy Corporation, a Penn- 1448, AFL-CIO, herein the Union. Specifically, the sylvania corporation, is engaged at its Parkesburg, Penn- complaint alleges that High Energy Corporation, herein sylvania, facility in the manufacture of ceramic and oil- the Respondent, violated Section 8(a)(l) of the Act by filled capacitors. 7 During the year ending July 9, 1980, a repeatedly threatening its employees that the plant would representative period, the Respondent received gross be closed if they selected the Union as their bargaining revenues valued in excess of $1 million and purchased representative; by coercively interrogating employees materials and supplies valued in excess of $50,000 direct- concerning their own union sympathies and activities and ly from points outside the Commonwealth of Pennsylva- those of other employees; and by soliciting grievances to nia. discourage employee support for the Union. 2 The complaint further alleges that the Respondent vio- Parkesburg, Pennsylvania, location, excluding all other employees, lated Section 8(a)(3) and (1) of the Act by discharging including guards and supervisors as defined in the Act. Robert Burket because of his union sympathies and ac- Four ballots were challenged by the Union and two by the Employ- tivities. The Respondent, in its answer, denies the com- ". In Goodyear Tire and Rubber Company, 138 NLRB 453 (1962), the mission of unfair labor practices. Board defined the critical period before an election as the interval from Pursuant to a petition filed by the Union in Case 4- the date of the filing of the petition to the time of the election. Conduct RC-14152 and a Stipulation for Certification Upon Con- occurring during this period found to have interfered with the employ- sent Election, approved on April 25 by the Regional Di- ees' freedom of choice at the polls may be grounds for setting aside the election. Accordingly, in the present case, the critical period is from rector for Region 4, a representation election by secret April 8, when the petition was filed, to May 16, the date of the election. ballot was conducted on May 16 among the employees I In the Report on Objections to Election and Challenged Ballots, the of the Respondent in an agreed bargaining unit. 3 The Regional Director overruled so much of Objection 2 as alleged that the Employer had shown or played coercive slides, movies, and tape record- ings containing antiunion propaganda, and concluded that Objection 1, All dates hereinafter are within 1980, unless stated to be otherwise. the remaining allegation of Objection 2, and Objection 3, and the six de- 2 Although not specifically alleged in the complaint, the Union argues terminative challenged ballots should be consolidated herewith for hear- in its brief that the Respondent also violated Sec. 8(a)(l) of the Act by ig threatening more stringent working conditions if the employees selected I Capacitors are electrical components that are used in transmitters, sat- the Union as their bargaining representative. ellites, and various electronic products. Basically, on receiving a small ' The stipulated appropriate bargaining unit is as follows: charge, capacitors build up greater charges of electricity. The Respond- All production and maintenance, warehouse, shipping, quality con- ent, through different technologies, produces both ceramic and oil-filled trol, welders, and clerical employees employed at the Respondent's capacitors. HIGH ENERGY CORPORATION 749 The complaint alleges, the answer admits, and I find thing he could. In addition to the open door policy, em- that the Respondent is, and has been at all material times ployees also would be able to file complaints without herein, an employer engaged in commerce within the having to sign them and to make suggestions by putting meaning of Section 2(2), (6), and (7) of the Act. them into a complaint box that was going to be set up in the cafeteria. Patricia Robins 10 would be collecting the II. THE LABOR ORGANIZATION INVOLVED suggestions. Very shortly, picnic tables, too, would be International Brotherhood of Electrical Workers of placed outside the plant. America, Local 1448, AFL-CIO, is a labor organization Kennedy stated that what the employees had was a within the meaning of Section 2(5) of the Act. country club and, when the Union gets in, the country club was going to stop. There would be no more running III. THE ALLEGED UNFAIR LABOR PRACTICES for coffee and going to the bathroom whenever the em- ~A. Background ployees so desired. Kennedy observed that the Company was small, was The Respondent, I of about 25 operating subsidiaries undergoing economic difficulties, and could not afford to of Inductotherm Industries, is engaged in the manufac- pay union wages. When he stated that if the Union came ture of ceramic and oil-filled capacitors at its Parkesburg, in and demanded $1.50 an hour in wages and new bene- Pennsylvania, plant. Henry M. Rowan is chairman of the fits, the Respondent might not be able to afford this, em- Respondent's board of directors and president of Induc- ployee James Cook interjected that he did not think that totherm Industries, Robert Q. Buss is the Respondent's unions ruin a company and that Kennedy was assuming president, while Thomas Kennedy is plant manager or the Union would ask for outrageous rates. Kennedy re- manager of manufacturing of the Parkesburg plant. plied that if the Union did come in and received substan- During the relevant period, Earl F. Myers and Joann tial increases in wages and in the cost of benefits, the Johnson were plant superintendents over that plant's ce- Company would be placed at further economic disadvan- ramic and oil-filled capacitor divisions, respectively. tage and might not have any economic alternative but to In March, the Union, with the assistance of ware- close the plant. houseman James Cook and maintenance worker Robert According to Robert Burket," afer Kennedy had Burket, began an organizational campaign among the Re- stated two or three times during the course of the meet- spondent's employees. As part of its campaign, the Union ing that in all probability the plant would close if the conducted meetings, solicited employee signatures on au- Union came in because the Company could not afford to thorization cards, and, in early April, sent a written re- pay for it, Burket had responded that Kennedy was un- quest to the Respondent for recognition. On April 8, the lawfully threatening employees by saying that the plant Union filed its petition in Case 4-RC-14152 for a repre- would close if the Union were chosen. Kennedy an- sentation election, which, as noted, was conducted on swered that he did not mean it that way, but there was a May 16. possibility that the plant would close if the Union came B. Alleged Interference, Restraint, and Coercion in. In response to Kennedy's invitation to bring problems 1. The conduct of Thomas Kennedy-fact and to him, Burket had retorted that he had gone to Kenne- findings dy with a problem and, not only had Kennedy not re- On April 7, Thomas Kennedy met with the Respond- solved the matter, but had not given Burket a truthful On April 7, Thomas Kennedy s met with the Respond- answer. 12 ent's employees in the Respondent's cafeteria, where answer. they had been summoned by a public address system an- Kennedy testified that the April 7 meeting was held nouncement. During this meeting,9 Kennedy declared shortly after the Respondent had received a letter from that he had received notice from the United Brother- the Union that it had signed authorization cards and that hood of Electrical Workers that they wished to represent the Respondent's employees wanted the Union to repre- High Energy employees, that he was going to ignore the sent them; his first notice of the Union's campaign. Ken- Union's request, that he was very disappointed, and saw nedy related that after the arrival of this letter, he and no need for the employees to go to the Union. The Re- other members of management discussed the matter and spondent could not afford a union, its chairman, Rowan decided to conduct the meeting of employees to keep would not accept a union, and would go out of business them informed. if the Union got in. He wanted the employees to know At the meeting, the employees were reminded by Ken- that the Company had an open door policy. If the em- nedy of the benefits they enjoyed and of their favorable ployees had problems, they should come to him and let work environment. However, under bargaining table reg- him resolve them; if the employees would just walk in ulations, should the Union be chosen to represent them, and talk to him about their problems he would do every- there would be stricter enforcement of certain work rules. Kennedy denied having invited employees to come Kennedy, plant manager at the Respondent's Parkesburg facility, has filled a variety of managerial positions with the parent concern and cer- 'o Robins is the Respondent's purchasing agent. tain of its subsidiaries for approximately 15 years. At the time of the hear- " As noted, Burket's subsequent discharge is alleged as unlawful in the ing, Kennedy had held his present position for about 2 years. complaint. 'The following account is a synthesis of the testimony of James Cook, " Burket's reference was to his earlier unsuccessful request of Kennedy Robert Burket, Norman Jelke, and Peggy Keylor, present and past em- for a pay raise. Burket contends that Kennedy failed to discuss the matter ployees of the Respondent. with the Respondent's president, Buss, as assertedly promised. HIGH ENERGY CORPORATION 749 The complaint alleges, the answer admits, and I find thing he could. In addition to the open door policy, em- that the Respondent is, and has been at all material times ployees also would be able to file complaints without herein, an employer engaged in commerce within the having to sign them and to make suggestions by putting meaning of Section 2(2), (6), and (7) of the Act. them into a complaint box that was going to be set up in the cafeteria. Patricia Robins 10 would be collecting the II. THE LABOR ORGANIZATION INVOLVED suggestions. Very shortly, picnic tables, too, would be International Brotherhood of Electrical Workers of placed outside the plant. America, Local 1448, AFL-CIO, is a labor organization Kennedy stated that what the employees had was a within the meaning of Section 2(5) of the Act. country club and, when the Union gets in, the country club was going to stop. There would be no more running Ill. THE ALLEGED UNFAIR LABOR PRACTICES for coffee and going to the bathroom whenever the em- A. Background ployees so desired. Kennedy observed that the Company was small, was The Respondent, 1 of about 25 operating subsidiaries undergoing economic difficulties, and could not afford to of Inductotherm Industries, is engaged in the manufac- pay union wages. When he stated that if the Union came ture of ceramic and oil-filled capacitors at its Parkesburg, in and demanded $1.50 an hour in wages and new bene- Pennsylvania, plant. Henry M. Rowan is chairman of the fits, the Respondent might not be able to afford this, em- Respondent's board of directors and president of Induc- ployee James Cook interjected that he did not think that totherm Industries, Robert Q. Buss is the Respondent's unions ruin a company and that Kennedy was assuming president, while Thomas Kennedy is plant manager or the Union would ask for outrageous rates. Kennedy re- manager of manufacturing of the Parkesburg plant. plied that if the Union did come in and received substan- During the relevant period, Earl F. Myers and Joann tial increases in wages and in the cost of benefits, the Johnson were plant superintendents over that plant's ce- Company would be placed at further economic disadvan- ramic and oil-filled capacitor divisions, respectively. tage and might not have any economic alternative but to In March, the Union, with the assistance of ware- close the plant. houseman James Cook and maintenance worker Robert According to Robert Burket." after Kennedy had Burket, began an organizational campaign among the Re- stated two or three times during the course of the meet- spondent's employees. As part of its campaign, the Union ing that in all probability the plant would close if the conducted meetings, solicited employee signatures on au- Union came in because the Company could not afford to thorization cards, and, in early April, sent a written re- pay for it, Burket had responded that Kennedy was un- quest to the Respondent for recognition. On April 8, the lawfully threatening employees by saying that the plant Union filed its petition in Case 4-RC-14152 for a repre- would close if the Union were chosen. Kennedy an- sentation election, which, as noted, was conducted on sr t h d no m ihat w but there was a May 16. possibility that the plant would close if the Union came B. Alleged Interference, Restraint, and Coercion in.In response to Kennedy's invitation to bring problems 1. The conduct of Thomas Kennedy-fact and to him, Burket had retorted that he had gone to Kenne- fmndings dy with a problem and, not only had Kennedy not re- solved the matter, but had not given Burket a truthful On April 7, Thomas Kennedy' met with the Respond- answer. 12 ent's employees in the Respondent's cafeteria, where ene .te t t A 7 mt w held they had been summoned by a public address system an- s K en n e dy t es th f ie d t h a t R t h e A p nha 7 m ee t i n g w a s h el d nouncement. During this meeting,' Kennedy declared theUnio af t er t h e Respondent had received a letter from that he had received notice from the United Brother- th e U n lo n t h at " h ad "8"^ authorization cards and that hood of Electrical Workers that they wished to represent the Respondent's employees wanted the Union to repre- High Energy employees, that he was going to ignore the s en t t h em; h is fir s t notice of the Union's campaign. Ken- Union's request, that he was very disappointed, and saw nedy related that after the arrival of this letter, he and no need for the employees to go to the Union. The Re- ot h e r members of management discussed the matter and spondent could not afford a union, its chairman, Rowan decided to conduct the meeting of employees to keep would not accept a union, and would go out of business them informed. if the Union got in. He wanted the employees to know At the meeting, the employees were reminded by Ken- that the Company had an open door policy. If the em- "edy of the benefits they enjoyed and of their favorable ployees had problems, they should come to him and let work environment. However, under bargaining table reg- him resolve them; if the employees would just walk in ulations, should the Union be chosen to represent them, and talk to him about their problems he would do every- there would be stricter enforcement of certain work rules. Kennedy denied having invited employees to come Kennedy, plant manager at the Respondent's Parkesburg facility, has filled a variety of managerial positions with the parent concern and cer- 10 Robins is the Respondent's purchasing agent. tain of its subsidiaries for approximately 15 years. At the time of the hear- " As noted, Burket's subsequent discharge is alleged as unlawful in the ing, Kennedy had held his present position for about 2 years,.complaint. ' The following account is a synthesis of the testimony of James Cook, " Burket's reference was to his earlier unsuccessful request of Kennedy Robert Burket, Norman Jelke, and Peggy Keylor, present and past em- for a pay raise. Burket contends that Kennedy failed to discuss the matter ployees of the Respondent. with the Respondent's president. Buss, as assertedly promised. HIGH ENERGY CORPORATION 749 The complaint alleges, the answer admits, and I find thing he could. In addition to the open door policy, em- that the Respondent is, and has been at all material times ployees also would be able to file complaints without herein, an employer engaged in commerce within the having to sign them and to make suggestions by putting meaning of Section 2(2), (6), and (7) of the Act. them into a complaint box that was going to be set up in the cafeteria. Patricia Robins 10 would be collecting the II. THE LABOR ORGANIZATION INVOLVED suggestions. Very shortly, picnic tables, too, would be International Brotherhood of Electrical Workers of placed outside the plant. America, Local 1448, AFL-CIO, is a labor organization Kennedy stated that what the employees had was a within the meaning of Section 2(5) of the Act. country club and, when the Union gets in, the country club was going to stop. There would be no more running Ill. THE ALLEGED UNFAIR LABOR PRACTICES for coffee and going to the bathroom whenever the em- A. Background ployees so desired. Kennedy observed that the Company was small, was The Respondent, 1 of about 25 operating subsidiaries undergoing economic difficulties, and could not afford to of Inductotherm Industries, is engaged in the manufac- pay union wages. When he stated that if the Union came ture of ceramic and oil-filled capacitors at its Parkesburg, in and demanded $1.50 an hour in wages and new bene- Pennsylvania, plant. Henry M. Rowan is chairman of the fits, the Respondent might not be able to afford this, em- Respondent's board of directors and president of Induc- ployee James Cook interjected that he did not think that totherm Industries, Robert Q. Buss is the Respondent's unions ruin a company and that Kennedy was assuming president, while Thomas Kennedy is plant manager or the Union would ask for outrageous rates. Kennedy re- manager of manufacturing of the Parkesburg plant. plied that if the Union did come in and received substan- During the relevant period, Earl F. Myers and Joann tial increases in wages and in the cost of benefits, the Johnson were plant superintendents over that plant's ce- Company would be placed at further economic disadvan- ramic and oil-filled capacitor divisions, respectively. tage and might not have any economic alternative but to In March, the Union, with the assistance of ware- close the plant. houseman James Cook and maintenance worker Robert According to Robert Burket." after Kennedy had Burket, began an organizational campaign among the Re- stated two or three times during the course of the meet- spondent's employees. As part of its campaign, the Union ing that in all probability the plant would close if the conducted meetings, solicited employee signatures on au- Union came in because the Company could not afford to thorization cards, and, in early April, sent a written re- pay for it, Burket had responded that Kennedy was un- quest to the Respondent for recognition. On April 8, the lawfully threatening employees by saying that the plant Union filed its petition in Case 4-RC-14152 for a repre- would close if the Union were chosen. Kennedy an- sentation election, which, as noted, was conducted on sr t h d no m ihat w but there was a Ma y 16. possibility that the plant would close if the Union came B. Alleged Interference, Restraint, and Coercion in.In response to Kennedy's invitation to bring problems 1. The conduct of Thomas Kennedy-fact and to him, Burket had retorted that he had gone to Kenne- fmndings dy with a problem and, not only had Kennedy not re- solved the matter, but had not given Burket a truthful On April 7, Thomas Kennedy' met with the Respond- answer. 12 ent's employees in the Respondent's cafeteria, where ene .te t t A 7 mt w held they had been summoned by a public address system an- s K en n e dy t es th f ie d t h a t R t h e A p nha 7 m ee t i n g w a s h el d nouncement. During this meeting,' Kennedy declared theUnio af t er the Respondent had received a letter from that he had received notice from the United Brother- th e U n lo n th a t " h a d "8"^ authorization cards and that hood of Electrical Workers that they wished to represent the Respondent's employees wanted the Union to repre- High Energy employees, that he was going to ignore the s e n t t h em; his first notice of the Union's campaign. Ken- Union's request, that he was very disappointed, and saw nedy related that after the arrival of this letter, he and no need for the employees to go to the Union. The Re- o t h e r members of management discussed the matter and spondent could not afford a union, its chairman, Rowan decided to conduct the meeting of employees to keep would not accept a union, and would go out of business them informed. if the Union got in. He wanted the employees to know At the meeting, the employees were reminded by Ken- that the Company had an open door policy. If the em- "edy of the benefits they enjoyed and of their favorable ployees had problems, they should come to him and let work environment. However, under bargaining table reg- him resolve them; if the employees would just walk in ulations, should the Union be chosen to represent them, and talk to him about their problems he would do every- there would be stricter enforcement of certain work rules. Kennedy denied having invited employees to come Kennedy, plant manager at the Respondent's Parkesburg facility, has filled a variety of managerial positions with the parent concern and cer- 10 Robins is the Respondent's purchasing agent. tain of its subsidiaries for approximately 15 years. At the time of the hear- " As noted, Burket's subsequent discharge is alleged as unlawful in the ing, Kennedy had held his present position for about 2 years,.complaint. ' The following account is a synthesis of the testimony of James Cook, " Burket's reference was to his earlier unsuccessful request of Kennedy Robert Burket, Norman Jelke, and Peggy Keylor, present and past em- for a pay raise. Burket contends that Kennedy failed to discuss the matter ployees of the Respondent. with the Respondent's president. Buss, as assertedly promised. HIGH ENERGY CORPORATION 749 The complaint alleges, the answer admits, and I find thing he could. In addition to the open door policy, em- that the Respondent is, and has been at all material times ployees also would be able to file complaints without herein, an employer engaged in commerce within the having to sign them and to make suggestions by putting meaning of Section 2(2), (6), and (7) of the Act. them into a complaint box that was going to be set up in the cafeteria. Patricia Robins 10 would be collecting the II. THE LABOR ORGANIZATION INVOLVED suggestions. Very shortly, picnic tables, too, would be International Brotherhood of Electrical Workers of placed outside the plant. America, Local 1448, AFL-CIO, is a labor organization Kennedy stated that what the employees had was a within the meaning of Section 2(5) of the Act. country club and, when the Union gets in, the country club was going to stop. There would be no more running Ill. THE ALLEGED UNFAIR LABOR PRACTICES for coffee and going to the bathroom whenever the em- A. Background ployees so desired. Kennedy observed that the Company was small, was The Respondent, 1 of about 25 operating subsidiaries undergoing economic difficulties, and could not afford to of Inductotherm Industries, is engaged in the manufac- pay union wages. When he stated that if the Union came ture of ceramic and oil-filled capacitors at its Parkesburg, in and demanded $1.50 an hour in wages and new bene- Pennsylvania, plant. Henry M. Rowan is chairman of the fits, the Respondent might not be able to afford this, em- Respondent's board of directors and president of Induc- ployee James Cook interjected that he did not think that totherm Industries, Robert Q. Buss is the Respondent's unions ruin a company and that Kennedy was assuming president, while Thomas Kennedy is plant manager or the Union would ask for outrageous rates. Kennedy re- manager of manufacturing of the Parkesburg plant. plied that if the Union did come in and received substan- During the relevant period, Earl F. Myers and Joann tial increases in wages and in the cost of benefits, the Johnson were plant superintendents over that plant's ce- Company would be placed at further economic disadvan- ramic and oil-filled capacitor divisions, respectively. tage and might not have any economic alternative but to In March, the Union, with the assistance of ware- close the plant. houseman James Cook and maintenance worker Robert According to Robert Burket." after Kennedy had Burket, began an organizational campaign among the Re- stated two or three times during the course of the meet- spondent's employees. As part of its campaign, the Union ing that in all probability the plant would close if the conducted meetings, solicited employee signatures on au- Union came in because the Company could not afford to thorization cards, and, in early April, sent a written re- pay for it, Burket had responded that Kennedy was un- quest to the Respondent for recognition. On April 8, the lawfully threatening employees by saying that the plant Union filed its petition in Case 4-RC-14152 for a repre- would close if the Union were chosen. Kennedy an- sentation election, which, as noted, was conducted on sr t h d no m ihat w but there was a May 16. possibility that the plant would close if the Union came B. Alleged Interference, Restraint, and Coercion in.In response to Kennedy's invitation to bring problems 1. The conduct of Thomas Kennedy-fact and to him, Burket had retorted that he had gone to Kenne- fmndings dy with a problem and, not only had Kennedy not re- solved the matter, but had not given Burket a truthful On April 7, Thomas Kennedy' met with the Respond- answer. 12 ent's employees in the Respondent's cafeteria, where ene .te t t A 7 mt w held they had been summoned by a public address system an- s K en n e dy t es th f ie d t h a t R t h e A p nha 7 m ee t i n g w a s h el d nouncement. During this meeting,' Kennedy declared theUnio af t er the Respondent had received a letter from that he had received notice from the United Brother- th e U n lo n th a t " h a d "8"^ authorization cards and that hood of Electrical Workers that they wished to represent the Respondent's employees wanted the Union to repre- High Energy employees, that he was going to ignore the s e n t t h em; his first notice of the Union's campaign. Ken- Union's request, that he was very disappointed, and saw nedy related that after the arrival of this letter, he and no need for the employees to go to the Union. The Re- o t h e r members of management discussed the matter and spondent could not afford a union, its chairman, Rowan decided to conduct the meeting of employees to keep would not accept a union, and would go out of business them informed. if the Union got in. He wanted the employees to know At the meeting, the employees were reminded by Ken- that the Company had an open door policy. If the em- "edy of the benefits they enjoyed and of their favorable ployees had problems, they should come to him and let work environment. However, under bargaining table reg- him resolve them; if the employees would just walk in ulations, should the Union be chosen to represent them, and talk to him about their problems he would do every- there would be stricter enforcement of certain work rules. Kennedy denied having invited employees to come Kennedy, plant manager at the Respondent's Parkesburg facility, has filled a variety of managerial positions with the parent concern and cer- 10 Robins is the Respondent's purchasing agent. tain of its subsidiaries for approximately 15 years. At the time of the hear- " As noted, Burket's subsequent discharge is alleged as unlawful in the ing, Kennedy had held his present position for about 2 years,.complaint. ' The following account is a synthesis of the testimony of James Cook, " Burket's reference was to his earlier unsuccessful request of Kennedy Robert Burket, Norman Jelke, and Peggy Keylor, present and past em- for a pay raise. Burket contends that Kennedy failed to discuss the matter ployees of the Respondent. with the Respondent's president. Buss, as assertedly promised. 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to him with problems or suggestions, or having referred union asks for outrageous rates. The Union would to an open door policy or a suggestion box. He also be these people here and they aren't going to ask denied having said that Rowan, the Respondent's chair- for that. That doesn't seem to sit well with me be- man and president of the parent concern, would not cause people have been promised raises have not accept the Union. gotten them. When, after the meeting, certain employees asked R. Burket-We agreed we had a problem. I came whether the plant would be closed and for what reason, to you with a problem the other day. Kennedy had replied that if the Company could not T. Kennedy-Yes, I agreed with you and told make its product profitably, it would be assumed that the you I could not do anything but would see the plant would close. The plant's profits then were quite other person. low and any added expense would be detrimental. R. Burket-But you did nothing about it. Elaine Pearl, secretary to President Buss, testified that T. Kennedy-I talked to the other party. she transcribed her following verbatim shorthand notes R. Burket-He said you did not. of Kennedy's April 7 meeting with employees: 3 T. Kennedy-(speechless) Tom Kennedy read the letter from the Union and Tom-I stand in fault of some of the so called also our (HEC's) reply to the Union. He stated both evaluations and I stand guilty that I have not taken letters would be posted and all communication with care of in time. Have tried to rectify and in most the Union would be posted so the employees were cases have done so. How about ones I didn't miss, I informed. don't hear about them ... He stated he didn't know how many employees signed the Union cards and was not interested as he Although the accounts of Kennedy and Pearl of this would find out when the total count was taken and meeting deny or do not include reference to a suggestion it all comes about. Continued, we are a new compa- box, within a week thereafter, such a box was installed in ny here, just getting feet on ground, profits a nil. A the cafeteria. 14 lot of pay scales not like Diversified, Lukens, ours Even from Pearl's notated account of what was said, I are not there. We are well aware. Trying to run a find that the Respondent separately violated Section company and get decent profits; can't get blood out 8(a)(l) of the Act when Kennedy, during the April 7 of a stone. meeting, threatened that if the employees selected the Don't particularly like the idea of a Union Union more stringent work rules would be implemented coming in, it hampers building a company to the by restricting coffee and food breaks, and/or that the point it might put us out of business. Don't sell idea plant would be closed. short. Think before you sign cards, get some facts. In Gissel Packing Co., Inc., et al. v. N.L.R.B.,1' the Su- Don't think it's going to get new insurance, preme Court articulated the rigorous standards to which $1.50/hr. it won't. That would put us out of busi- an employer's statement predicting the effects unioniza- ness. I'm not joking and not making threats. Think tion will have on employees must conform in order not carefully. I feel a little bad about this. I know I to be found threatening. Noting that the Employer's haven't lived up to everything I said I was going to words in such situations are colored by the economic de- do, have not kept my promises. You people come in pendence of the employees, the Court ruled: for coffee, things to eat, anytime not just during Thus, an employer is free to communicate to his breaks and nothing is said, think about it. Think employees any of his general views about unionism about the things you do have. or any of his specific views about a particular R. Burket-You mean the only time you can get union, so long as the communications do not con- coffee is during breaks? tain a "threat of reprisal or force or promise of T. Kennedy-That's Union rules not our. benefit." He may even make a prediction as to the R. Burket-That's not so. precise effect he believes unionization will have on T. Kennedy-That's negotiated at the table. his company. In such a case, however, the prediction R. Burket-You saying the company will shut must be carefully phrased on the basis of objective fact down if the Union comes in. to convey an employer's belief as to the demonstrably T. Kennedy-It's possible I did not say it would. probable consequences beyond his control or to R. Burket-That sounds like a threat to me. convey a management decision already arrived at to T. Kennedy-That isn't a threat, if we don't have close the plant in case of unionization. .... If there profits now, Union demands could cause us to shut is any implication that an employer may or may not down. I did not mean it as a threat. take action solely on his own initiative for reasons R. Burket-It's against federal law. unrelated to economic necessities and known only J. Cook-I've head [sic] from different people time after time raises are due and 3 to 4 months The circumstances surrounding installation of the suggestion box and down the road before they get them. I don't think the General Counsel's contention that the use of this box and Kennedy's Union's ruin a company. Your assuming that a invitation to employees to come to him with their problems, also denied, constituted unlawful solicitation of grievances to discourage employee support for the Union, will be considered below. " Pearl claimed 30 years' experience with the Gregg shorthand support for the Union will be considered below. method used during earlier employment with various Pennsylvania agen- " 395 U.S. 575, 618 (1969). Also see Components Inc., 197 NLRB 163- cies. 164 (1972). 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to him with problems or suggestions, or having referred union asks for outrageous rates. The Union would to an open door policy or a suggestion box. He also be these people here and they aren't going to ask denied having said that Rowan, the Respondent's chair- for that. That doesn't seem to sit well with me be- man and president of the parent concern, would not cause people have been promised raises have not accept the Union. gotten them. When, after the meeting, certain employees asked R. Burket-We agreed we had a problem. I came whether the plant would be closed and for what reason, to you with a problem the other day. Kennedy had replied that if the Company could not T. Kennedy-Yes, I agreed with you and told make its product profitably, it would be assumed that the you I could not do anything but would see the plant would close. The plant's profits then were quite other person. low and any added expense would be detrimental. R. Burket-But you did nothing about it. Elaine Pearl, secretary to President Buss, testified that T. Kennedy-1 talked to the other party. she transcribed her following verbatim shorthand notes R. Burket-He said you did not. of Kennedy's April 7 meeting with employees:" T. Kennedy-(speechless) Tom Kennedy read the letter from the Union and Tom-I stand in fault of some of the so called also our (HEC's) reply to the Union. He stated both evaluations and I stand guilty that I have not taken letters would be posted and all communication with care of in time. Have tried to rectify and in most the Union would be posted so the employees were cases have done so. How about ones I didn't miss, I informed. don't hear about them. . . . He stated he didn't know how many employees signed the Union cards and was not interested as he Although the accounts of Kennedy and Pearl of this would find out when the total count was taken and meeting deny or do not include reference to a suggestion it all comes about. Continued, we are a new compa- b o x, within a week thereafter, such a box was installed in ny here, just getting feet on ground, profits a nil. A th e cafeteria. 14 lot of pay scales not like Diversified, Lukens, ours Even from Pearl's notated account of what was said, I are not there. We are well aware. Trying to run a find that the Respondent separately violated Section company and get decent profits; can't get blood out 8(a)(l) of the Act when Kennedy, during the April 7 of a stone. meeting, threatened that if the employees selected the Don't particularly like the idea of a Union Union more stringent work rules would be implemented coming in, it hampers building a company to the by restricting coffee and food breaks, and/or that the point it might put us out of business. Don't sell idea plant would be closed. short. Think before you sign cards, get some facts. In Gissel Packing Co., Inc., et al. v. N.L.R.B., 15 the Su- Don't think it's going to get new insurance, preme Court articulated the rigorous standards to which $1.50/hr. it won't. That would put us out of busi- an employer's statement predicting the effects unioniza- ness. I'm not joking and not making threats. Think tion will have on employees must conform in order not carefully. I feel a little bad about this. I know I to be found threatening. Noting that the Employer's haven't lived up to everything I said I was going to words in such situations are colored by the economic de- do, have not kept my promises. You people come in pendence of the employees, the Court ruled: for coffee, things to eat, anytime not just during Thus, an employer is free to communicate to his breaks and nothing is said, think about it. Think employees any of his general views about unionism about the things you do have. or any of his specific views about a particular R. Burket-You mean the only time you can get union, so long as the communications do not con- coffee is during breaks? tain a "threat of reprisal or force or promise of T. Kennedy-That's Union rules not our. benefit." He may even make a prediction as to the R. Burket-That's not so. precise effect he believes unionization will have on T. Kennedy-That's negotiated at the table. his company. In such a case, however, the prediction R. Burket-You saying t h e company w ill s h ut must be carefully phrased on the basis of objective fact down if the Union comes in. to convey an employer's belief as to the demonstrably T. Kennedy-It's possible I did not say it would. probable consequences beyond his control or to R. Burket-That sounds like a threat to me. convey a management decision already arrived at to T. Kennedy-That isn't a threat, if we don't have close the plant in case of unionization. ... If there profits now, Union demands could cause us to shut is any implication that an employer may or may not down. I did not mean it as a threat. take action solely on his own initiative for reasons R. Burket-It's against federal law. unrelated to economic necessities and known only J. Cook-I've head [sic] from different people time after time raises are due and 3 to 4 months ,. The circumstances surrounding installation of the suggestion box and down the road before they get them. I don't think the General Counsel's contention that the use of this box and Kennedy's Union's ruin a Company. Your assuming that a invitation to employees to come to him with their problems, also denied, constituted unlawful solicitation of grievances to discourage employee i, ,» , ,. .,/, , . *i_ L ^. L L ~ ~~~~~~support for (he Union, will be considered below. " Pearl claimed 10 years' experience with the Gregg shorthand si method used during earlier employment with various Pennsylvania agen- ` 395 U.S. 575, 618 (1969). Also see Components, Inc., 197 NLRB 163- cies. 164 (1972). 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to him with problems or suggestions, or having referred union asks for outrageous rates. The Union would to an open door policy or a suggestion box. He also be these people here and they aren't going to ask denied having said that Rowan, the Respondent's chair- for that. That doesn't seem to sit well with me be- man and president of the parent concern, would not cause people have been promised raises have not accept the Union. gotten them. When, after the meeting, certain employees asked R. Burket-We agreed we had a problem. I came whether the plant would be closed and for what reason, to you with a problem the other day. Kennedy had replied that if the Company could not T. Kennedy-Yes, I agreed with you and told make its product profitably, it would be assumed that the you I could not do anything but would see the plant would close. The plant's profits then were quite other person. low and any added expense would be detrimental. R. Burket-But you did nothing about it. Elaine Pearl, secretary to President Buss, testified that T. Kennedy-1 talked to the other party. she transcribed her following verbatim shorthand notes R. Burket-He said you did not. of Kennedy's April 7 meeting with employees:" T. Kennedy-(speechless) Tom Kennedy read the letter from the Union and Tom-I stand in fault of some of the so called also our (HEC's) reply to the Union. He stated both evaluations and I stand guilty that I have not taken letters would be posted and all communication with care of in time. Have tried to rectify and in most the Union would be posted so the employees were cases have done so. How about ones I didn't miss, I informed. don't hear about them. . . . He stated he didn't know how many employees signed the Union cards and was not interested as he Although the accounts of Kennedy and Pearl of this would find out when the total count was taken and meeting deny or do not include reference to a suggestion it all comes about. Continued, we are a new compa- b o x, within a week thereafter, such a box was installed in ny here, just getting feet on ground, profits a nil. A th e cafeteria.' 4 lot of pay scales not like Diversified, Lukens, ours Even from Pearl's notated account of what was said, I are not there. We are well aware. Trying to run a find that the Respondent separately violated Section company and get decent profits; can't get blood out 8(a)(l) of the Act when Kennedy, during the April 7 of a stone. meeting, threatened that if the employees selected the Don't particularly like the idea of a Union Union more stringent work rules would be implemented coming in, it hampers building a company to the by restricting coffee and food breaks, and/or that the point it might put us out of business. Don't sell idea plant would be closed. short. Think before you sign cards, get some facts. In Gissel Packing Co., Inc., et al. v. N.L.R.B., 15 the Su- Don't think it's going to get new insurance, preme Court articulated the rigorous standards to which $1.50/hr. it won't. That would put us out of busi- an employer's statement predicting the effects unioniza- ness. I'm not joking and not making threats. Think tion will have on employees must conform in order not carefully. I feel a little bad about this. I know I to be found threatening. Noting that the Employer's haven't lived up to everything I said I was going to words in such situations are colored by the economic de- do, have not kept my promises. You people come in pendence of the employees, the Court ruled: for coffee, things to eat, anytime not just during Thus, an employer is free to communicate to his breaks and nothing is said, think about it. Think employees any of his general views about unionism about the things you do have. or any of his specific views about a particular R. Burket-You mean the only time you can get union, so long as the communications do not con- coffee is during breaks? tain a "threat of reprisal or force or promise of T. Kennedy-That's Union rules not our. benefit." He may even make a prediction as to the R. Burket-That's not so. precise effect he believes unionization will have on T. Kennedy-That's negotiated at the table. his company. In such a case, however, the prediction R. Burket-You saying t h e company w ill s h ut must be carefully phrased on the basis of objective fact down if the Union comes in. to convey an employer's belief as to the demonstrably T. Kennedy-It's possible I did not say it would. probable consequences beyond his control or to R. Burket-That sounds like a threat to me. convey a management decision already arrived at to T. Kennedy-That isn't a threat, if we don't have close the plant in case of unionization. ... If there profits now, Union demands could cause us to shut is any implication that an employer may or may not down. I did not mean it as a threat. take action solely on his own initiative for reasons R. Burket-It's against federal law. unrelated to economic necessities and known only J. Cook-I've head [sic] from different people time after time raises are due and 3 to 4 months ,. The circumstances surrounding installation of the suggestion box and down the road before they get them. I don't think the General Counsel's contention that the use of this box and Kennedy's Union's ruin a Company. Your assuming that a invitation to employees to come to him with their problems, also denied, constituted unlawful solicitation of grievances to discourage employee i, ,» , ,. .,/, , . *i_ L ^. i. L j ~~~~~support for (he Union, will be considered below. " Pearl claimed 10 years' experience with the Gregg shorthand si method used during earlier employment with various Pennsylvania agen- ` 395 U.S. 575, 618 (1969). Also see Components, Inc., 197 NLRB 163- cies. 164 (1972). 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to him with problems or suggestions, or having referred union asks for outrageous rates. The Union would to an open door policy or a suggestion box. He also be these people here and they aren't going to ask denied having said that Rowan, the Respondent's chair- for that. That doesn't seem to sit well with me be- man and president of the parent concern, would not cause people have been promised raises have not accept the Union. gotten them. When, after the meeting, certain employees asked R. Burket-We agreed we had a problem. I came whether the plant would be closed and for what reason, to you with a problem the other day. Kennedy had replied that if the Company could not T. Kennedy-Yes, I agreed with you and told make its product profitably, it would be assumed that the you I could not do anything but would see the plant would close. The plant's profits then were quite other person. low and any added expense would be detrimental. R. Burket-But you did nothing about it. Elaine Pearl, secretary to President Buss, testified that T. Kennedy-1 talked to the other party. she transcribed her following verbatim shorthand notes R. Burket-He said you did not. of Kennedy's April 7 meeting with employees:" T. Kennedy-(speechless) Tom Kennedy read the letter from the Union and Tom-I stand in fault of some of the so called also our (HEC's) reply to the Union. He stated both evaluations and I stand guilty that I have not taken letters would be posted and all communication with care of in time. Have tried to rectify and in most the Union would be posted so the employees were cases have done so. How about ones I didn't miss, I informed. don't hear about them. . . . He stated he didn't know how many employees signed the Union cards and was not interested as he Although the accounts of Kennedy and Pearl of this would find out when the total count was taken and meeting deny or do not include reference to a suggestion it all comes about. Continued, we are a new compa- b o x, within a week thereafter, such a box was installed in ny here, just getting feet on ground, profits a nil. A th e cafeteria.' 4 lot of pay scales not like Diversified, Lukens, ours Even from Pearl's notated account of what was said, I are not there. We are well aware. Trying to run a find that the Respondent separately violated Section company and get decent profits; can't get blood out 8(a)(l) of the Act when Kennedy, during the April 7 of a stone. meeting, threatened that if the employees selected the Don't particularly like the idea of a Union Union more stringent work rules would be implemented coming in, it hampers building a company to the by restricting coffee and food breaks, and/or that the point it might put us out of business. Don't sell idea plant would be closed. short. Think before you sign cards, get some facts. In Gissel Packing Co., Inc., et al. v. N.L.R.B., 15 the Su- Don't think it's going to get new insurance, preme Court articulated the rigorous standards to which $1.50/hr. it won't. That would put us out of busi- an employer's statement predicting the effects unioniza- ness. I'm not joking and not making threats. Think tion will have on employees must conform in order not carefully. I feel a little bad about this. I know I to be found threatening. Noting that the Employer's haven't lived up to everything I said I was going to words in such situations are colored by the economic de- do, have not kept my promises. You people come in pendence of the employees, the Court ruled: for coffee, things to eat, anytime not just during Thus, an employer is free to communicate to his breaks and nothing is said, think about it. Think employees any of his general views about unionism about the things you do have. or any of his specific views about a particular R. Burket-You mean the only time you can get union, so long as the communications do not con- coffee is during breaks? tain a "threat of reprisal or force or promise of T. Kennedy-That's Union rules not our. benefit." He may even make a prediction as to the R. Burket-That's not so. precise effect he believes unionization will have on T. Kennedy-That's negotiated at the table. his company. In such a case, however, the prediction R. Burket-You saying t h e company w ill s h ut must be carefully phrased on the basis of objective fact down if the Union comes in. to convey an employer's belief as to the demonstrably T. Kennedy-It's possible I did not say it would. probable consequences beyond his control or to R. Burket-That sounds like a threat to me. convey a management decision already arrived at to T. Kennedy-That isn't a threat, if we don't have close the plant in case of unionization. ... If there profits now, Union demands could cause us to shut is any implication that an employer may or may not down. I did not mean it as a threat. take action solely on his own initiative for reasons R. Burket-It's against federal law. unrelated to economic necessities and known only J. Cook-I've head [sic] from different people time after time raises are due and 3 to 4 months ,. The circumstances surrounding installation of the suggestion box and down the road before they get them. I don't think the General Counsel's contention that the use of this box and Kennedy's Union's ruin a Company. Your assuming that a invitation to employees to come to him with their problems, also denied, constituted unlawful solicitation of grievances to discourage employee i, ,» , ,. .,/, , . *i_ L ^. L L ~ ~~~~~~support for (he Union, will be considered below. " Pearl claimed 10 years' experience with the Gregg shorthand si method used during earlier employment with various Pennsylvania agen- ` 395 U.S. 575, 618 (1969). Also see Components, Inc., 197 NLRB 163- cies. 164 (1972). HIGH ENERGY CORPORATION 751 to him, the statement is no longer a reasonable pre- 2. The alleged unlawful solicitation of grievances diction based on available facts but a threat of re- taliation based on misrepresentation and coercion, a. The supervisory status of Patricia Robins and as such without the protection of the First The General Counsel contends that at the April 7 The General Counsel contends that at the April 7 Amendment . ..... Conveyance of the employer's meeting Kennedy had unlawfully invited employees to belief, even though sincere, that unionization will or bring their problems to him and had promised to install may result in the closing of the plant is not a state- and installed a suggestion box to solicit grievances in ment of fact unless, which is most improbable, the order to discourage employee support for the Union. eventuality of closing is capable of proof." [Empha- Kennedy, while denying the imputed motive, agreed that sis supplied.] he had authorized the construction of the box and its in- Kennedys statement concerning the possibility of stallation some days after the April 7 meeting at the sug- gestion of Patricia Robins.'I While the evidence concern- plant closure in the event of unionization failed to meet geston Pat a Robins. Whithe evidence concern- the Gissel standards because the Respondent introduced in g Inception of the suggestion box conflicts, it is clear no evidence to prove that the statements were based on that Robins played a role in its implementation and col- no evidence to prove that the statements were based on lected and processed suggestions placed therein. fact or that the eventuality of plant closing was a demon- le c te d a nd rocese suggestions placed therein. strably probable consequence of such fact. For the Atthe time of the hearng, Robins had been the Re- record shows that, while the financial position of the Re- spondent's purchasing agent for approximately 2-1/2 spondent could be improved, the Respondent pointed up years. As such, Robins obtained bids and quotations, ne- the inaccuracy of Kennedy's remarks when, at a second gotiated contracts for purchases, and placed orders. meeting of employees on May 8, as will be considered Before negotiating, Robins compares the Respondent's below, Henry M. Rowan, the Respondent's chairman, as- use of raw materials over a 2-year period to determine sured employees that the plant would not be closed in the quantities that might be used during the forthcoming the event of unionization. contract period, gathering such data through conversa- As Kennedy's stoatement concerning possible plant clo- tions with salesmen and by noting the prices and sched- As Kennedy's statement concerning possible plant clo- uld projections. She th sure does not meet Gissel standards in that it did not con- u led prjections. h e g t hen reque bids from about five tain objective facts, his statement appears as part of an companies and negotiates on the basis of the submitted bids. Robins can enter independently into a purchase effort by the Respondent to instill in its employees the agre t fr n s can enter independently into a purchase conviction that the plant's continued existence-and its ag ree m e nt fo r be lo w S1, 00 0 , b u t fo r m o r e c o s t ly c o n- employi o n that the plant's continued existence-and its tracts Robins must first obtain authorization from the Re- employees' jobs-hinged on the outcome of the election. spondents president On those occasions, she reco- As such, the statement contained a threat of retaliation in spo nd ent s p hich s liers those occasions,d e recom- violation of Section 8(a)(1) of the Act. mends to Buss which suppliers should receive contracts. violan of Sectn 8 ) of te . Sometimes these recommendations are followed. Robins I also find that Kennedy's warning that unionization also accompanies Buss to inspect the facilities of new would bring a loss of present benefits and the imposition vendors to see if they are capable of meeting the Re- of stricter working conditions to be further violative of spondents needs. spondent's needs. Section 8(a)(I).16 ~Section 8(a)(1).'~ i 11 *rrFrom May 5 to August, Robins was assigned a secre- Leadman Norman Jelke" testified that in May, before tary, Debbie Morrison, to assist in her work. Robins had the representation election, he had gone to Kennedy's been authorized by Buss to hire Morrison after her re- office to discuss problems arising in the weld shop and to quest for a secretary had been twice rejected by Kenne- gain Kennedy's approval. During their conversation, dy for financial reasons. On receiving approval, Robins Kennedy, initiating the topic, told Jelke that if the Union interviewed approximately 15 applicants, including Mor- came in the employees would not get better benefits; if risn, for the secretary's job, making her selection inde- anything they would probably lose the benefits they pendently. Robins' first choice, before Morrison, worked have. Kennedy also stated that if the Union did come in, for 16 days when Robins decided that she should be dis- employees probably would get only one raise a year. charged. Seeking Buss' approval to terminate the first From Jelke's undisputed testimony it is concluded that secretary, Robins informed his secretary, Pearl, of her the Respondent violated Section 8(a)(l) of the Act by desire to terminate her secretary for excessive absentee- Kennedy's statement that if the employees selected the ism. Robins asked if such absenteeism, to the extent de- Union, employees probably would lose the benefits they scribed, was grounds for discharge and whether she had have and, further violated Section 8(a)(l) by Kennedy's authority to fire the secretary. Pearl promised to report statement that if the Union came in, the employees prob- back, and, the next day, told Robins that she had stated ably would get only one raise a year.' 8 sufficient reasons for discharge and that the decision was Robins' to either terminate the secretary then or to try " Jamaica Towing, Inc., 236 NLRB 1700 (1978); Robert E Anderson her longer to see if her attendance would improve. and Richard E. Anderson, co-partners d/b/a Anderson Cabinets, 241 NLRB Robins opted for discharge and notified the secretary 513 (1979). 513(1979). Robins opted for discharge and notified the secretary " Jelke, employed by the Respondent from October 1979 to August, was leadman over the cans and covers areas in the oil-filled division. At the representation election, Robins' ballot was among those deter- Cans are the receptacles used to house capacitors. Although as many as minatively challenged by the Union on the ground that she was a super- five people have worked in Jelke's group, the parties do not contend that visor within the meaning of the Act. Although Robins was not alleged as Jelke was a supervisor within the meaning of the Act. a supervisor in the complaint, it is relevant to consider her status at this "As Respondent followed a system of affording merit increases, it was time as her conduct is germane to the complaint allegation concerning possible for employees to receive more than one pay increase a year. the suggestion box. HIGH ENERGY CORPORATION 751 to him, the statement is no longer a reasonable pre- 2. The alleged unlawful solicitation of grievances diction based on available facts but a threat of re- taliation based on misrepresentation and coercion, a. The supervisory status of Patricia Robins and as such without the protection of the First The ra C cn d t a th Apri 7 A ,1 . ../^ r .«. . , ~~T h e General Counsel contends that at the April 7 Amendment . . . .. Conveyance of the employer's ,meeting Kennedy had unlawfully invited employees to belief, even though sincere, that unionization will or bring their problems to him and had promised to install may result in the closing of the plant is not a state- and installed a suggestion box to solicit grievances in ment of fact unless, which is most improbable, the oer to discourage employee support for the Union. eventuality of closing is capable of proof." [Empha- Kennedy, while denying the imputed motive, agreed that sis supplied.] he had authorized the construction of the box and its in- Kennedy's statement concerning the possibility of stallation some days after the April 7 meeting at the sug- plant closure in the event of unionization failed to meet g es tio n of Patricia Robins. Whilthe evidence concern- the Gissel standards because the Respondent introduced in g in c e pt io n o f t h e suggestion box conflicts, it is clear no evidence to prove that the statements were based on th at R o b ins p la y ed a r o le in its implementation and col- fact or that the eventuality of plant closing was a demon- le c t e d a nd processed suggestions placed therein. strably probable consequence of such fact. For the A t t he tim e o f t h e h ea rin g , R o b ins h ad bee n t h e R e - record shows that, while the financial position of the Re- spondent's purchasing agent for approximately 2-1/2 spondent could be improved, the Respondent pointed up y e ar s. A s s u c h , R o b in s obtained bids and quotations, ne- the inaccuracy of Kennedy's remarks when, at a second gotiated contracts for purchases, and placed orders. meeting of employees on May 8, as will be considered B ef o r e negotiating, Robins compares the Respondent's below, Henry M. Rowan, the Respondent's chairman, as- u se o f r aw m ate ri al s over a 2-year period to determine sured employees that the plant would not be closed in t he quantities that might be used during the forthcoming the event of unionization. contract period, gathering such data through conversa- As Kennedy's statement concerning possible plant clo- tio n s w it h s al esm en and b y n o t in g the prices and sched- sure does not meet Gissel standards in that it did not con- u led projections. She then requests bids from about five tain objective facts, his statement appears as part of an c o m p a nies an d ne go tiat es on t he b asis of the submitted effort by the Respondent to instill in its employees the bid s. R o b ins can enter independently into a purchase conviction that the plant's continued existence-and its ag ree m e nt fo r be lo w S1, 00 0 , b u t fo r m o r e c o s t ly c o n- employees' jobs-hinged on the outcome of the election. t r ac t s R o b in s mu st first obtain authorization from the Re- As such, the statement contained a threat of retaliation in s po n d en t's p r esid en t. O n t h o se occasions, she recom- violation of Section 8(a)(1) of the Act. m en d s t o B u ss w h ic h suppliers should receive contracts. Sometimes these recommendations are followed. Robins I also find that Kennedy's warning that unionization also accompanies Buss to inspect the facilities of new would bring a loss of present benefits and the imposition vendors to see if they are capable of meeting the Re- of stricter working conditions to be further violative of s n < i' a/ vit is~~~~~~~~spondent s needs. Section 8(a)(). i6 11 11 *r -i i- . rFrom May 5 to August, Robins was assigned a secre- Leadman Norman Jelke" testified that in May, before tary, Debbie Morrison, to assist in her work. Robins had the representation election, he had gone to Kennedy's been authorized by Buss to hire Morrison after her re- office to discuss problems arising in the weld shop and to quest for a secretary had been twice rejected by Kenne- gain Kennedy's approval. During their conversation, dy for financial reasons. On receiving approval, Robins Kennedy, initiating the topic, told Jelke that if the Union itviewed approximately 15 applicants, including Mor- came in the employees would not get better benefits; if rison, for the secretary's job, making her selection inde- anything they would probably lose the benefits they pendently. Robins' first choice, before Morrison, worked have. Kennedy also stated that if the Union did come in, for 16 days when Robins decided that she should be dis- employees probably would get only one raise a year. charged. Seeking Buss' approval to terminate the first From Jelke's undisputed testimony it is concluded that secretary, Robins informed his secretary, Pearl, of her the Respondent violated Section 8(a)(l) of the Act by desire to terminate her secretary for excessive absentee- Kennedy's statement that if the employees selected the ism. Robins asked if such absenteeism, to the extent de- Union, employees probably would lose the benefits they scribed, was grounds for discharge and whether she had have and, further violated Section 8(a)(l) by Kennedy's authority to fire the secretary. Pearl promised to report statement that if the Union came in, the employees prob- back, and, the next day, told Robins that she had stated ably would get only one raise a year."'sufficient reasons for discharge and that the decision was Robins' to either terminate the secretary then or to try '6 Jamaica Towing, Inc., 23 6 NLRB 1700 (1978); Robert E Anderson he r longer to see if her attendance would improve. and Richard E. Anderson, co-partners d/b/a Anderson Cabinets, 241 NLRB ns o for discarg and n i the s 513(1979)Robins opted for discharge and notified the secretary " Jelke, employed by the Respondent from October 1979 to August, was leadman over the cans and covers areas in the oil-filled division. " At the representation election, Robins' ballot was among those deter- Cans are the receptacles used to house capacitors. Although as many as minatively challenged by the Union on the ground that she was a super- rive people have worked in Jelke's group, the parties do not contend that visor within the meaning of the Act. Although Robins was not alleged as Jelke was a supervisor within the meaning of the Act. a supervisor in the complaint, it is relevant to consider her status at this "As Respondent followed a system of affording merit increases, it was time as her conduct is germane to the complaint allegation concerning possible for employees to receive more than one pay increase a year. the suggestion box. HIGH ENERGY CORPORATION 751 to him, the statement is no longer a reasonable pre- 2. The alleged unlawful solicitation of grievances diction based on available facts but a threat of re- taliation based on misrepresentation and coercion, a. The supervisory status of Patricia Robins and as such without the protection of the First The ra C cn d t a th Apri 7 A -i . ../^ r .«. . , ~~T h e General Counsel contends that at the April 7 Amendment . . .. .. Conveyance of the employer's ,meeting Kennedy had unlawfully invited employees to belief, even though sincere, that unionization will or bring their problems to him and had promised to install may result in the closing of the plant is not a state- and installed a suggestion box to solicit grievances in ment of fact unless, which is most improbable, the oer to discourage employee support for the Union. eventuality of closing is capable of proof." [Empha- Kennedy, while denying the imputed motive, agreed that sis supplied.] he had authorized the construction of the box and its in- Kennedy's statement concerning the possibility of stallation some days after the April 7 meeting at the sug- plant closure in the event of unionization failed to meet g es tio n of Patricia Robins. Whilthe evidence concern- the Gissel standards because the Respondent introduced in g in c e pt io n o f t h e suggestion box conflicts, it is clear no evidence to prove that the statements were based on th at R o b ins p la y ed a r o le in its implementation and col- fact or that the eventuality of plant closing was a demon- le c t e d a nd processed suggestions placed therein. strably probable consequence of such fact. For the A t t he tim e o f t h e h ea rin g , R o b ins h ad bee n t h e R e - record shows that, while the financial position of the Re- spondent's purchasing agent for approximately 2-1/2 spondent could be improved, the Respondent pointed up y e ar s. A s s u c h , R o b in s obtained bids and quotations, ne- the inaccuracy of Kennedy's remarks when, at a second gotiated contracts for purchases, and placed orders. meeting of employees on May 8, as will be considered B ef o r e negotiating, Robins compares the Respondent's below, Henry M. Rowan, the Respondent's chairman, as- u se o f r aw materials over a 2-year period to determine sured employees that the plant would not be closed in t he quantities that might be used during the forthcoming the event of unionization. contract period, gathering such data through conversa- As Kennedy's statement concerning possible plant clo- tio n s w it h s al esm en and b y n o t in g the prices and sched- sure does not meet Gissel standards in that it did not con- u led projections. She then requests bids from about five tain objective facts, his statement appears as part of an c o m p a nies an d ne go tiat es on the basis of the submitted effort by the Respondent to instill in its employees the bid s. R o b ins can enter independently into a purchase conviction that the plant's continued existence-and its ag ree m e nt fo r be lo w S1, 00 0 , b u t fo r m o r e c o s t ly c o n- employees' jobs-hinged on the outcome of the election. t r ac t s R o b in s mu st first obtain authorization from the Re- As such, the statement contained a threat of retaliation in s po n d en t's p r esid en t. O n t h o se occasions, she recom- violation of Section 8(a)(1) of the Act. m en d s t o B u ss w h ic h suppliers should receive contracts. Sometimes these recommendations are followed. Robins I also find that Kennedy's warning that unionization also accompanies Buss to inspect the facilities of new would bring a loss of present benefits and the imposition vendors to see if they are capable of meeting the Re- of stricter working conditions to be further violative of s n < i' a/ vn is~~~~~~~~~spondent s needs. Sectio ,(a)(1) ,,, i 11 11 *r -i i- rFrom May 5 to August, Robins was assigned a secre- Leadman Norman Jelke" testified that in May, before tary, Debbie Morrison, to assist in her work. Robins had the representation election, he had gone to Kennedy's been authorized by Buss to hire Morrison after her re- office to discuss problems arising in the weld shop and to quest for a secretary had been twice rejected by Kenne- gain Kennedy's approval. During their conversation, dy for financial reasons. On receiving approval, Robins Kennedy, initiating the topic, told Jelke that if the Union itviewed approximately 15 applicants, including Mor- came in the employees would not get better benefits; if rison, for the secretary's job, making her selection inde- anything they would probably lose the benefits they pendently. Robins' first choice, before Morrison, worked have. Kennedy also stated that if the Union did come in, for 16 days when Robins decided that she should be dis- employees probably would get only one raise a year. charged. Seeking Buss' approval to terminate the first From Jelke's undisputed testimony it is concluded that secretary, Robins informed his secretary, Pearl, of her the Respondent violated Section 8(a)(l) of the Act by desire to terminate her secretary for excessive absentee- Kennedy's statement that if the employees selected the ism. Robins asked if such absenteeism, to the extent de- Union, employees probably would lose the benefits they scribed, was grounds for discharge and whether she had have and, further violated Section 8(a)(l) by Kennedy's authority to fire the secretary. Pearl promised to report statement that if the Union came in, the employees prob- back, and, the next day, told Robins that she had stated ably would get only one raise a year."'sufficient reasons for discharge and that the decision was Robins' to either terminate the secretary then or to try '6 Jamaica Towing, Inc., 23 6 NLRB 1700 (1978); Robert E Anderson he r longer to see if her attendance would improve. and Richard E. Anderson, co-partners d/b/a Anderson Cabinets, 241 NLRB ns o for discag and n i the s 513(1979)Robins opted for discharge and notified the secretary " Jelke, employed by the Respondent from October 1979 to August, was leadman over the cans and covers areas in the oil-filled division. " At the representation election, Robins' ballot was among those deter- Cans are the receptacles used to house capacitors. Although as many as minatively challenged by the Union on the ground that she was a super- rive people have worked in Jelke's group, the parties do not contend that visor within the meaning of the Act. Although Robins was not alleged as Jelke was a supervisor within the meaning of the Act. a supervisor in the complaint, it is relevant to consider her status at this "As Respondent followed a system of affording merit increases, it was time as her conduct is germane to the complaint allegation concerning possible for employees to receive more than one pay increase a year. the suggestion box. HIGH ENERGY CORPORATION 751 to him, the statement is no longer a reasonable pre- 2. The alleged unlawful solicitation of grievances diction based on available facts but a threat of re- taliation based on misrepresentation and coercion, a. The supervisory status of Patricia Robins and as such without the protection of the First The ra C cn d t a th Apri 7 A -i . ../^ r .«. . , ~~T h e General Counsel contends that at the April 7 Amendment . . .. .. Conveyance of the employer's ,meeting Kennedy had unlawfully invited employees to belief, even though sincere, that unionization will or bring their problems to him and had promised to install may result in the closing of the plant is not a state- and installed a suggestion box to solicit grievances in ment of fact unless, which is most improbable, the oer to discourage employee support for the Union. eventuality of closing is capable of proof." [Empha- Kennedy, while denying the imputed motive, agreed that sis supplied.] he had authorized the construction of the box and its in- Kennedy's statement concerning the possibility of stallation some days after the April 7 meeting at the sug- plant closure in the event of unionization failed to meet g es tio n of Patricia Robins. Whilthe evidence concern- the Gissel standards because the Respondent introduced in g in c e pt io n o f t h e suggestion box conflicts, it is clear no evidence to prove that the statements were based on th at R o b ins p la y ed a r o le in its implementation and col- fact or that the eventuality of plant closing was a demon- le c t e d a nd processed suggestions placed therein. strably probable consequence of such fact. For the A t t he tim e o f t h e h ea rin g , R o b ins h ad bee n t h e R e - record shows that, while the financial position of the Re- spondent's purchasing agent for approximately 2-1/2 spondent could be improved, the Respondent pointed up y e ar s. A s s u c h , R o b in s obtained bids and quotations, ne- the inaccuracy of Kennedy's remarks when, at a second gotiated contracts for purchases, and placed orders. meeting of employees on May 8, as will be considered B ef o r e negotiating, Robins compares the Respondent's below, Henry M. Rowan, the Respondent's chairman, as- u se o f r aw materials over a 2-year period to determine sured employees that the plant would not be closed in t he quantities that might be used during the forthcoming the event of unionization. contract period, gathering such data through conversa- As Kennedy's statement concerning possible plant clo- tio n s w it h s al esm en and b y n o t in g the prices and sched- sure does not meet Gissel standards in that it did not con- u led projections. She then requests bids from about five tain objective facts, his statement appears as part of an c o m p a nies an d ne go tiat es on the basis of the submitted effort by the Respondent to instill in its employees the bid s. R o b ins can enter independently into a purchase conviction that the plant's continued existence-and its ag ree m e nt fo r be lo w S1, 00 0 , b u t fo r m o r e c o s t ly c o n- employees' jobs-hinged on the outcome of the election. t r ac t s R o b in s mu st first obtain authorization from the Re- As such, the statement contained a threat of retaliation in s po n d en t's p r esid en t. O n t h o se occasions, she recom- violation of Section 8(a)(1) of the Act. m en d s t o B u ss w h ic h suppliers should receive contracts. Sometimes these recommendations are followed. Robins I also find that Kennedy's warning that unionization also accompanies Buss to inspect the facilities of new would bring a loss of present benefits and the imposition vendors to see if they are capable of meeting the Re- of stricter working conditions to be further violative of s n < i' a/ vit is~~~~~~~~spondent s needs. Sectio ,(a)(1) ,,, i 11 11 *r -i i- rFrom May 5 to August, Robins was assigned a secre- Leadman Norman Jelke" testified that in May, before tary, Debbie Morrison, to assist in her work. Robins had the representation election, he had gone to Kennedy's been authorized by Buss to hire Morrison after her re- office to discuss problems arising in the weld shop and to quest for a secretary had been twice rejected by Kenne- gain Kennedy's approval. During their conversation, dy for financial reasons. On receiving approval, Robins Kennedy, initiating the topic, told Jelke that if the Union itviewed approximately 15 applicants, including Mor- came in the employees would not get better benefits; if rison, for the secretary's job, making her selection inde- anything they would probably lose the benefits they pendently. Robins' first choice, before Morrison, worked have. Kennedy also stated that if the Union did come in, for 16 days when Robins decided that she should be dis- employees probably would get only one raise a year. charged. Seeking Buss' approval to terminate the first From Jelke's undisputed testimony it is concluded that secretary, Robins informed his secretary, Pearl, of her the Respondent violated Section 8(a)(l) of the Act by desire to terminate her secretary for excessive absentee- Kennedy's statement that if the employees selected the ism. Robins asked if such absenteeism, to the extent de- Union, employees probably would lose the benefits they scribed, was grounds for discharge and whether she had have and, further violated Section 8(a)(l) by Kennedy's authority to fire the secretary. Pearl promised to report statement that if the Union came in, the employees prob- back, and, the next day, told Robins that she had stated ably would get only one raise a year."'sufficient reasons for discharge and that the decision was Robins' to either terminate the secretary then or to try '6 Jamaica Towing, Inc., 23 6 NLRB 1700 (1978); Robert E Anderson he r longer to see if her attendance would improve. and Richard E. Anderson, co-partners d/b/a Anderson Cabinets, 241 NLRB ns o for discag and n i the s 513(1979)Robins opted for discharge and notified the secretary " Jelke, employed by the Respondent from October 1979 to August, was leadman over the cans and covers areas in the oil-filled division. " At the representation election, Robins' ballot was among those deter- Cans are the receptacles used to house capacitors. Although as many as minatively challenged by the Union on the ground that she was a super- rive people have worked in Jelke's group, the parties do not contend that visor within the meaning of the Act. Although Robins was not alleged as Jelke was a supervisor within the meaning of the Act. a supervisor in the complaint, it is relevant to consider her status at this "As Respondent followed a system of affording merit increases, it was time as her conduct is germane to the complaint allegation concerning possible for employees to receive more than one pay increase a year. the suggestion box. 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that her position was ended. She then, without further Administrative Law Judge Silberman, in his Board-ap- consultation or reinterviewing, notified Morrison, her proved Decision in McMullen Corporation, d/b/a Briar- second choice among the original 15 job applicants, that wood Hilton,22 restated the rule as follows: she had the job. In August, Morrison was laid off by The s o e g The solicitation of employee grievances during Kennedy for financial reasons. The two secretaries weregn ad by an organizational campaign accompanied by a the only ones to work for Robins. Robins, who did not proi, epre or impi, tat t gianes promise, express or implied, that the grievances will attend management meetings or exercise responsibility b r . S be remedied is a violation of the Act. Such conduct with regard to other employees, had interviewed only in constitutes an unlawful res t u n constitutes an unlawful restraint upon and interfer- connection with the hiring of the two secretaries. ence with employees' self-organizational rights While with the Respondent, Morrison worked 5 hours . - r i- While with the Respondent, Morrison worked 5 hours guaranteed under the Act because implicit therein is a day, 5 days a week, spending 4 hours daily working for r i i i r „ - ,~' '. .1.......1~ ^ . rthe promise that benefits will be awarded to them Robins and 1 hour on switchboard relief, Robins deter- by their employer so long as they are not represent- mined her secretary's duties and priorities. While Morri- by a lor or on a becae it tens t ed by a labor organization and because it tends to son was with her, Robins continued to perform her regu- f e t e o e frustrate the employees' organizational efforts by lar duties, which consumed about 95 percent of her time. te showing them that union representation is unneces- The remaining 5 percent was spent in directing and sar 1 training Morrison, a percentage which decreased as Mor- rison became more familiar with her work. For Robins, Morrison principally typed letters and purchase orders 1 House of Mosaics, Inc.. Subsidiary of Thomas Industries, Inc., and did filing, working to eliminate a backlog and to 215 NLRB No. 123 (1974); N.L.R.B. v. Tom Wood Pontiac, Inc., keep Robins current. 447 F.2d 383, 384-385 (C.A. 7, 1971). From the foregoing, it is evident that Robins, at least In the present matter, several employee witnesses during the period relevant to this proceeding, had inde- called by the General Counsel testified that during the pendent authority to hire two consecutive secretaries, April 7 meeting they, for the first time, had been invited assign work to, and discharge them. The decision to ter- by Kennedy to submit their problems to him and learn minate the first secretary clearly was made by Robins, that a suggestion box would be set up for their ideas and Accordingly, I find that during the relevant period complaints. While Kennedy's denial that he had done before the election that Robins was a supervisor within this is supported by Pearl's notes of the meeting, it is not the meaning of Section 2(11) of the Act. necessary to resolve credibility to reach a conclusion b. The suggestion box-and Kennedy's invitation to concerning the suggestion box. Even accepting Kenne- submit problems-facts and findings dy's statement that he did not refer to a suggestion box during his meeting with employees, both he and Buss Robins testified that the suggestion box had been her testified that they had approved the box at Robins' sug- idea. On April 11, during a conversation with Buss, she gestion. The record shows that the box was duly author- recommended the installation of a suggestion box in the ized and installed during the Employer's counter-cam- cafeteria to learn employee complaints. 20 Buss corrobo- paign, within 2 weeks after receipt of the Union's letter rated Robins' testimony that it had been he not Kennedy requesting recognition, less than 1 week after the Re- who had approved the suggestion box. spondent's reply refusing same, 23 and about I week after On April 13, Robins took home the box which a main- Kennedy's meeting with the staff. Robins, in fact, ad- tenance man had made and given her that day. The mitted that she had proposed the suggestion box as a re- maintenance man placed it in the cafeteria on the follow- sponse to the Union's organizational drive. ing day. Robins placed a note on the box to the effect Noting that this was the first time a suggestion box that if employees wanted changes, they would have to had been used in the plant, that ideas placed in the box make known their suggestions. She signed this note so as were accepted and implemented at cost to the Respond- to inform employees of her sponsorship. 2 ent, I conclude that implicit in the establishment of the The box is kept locked. Robins has the only key, suggestion box was the promise that suggestions or com- which she uses to open the box about once a day. It is plaints placed within would be acted on or remedied, as her practice to keep the suggestions for a while and then applicable, and that by so doing the Respondent has vio- submit them to Buss. Robins related that, as a result of lated Section 8(a)(1) of the Act.24 certain suggestions submitted before the election, em- I also credit testimony that Kennedy, at the meeting, ployees were polled and, as they desired, the Respondent solicited grievances by inviting employees to bring their installed a different soda machine that dispensed bever- problems to him, for the first time in the context of the ages in cans rather than in cups. Before this, no sugges- Union's campaign, as such conduct is consistent with tion box had been made available to employees. Kennedy's approach. For the above reasons, it is con- cluded that this, too, was in violation of Section 8(a)(l) o Although nothing was said about the Union when Buss authorized f the At the suggestion box, Robins testified that her recommendation concerning the suggestion box was a response to the Union's letter, dated April 4, claiming majority status. 22 222 NLRB 986, 989 (1976). 21 At the time of the hearing, the suggestion box was still in the cafete- Buss' letter of reply to the Union was dated April 7. ria. w Also see Moody Nursing Home, Inc., 251 NLRB 147 (1980). 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that her position was ended. She then, without further Administrative Law Judge Silberman, in his Board-ap- consultation or reinterviewing, notified Morrison, her proved Decision in McMullen Corporation, d/b/a Briar- second choice among the original 15 job applicants, that wood Hilton,2 2 restated the rule as follows: she had the job. In August, Morrison was laid off by Th s t of e g durin ,, .,-,. .,-' _ . *~~~~~~~~The solicitation of employee grievances during Kennedy for financial reasons. The two secretaries were an o c a by1 a ., , „ , , „ ,. n .. , ,., .an organizational campaign accompanied by a the only ones to work for Robins. Robins, who did not ° e r imp ie t the g wl .. , . .. . ..... ~~~~~~~~~promise, express or implied, that the grievances will attend management meetings or exercise responsibility be r i a v o t Act. Sc cnu ... j . ,1. i i. j * . * j i *~be remedied is a violation of the Act. Such conduct with regard to other employees, had interviewed only in c a u r u a i - . , .. ,. . r.., . . .~~~constitutes an unlawful restraint upon and interfer- connection with the hiring of the two secretaries. ence with employees' self-organizational rights While with the Respondent, Morrison worked 5 hours.. - 1 - *r* i While with the Respondent, Morrison worked 5 hours guaranteed under the Act because implicit therein is a day, 5 days a week, spending 4 hours daily working fort p .ha it wl be ar t them „ - ,' . .1.1- j r r n i- -i~~the promise that benefits will be awarded to them Robins and 1 hour on switchboard relief, Robins deter- by t e s l , , , , . , . . . „,..., »« *~by their employer so long as they are not represent- mined her secretary's duties and priorities. While Morri- e b a l o a .. ,, -.. ,. *, , „ .~~~~ed by a labor organization and because it tends to son was with her, Robins continued to perform her regu- f th e , oranzai rt by i ... i.. , ,i. r~~~t . r i- .*frustrate the employees' organizational efforts by lar duties, which consumed about 95 percent of her time. s t t u r i „, .. . . ^ * j- . j ~~~~~~~showing them that union representation is unneces- The remaining 5 percent was spent in directing and s 1 training Morrison, a percentage which decreased as Mor- rison became more familiar with her work. For Robins, Morrison principally typed letters and purchase orders House of Mosaics, Inc.. Subsidiary of Thomas Industries, Inc., and did filing, working to eliminate a backlog and to 215 NLRB No. 123 (1974); N.L.R.B. v. Tom Wood Pontiac. Inc., keep Robins current. 447 F.2d 383,384-385 (C.A. 7, 1971). From the foregoing, it is evident that Robins, at least In the present matter, several employee witnesses during the period relevant to this proceeding, had inde- called by the General Counsel testified that during the pendent authority to hire two consecutive secretaries, April 7 meeting they, for the first time, had been invited assign work to, and discharge them. The decision to ter- by Kennedy to submit their problems to him and learn minate the first secretary clearly was made by Robins. that a suggestion box would be set up for their ideas and Accordingly, I find that during the relevant period complaints. While Kennedy's denial that he had done before the election that Robins was a supervisor within this is supported by Pearl's notes of the meeting, it is not the meaning of Section 2(11) of the Act. necessary to resolve credibility to reach a conclusion b. The suggestion box-and Kennedy's invitation to concerning the suggestion box. Even accepting Kenne- submit problems-facts and findings dy's statement that he did not refer to a suggestion box during his meeting with employees, both he and Buss Robins testified that the suggestion box had been her testified that they had approved the box at Robins' sug- idea. On April 11, during a conversation with Buss, she gestion. The record shows that the box was duly author- recommended the installation of a suggestion box in the ized and installed during the Employer's counter-cam- cafeteria to learn employee complaints. 20 Buss corrobo- paign, within 2 weeks after receipt of the Union's letter rated Robins' testimony that it had been he not Kennedy requesting recognition, less than 1 week after the Re- who had approved the suggestion box. spondent's reply refusing same, 23 and about 1 week after On April 13, Robins took home the box which a main- Kennedy's meeting with the staff. Robins, in fact, ad- tenance man had made and given her that day. The mitted that she had proposed the suggestion box as a re- maintenance man placed it in the cafeteria on the follow- sponse to the Union's organizational drive. ing day. Robins placed a note on the box to the effect Noting that this was the first time a suggestion box that if employees wanted changes, they would have to had been used in the plant, that ideas placed in the box make known their suggestions. She signed this note so as were accepted and implemented at cost to the Respond- to inform employees of her sponsorship." ent, I conclude that implicit in the establishment of the The box is kept locked. Robins has the only key, suggestion box was the promise that suggestions or com- which she uses to open the box about once a day. It is plaints placed within would be acted on or remedied, as her practice to keep the suggestions for a while and then applicable, and that by so doing the Respondent has vio- submit them to Buss. Robins related that, as a result of lated Section 8(a)(l) of the Act.21 certain suggestions submitted before the election, em- I also credit testimony that Kennedy, at the meeting, ployees were polled and, as they desired, the Respondent solicited grievances by inviting employees to bring their installed a different soda machine that dispensed bever- problems to him, for the first time in the context of the ages in cans rather than in cups. Before this, no sugges- Union's campaign, as such conduct is consistent with tion box had been made available to employees. Kennedy's approach. For the above reasons, it is con- ------- e~~~~~~~~~~~~luded that this, too, was in violation of Section 8(a)(l) w Although nothing was said about the Union when Buss authorized cd tha t s tin the suggestion box, Robins testified that her recommendation concerning the suggestion box was a response to the Union's letter, dated April 4, claiming majority status. 22 222 NLRB 986, 989 (1976). 2" At the time of the hearing, the suggestion box was still in the cafete- Buss' letter of reply to the Union was dated April 7. ria. Also see Moody Nursing Home. Inc.. 251 NLRB 147 (1980). 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that her position was ended. She then, without further Administrative Law Judge Silberman, in his Board-ap- consultation or reinterviewing, notified Morrison, her proved Decision in McMullen Corporation, d/b/a Briar- second choice among the original 15 job applicants, that wood Hilton,2 2 restated the rule as follows: she had the job. In August, Morrison was laid off by Th s t of e g durin ,, .,-,. .,-' _ . *~~~~~~~~The solicitation of employee grievances during Kennedy for financial reasons. The two secretaries were an o camaig a b a ., , „ , , „ ,. n .. , ,., .an organizational campaign accompanied by a the only ones to work for Robins. Robins, who did not ° e r i tha t gie will .. , . .. . ..... ~~~~~~~~~promise, express or implied, that the grievances will attend management meetings or exercise responsibility be r i a v o t Act. Sc cnu ... j . ,1. i i. j * . * j i *~be remedied is a violation of the Act. Such conduct with regard to other employees, had interviewed only in c a u r u a i - . , .. ,. . r.., . . .~~~constitutes an unlawful restraint upon and interfer- connection with the hiring of the two secretaries. ence with employees' self-organizational rights While with the Respondent, Morrison worked 5 hours.. - 1 - *r* i While with the Respondent, Morrison worked 5 hours guaranteed under the Act because implicit therein is a day, 5 days a week, spending 4 hours daily working fort p .ha it wl be ar t them „ - ,' . .1.1- j r r n i- -i~~the promise that benefits will be awarded to them Robins and 1 hour on switchboard relief, Robins deter- by t e s l , , , , . , . . . „,..., »« *~by their employer so long as they are not represent- mined her secretary's duties and priorities. While Morri- e b a l o a .. ,, -.. ,. *, , „ .~~~~ed by a labor organization and because it tends to son was with her, Robins continued to perform her regu- f th e , oranzai rt by i ... i.. , ,i. r~~~t . r i- .*frustrate the employees' organizational efforts by lar duties, which consumed about 95 percent of her time. s t t u r i „, .. . . ^ * j- . j ~~~~~~~showing them that union representation is unneces- The remaining 5 percent was spent in directing and s 1 training Morrison, a percentage which decreased as Mor- rison became more familiar with her work. For Robins, Morrison principally typed letters and purchase orders House of Mosaics, Inc.. Subsidiary of Thomas Industries, Inc., and did filing, working to eliminate a backlog and to 215 NLRB No. 123 (1974); N.L.R.B. v. Tom Wood Pontiac. Inc., keep Robins current. 447 F.2d 383,384-385 (C.A. 7, 1971). From the foregoing, it is evident that Robins, at least In the present matter, several employee witnesses during the period relevant to this proceeding, had inde- called by the General Counsel testified that during the pendent authority to hire two consecutive secretaries, April 7 meeting they, for the first time, had been invited assign work to, and discharge them. The decision to ter- by Kennedy to submit their problems to him and learn minate the first secretary clearly was made by Robins. that a suggestion box would be set up for their ideas and Accordingly, I find that during the relevant period complaints. While Kennedy's denial that he had done before the election that Robins was a supervisor within this is supported by Pearl's notes of the meeting, it is not the meaning of Section 2(11) of the Act. necessary to resolve credibility to reach a conclusion b. The suggestion box-and Kennedy's invitation to concerning the suggestion box. Even accepting Kenne- submit problems-facts and findings dy's statement that he did not refer to a suggestion box during his meeting with employees, both he and Buss Robins testified that the suggestion box had been her testified that they had approved the box at Robins' sug- idea. On April 11, during a conversation with Buss, she gestion. The record shows that the box was duly author- recommended the installation of a suggestion box in the ized and installed during the Employer's counter-cam- cafeteria to learn employee complaints. 20 Buss corrobo- paign, within 2 weeks after receipt of the Union's letter rated Robins' testimony that it had been he not Kennedy requesting recognition, less than 1 week after the Re- who had approved the suggestion box. spondent's reply refusing same, 23 and about 1 week after On April 13, Robins took home the box which a main- Kennedy's meeting with the staff. Robins, in fact, ad- tenance man had made and given her that day. The mitted that she had proposed the suggestion box as a re- maintenance man placed it in the cafeteria on the follow- sponse to the Union's organizational drive. ing day. Robins placed a note on the box to the effect Noting that this was the first time a suggestion box that if employees wanted changes, they would have to had been used in the plant, that ideas placed in the box make known their suggestions. She signed this note so as were accepted and implemented at cost to the Respond- to inform employees of her sponsorship." ent, I conclude that implicit in the establishment of the The box is kept locked. Robins has the only key, suggestion box was the promise that suggestions or com- which she uses to open the box about once a day. It is plaints placed within would be acted on or remedied, as her practice to keep the suggestions for a while and then applicable, and that by so doing the Respondent has vio- submit them to Buss. Robins related that, as a result of lated Section 8(a)(l) of the Act.21 certain suggestions submitted before the election, em- I also credit testimony that Kennedy, at the meeting, ployees were polled and, as they desired, the Respondent solicited grievances by inviting employees to bring their installed a different soda machine that dispensed bever- problems to him, for the first time in the context of the ages in cans rather than in cups. Before this, no sugges- Union's campaign, as such conduct is consistent with tion box had been made available to employees. Kennedy's approach. For the above reasons, it is con- ------- e~~~~~~~~~~~~luded that this, too, was in violation of Section 8(a)(l) w Although nothing was said about the Union when Buss authorized cd tha t s tin the suggestion box, Robins testified that her recommendation concerning the suggestion box was a response to the Union's letter, dated April 4, claiming majority status. 22 222 NLRB 986, 989 (1976). 2" At the time of the hearing, the suggestion box was still in the cafete- Buss' letter of reply to the Union was dated April 7. ria. Also see Moody Nursing Home. Inc.. 251 NLRB 147 (1980). 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that her position was ended. She then, without further Administrative Law Judge Silberman, in his Board-ap- consultation or reinterviewing, notified Morrison, her proved Decision in McMullen Corporation, d/b/a Briar- second choice among the original 15 job applicants, that wood Hilton,2 2 restated the rule as follows: she had the job. In August, Morrison was laid off by Th s t of e g durin ,, .,-,. .,-' _ . *~~~~~~~~The solicitation of employee grievances during Kennedy for financial reasons. The two secretaries were an ognaia c a b a ., , „ , , „ ,. n .. , ,., .an organizational campaign accompanied by a the only ones to work for Robins. Robins, who did not ° e r i tha t gie will .. , . .. . ..... ~~~~~~~~~promise, express or implied, that the grievances will attend management meetings or exercise responsibility be r i a v o t Act. Sc cnu ... j . ,1. i i. j * . * j i *~be remedied is a violation of the Act. Such conduct with regard to other employees, had interviewed only in c a u r u a i - . , .. ,. . r.., . . .~~~constitutes an unlawful restraint upon and interfer- connection with the hiring of the two secretaries. ence with employees' self-organizational rights While with the Respondent, Morrison worked 5 hours.. - 1 - *r* i While with the Respondent, Morrison worked 5 hours guaranteed under the Act because implicit therein is a day, 5 days a week, spending 4 hours daily working fort p .ha it wl be ar t them „ - ,' . .1.1- j r r n i- -i~~the promise that benefits will be awarded to them Robins and 1 hour on switchboard relief, Robins deter- by t e s l , , , , . , . . . „,..., »« *~by their employer so long as they are not represent- mined her secretary's duties and priorities. While Morri- e b a l o a b .. ,, -.. ,. *, . „ .~~~~ed by a labor organization and because it tends to son was with her, Robins continued to perform her regu- f th e , oranzai rt by i ... i.. , j i. r~~t . r i- .*frustrate the employees' organizational efforts by lar duties, which consumed about 95 percent of her time. s t t u r i „, .. . . ^ * j- . j ~~~~~~~showing them that union representation is unneces- The remaining 5 percent was spent in directing and s 1 training Morrison, a percentage which decreased as Mor- rison became more familiar with her work. For Robins, Morrison principally typed letters and purchase orders House of Mosaics, Inc.. Subsidiary of Thomas Industries, Inc., and did filing, working to eliminate a backlog and to 215 NLRB No. 123 (1974); N.L.R.B. v. Tom Wood Pontiac. Inc., keep Robins current. 447 F.2d 383,384-385 (C.A. 7, 1971). From the foregoing, it is evident that Robins, at least In the present matter, several employee witnesses during the period relevant to this proceeding, had inde- called by the General Counsel testified that during the pendent authority to hire two consecutive secretaries, April 7 meeting they, for the first time, had been invited assign work to, and discharge them. The decision to ter- by Kennedy to submit their problems to him and learn minate the first secretary clearly was made by Robins. that a suggestion box would be set up for their ideas and Accordingly, I find that during the relevant period complaints. While Kennedy's denial that he had done before the election that Robins was a supervisor within this is supported by Pearl's notes of the meeting, it is not the meaning of Section 2(11) of the Act. necessary to resolve credibility to reach a conclusion b. The suggestion box-and Kennedy's invitation to concerning the suggestion box. Even accepting Kenne- submit problems-facts and findings dy's statement that he did not refer to a suggestion box during his meeting with employees, both he and Buss Robins testified that the suggestion box had been her testified that they had approved the box at Robins' sug- idea. On April 11, during a conversation with Buss, she gestion. The record shows that the box was duly author- recommended the installation of a suggestion box in the ized and installed during the Employer's counter-cam- cafeteria to learn employee complaints. 20 Buss corrobo- paign, within 2 weeks after receipt of the Union's letter rated Robins' testimony that it had been he not Kennedy requesting recognition, less than 1 week after the Re- who had approved the suggestion box. spondent's reply refusing same, 23 and about 1 week after On April 13, Robins took home the box which a main- Kennedy's meeting with the staff. Robins, in fact, ad- tenance man had made and given her that day. The mitted that she had proposed the suggestion box as a re- maintenance man placed it in the cafeteria on the follow- sponse to the Union's organizational drive. ing day. Robins placed a note on the box to the effect Noting that this was the first time a suggestion box that if employees wanted changes, they would have to had been used in the plant, that ideas placed in the box make known their suggestions. She signed this note so as were accepted and implemented at cost to the Respond- to inform employees of her sponsorship." ent, I conclude that implicit in the establishment of the The box is kept locked. Robins has the only key, suggestion box was the promise that suggestions or com- which she uses to open the box about once a day. It is plaints placed within would be acted on or remedied, as her practice to keep the suggestions for a while and then applicable, and that by so doing the Respondent has vio- submit them to Buss. Robins related that, as a result of lated Section 8(a)(l) of the Act.21 certain suggestions submitted before the election, em- I also credit testimony that Kennedy, at the meeting, ployees were polled and, as they desired, the Respondent solicited grievances by inviting employees to bring their installed a different soda machine that dispensed bever- problems to him, for the first time in the context of the ages in cans rather than in cups. Before this, no sugges- Union's campaign, as such conduct is consistent with tion box had been made available to employees. Kennedy's approach. For the above reasons, it is con- ------- e~~~~~~~~~~~~luded that this, too, was in violation of Section 8(a)(l) w Although nothing was said about the Union when Buss authorized cd tha t s tin the suggestion box, Robins testified that her recommendation concerning the suggestion box was a response to the Union's letter, dated April 4, claiming majority status. 22 222 NLRB 986, 989 (1976). 2" At the time of the hearing, the suggestion box was still in the cafete- Buss' letter of reply to the Union was dated April 7. ria. Also see Moody Nursing Home. Inc.. 251 NLRB 147 (1980). HIGH ENERGY CORPORATION 753 3. The conduct of Kevin Kuklewski and Peter sive absenteeism, preparing and signing the supervisor's Phiambolis evaluation on Brown's termination form. 30 While in finishing, Kuklewski made recommendations The complaint alleging that management trainees25 to Kennedy with respect to the manning of that depart- Kevin Kuklewski and Peter Phiambolis had engaged in ment, requesting that additional help be assigned there conduct violative of Section 8(a)(l) of the Act, the Re- when he thought necessary. In approximately 40 percent spondent has placed in issue their status as supervisors. 2 of those instances when Kuklewski sought an additional Both men had been hired as salaried management train- employee to temporarily assist with the workload, Ken- ees 27 and were working as such during the first half of nedy would accompany him back to his department to 1980. check the amount and type of work that was required. On the remaining occasions, Kennedy would merely a. Kevin Kuklewski's supervisory status grant verbal authorization for the additional help based When hired at the beginning of August 1979, Kuk- on Kuklewski's stated need. While Kuklewski could au- lewski was interviewd by six company officials, includ- thorize employees who so requested, to leave work an ing President Buss, his secretary, Pearl, and the then-in- hour early, he had no authority concerning the employ- cumbent management trainee, Doug Zuirys.28 Buss, the ees' timecards. principal interviewer, told Kuklewski that he initially While stll in finishing, Kuklewski sent an undated 2- would go to the production floor to learn the product, page memorandum to the Respondent's personnel depart- after which he would become involved in a computer ment criticizing the work of Ken Weaver whom, accord- ing to Kuklewski's memorandum, management had de- project. Kuklewski's training program would not be rig- ng to Kuklewski's memorandum, management had de- cided to remove as head of shipping and warehouse and idly structured. Nothing was said about where the pro- cded to remove as head of shippn and warehouse and to reassign to work under Kuklewski. This memorandum gram might lead. ., ,- ,. contained the following paragraph wherein Kuklewski Kuklewski first was assigned to the oil-filled division described his duties on assuming the newly constituted where he spent 2 to 3 weeks learning about the capaci- position of shipping clerk: tors produced there. 29 After this, Kuklewski was as- signed on a rotating basis to work in several different de- My task was defined by my supervisors, to identify partments within the oil-filled division, spending about 3 and remedy the existing problems in the shipping to 4 weeks in the parts department. There, he assisted in department and expand the responsibilities of the the general work of that newly relocated department, shipping clerk position to include impregnation. The helping to move machinery and doing cleanup work. He shipping clerk title would be changed to finishing reported directly to Kennedy. department head. The project was to be started at At the end of September 1979, Kuklewski was trans- the beginning of September and completed by the ferred to the finishing department as leadman, while still end of December. reporting to Kennedy. Kuklewski assigned work to the , three to four finishing department employees.. In his memorandum, Kuklewski went on to recognize three to four finishing department employees. "the failures and inefficiencies" of the current system and While in finishing, at the request of inventory control its supervisor, specifying their shortcomings in general clerk Margaret Elizabeth Wright, he was one of those Weaver's deficiencies in particular, and to explain why who interviewed James Cook for a job in the Respond- he had appointed Bill Franks, instead of Weaver, to re- ent's warehouse, and, as Kuklewski put it, successfully place him as "finishing department trainee" when he left recommended that Cook be hired. Also, in September that department.3 Kuklewski signed his memorandum as 1979, soon after the start of his employment with the Re- assistant to the president. spondent, Kuklewski, after an interview, successfully rec- From mid-January through August, Kuklewski was as- ommended that small assembly employee David Moore signed to a computer project in the engineering depart- be hired. He also effectively recommended to Kennedy ment of the oil-filled division, where he attempted to es- that shipping employee David Brown be fired for exces- timate production costs, measuring material and work times in the performance of certain operations. Data thus 1 The Respondent has followed a practice of hiring one or two man- accumulated was keypunched into a computer. While so agement trainees annually. Their future with the Company varies.l n l w c a t At the time of the hearing, and since September, Kuklewski has oc- engaged, Kuklewski no longer was considered a leadman cupied a managerial position with the Respondent as production schedul- and had no direct involvement in production. His con- er in the ceramic division. Phiambolis has not been with the Respondent tacts with other employees related principally to the in- since June.formation he was seeking except that a summer employ- " All bargaining unit employees and those whose ballots were chal-o lenged during the representation election are hourly rated. " Zuirys subsequently became a salesman for the Respondent. o Under the Respondent's policy, employee termination notices are " As stated, capacitors are electronic components, in various sizes and issued on forms which provide for the supervisor's final remarks. In com- shapes, that build up a greater charge of electricity than that received. pleting Brown's form, Kuklewski had received authorization from Ken- The Respondent produces ceramic and oil-filled capacitors. The ceramic nedy. capacitor is made of different types of clay, while the oil-filled capacitor " Kuklewski testified that, in fact, he did appoint Franks to replace is made of aluminum and steel shells with foil wound in various configu- him as finishing department head on leaving that assignment and that rations inside. These are impregnated with oil. The manufacturing proc- Franks continued in this role for some time thereafter. Earlier, having esses used to produce these two types are different and the plant is sepa- been authorized by Kennedy to fill a vacancy in finishing, Kuklewski had rated into two divisions for their respective production. Few of the Re- interviewed applicants responding to the Company's advertisement and spondent's employees work interchangeably in both divisions. had selected Franks for employment. HIGH ENERGY CORPORATION 753 3. The conduct of Kevin Kuklewski and Peter sive absenteeism, preparing and signing the supervisor's Phiambolis evaluation on Brown's termination form. 30 The complaint alleging that management traineeS25 While in finishing, Kuklewski made recommendations The complaint alleging that management trainees2 5 to Kennedy with respect to the manning of that depart- Kevin Kuklewski and Peter Phiambolis had engaged in ment, requesting that additional help be assigned there conduct violative of Section 8(a)(l) of the Act, the Re- when he thought necessary. In approximately 40 percent spondent has placed in issue their status as supervisors. 2 of those instances when Kuklewski sought an additional Both men had been hired as salaried management train- employee to temporarily assist with the workload, Ken- ees 27 and were working as such during the first half of nedy would accompany him back to his department to 1980. check the amount and type of work that was required. On the remaining occasions, Kennedy would merely a. Kevin Kuklewski s supervisory status grant verbal authorization for the additional help based When hired at the beginning of August 1979, Kuk- on Kuklewski's stated need. While Kuklewski could au- lewski was interviewd by six company officials, includ- t h o r ize employees who so requested, to leave work an ing President Buss, his secretary, Pearl, and the then-in- h o ur early, he had no authority concerning the employ- cumbent management trainee, Doug Zuirys.28 Buss, the ees'timecards. principal interviewer, told Kuklewski that he initially Whi l e s til l in finishing, Kuklewsk. sent an undated 2- would go to the production floor to learn the product, page memorandum to the Respondent's personnel depart- after which he would become involved in a computer m e n t criticizing the work of Ken Weaver whom, accord- project. Kuklewski's training program would not be rig- ing t o Kuklewski's memorandum, management had de- idly structured. Nothing was said about where the pro- c id e d t o r e m o v e as h ea d o f shppin a n d warehouse and gram might lead. to reassign to work under Kuklewski. This memorandum gram mignt lead. . , .,-„,,... contained the following paragraph wherein Kuklewski Kuklewski first was assigned to the oil-filled division described his duties on assuming the newly constituted where he spent 2 to 3 weeks learning about the capaci- position of shipping clerk: tors produced there. 2' After this, Kuklewski was as- signed on a rotating basis to work in several different de- My task was defined by my supervisors, to identify partments within the oil-filled division, spending about 3 and remedy the existing problems in the shipping to 4 weeks in the parts department. There, he assisted in department and expand the responsibilities of the the general work of that newly relocated department, shipping clerk position to include impregnation. The helping to move machinery and doing cleanup work. He shipping clerk title would be changed to finishing reported directly to Kennedy. department head. The project was to be started at At the end of September 1979, Kuklewski was trans- the beginning of September and completed by the ferred to the finishing department as leadman, while still end of December. reporting to Kennedy. Kuklewski assigned work to the I hi ,K eno cg three to four finishing department employees.. I n h l s '"emorandum, Kuklewski went on to recognize three, to, four finishingdepartmentemployees. "the failures and inefficiencies" of the current system and While in finishing, at the request of inventory control supervisor, specifying their shortcomings in general, clerk Margaret Elizabeth Wright, he was one of those Weaver's deficiencies in particular, and to explain why who interviewed James Cook for a job in the Respond- he had appointed Bill Franks, instead of Weaver, to re- ent's warehouse, and, as Kuklewski put it, successfully place him as "finishing department trainee" when he left recommended that Cook be hired. Also, in September that department.3 ' Kuklewski signed his memorandum as 1979, soon after the start of his employment with the Re- assistant to the president. spondent, Kuklewski, after an interview, successfully rec- From mid-January through August, Kuklewski was as- ommended that small assembly employee David Moore signed to a computer project in the engineering depart- be hired. He also effectively recommended to Kennedy ment of the oil-filled division, where he attempted to es- that shipping employee David Brown be fired for exces- timate production costs, measuring material and work times in the performance of certain operations. Data thus » The Respondent has followed a practice of hiring one or two man- accumulated was keypunched into a computer. While so agement trainees annually. Their future with the Company varies., „. , , , . < *« d . »1 At the time of the hearing, and since September, Kuklewski has oc- engaged, Kuklewski no longer was considered a leadman cupied a managerial position with the Respondent as production schedul- and had no direct involvement in production. His con- er in the ceramic division. Phiambolis has not been with the Respondent tacts with Other employees related principally to the in- since June. formation he was seeking, except that a summer employ- " All bargaining unit employees and those whose ballots were chal- lenged during the representation election are hourly rated. "Zuirys subsequently became a salesman for the Respondent. Under the Respondent's policy, employee termination notices are n As stated, capacitors are electronic components, in various sizes and issued on forms which provide for the supervisor's final remarks. In com- shapes, that build up a greater charge of electricity than that received. pleting Brown's form, Kuklewski had received authorization from Ken- The Respondent produces ceramic and oil-filled capacitors. The ceramic nedy. capacitor is made of different types of clay, while the oil-filled capacitor " Kuklewski testified that, in fact, he did appoint Franks to replace is made of aluminum and steel shells with foil wound in various configu- him as finishing department head on leaving that assignment and that rations inside. These are impregnated with oil. The manufacturing proc- Franks continued in this role for some lime thereafter. Earlier, having esses used to produce these two types are different and the plant is sepa- been authorized by Kennedy to rill a vacancy in finishing, Kuklewski had rated into two divisions for their respective production. Few of the Re- interviewed applicants responding to the Company's advertisement and spondent's employees work interchangeably in both divisions. had selected Franks for employment. HIGH ENERGY CORPORATION 753 3. The conduct of Kevin Kuklewski and Peter sive absenteeism, preparing and signing the supervisor's Phiambolis evaluation on Brown's termination form. 30 The complaint alleging that management traineeS25 While in finishing, Kuklewski made recommendations The complaint alleging that management trainees2 5 to Kennedy with respect to the manning of that depart- Kevin Kuklewski and Peter Phiambolis had engaged in ment, requesting that additional help be assigned there conduct violative of Section 8(a)(l) of the Act, the Re- when he thought necessary. In approximately 40 percent spondent has placed in issue their status as supervisors. 2 of those instances when Kuklewski sought an additional Both men had been hired as salaried management train- employee to temporarily assist with the workload, Ken- ees 27 and were working as such during the first half of nedy would accompany him back to his department to 1980. check the amount and type of work that was required. On the remaining occasions, Kennedy would merely a. Kevin Kuklewski s supervisory status grant verbal authorization for the additional help based When hired at the beginning of August 1979, Kuk- on Kuklewski's stated need. While Kuklewski could au- lewski was interviewd by six company officials, includ- t h o r ize employees who so requested, to leave work an ing President Buss, his secretary, Pearl, and the then-in- h o ur early, he had no authority concerning the employ- cumbent management trainee, Doug Zuirys.28 Buss, the ees'timecards. principal interviewer, told Kuklewski that he initially Whi l e s til l in finishing, Kuklewsk. sent an undated 2- would go to the production floor to learn the product, page memorandum to the Respondent's personnel depart- after which he would become involved in a computer m e n t criticizing the work of Ken Weaver whom, accord- project. Kuklewski's training program would not be rig- ing t o Kuklewski's memorandum, management had de- idly structured. Nothing was said about where the pro- c id e d t o r e m o v e as h ea d o f spping a n d warehouse and gram might lead. to reassign to work under Kuklewski. This memorandum gram mignt lead. . , .,-„,,... contained the following paragraph wherein Kuklewski Kuklewski first was assigned to the oil-filled division described his duties on assuming the newly constituted where he spent 2 to 3 weeks learning about the capaci- position of shipping clerk: tors produced there. 2' After this, Kuklewski was as- signed on a rotating basis to work in several different de- My task was defined by my supervisors, to identify partments within the oil-filled division, spending about 3 and remedy the existing problems in the shipping to 4 weeks in the parts department. There, he assisted in department and expand the responsibilities of the the general work of that newly relocated department, shipping clerk position to include impregnation. The helping to move machinery and doing cleanup work. He shipping clerk title would be changed to finishing reported directly to Kennedy. department head. The project was to be started at At the end of September 1979, Kuklewski was trans- the beginning of September and completed by the ferred to the finishing department as leadman, while still end of December. reporting to Kennedy. Kuklewski assigned work to the I hi ,K eno cg three to four finishing department employees.. I n h l s '"emorandum, Kuklewski went on to recognize three, to, four finishingdepartmentemployees. "the failures and inefficiencies" of the current system and While in finishing, at the request of inventory control supervisor, specifying their shortcomings in general, clerk Margaret Elizabeth Wright, he was one of those Weaver's deficiencies in particular, and to explain why who interviewed James Cook for a job in the Respond- he had appointed Bill Franks, instead of Weaver, to re- ent's warehouse, and, as Kuklewski put it, successfully place him as "finishing department trainee" when he left recommended that Cook be hired. Also, in September that department.3 ' Kuklewski signed his memorandum as 1979, soon after the start of his employment with the Re- assistant to the president. spondent, Kuklewski, after an interview, successfully rec- From mid-January through August, Kuklewski was as- ommended that small assembly employee David Moore signed to a computer project in the engineering depart- be hired. He also effectively recommended to Kennedy ment of the oil-filled division, where he attempted to es- that shipping employee David Brown be fired for exces- timate production costs, measuring material and work times in the performance of certain operations. Data thus » The Respondent has followed a practice of hiring one or two man- accumulated was keypunched into a computer. While so agement trainees annually. Their future with the Company varies., „. , , , . , *« d . »1 At the time of the hearing, and since September, Kuklewski has oc- engaged, Kuklewski no longer was considered a leadman cupied a managerial position with the Respondent as production schedul- and had no direct involvement in production. His con- er in the ceramic division. Phiambolis has not been with the Respondent tacts with Other employees related principally to the in- since June. formation he was seeking, except that a summer employ- " All bargaining unit employees and those whose ballots were chal- lenged during the representation election are hourly rated. "Zuirys subsequently became a salesman for the Respondent. Under the Respondent's policy, employee termination notices are n As stated, capacitors are electronic components, in various sizes and issued on forms which provide for the supervisor's final remarks. In com- shapes, that build up a greater charge of electricity than that received. pleting Brown's form, Kuklewski had received authorization from Ken- The Respondent produces ceramic and oil-filled capacitors. The ceramic nedy. capacitor is made of different types of clay, while the oil-filled capacitor " Kuklewski testified that, in fact, he did appoint Franks to replace is made of aluminum and steel shells with foil wound in various configu- him as finishing department head on leaving that assignment and that rations inside. These are impregnated with oil. The manufacturing proc- Franks continued in this role for some lime thereafter. Earlier, having esses used to produce these two types are different and the plant is sepa- been authorized by Kennedy to rill a vacancy in finishing, Kuklewski had rated into two divisions for their respective production. Few of the Re- interviewed applicants responding to the Company's advertisement and spondent's employees work interchangeably in both divisions. had selected Franks for employment. HIGH ENERGY CORPORATION 753 3. The conduct of Kevin Kuklewski and Peter sive absenteeism, preparing and signing the supervisor's Phiambolis evaluation on Brown's termination form. 30 The complaint alleging that management traineeS25 While in finishing, Kuklewski made recommendations The complaint alleging that management trainees2 5 to Kennedy with respect to the manning of that depart- Kevin Kuklewski and Peter Phiambolis had engaged in ment, requesting that additional help be assigned there conduct violative of Section 8(a)(l) of the Act, the Re- when he thought necessary. In approximately 40 percent spondent has placed in issue their status as supervisors. 2 of those instances when Kuklewski sought an additional Both men had been hired as salaried management train- employee to temporarily assist with the workload, Ken- ees 27 and were working as such during the first half of nedy would accompany him back to his department to 1980. check the amount and type of work that was required. On the remaining occasions, Kennedy would merely a. Kevin Kuklewski s supervisory status grant verbal authorization for the additional help based When hired at the beginning of August 1979, Kuk- on Kuklewski's stated need. While Kuklewski could au- lewski was interviewd by six company officials, includ- t h o r ize employees who so requested, to leave work an ing President Buss, his secretary, Pearl, and the then-in- h o ur early, he had no authority concerning the employ- cumbent management trainee, Doug Zuirys.28 Buss, the ees'timecards. principal interviewer, told Kuklewski that he initially While still in finishing, Kuklewsk. sent an undated 2- would go to the production floor to learn the product, page memorandum to the Respondent's personnel depart- after which he would become involved in a computer m e n t criticizing the work of Ken Weaver whom, accord- project. Kuklewski's training program would not be rig- ing t o Kuklewski's memorandum, management had de- idly structured. Nothing was said about where the pro- c id e d t o r e m o v e as h ea d o f shppin a n d warehouse and gram might lead. to reassign to work under Kuklewski. This memorandum gram mignt lead. . , .,-„,,... contained the following paragraph wherein Kuklewski Kuklewski first was assigned to the oil-filled division described his duties on assuming the newly constituted where he spent 2 to 3 weeks learning about the capaci- position of shipping clerk: tors produced there. 2' After this, Kuklewski was as- signed on a rotating basis to work in several different de- My task was defined by my supervisors, to identify partments within the oil-filled division, spending about 3 and remedy the existing problems in the shipping to 4 weeks in the parts department. There, he assisted in department and expand the responsibilities of the the general work of that newly relocated department, shipping clerk position to include impregnation. The helping to move machinery and doing cleanup work. He shipping clerk title would be changed to finishing reported directly to Kennedy. department head. The project was to be started at At the end of September 1979, Kuklewski was trans- the beginning of September and completed by the ferred to the finishing department as leadman, while still end of December. reporting to Kennedy. Kuklewski assigned work to the I hi ,K eno cg three to four finishing department employees.. I n h l s '"emorandum, Kuklewski went on to recognize three, to, four finishingdepartmentemployees. "the failures and inefficiencies" of the current system and While in finishing, at the request of inventory control supervisor, specifying their shortcomings in general, clerk Margaret Elizabeth Wright, he was one of those Weaver's deficiencies in particular, and to explain why who interviewed James Cook for a job in the Respond- he had appointed Bill Franks, instead of Weaver, to re- ent's warehouse, and, as Kuklewski put it, successfully place him as "finishing department trainee" when he left recommended that Cook be hired. Also, in September that department.3 ' Kuklewski signed his memorandum as 1979, soon after the start of his employment with the Re- assistant to the president. spondent, Kuklewski, after an interview, successfully rec- From mid-January through August, Kuklewski was as- ommended that small assembly employee David Moore signed to a computer project in the engineering depart- be hired. He also effectively recommended to Kennedy ment of the oil-filled division, where he attempted to es- that shipping employee David Brown be fired for exces- timate production costs, measuring material and work times in the performance of certain operations. Data thus » The Respondent has followed a practice of hiring one or two man- accumulated was keypunched into a computer. While so agement trainees annually. Their future with the Company varies., „. , , , . , *« d . »1 At the time of the hearing, and since September, Kuklewski has oc- engaged, Kuklewski no longer was considered a leadman cupied a managerial position with the Respondent as production schedul- and had no direct involvement in production. His con- er in the ceramic division. Phiambolis has not been with the Respondent tacts with Other employees related principally to the in- since June. formation he was seeking, except that a summer employ- " All bargaining unit employees and those whose ballots were chal- lenged during the representation election are hourly rated. "Zuirys subsequently became a salesman for the Respondent. Under the Respondent's policy, employee termination notices are n As stated, capacitors are electronic components, in various sizes and issued on forms which provide for the supervisor's final remarks. In com- shapes, that build up a greater charge of electricity than that received. pleting Brown's form, Kuklewski had received authorization from Ken- The Respondent produces ceramic and oil-filled capacitors. The ceramic nedy. capacitor is made of different types of clay, while the oil-filled capacitor " Kuklewski testified that, in fact, he did appoint Franks to replace is made of aluminum and steel shells with foil wound in various configu- him as finishing department head on leaving that assignment and that rations inside. These are impregnated with oil. The manufacturing proc- Franks continued in this role for some lime thereafter. Earlier, having esses used to produce these two types are different and the plant is sepa- been authorized by Kennedy to rill a vacancy in finishing, Kuklewski had rated into two divisions for their respective production. Few of the Re- interviewed applicants responding to the Company's advertisement and spondent's employees work interchangeably in both divisions. had selected Franks for employment. 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ee, with the Respondent during school vacation, key- From the foregoing, I find that at all material times punched for him. Although Kuklewski gave this employ- Kuklewski was a supervisor within the meaning of the ee her work assignments, she technically was under the Act, was so regarded by Kennedy, and, in any event, supervision of design engineer Gary Greiser, and Kuk- was so held out as a management representative that em- lewski kept Greiser aware of his use of her time. ployees would believe that he spoke for management. 32 Since leaving the finishing department, Kuklewski does not take breaks or lunch at the same time as unit b. Peter Phiambolis'supervisory status employees. The lunch hour for production workers was Phiambolis, who like Kuklewski, was a salaried man- 12:30 to 1 p.m. Kuklewski's assigned lunch recess was agement trainee, was with the Respondent from August from noon to 1 p.m., coinciding with that of managers 1979 to the end of June 1980.33 Kennedy and Kuklewski and clerical employees. testified that Phiambolis, like Kuklewski, reported to Kuklewski participated in the Respondent's efforts to Kennedy. Phiambolis, too, was assigned to rotate among counter the Union's organizing campaign by preparing several departments, including parts, finishing, and small material for Buss' speeches. He also assisted Buss in writ- and large assembly, so as to gain familiarity with the ing letters and, in consultation with Buss and Kennedy, plant's operation. scheduled employee meetings at breaktimes. Kuklewski Leadman Norman Jelke testified that on November 30, attended most such meetings. 1979, the day that welder Dave Rogers left the Respond- Around 2 weeks before the May 16 election, Kuk- ent's employ, he was called into Kennedy's office by lewski, at Buss' request, conducted two meetings of em- Phiambolis. There, Kennedy, in Phiambolis' presence, ployees in the cafeteria during work hours, using a tape told Jelke that he was going to be responsible for the player to deliver prerecorded messages clarifying the Re- work going out of the weld shop, that Phiambolis would spondent's position with respect to the Union's Cam- be telling him certain things that he wanted done and paign. Kuklewski began each meeting by announcing that Jelke would have to do them. that he was going to play tapes and describing what they Thereafter, Jelke received work assignments from were about. After playing the tapes, Kuklewski told the Phiambolis, who also set Jelke's work priorities, taking employees that Pennsylvania was not a right-to-work Jelke off what he was doing at given times to immediate- State. Kuklewski generally attempted to avoid answering ly attend to other work. employees' questions. Kennedy's initial testimony that Phiambolis had not On April 24, Kuklewski accompanied Buss and Kenne- signed any employee termination notices was countered dy to the Board's Regional Office as a member of the by the General Counsel's introduction of two such no- management group that signed the agreement for an tices, dated October 31, 1979, and February 1, wherein election in Case 4-RC-14152. Phiambolis detailed the reasons for the respective dis- Kennedy testified that in anticipation of the election he charges. had instructed Myers and Johnson, plant superintendents From the foregoing, noting that Phiambolis was au- of the ceramic and oil-filled divisions, respectively, and thorized to assign work independently, to set work prior- Kuklewski and Phiambolis to be very careful about what ities, and to evaluate employees, in the context of the they said to employees; not to make promises, intimidate broad range of supervisory duties afforded Kuklewski, anyone, or make threats. Kennedy explained that he did the other management trainee, it is found that in the first not also so instruct his lead personnel as they were half of 1980 Phiambolis was a supervisor within the hourly paid. meaning of Section 2(11) of the Act. In so concluding, it From the foregoing, it is clear that, while a manage- is further noted that the Respondent regarded Phiambo- ment trainee, Kuklewski enjoyed a special status distinct lis, as well as Kuklewski, as supervisors, not only by al- from that of rank-and-file employees. As leadman in fin- lowing both to sign employee termination notices as ishing, he had the power to assign work, make effective such, but also in having separately instructed them as to recommendations concerning hire, discharge, supervisory how to conduct themselves toward employees during the replacement and manning requirements affecting his de- Union's organizational campaign. partment, and, as he actively did, signing a memorandum as assistant to the president and an employee termination c. Kuklewski's conduct-facts and findings notice as supervisor. After leaving the leadman's position Leadman Norman Jelke testified that, after attending to work on the computer project, he continued to be Kennedy's April 7 meeting with employees in the cafete- held out and regarded by the Respondent as a member ria, he was told by Kuklewski that the employees were of management. Accordingly, he not only was instructed foolish to bring the Union into the plant. If the Union by Kennedy as to how to conduct himself with employ- came in, it definitely would make things worse instead of ees and assisted in the Employer's efforts to counter the better. Jelke did not reply. As this statement was merely Union's campaign in helping Buss prepare speeches and an expression of sentiment, unaccompanied by interroga- letters, but also was presented as a management repre- tion, threat of reprisal, or promise of benefit, I conclude sentative at two meetings with employees to help present that it was not violative of Section 8(a)(1) of the Act the Respondent's position against the Union's campaign. He was part of the management group that met at the 3 Edgar L Landen I/a Speed Mail Service. 251 NLRB 476 (1980). Board's Regional Office to sign the agreement for a rep- " Phiambolis, who, as noted, no longer was employed by the Respond- resentation election. ent at the time of the hearing, did not testify. 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ee, with the Respondent during school vacation, key- From the foregoing, I find that at all material times punched for him. Although Kuklewski gave this employ- Kuklewski was a supervisor within the meaning of the ee her work assignments, she technically was under the Act, was so regarded by Kennedy, and, in any event, supervision of design engineer Gary Greiser, and Kuk- was so held out as a management representative that em- lewski kept Greiser aware of his use of her time. ployees would believe that he spoke for management. 32 Since leaving the finishing department, Kuklewski does not take breaks or lunch at the same time as unit b. Peter Phiambolis'supervisory status employees. The lunch hour for production workers was Phiambolis, who like Kuklewski, was a salaried man- 12:30 to 1 p.m. Kuklewski's assigned lunch recess was agement trainee, was with the Respondent from August from noon to 1 p.m., coinciding with that of managers 1979 to the end of June 1980.33 Kennedy and Kuklewski and clerical employees. testified that Phiambolis, like Kuklewski, reported to Kuklewski participated in the Respondent's efforts to Kennedy. Phiambolis, too, was assigned to rotate among counter the Union's organizing campaign by preparing several departments, including parts, finishing, and small material for Buss' speeches. He also assisted Buss in writ- and large assembly, so as to gain familiarity with the ing letters and, in consultation with Buss and Kennedy, plant's operation. scheduled employee meetings at breaktimes. Kuklewski Leadman Norman Jelke testified that on November 30, attended most such meetings. 1979, the day that welder Dave Rogers left the Respond- Around 2 weeks before the May 16 election, Kuk- ent's employ, he was called into Kennedy's office by lewski, at Buss' request, conducted two meetings of em- Phiambolis. There, Kennedy, in Phiambolis' presence, ployees in the cafeteria during work hours, using a tape told Jelke that he was going to be responsible for the player to deliver prerecorded messages clarifying the Re- work going out of the weld shop, that Phiambolis would spondent's position with respect to the Union's Cam- be telling him certain things that he wanted done and paign. Kuklewski began each meeting by announcing that Jelke would have to do them. that he was going to play tapes and describing what they Thereafter, Jelke received work assignments from were about. After playing the tapes, Kuklewski told the Phiambolis, who also set Jelke's work priorities, taking employees that Pennsylvania was not a right-to-work Jelke off what he was doing at given times to immediate- State. Kuklewski generally attempted to avoid answering ly attend to other work. employees' questions. Kennedy's initial testimony that Phiambolis had not On April 24, Kuklewski accompanied Buss and Kenne- signed any employee termination notices was countered dy to the Board's Regional Office as a member of the by the General Counsel's introduction of two such no- management group that signed the agreement for an tices, dated October 31, 1979, and February 1, wherein election in Case 4-RC-14152. Phiambolis detailed the reasons for the respective dis- Kennedy testified that in anticipation of the election he charges. had instructed Myers and Johnson, plant superintendents From the foregoing, noting that Phiambolis was au- of the ceramic and oil-filled divisions, respectively, and thorized to assign work independently, to set work prior- Kuklewski and Phiambolis to be very careful about what ities, and to evaluate employees, in the context of the they said to employees; not to make promises, intimidate broad range of supervisory duties afforded Kuklewski, anyone, or make threats. Kennedy explained that he did the other management trainee, it is found that in the first not also so instruct his lead personnel as they were half of 1980 Phiambolis was a supervisor within the hourly paid. meaning of Section 2(11) of the Act. In so concluding, it From the foregoing, it is clear that, while a manage- is further noted that the Respondent regarded Phiambo- ment trainee, Kuklewski enjoyed a special status distinct lis, as well as Kuklewski, as supervisors, not only by al- from that of rank-and-file employees. As leadman in fin- lowing both to sign employee termination notices as ishing, he had the power to assign work, make effective such, but also in having separately instructed them as to recommendations concerning hire, discharge, supervisory how to conduct themselves toward employees during the replacement and manning requirements affecting his de- Union's organizational campaign. partment, and, as he actively did, signing a memorandum as assistant to the president and an employee termination c. Kuklewski's conduct-facts andfindings notice as supervisor. After leaving the leadman's position Leadman Norman Jelke testified that, after attending to work on the computer project, he continued to be Kennedy's April 7 meeting with employees in the cafete- held out and regarded by the Respondent as a member ria, he was told by Kuklewski that the employees were of management. Accordingly, he not only was instructed foolish to bring the Union into the plant. If the Union by Kennedy as to how to conduct himself with employ- came in, it definitely would make things worse instead of ees and assisted in the Employer's efforts to counter the better. Jelke did not reply. As this statement was merely Union's campaign in helping Buss prepare speeches and an expression of sentiment, unaccompanied by interroga- letters, but also was presented as a management repre- tion, threat of reprisal, or promise of benefit. I conclude sentative at two meetings with employees to help present that it was not violative of Section 8(a)(1) of the Act. the Respondent's position against the Union's campaign. He was part of the management group that met at the " Edgar L. Londen I/a speed Mail servico. 251 NLRB 476 (1980). Board's Regional Office to sign the agreement for a rep- " Phiambolis, who, as noted, no longer was employed by the Respond- resentation election. ent at the time of the hearing, did not testify. 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ee, with the Respondent during school vacation, key- From the foregoing, I find that at all material times punched for him. Although Kuklewski gave this employ- Kuklewski was a supervisor within the meaning of the ee her work assignments, she technically was under the Act, was so regarded by Kennedy, and, in any event, supervision of design engineer Gary Greiser, and Kuk- was so held out as a management representative that em- lewski kept Greiser aware of his use of her time. ployees would believe that he spoke for management. 32 Since leaving the finishing department, Kuklewski does not take breaks or lunch at the same time as unit b. Peter Phiambolis'supervisory status employees. The lunch hour for production workers was Phiambolis, who like Kuklewski, was a salaried man- 12:30 to 1 p.m. Kuklewski's assigned lunch recess was agement trainee, was with the Respondent from August from noon to 1 p.m., coinciding with that of managers 1979 to the end of June 1980.33 Kennedy and Kuklewski and clerical employees. testified that Phiambolis, like Kuklewski, reported to Kuklewski participated in the Respondent's efforts to Kennedy. Phiambolis, too, was assigned to rotate among counter the Union's organizing campaign by preparing several departments, including parts, finishing, and small material for Buss' speeches. He also assisted Buss in writ- and large assembly, so as to gain familiarity with the ing letters and, in consultation with Buss and Kennedy, plant's operation. scheduled employee meetings at breaktimes. Kuklewski Leadman Norman Jelke testified that on November 30, attended most such meetings. 1979, the day that welder Dave Rogers left the Respond- Around 2 weeks before the May 16 election, Kuk- ent's employ, he was called into Kennedy's office by lewski, at Buss' request, conducted two meetings of em- Phiambolis. There, Kennedy, in Phiambolis' presence, ployees in the cafeteria during work hours, using a tape told Jelke that he was going to be responsible for the player to deliver prerecorded messages clarifying the Re- work going out of the weld shop, that Phiambolis would spondent's position with respect to the Union's Cam- be telling him certain things that he wanted done and paign. Kuklewski began each meeting by announcing that Jelke would have to do them. that he was going to play tapes and describing what they Thereafter, Jelke received work assignments from were about. After playing the tapes, Kuklewski told the Phiambolis, who also set Jelke's work priorities, taking employees that Pennsylvania was not a right-to-work Jelke off what he was doing at given times to immediate- State. Kuklewski generally attempted to avoid answering ly attend to other work. employees' questions. Kennedy's initial testimony that Phiambolis had not On April 24, Kuklewski accompanied Buss and Kenne- signed any employee termination notices was countered dy to the Board's Regional Office as a member of the by the General Counsel's introduction of two such no- management group that signed the agreement for an tices, dated October 31, 1979, and February 1, wherein election in Case 4-RC-14152. Phiambolis detailed the reasons for the respective dis- Kennedy testified that in anticipation of the election he charges. had instructed Myers and Johnson, plant superintendents From the foregoing, noting that Phiambolis was au- of the ceramic and oil-filled divisions, respectively, and thorized to assign work independently, to set work prior- Kuklewski and Phiambolis to be very careful about what ities, and to evaluate employees, in the context of the they said to employees; not to make promises, intimidate broad range of supervisory duties afforded Kuklewski, anyone, or make threats. Kennedy explained that he did the other management trainee, it is found that in the first not also so instruct his lead personnel as they were half of 1980 Phiambolis was a supervisor within the hourly paid. meaning of Section 2(11) of the Act. In so concluding, it From the foregoing, it is clear that, while a manage- is further noted that the Respondent regarded Phiambo- ment trainee, Kuklewski enjoyed a special status distinct lis, as well as Kuklewski, as supervisors, not only by al- from that of rank-and-file employees. As leadman in fin- lowing both to sign employee termination notices as ishing, he had the power to assign work, make effective such, but also in having separately instructed them as to recommendations concerning hire, discharge, supervisory how to conduct themselves toward employees during the replacement and manning requirements affecting his de- Union's organizational campaign. partment, and, as he actively did, signing a memorandum as assistant to the president and an employee termination c. Kuklewski's conduct-facts andfindings notice as supervisor. After leaving the leadman's position Leadman Norman Jelke testified that, after attending to work on the computer project, he continued to be Kennedy's April 7 meeting with employees in the cafete- held out and regarded by the Respondent as a member ria, he was told by Kuklewski that the employees were of management. Accordingly, he not only was instructed foolish to bring the Union into the plant. If the Union by Kennedy as to how to conduct himself with employ- came in, it definitely would make things worse instead of ees and assisted in the Employer's efforts to counter the better. Jelke did not reply. As this statement was merely Union's campaign in helping Buss prepare speeches and an expression of sentiment, unaccompanied by interroga- letters, but also was presented as a management repre- tion, threat of reprisal, or promise of benefit. I conclude sentative at two meetings with employees to help present that it was not violative of Section 8(a)(1) of the Act. the Respondent's position against the Union's campaign. He was part of the management group that met at the " Edgar L. London I/a speed Mail Service. 251 NLRB 476 (1980). Board's Regional Office to sign the agreement for a rep- " Phiambolis, who, as noted, no longer was employed by the Respond- resentation election. ent at the time of the hearing, did not testify. 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ee, with the Respondent during school vacation, key- From the foregoing, I find that at all material times punched for him. Although Kuklewski gave this employ- Kuklewski was a supervisor within the meaning of the ee her work assignments, she technically was under the Act, was so regarded by Kennedy, and, in any event, supervision of design engineer Gary Greiser, and Kuk- was so held out as a management representative that em- lewski kept Greiser aware of his use of her time. ployees would believe that he spoke for management. 32 Since leaving the finishing department, Kuklewski does not take breaks or lunch at the same time as unit b. Peter Phiambolis'supervisory status employees. The lunch hour for production workers was Phiambolis, who like Kuklewski, was a salaried man- 12:30 to 1 p.m. Kuklewski's assigned lunch recess was agement trainee, was with the Respondent from August from noon to 1 p.m., coinciding with that of managers 1979 to the end of June 1980.3 3 Kennedy and Kuklewski and clerical employees. testified that Phiambolis, like Kuklewski, reported to Kuklewski participated in the Respondent's efforts to Kennedy. Phiambolis, too, was assigned to rotate among counter the Union's organizing campaign by preparing several departments, including parts, finishing, and small material for Buss' speeches. He also assisted Buss in writ- and large assembly, so as to gain familiarity with the ing letters and, in consultation with Buss and Kennedy, plant's operation. scheduled employee meetings at breaktimes. Kuklewski Leadman Norman Jelke testified that on November 30, attended most such meetings. 1979, the day that welder Dave Rogers left the Respond- Around 2 weeks before the May 16 election, Kuk- ent's employ, he was called into Kennedy's office by lewski, at Buss' request, conducted two meetings of em- Phiambolis. There, Kennedy, in Phiambolis' presence, ployees in the cafeteria during work hours, using a tape told Jelke that he was going to be responsible for the player to deliver prerecorded messages clarifying the Re- work going out of the weld shop, that Phiambolis would spondent's position with respect to the Union's Cam- be telling him certain things that he wanted done and paign. Kuklewski began each meeting by announcing that Jelke would have to do them. that he was going to play tapes and describing what they Thereafter, Jelke received work assignments from were about. After playing the tapes, Kuklewski told the Phiambolis, who also set Jelke's work priorities, taking employees that Pennsylvania was not a right-to-work Jelke off what he was doing at given times to immediate- State. Kuklewski generally attempted to avoid answering ly attend to other work. employees' questions. Kennedy's initial testimony that Phiambolis had not On April 24, Kuklewski accompanied Buss and Kenne- signed any employee termination notices was countered dy to the Board's Regional Office as a member of the by the General Counsel's introduction of two such no- management group that signed the agreement for an tices, dated October 31, 1979, and February 1, wherein election in Case 4-RC-14152. Phiambolis detailed the reasons for the respective dis- Kennedy testified that in anticipation of the election he charges. had instructed Myers and Johnson, plant superintendents From the foregoing, noting that Phiambolis was au- of the ceramic and oil-filled divisions, respectively, and thorized to assign work independently, to set work prior- Kuklewski and Phiambolis to be very careful about what ities, and to evaluate employees, in the context of the they said to employees; not to make promises, intimidate broad range of supervisory duties afforded Kuklewski, anyone, or make threats. Kennedy explained that he did the other management trainee, it is found that in the first not also so instruct his lead personnel as they were half of 1980 Phiambolis was a supervisor within the hourly paid. meaning of Section 2(11) of the Act. In so concluding, it From the foregoing, it is clear that, while a manage- is further noted that the Respondent regarded Phiambo- ment trainee, Kuklewski enjoyed a special status distinct lis, as well as Kuklewski, as supervisors, not only by al- from that of rank-and-file employees. As leadman in fin- lowing both to sign employee termination notices as ishing, he had the power to assign work, make effective such, but also in having separately instructed them as to recommendations concerning hire, discharge, supervisory how to conduct themselves toward employees during the replacement and manning requirements affecting his de- Union's organizational campaign. partment, and, as he actively did, signing a memorandum as assistant to the president and an employee termination c. Kuklewski's conduct-facts andfindings notice as supervisor. After leaving the leadman's position Leadman Norman Jelke testified that, after attending to work on the computer project, he continued to be Kennedy's April 7 meeting with employees in the cafete- held out and regarded by the Respondent as a member ria, he was told by Kuklewski that the employees were of management. Accordingly, he not only was instructed foolish to bring the Union into the plant. If the Union by Kennedy as to how to conduct himself with employ- came in, it definitely would make things worse instead of ees and assisted in the Employer's efforts to counter the better. Jelke did not reply. As this statement was merely Union's campaign in helping Buss prepare speeches and an expression of sentiment, unaccompanied by interroga- letters, but also was presented as a management repre- tion, threat of reprisal, or promise of benefit. I conclude sentative at two meetings with employees to help present that it was not violative of Section 8(a)(1) of the Act. the Respondent's position against the Union's campaign. He was part of the management group that met at the " Edgar L. London I/a speed Mail Service. 251 NLRB 476 (1980). Board's Regional Office to sign the agreement for a rep- " Phiambolis, who, as noted, no longer was employed by the Respond- resentation election. ent at the time of the hearing, did not testify. HIGH ENERGY CORPORATION 755 Maintenance employee Robert Burket testified that Burket, was consistent with other conduct imputable to during the first week in May he was approached by the Respondent, it is concluded that Kuklewski's repet- Kuklewski in the shipping department, who told him that itive statements to Burket that the plant would be closed if the Union got in the plant would be closed because if the employees selected the Union violated Section management did not understand unions; they would not 8(a)(l) of he Act. I also find that Kuklewski's accompa- be able to handle the Union which would overwhelm the nying suggestion to Burket that the employees should Company. Kuklewski continued that the employees form a company union with the Employer's help also should form their own union, a company union. If they was an unlawful offer of assistance in violation of Sec- did that, the Respondent would help them form the tion 8(a)(1). 34 union, write the rules, and provide general assistance. An outside union would require very costly dues and the d. Phiambolis' conduct-facts andfindings employees would not be able to get anything in return. If Jelke testified that approximately 8 days before the there were an inside union, there probably would not be election he was approached by Phiambolis, who asked any dues. how Jelke was going to vote and if he knew how anyone During that conversation, Kuklewski stated that if the else was going to vote. When Jelke did not respond, Union did come in Hank Rowan would close the plant Phiambolis stated that Rowan would close down the because he did not like unions and would not tolerate plant if the Union came in. them in one of his plants. Rowan had closed many plants plant i tee Unon came . and he would close this one, too. Kuklewski declared Employee Peggy Keylor35 related that on or about that all these union problems were the fault of Tom Ken- April 9 Piambolis, who appeared tearful, declared in the emplyee somen the plant area that he guessed that he would have to nedy. Kennedy would promise the employees something one day and forget the next day. According to Burket look for another job. He was afraid that if the Union got onKuklewsi d elared the a t Tom Kennedy was getting oldB in the plant would close. The girls in the office were Kuklewski declared that Tom Kennedy was getting to happen. and that he was going to replace Kennedy. Burket testified that this incident continued for an It is concluded from the above-uncontradicted testimo- hour as Kuklewski was repetitive, following him from ny that Phiambolis interrogated Jelke as to his own the shipping area to his workplace. union sentiments and those of other employees in viola- Kuklewski, in turn, testified that some time before the tion of Section 8(a)( 1) of the Act, and further violated agreement for an election was signed on April 24, he en- Section 8(a)(1) by threatening Jelke and Keylor that the countered warehousemen James Cook and Burket while plant would be closed if the Union were selected. passing through the plant. They were joined by another. ow o 4. Rowan's May 8 meeting with employees employee, no longer employed by the Respondent, who was working nearby. When Cook asked Kuklewski if The Respondent contends that Rowan's assurances to Rowan or Buss would close down the plant if the people employees at a meeting conducted at the plant on May 8 elected the Union, he had replied that if that was their effectively retracted Kennedy's remarks a month before intention that is what they would do. If that was not that the plant would be closed in the event of unioniza- their intention they would not do that. He denied having tion, and later statements to the same effect by Kuk- information concerning plant closure. lewski and Phiambolis, thereby erasing these violations Although other matters were discussed, Kuklewski of the Act. could not recall them. Burket remained after the others Rowan testified that he had received a call from Buss had left and told Kuklewski that he was upset by a who told him that a union election would be conducted number of things arising from his treatment by High in the plant and that he had agreed to Buss' suggestion Energy. When Kuklewski told Burket that it sounded as that he come to the plant and speak to the employees. though he was taking these matters personally, Burket During this conversation, Buss expressed concern that a replied forcefully that he was. Kuklewski vaguely re- rumor was circulating that the plant might be closed if called some reference to Burket's dissatisfaction with the Union was selected, and asked if Rowan would com- wages. ment on this matter to assure the employees that the Kuklewski averring that the above was his only con- plant would not be closed. versation with Burket, denied having stated that manage- Accordingly, when, on May 8, Rowan met with the ment could not handle the Union, that the plant would employees he told them that he was there because he be closed, or that Rowan would not tolerate the Union had heard there was a rumor that the plant might be and had closed other plants. He similarly denied having closed if the Union got in. He stated his desire to assure made like statements to any other employees. the employees that this was not the case and that the I credit Burket's account of what Kuklewski had said plant would not be closed if the Union was successful in to him before the representation election, as Burket's tes- the election. The Company would not be so stupid as to timony, unlike Kuklewski, was detailed, precise, and ren- dered with authority. In addition, from Jelke's undisput- ' see Womac Industries Inc., 238 NLRB 43, 46 (1978). Although the ed testimony, described above, Kuklewski had expressed complaint does not allege unlawful assistance in violation of Sec. 8(aX2). a strong antiunion bias to him following Kennedy's meet- I find that Kuklewski's offer to assist employees to form a company ing with employees where Kennedy, too, had threatened union was litigated at the hearing, and was closely related to matters ac- ing with employees where Kennedy, too, had threatened tually alleged. plant closure if employees selected the Union. Accord- ~ Keylor testified as an extremely reluctant witness for the General ingly, noting that Kuklewski's conduct, as described by Counsel. HIGH ENERGY CORPORATION 755 Maintenance employee Robert Burket testified that Burket, was consistent with other conduct imputable to during the first week in May he was approached by the Respondent, it is concluded that Kuklewski's repet- Kuklewski in the shipping department, who told him that itive statements to Burket that the plant would be closed if the Union got in the plant would be closed because if the employees selected the Union violated Section management did not understand unions; they would not 8(a)(l) of he Act. I also find that Kuklewski's accompa- be able to handle the Union which would overwhelm the nying suggestion to Burket that the employees should Company. Kuklewski continued that the employees form a company union with the Employer's help also should form their own union, a company union. If they was an unlawful offer of assistance in violation of Sec- did that, the Respondent would help them form the tion 8(a)(l). 34 union, write the rules, and provide general assistance. An outside union would require very costly dues and the d. Phiambolis' conduct-facts andfindings employees would not be able to get anything in return. If Jelke testified that approximately 8 days before the there were an inside union, there probably would not be e h approached by Phiambolis, who asked any dues. how Jelke was going to vote and if he knew how anyone During that conversation, Kuklewski stated that if the e w gi t vt We J d n Union did come in Hank Rowan would close the plant Phiambolis stated that Rowan would close down the because he did not like unions and would not tolerate p if th U .. . „.. , ,, . . , . , . ~~~~plant if the Union came in. them in one of his plants. Rowan had closed many plants E o Peggy K l 3 and he would close this one, too. Kuklewski declared E m p r sy i e 9Pabi K e y l o r wh r e la te d t h a t o n o r a b o u t that all these union problems were the fault of Tom Ken- pthe 9 Plnaebohas, who appeared tearful, declared in nedy. Kennedy would promise the employees something l a n t e r job. H e w ai th a t if h eUi t one day and forget the next day. According to Burket, lo.V"o an o th e r -'o b. H e wasafraid that if the Union got onkewski andearget theanext day. Accordyiwastgettingold n t h e plant w o u l d c l os e . T h e gi r l s in t h e o ffi c e w er e Kuklewski declared that Tom Kennedywconcerned as to what was going to happen. Burket testified that this incident continued for ani s concluded from the above-uncontradicted testimo- hour as Kuklewski was repetitive, following him from ny t h a t Phiambolis interrogated Jelke as to his own the shipping area to his workplace. union s en t im e n ts an d t h o se o f o t he r employees in viola- Kuklewski, in turn, testified that some time before the tio n o f S ec ti o n 8(a)( 1) of the Act, and further violated agreement for an election was signed on April 24, he en- Section 8(a)(1) by threatening Jelke and Keylor that the countered warehousemen James Cook and Burket while plant w o u ld be closed if the Union were selected. passing through the plant. They were joined by another. R M 8 m wt emloee * - - * , , * , *' ,* . ,~~~4. Rowan s May 8 meeting with employees employee, no longer employed by the Respondent, who was working nearby. When Cook asked Kuklewski if The Respondent contends that Rowan's assurances to Rowan or Buss would close down the plant if the people employees at a meeting conducted at the plant on May 8 elected the Union, he had replied that if that was their effectively retracted Kennedy's remarks a month before intention that is what they would do. If that was not that the plant would be closed in the event of unioniza- their intention they would not do that. He denied having tion, and later statements to the same effect by Kuk- information concerning plant closure. lewski and Phiambolis, thereby erasing these violations Although other matters were discussed, Kuklewski of the Act. could not recall them. Burket remained after the others Rowan testified that he had received a call from Buss had left and told Kuklewski that he was upset by a who told him that a union election would be conducted number of things arising from his treatment by High in the plant and that he had agreed to Buss' suggestion Energy. When Kuklewski told Burket that it sounded as that he come to the plant and speak to the employees. though he was taking these matters personally, Burket During this conversation, Buss expressed concern that a replied forcefully that he was. Kuklewski vaguely re- rumor was circulating that the plant might be closed if called some reference to Burket's dissatisfaction with the Union was selected, and asked if Rowan would com- wages. ment on this matter to assure the employees that the Kuklewski averring that the above was his only con- plant would not be closed. versation with Burket, denied having stated that manage- Accordingly, when, on May 8, Rowan met with the ment could not handle the Union, that the plant would employees he told them that he was there because he be closed, or that Rowan would not tolerate the Union had heard there was a rumor that the plant might be and had closed other plants. He similarly denied having closed if the Union got in. He stated his desire to assure made like statements to any other employees,.the employees that this was not the case and that the I credit Burket's account of what Kuklewski had said plant would not be closed if the Union was successful in to him before the representation election, as Burket's tes- the election. The Company would not be so stupid as to timony, unlike Kuklewski, was detailed, precise, and ren- dered with authority. In addition, from Jelke's undisput- see Womac Industries Inc., 238 NLRB 43, 46 (1978). Although the ed testimony, described above, Kuklewski had expressed complaint does not allege unlawful assistance in violation of Sec. 8(aX2), a strong antiunion bias to him following Kennedy's meet- I f nd tha t Kuklewski's offer to assist employees to form a company ing with employees where Kennedy, too, had threatened "y ^g^" 61 " t he h ta ng l l nd al lee l d r . lt td lo m'*'"" >C plant closure if employees selected the Union. Accord- »1 Keylor testified as an extremely reluctant witness for the General ingly, noting that Kuklewski's conduct, as described by Counsel. HIGH ENERGY CORPORATION 755 Maintenance employee Robert Burket testified that Burket, was consistent with other conduct imputable to during the first week in May he was approached by the Respondent, it is concluded that Kuklewski's repet- Kuklewski in the shipping department, who told him that itive statements to Burket that the plant would be closed if the Union got in the plant would be closed because if the employees selected the Union violated Section management did not understand unions; they would not 8(a)(l) of he Act. I also find that Kuklewski's accompa- be able to handle the Union which would overwhelm the nying suggestion to Burket that the employees should Company. Kuklewski continued that the employees form a company union with the Employer's help also should form their own union, a company union. If they was an unlawful offer of assistance in violation of Sec- did that, the Respondent would help them form the tion 8(a)(l). 34 union, write the rules, and provide general assistance. An outside union would require very costly dues and the d. Phiambolis' conduct-facts andfindings employees would not be able to get anything in return. If Jelke testified that approximately 8 days before the there were an inside union, there probably would not be e h approached by Phiambolis, who asked any dues. how Jelke was going to vote and if he knew how anyone During that conversation, Kuklewski stated that if the e w gi t vt We J d n Union did come in Hank Rowan would close the plant Phiambolis stated that Rowan would close down the because he did not like unions and would not tolerate p if th U .. . „.. , ,, . . , . , . ~~~~plant if the Union came in. them in one of his plants. Rowan had closed many plants E o Peggy K l 3 and he would close this one, too. Kuklewski declared E m p r sy i e 9Pabi K e y l o r wh r e la te d t h a t o n o r a b o u t that all these union problems were the fault of Tom Ken- tpepln9 Para bohas, who appeared tearful, declared in nedy. Kennedy would promise the employees something l a n t e r job. H e w ai th a t if h eUi t one day and forget the next day. According to Burket, lo.V"o an o th e r -'o b. H e wasafraid that if the Union got onkewski andearget theanext day. Accordyiwastgettingold n t h e plant w o u l d c l os e . T h e gi r l s in t h e o ffi c e w er e Kuklewski declared that Tom Kennedywconcerned as to what was going to happen. Burket testified that this incident continued for ani s concluded from the above-uncontradicted testimo- hour as Kuklewski was repetitive, following him from ny t h a t Phiambolis interrogated Jelke as to his own the shipping area to his workplace. union s en t im e n ts an d t h o se o f o t he r employees in viola- Kuklewski, in turn, testified that some time before the tio n o f S ec ti o n 8(a)( 1) of the Act, and further violated agreement for an election was signed on April 24, he en- Section 8(a)(1) by threatening Jelke and Keylor that the countered warehousemen James Cook and Burket while plant w o u ld b e closed if the Union were selected. passing through the plant. They were joined by another. R M 8 m wt emloee * - - * , , * , *' ,* . ,~~~4. Rowan s May 8 meeting with employees employee, no longer employed by the Respondent, who was working nearby. When Cook asked Kuklewski if The Respondent contends that Rowan's assurances to Rowan or Buss would close down the plant if the people employees at a meeting conducted at the plant on May 8 elected the Union, he had replied that if that was their effectively retracted Kennedy's remarks a month before intention that is what they would do. If that was not that the plant would be closed in the event of unioniza- their intention they would not do that. He denied having tion, and later statements to the same effect by Kuk- information concerning plant closure. lewski and Phiambolis, thereby erasing these violations Although other matters were discussed, Kuklewski of the Act. could not recall them. Burket remained after the others Rowan testified that he had received a call from Buss had left and told Kuklewski that he was upset by a who told him that a union election would be conducted number of things arising from his treatment by High in the plant and that he had agreed to Buss' suggestion Energy. When Kuklewski told Burket that it sounded as that he come to the plant and speak to the employees. though he was taking these matters personally, Burket During this conversation, Buss expressed concern that a replied forcefully that he was. Kuklewski vaguely re- rumor was circulating that the plant might be closed if called some reference to Burket's dissatisfaction with the Union was selected, and asked if Rowan would com- wages. ment on this matter to assure the employees that the Kuklewski averring that the above was his only con- plant would not be closed. versation with Burket, denied having stated that manage- Accordingly, when, on May 8, Rowan met with the ment could not handle the Union, that the plant would employees he told them that he was there because he be closed, or that Rowan would not tolerate the Union had heard there was a rumor that the plant might be and had closed other plants. He similarly denied having closed if the Union got in. He stated his desire to assure made like statements to any other employees,.the employees that this was not the case and that the I credit Burket's account of what Kuklewski had said plant would not be closed if the Union was successful in to him before the representation election, as Burket's tes- the election. The Company would not be so stupid as to timony, unlike Kuklewski, was detailed, precise, and ren- dered with authority. In addition, from Jelke's undisput- see Womac Industries Inc., 238 NLRB 43, 46 (1978). Although the ed testimony, described above, Kuklewski had expressed complaint does not allege unlawful assistance in violation of Sec. 8(aX2), a strong antiunion bias to him following Kennedy's meet- I f nd tha t Kuklewski's offer to assist employees to form a company ing with employees where Kennedy, too, had threatened "y ^g^" 61 " t he h ta ng l l nd al lee l d r . lt td lo m'*'"" >C plant closure if employees selected the Union. Accord- »1 Keylor testified as an extremely reluctant witness for the General ingly, noting that Kuklewski's conduct, as described by Counsel. HIGH ENERGY CORPORATION 755 Maintenance employee Robert Burket testified that Burket, was consistent with other conduct imputable to during the first week in May he was approached by the Respondent, it is concluded that Kuklewski's repet- Kuklewski in the shipping department, who told him that itive statements to Burket that the plant would be closed if the Union got in the plant would be closed because if the employees selected the Union violated Section management did not understand unions; they would not 8(a)(l) of he Act. I also find that Kuklewski's accompa- be able to handle the Union which would overwhelm the nying suggestion to Burket that the employees should Company. Kuklewski continued that the employees form a company union with the Employer's help also should form their own union, a company union. If they was an unlawful offer of assistance in violation of Sec- did that, the Respondent would help them form the tion 8(a)(l). 34 union, write the rules, and provide general assistance. An outside union would require very costly dues and the d. Phiambolis' conduct-facts andfindings employees would not be able to get anything in return. If Jelke testified that approximately 8 days before the there were an inside union, there probably would not be e h approached by Phiambolis, who asked any dues. how Jelke was going to vote and if he knew how anyone During that conversation, Kuklewski stated that if the e w gi t vt We J d n Union did come in Hank Rowan would close the plant Phiambolis stated that Rowan would close down the because he did not like unions and would not tolerate p if th U .. . „.. , ,, . . , . , . ~~~~plant if the Union came in. them in one of his plants. Rowan had closed many plants E o Peggy K l 3 and he would close this one, too. Kuklewski declared E m p r sy i e 9Pabi K e y l o r wh r e la te d t h a t o n o r a b o u t that all these union problems were the fault of Tom Ken- pthe 9 Plnaebohas, who appeared tearful, declared in nedy. Kennedy would promise the employees something l a n t e r job. H e w ai th a t if h eUi t one day and forget the next day. According to Burket, lo.V"o an o th e r -'o b. H e w as afraid that if the Union got onkewski andearget theanext day. Accordyiwastgettingold n t h e plant w o u l d c l os e . T h e gi r l s in t h e o ffi c e w er e Kuklewski declared that Tom Kennedywconcerned as to what was going to happen. Burket testified that this incident continued for ani s concluded from the above-uncontradicted testimo- hour as Kuklewski was repetitive, following him from ny t h a t Phiambolis interrogated Jelke as to his own the shipping area to his workplace. union s en t im e n ts an d t h o se o f o t he r employees in viola- Kuklewski, in turn, testified that some time before the tio n o f S ec ti o n 8(a)( 1) of the Act, and further violated agreement for an election was signed on April 24, he en- Section 8(a)(1) by threatening Jelke and Keylor that the countered warehousemen James Cook and Burket while plant w o u ld b e closed if the Union were selected. passing through the plant. They were joined by another. R M 8 m wt emloee * - - * , , * , *' ,* . ,~~~4. Rowan s May 8 meeting with employees employee, no longer employed by the Respondent, who was working nearby. When Cook asked Kuklewski if The Respondent contends that Rowan's assurances to Rowan or Buss would close down the plant if the people employees at a meeting conducted at the plant on May 8 elected the Union, he had replied that if that was their effectively retracted Kennedy's remarks a month before intention that is what they would do. If that was not that the plant would be closed in the event of unioniza- their intention they would not do that. He denied having tion, and later statements to the same effect by Kuk- information concerning plant closure. lewski and Phiambolis, thereby erasing these violations Although other matters were discussed, Kuklewski of the Act. could not recall them. Burket remained after the others Rowan testified that he had received a call from Buss had left and told Kuklewski that he was upset by a who told him that a union election would be conducted number of things arising from his treatment by High in the plant and that he had agreed to Buss' suggestion Energy. When Kuklewski told Burket that it sounded as that he come to the plant and speak to the employees. though he was taking these matters personally, Burket During this conversation, Buss expressed concern that a replied forcefully that he was. Kuklewski vaguely re- rumor was circulating that the plant might be closed if called some reference to Burket's dissatisfaction with the Union was selected, and asked if Rowan would com- wages. ment on this matter to assure the employees that the Kuklewski averring that the above was his only con- plant would not be closed. versation with Burket, denied having stated that manage- Accordingly, when, on May 8, Rowan met with the ment could not handle the Union, that the plant would employees he told them that he was there because he be closed, or that Rowan would not tolerate the Union had heard there was a rumor that the plant might be and had closed other plants. He similarly denied having closed if the Union got in. He stated his desire to assure made like statements to any other employees,.the employees that this was not the case and that the I credit Burket's account of what Kuklewski had said plant would not be closed if the Union was successful in to him before the representation election, as Burket's tes- the election. The Company would not be so stupid as to timony, unlike Kuklewski, was detailed, precise, and ren- dered with authority. In addition, from Jelke's undisput- see Womac Industries Inc., 238 NLRB 43, 46 (1978). Although the ed testimony, described above, Kuklewski had expressed complaint does not allege unlawful assistance in violation of Sec. 8(aX2), a strong antiunion bias to him following Kennedy's meet- I f nd tha t Kuklewski's offer to assist employees to form a company ing with employees where Kennedy, too, had threatened "y ^g^" 61 " t he h ta ng l l nd al lee l d r . lt td lo m'*'"" >C plant closure if employees selected the Union. Accord- »1 Keylor testified as an extremely reluctant witness for the General ingly, noting that Kuklewski's conduct, as described by Counsel. 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take such an approach, recognizing that such conduct Fetzer Company, 228 NLRB 1016 (1977), and cases would constitute an unfair labor practice, and the em- cited therein at 1024. Furthermore, there must be ployees thereafter might find themselves with a union adequate publication of the repudiation to the em- even if they did not want one.36 ployees involved and there must be no proscribed When Rowan completed his talk, which covered as- conduct on the employer's part after the publica- pects of the election, maintenance employee Robert tion. Pope Maintenance Corporation, 228 NLRB 326, Burket declared that Rowan's statement was all a pack 340 (1977). And, finally, the Board has pointed out of lies. When Rowan asked Burket if he would please that such repudiation or disavowal of coercive con- tell him what he had said that Burket claimed was duct should give assurances to employees that in untrue, Burket retorted that it was not any one state- the future their employer will not interfere with the ment, the whole thing was a lie. Rowan again asked exercise of their Section 7 rights. See Fashion Fair, Burket what he found to be untrue. Burket did not have Inc., et at, 159 NLRB 1435, 1444 (1966); Harrah's any specific answer, but merely repeated that the entire Club, 150 NLRB 1702, 1717 (1965). thrust of Rowan's talk had been a lie. Following Rowan's talk at the meeting, Buss apolo- Applying these criteria to Rowan's May 8 talk, I find gized for Burket's behavior; he had not wanted Rowan that although there was adequate publication, the notice to be embarrassed. Rowan replied that Buss should not was not timely, having been delayed for a month from worry, he was used to this sort of thing as he talked to the time of Kennedy's speech so that employees could employees all the time and had been challenged far more fully ponder the impact of the earlier threat made by extensively. Kennedy and, thereafter by the other supervisors. 38 Burket's recollection of the May 8 meeting differs Rowan admitted no wrongdoing, on the Respondent's somewhat in detail. Burket testified that all employees, part and, most importantly, did not assure employees including those who worked in the office, were present. that in the future the Respondent would not interfere Rowan began by stating that he was there because he with the exercise of their Section 7 rights by such coer- had heard a rumor in the shop that the Company would cive conduct. He did not address other violative conduct close the plant if the Union came in, and declared that by Kuklewski in offering assistance to form a company this was not true. Burket interjected that that was not a union, by Phiambolis in coercively interrogating an em- rumor, but the truth; Rowan's own plant manager had ployee, or by the Respondent in soliciting grievances. stated that the plant would close if the Union came in, in There is no basis in law or in logic for allowing the Re- the very lunchroom where Rowan was standing. When spondent to minimize its responsibility for unlawful con- Rowan asked if he could prove that, Burket said that he duct by partial, selective repudiation. could, and asked that all employees who had heard Tom Summarizing, it has been found that at the various Kennedy make such a statement raise their hands. Ap- times and in ways disclosed above, the Respondent vio- proximately 10 to 15 employees did raise their hands. lated Section 8(a)(l) of the Act by: At that meeting, according to Burket, Rowan also re- a. Summoning employees to a meeting where they called one contract negotiation that had continued for a were: (1) Threatened that the plant would be closed if number of weeks where the Union had not made mone- the Union were selected. (2) Threatened with loss of ex- tary proposals, and also referred to another negotiation isting benefits, fewer pay raises, and more stringent during which the union representative had come to working conditions, if the Union were selected. (3) Invit- Rowan in private and asked what Rowan would give ed to submit grievances to the plant manager to discour- him to disappear. age support for the Union. As Rowan's comments at that meeting are not alleged b. Installing a suggestion bcx to solicit employee griev- to be unlawful, as Burket agreed that Rowan had de- ances and suggestions to discourage support for the dared that the plant would not be closed, and as Union. Rowan's account, even if accepted, would be insufficient c. Threatening Jelke that employees would lose bene- to erase the earlier threats of plant closing, no credibility fits if the Union were selected. resolutions are required to more fully resolve what was e. Encouraging Burket to form a company union and said at that meeting. offering him assistance with respect thereto. The law concerning repudiation is summarized in Pas- f. Coercively interrogating Jelke concerning his union savant Memorial Area Hospital,3 7 as follows: activities and sympathies and those of other employees. It is settled that under certain circumstances an g. Threatening Jelke and Keylor, on separate occa- employe[r] may relieve himself of liability from un- sions, that the plant would be closed if the Union were lawful conduct by repudiating the conduct. To be selected. effective, however, such repudiation must be . D o C. The Discharge of Robert Burket "timely," "unambiguous," "specific in nature to the coercive conduct," and "free from other proscribed 1. The facts illegal conduct." Douglas Division, The Scott & ilglcnut"____ouglas__DivisBurket, a maintenance worker, was employed by the " Rowan explained that he previously had been involved in about six Respondent from October 1978 until his permanent Board-conducted elections and knew that certain types of statements layoff on May 12, 4 days before the election. Countering could constitute unfair labor practices. "a 237 NLRB 138-139 (1978). " See Precision Graphics, Inc., 256 NLRB 381 (1981). 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take such an approach, recognizing that such conduct Fetzer Company, 228 NLRB 1016 (1977), and cases would constitute an unfair labor practice, and the em- cited therein at 1024. Furthermore, there must be ployees thereafter might find themselves with a union adequate publication of the repudiation to the em- even if they did not want one. 36 ployees involved and there must be no proscribed When Rowan completed his talk, which covered as- conduct on the employer's part after the publica- pects of the election, maintenance employee Robert tion. Pope Maintenance Corporation, 228 NLRB 326, Burket declared that Rowan's statement was all a pack 340 (1977). And, finally, the Board has pointed out of lies. When Rowan asked Burket if he would please that such repudiation or disavowal of coercive con- tell him what he had said that Burket claimed was duct should give assurances to employees that in untrue, Burket retorted that it was not any one state- the future their employer will not interfere with the ment, the whole thing was a lie. Rowan again asked exercise of their Section 7 rights. See Fashion Fair, Burket what he found to be untrue. Burket did not have Inc., et at, 159 NLRB 1435, 1444 (1966); Harrah's any specific answer, but merely repeated that the entire Club, 150 NLRB 1702, 1717 (1965). thrust of Rowan's talk had been a lie. Following Rowan's talk at the meeting, Buss apolo- Applying these criteria to Rowan's May 8 talk, I find gized for Burket's behavior; he had not wanted Rowan that although there was adequate publication, the notice to be embarrassed. Rowan replied that Buss should not was not timely, having been delayed for a month from worry, he was used to this sort of thing as he talked to the time of Kennedy's speech so that employees could employees all the time and had been challenged far more fully ponder the impact of the earlier threat made by extensively. Kennedy and, thereafter by the other supervisors. 38 Burket's recollection of the May 8 meeting differs Rowan admitted no wrongdoing, on the Respondent's somewhat in detail. Burket testified that all employees, part and, most importantly, did not assure employees including those who worked in the office, were present. that in the future the Respondent would not interfere Rowan began by stating that he was there because he with the exercise of their Section 7 rights by such coer- had heard a rumor in the shop that the Company would cive conduct. He did not address other violative conduct close the plant if the Union came in, and declared that by Kuklewski in offering assistance to form a company this was not true. Burket interjected that that was not a union, by Phiambolis in coercively interrogating an em- rumor, but the truth; Rowan's own plant manager had ployee, or by the Respondent in soliciting grievances. stated that the plant would close if the Union came in, in There is no basis in law or in logic for allowing the Re- the very lunchroom where Rowan was standing. When spondent to minimize its responsibility for unlawful con- Rowan asked if he could prove that, Burket said that he duct by partial, selective repudiation. could, and asked that all employees who had heard Tom Summarizing, it has been found that at the various Kennedy make such a statement raise their hands. Ap- times and in ways disclosed above, the Respondent vio- proximately 10 to 15 employees did raise their hands. lated Section 8(a)(l) of the Act by: At that meeting, according to Burket, Rowan also re- a. Summoning employees to a meeting where they called one contract negotiation that had continued for a were: (1) Threatened that the plant would be closed if number of weeks where the Union had not made mone- the Union were selected. (2) Threatened with loss of ex- tary proposals, and also referred to another negotiation isting benefits, fewer pay raises, and more stringent during which the union representative had come to working conditions, if the Union were selected. (3) Invit- Rowan in private and asked what Rowan would give ed to submit grievances to the plant manager to discour- him to disappear. age support for the Union. As Rowan's comments at that meeting are not alleged b. Installing a suggestion bcx to solicit employee griev- to be unlawful, as Burket agreed that Rowan had de- ances and suggestions to discourage support for the dared that the plant would not be closed, and as Union. Rowan's account, even if accepted, would be insufficient c. Threatening Jelke that employees would lose bene- to erase the earlier threats of plant closing, no credibility fits if the Union were selected. resolutions are required to more fully resolve what was e. Encouraging Burket to form a company union and said at that meeting. offering him assistance with respect thereto. The law concerning repudiation is summarized in Pas- f. Coercively interrogating Jelke concerning his union savant Memorial Area Hospital,37 as follows: activities and sympathies and those of other employees. It is settled that under certain circumstances an g. Threatening Jelke and Keylor, on separate occa- employe[r] may relieve himself of liability from un- sio n s , t h a t t h e plant w o u ld b e clo se d if t h e Unio n w e r e lawful conduct by repudiating the conduct. To be selected. effective, however, such repudiation must be C. The D oRbtBk .... , „ „ ,. „..',-. i.~~~~~C. The Discharge of Robert Burket "timely, unambiguous," "specific in nature to the coercive conduct," and "free from other proscribed 1. The facts illegal conduct." Douglas Division, The Scott <6 ill eg al c o nd u ct ." D ouglas D ivision, Th e S cott & B u rk et, a m ain ten a n ce w o rk e r, w as em p lo y ed b y th e "1 Rowan explained that he previously had been involved in about six Respondent from October 1978 Until his permanent Board-conducted elections and knew that certain types of statements layoff On May 12, 4 days before the election. Countering could constitute unfair labor practices. "3 237 NLRB 138-139 (1978)." See Precision Graphics. Inc., 256 NLRB 381 (1981). 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take such an approach, recognizing that such conduct Fetzer Company, 228 NLRB 1016 (1977), and cases would constitute an unfair labor practice, and the em- cited therein at 1024. Furthermore, there must be ployees thereafter might find themselves with a union adequate publication of the repudiation to the em- even if they did not want one. 36 ployees involved and there must be no proscribed When Rowan completed his talk, which covered as- conduct on the employer's part after the publica- pects of the election, maintenance employee Robert tion. Pope Maintenance Corporation, 228 NLRB 326, Burket declared that Rowan's statement was all a pack 340 (1977). And, finally, the Board has pointed out of lies. When Rowan asked Burket if he would please that such repudiation or disavowal of coercive con- tell him what he had said that Burket claimed was duct should give assurances to employees that in untrue, Burket retorted that it was not any one state- the future their employer will not interfere with the ment, the whole thing was a lie. Rowan again asked exercise of their Section 7 rights. See Fashion Fair, Burket what he found to be untrue. Burket did not have Inc., et at, 159 NLRB 1435, 1444 (1966); Harrah's any specific answer, but merely repeated that the entire Club, 150 NLRB 1702, 1717 (1965). thrust of Rowan's talk had been a lie. Following Rowan's talk at the meeting, Buss apolo- Applying these criteria to Rowan's May 8 talk, I find gized for Burket's behavior; he had not wanted Rowan that although there was adequate publication, the notice to be embarrassed. Rowan replied that Buss should not was not timely, having been delayed for a month from worry, he was used to this sort of thing as he talked to the time of Kennedy's speech so that employees could employees all the time and had been challenged far more fully ponder the impact of the earlier threat made by extensively. Kennedy and, thereafter by the other supervisors. 38 Burket's recollection of the May 8 meeting differs Rowan admitted no wrongdoing, on the Respondent's somewhat in detail. Burket testified that all employees, part and, most importantly, did not assure employees including those who worked in the office, were present. that in the future the Respondent would not interfere Rowan began by stating that he was there because he with the exercise of their Section 7 rights by such coer- had heard a rumor in the shop that the Company would cive conduct. He did not address other violative conduct close the plant if the Union came in, and declared that by Kuklewski in offering assistance to form a company this was not true. Burket interjected that that was not a union, by Phiambolis in coercively interrogating an em- rumor, but the truth; Rowan's own plant manager had ployee, or by the Respondent in soliciting grievances. stated that the plant would close if the Union came in, in There is no basis in law or in logic for allowing the Re- the very lunchroom where Rowan was standing. When spondent to minimize its responsibility for unlawful con- Rowan asked if he could prove that, Burket said that he duct by partial, selective repudiation. could, and asked that all employees who had heard Tom Summarizing, it has been found that at the various Kennedy make such a statement raise their hands. Ap- times and in ways disclosed above, the Respondent vio- proximately 10 to 15 employees did raise their hands. lated Section 8(a)(l) of the Act by: At that meeting, according to Burket, Rowan also re- a. Summoning employees to a meeting where they called one contract negotiation that had continued for a were: (1) Threatened that the plant would be closed if number of weeks where the Union had not made mone- the Union were selected. (2) Threatened with loss of ex- tary proposals, and also referred to another negotiation isting benefits, fewer pay raises, and more stringent during which the union representative had come to working conditions, if the Union were selected. (3) Invit- Rowan in private and asked what Rowan would give ed to submit grievances to the plant manager to discour- him to disappear. age support for the Union. As Rowan's comments at that meeting are not alleged b. Installing a suggestion bcx to solicit employee griev- to be unlawful, as Burket agreed that Rowan had de- ances and suggestions to discourage support for the dared that the plant would not be closed, and as Union. Rowan's account, even if accepted, would be insufficient c. Threatening Jelke that employees would lose bene- to erase the earlier threats of plant closing, no credibility fits if the Union were selected. resolutions are required to more fully resolve what was e. Encouraging Burket to form a company union and said at that meeting. offering him assistance with respect thereto. The law concerning repudiation is summarized in Pas- f. Coercively interrogating Jelke concerning his union savant Memorial Area Hospital,37 as follows: activities and sympathies and those of other employees. It is settled that under certain circumstances an g. Threatening Jelke and Keylor, on separate occa- employe[r] may relieve himself of liability from un- sio n s , t h a t t h e plant w o u ld b e clo se d if t h e Unio n w e r e lawful conduct by repudiating the conduct. To be selected. effective, however, such repudiation must be C. The D oRbtBk .... , „ „ ,. „..',-. i.~~~~~C. The Discharge of Robert Burket "timely, unambiguous," "specific in nature to the coercive conduct," and "free from other proscribed 1. The facts illegal conduct." Douglas Division, The Scott <6 ill eg al c o nd u ct ." D ouglas D ivision, Th e S cott & B u rk et, a m ain ten a n ce w o rk e r, w as em p lo y ed b y th e "1 Rowan explained that he previously had been involved in about six Respondent from October 1978 Until his permanent Board-conducted elections and knew that certain types of statements layoff On May 12, 4 days before the election. Countering could constitute unfair labor practices. "3 237 NLRB 138-139 (1978)." See Precision Graphics. Inc., 256 NLRB 381 (1981). 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take such an approach, recognizing that such conduct Fetzer Company, 228 NLRB 1016 (1977), and cases would constitute an unfair labor practice, and the em- cited therein at 1024. Furthermore, there must be ployees thereafter might find themselves with a union adequate publication of the repudiation to the em- even if they did not want one. 36 ployees involved and there must be no proscribed When Rowan completed his talk, which covered as- conduct on the employer's part after the publica- pects of the election, maintenance employee Robert tion. Pope Maintenance Corporation, 228 NLRB 326, Burket declared that Rowan's statement was all a pack 340 (1977). And, finally, the Board has pointed out of lies. When Rowan asked Burket if he would please that such repudiation or disavowal of coercive con- tell him what he had said that Burket claimed was duct should give assurances to employees that in untrue, Burket retorted that it was not any one state- the future their employer will not interfere with the ment, the whole thing was a lie. Rowan again asked exercise of their Section 7 rights. See Fashion Fair, Burket what he found to be untrue. Burket did not have Inc., et at, 159 NLRB 1435, 1444 (1966); Harrah's any specific answer, but merely repeated that the entire Club, 150 NLRB 1702, 1717 (1965). thrust of Rowan's talk had been a lie. Following Rowan's talk at the meeting, Buss apolo- Applying these criteria to Rowan's May 8 talk, I find gized for Burket's behavior; he had not wanted Rowan that although there was adequate publication, the notice to be embarrassed. Rowan replied that Buss should not was not timely, having been delayed for a month from worry, he was used to this sort of thing as he talked to the time of Kennedy's speech so that employees could employees all the time and had been challenged far more fully ponder the impact of the earlier threat made by extensively. Kennedy and, thereafter by the other supervisors. 38 Burket's recollection of the May 8 meeting differs Rowan admitted no wrongdoing, on the Respondent's somewhat in detail. Burket testified that all employees, part and, most importantly, did not assure employees including those who worked in the office, were present. that in the future the Respondent would not interfere Rowan began by stating that he was there because he with the exercise of their Section 7 rights by such coer- had heard a rumor in the shop that the Company would cive conduct. He did not address other violative conduct close the plant if the Union came in, and declared that by Kuklewski in offering assistance to form a company this was not true. Burket interjected that that was not a union, by Phiambolis in coercively interrogating an em- rumor, but the truth; Rowan's own plant manager had ployee, or by the Respondent in soliciting grievances. stated that the plant would close if the Union came in, in There is no basis in law or in logic for allowing the Re- the very lunchroom where Rowan was standing. When spondent to minimize its responsibility for unlawful con- Rowan asked if he could prove that, Burket said that he duct by partial, selective repudiation. could, and asked that all employees who had heard Tom Summarizing, it has been found that at the various Kennedy make such a statement raise their hands. Ap- times and in ways disclosed above, the Respondent vio- proximately 10 to 15 employees did raise their hands. lated Section 8(a)(l) of the Act by: At that meeting, according to Burket, Rowan also re- a. Summoning employees to a meeting where they called one contract negotiation that had continued for a were: (1) Threatened that the plant would be closed if number of weeks where the Union had not made mone- the Union were selected. (2) Threatened with loss of ex- tary proposals, and also referred to another negotiation isting benefits, fewer pay raises, and more stringent during which the union representative had come to working conditions, if the Union were selected. (3) Invit- Rowan in private and asked what Rowan would give ed to submit grievances to the plant manager to discour- him to disappear. age support for the Union. As Rowan's comments at that meeting are not alleged b. Installing a suggestion bcx to solicit employee griev- to be unlawful, as Burket agreed that Rowan had de- ances and suggestions to discourage support for the dared that the plant would not be closed, and as Union. Rowan's account, even if accepted, would be insufficient c. Threatening Jelke that employees would lose bene- to erase the earlier threats of plant closing, no credibility fits if the Union were selected. resolutions are required to more fully resolve what was e. Encouraging Burket to form a company union and said at that meeting. offering him assistance with respect thereto. The law concerning repudiation is summarized in Pas- f. Coercively interrogating Jelke concerning his union savant Memorial Area Hospital,3" as follows: activities and sympathies and those of other employees. It is settled that under certain circumstances an g. Threatening Jelke and Keylor, on separate occa- employe[r] may relieve himself of liability from un- sio n s , t h a t t h e plant w o u ld b e clo se d if t h e Unio n w e r e lawful conduct by repudiating the conduct. To be selected. effective, however, such repudiation must be C. The D oRbtBk .... , „ „ ,. „..',-. i.~~~~~C. The Discharge of Robert Burket "timely, unambiguous," "specific in nature to the coercive conduct," and "free from other proscribed 1. The facts illegal conduct." Douglas Division, The Scott <6 ill eg al c o nd u ct ." D ouglas D ivision, Th e S cott & B u rk et, a m ain ten a n ce w o rk e r, w as em p lo y ed b y th e "1 Rowan explained that he previously had been involved in about six Respondent from October 1978 Until his permanent Board-conducted elections and knew that certain types of statements layoff On May 12, 4 days before the election. Countering could constitute unfair labor practices. "3 237 NLRB 138-139 (1978)." See Precision Graphics. Inc., 256 NLRB 381 (1981). HIGH ENERGY CORPORATION 757 the General Counsel's assertion that Burket was let go cord was defective and that it would be necessary to because of his union activities, the Respondent contends return it to the store. Burket also informed Hawk that he that Burket was terminated for attending to personal had to pick up a tool from his home. Hawk approved his business at home while on company-paid time.39 departure and Burket left the plant between 9:45 and 10 Burket testified that he had been hired by Maintenance a.m. Supervisor Earl Myers, who oversaw Burket's work Burket testified that using a company pickup truck he until Myers' promotion to plant superintendent of the ce- went directly to a hardware store in the town of Coates- ramic division in October 1979. Burket thereafter report- ville, approximately 8 miles from the plant, where he ob- ed to John Hawk, who replaced Myers as maintenance tained a new extension cord after 10 to 15 minutes of dis- supervisor. cussion with the clerk. Approximately 90 percent of Burket's time was spent From the store, Burket went to his home to obtain the working principally alone on a special project; the build- needed tool. He explained that, after leaving the truck, it ing of a geconol mixing system to mix oil and additives was necessary to go by the garden to enter his house to produce an oil for use in the Respondent's capacitors. where the tool was. Burket's wife, then in the garden, Such oil was to have the properties of a product that the asked him to show her how to weed turnips. He com- Respondent had been purchasing from an outside suppli- plied and had been so engaged for about 5 minutes when er and, presumably, alleviate that dependence. When not Kennedy appeared over the front bank of the house. working on the geconol system, Burket did maintenance Kennedy loudly asked Burket what he was doing there. work in the oil-filled division. Burket, from the garden, called back that he was there to In building the geconol system, Burket worked from pick up a tool. When Kennedy responded that Burket hand-drawn designs less detailed than a blueprint. Pipe- was in his garden, Burket called back that he was show- lines, fittings, and various other specifics were designed ing his wife how to weed turnips but that he had just by Burket. Burket ordered parts for the system as needed stopped in garden. Kennedy replied that he wanted to and about three times a week it was necessary for him to see Burket when he returned to the plant. Burket went leave the plant to obtain components and tools as into his house, obtained the tool, and went back to the needed. The duration of these trips varied, depending on plant. After entering the plant, Burket asked Mainte- destination and requirements, but from January 1980 he nance Supervisor John Hawk to accompany him to Ken- obtained most of the parts brought in from the outside nedy's office to verify that Burket had had Hawk's per- from suppliers in a town about 8 miles from the plant. mission to be away from the plant. Burket also supplied his own tools, some of which were Burket related that at 11 a.m. he, Kennedy, and Hawk kept at home and others at the plant. Before leaving the met in Kennedy's office. At Burket's request, Hawk con- plant, he always notified John Hawk. firmed that Burket had gone to his home and the hard- In March, Burket attended a meeting at James Cook's ware store with Hawk's permission. Burket denied Ken- home, with a union representative and about six or seven nedy's assertion that he had left the plant at 9 a.m., as- of the Respondent's employees, where they discussed serting that he had departed closer to 10 a.m., a time how to introduce the Union to the Company. All em- corroborated by Hawk. Kennedy announced that they ployees present signed union authorization cards. Cook were going to see Buss about this. Hawk returned to the and Burket took extra cards which Burket distributed shop and Kennedy and Burket went to Buss' office. among other employees at the Respondent's premises. Buss was at a meeting when they arrived but met with Burket did not believe that any supervisor with the ex- Kennedy and Burket in a side room. Kennedy told Buss ception of Hawk,40 knew about his distribution of author- that Burket was supposed to be working but had been in ization cards, he did ask Hawk to sign such a card. his garden picking or weeding turnips. Kennedy did not Burket, as noted, confronted Kennedy during the lat- understand why it had been necessary for Burket to be ter's April 7 meeting with employees, accusing Kennedy gone from the plant for 2 hours. Burket, Kennedy con- of threatening to close the plant if the Union was select- tinued, contended that he had been gone for only an ed, and of failing to keep his promises. Thereafter, hour.41 Kennedy declared that 1 hour would have been a during the first week in May as found above, Kuklewski reasonable time for Burket to have been away for pur- unlawfully threatened Burket with plant closure if the poses approved but that Burket was a thief because he Union came in and offered him assistance in forming an had been stealing time from the Company. inside union. Burket's confrontation with Rowan during Burket pointed out that he had always been a good the latter's May 8 meeting with employees where he ac- employee, but all of a sudden the Respondent wanted to cused Rowan of falsely denying previous threats that the fire him. Buss asked what the penalty was for such an plant would be closed if the Union came in, has also infraction of the rules. Kennedy told him that there was been described. no written penalty. Burket interjected that if they fired Burket testified that on May 12 he reported for work him he was going to the Union, but if they laid him off, at 7 a.m., his usual starting time. At approximately 8:30 fine. Accordingly, Buss told Kennedy to put Burket on a.m., he told Hawk that a recently purchased extension permanent layoff. Burket's termination notice, signed that day by Kenne- " The parties stipulated at the hearing that Burket's work skills played dy, showed that Burket had been given "Permanent lay- no role in the decision to terminate him. " While the Respondent disputes the determinative challenge to Hawk's ballot by the Union based on asserted supervisory status, it readi- It is Burket's position that he had been gone between 60 to 80 min- ly admits knowledge of Burket's union activities at the time of separation. utes. HIGH ENERGY CORPORATION 757 the General Counsel's assertion that Burket was let go cord was defective and that it would be necessary to because of his union activities, the Respondent contends return it to the store. Burket also informed Hawk that he that Burket was terminated for attending to personal had to pick up a tool from his home. Hawk approved his business at home while on company-paid time. 31 departure and Burket left the plant between 9:45 and 10 Burket testified that he had been hired by Maintenance a.m. Supervisor Earl Myers, who oversaw Burket's work Burket testified that using a company pickup truck he until Myers' promotion to plant superintendent of the ce- went directly to a hardware store in the town of Coates- ramic division in October 1979. Burket thereafter report- ville, approximately 8 miles from the plant, where he ob- ed to John Hawk, who replaced Myers as maintenance tained a new extension cord after 10 to 15 minutes of dis- supervisor,.cussion with the clerk. Approximately 90 percent of Burket's time was spent From the store, Burket went to his home to obtain the working principally alone on a special project; the build- needed tool. He explained that, after leaving the truck, it ing of a geconol mixing system to mix oil and additives was necessary to go by the garden to enter his house to produce an oil for use in the Respondent's capacitors. where the tool was. Burket's wife, then in the garden, Such oil was to have the properties of a product that the asked him to show her how to weed turnips. He com- Respondent had been purchasing from an outside suppli- plied and had been so engaged for about 5 minutes when er and, presumably, alleviate that dependence. When not Kennedy appeared over the front bank of the house. working on the geconol system, Burket did maintenance Kennedy loudly asked Burket what he was doing there. work in the oil-filled division. Burket, from the garden, called back that he was there to In building the geconol system, Burket worked from pick up a tool. When Kennedy responded that Burket hand-drawn designs less detailed than a blueprint. Pipe- was in his garden, Burket called back that he was show- lines, fittings, and various other specifics were designed ing his wife how to weed turnips but that he had just by Burket. Burket ordered parts for the system as needed stopped in garden. Kennedy replied that he wanted to and about three times a week it was necessary for him to see Burket when he returned to the plant. Burket went leave the plant to obtain components and tools as into his house, obtained the tool, and went back to the needed. The duration of these trips varied, depending on plant. After entering the plant, Burket asked Mainte- destination and requirements, but from January 1980 he nance Supervisor John Hawk to accompany him to Ken- obtained most of the parts brought in from the outside nedy's office to verify that Burket had had Hawk's per- from suppliers in a town about 8 miles from the plant,. mission to be away from the plant. Burket also supplied his own tools, some of which were Burket related that at 11 a.m. he, Kennedy, and Hawk kept at home and others at the plant. Before leaving the met in Kennedy's office. At Burket's request, Hawk con- plant, he always notified John Hawk. firmed that Burket had gone to his home and the hard- In March, Burket attended a meeting at James Cook's ware store with Hawk's permission. Burket denied Ken- home, with a union representative and about six or seven nedy's assertion that he had left the plant at 9 a.m., as- of the Respondent's employees, where they discussed serting that he had departed closer to 10 a.m., a time how to introduce the Union to the Company. All em- corroborated by Hawk. Kennedy announced that they ployees present signed union authorization cards. Cook were going to see Buss about this. Hawk returned to the and Burket took extra cards which Burket distributed shop and Kennedy and Burket went to Buss' office. among other employees at the Respondent's premises. Buss was at a meeting when they arrived but met with Burket did not believe that any supervisor with the ex- Kennedy and Burket in a side room. Kennedy told Buss ception of Hawk," 0 knew about his distribution of author- that Burket was supposed to be working but had been in ization cards, he did ask Hawk to sign such a card. his garden picking or weeding turnips. Kennedy did not Burket, as noted, confronted Kennedy during the lat- understand why it had been necessary for Burket to be ter's April 7 meeting with employees, accusing Kennedy gone from the plant for 2 hours. Burket, Kennedy con- of threatening to close the plant if the Union was select- tinued, contended that he had been gone for only an ed, and of failing to keep his promises. Thereafter, hour." Kennedy declared that 1 hour would have been a during the first week in May as found above, Kuklewski reasonable time for Burket to have been away for pur- unlawfully threatened Burket with plant closure if the poses approved but that Burket was a thief because he Union came in and offered him assistance in forming an had been stealing time from the Company. inside union. Burket's confrontation with Rowan during Burket pointed out that he had always been a good the latter's May 8 meeting with employees where he ac- employee, but all of a sudden the Respondent wanted to cused Rowan of falsely denying previous threats that the fire him. Buss asked what the penalty was for such an plant would be closed if the Union came in, has also infraction of the rules. Kennedy told him that there was been described. no written penalty. Burket interjected that if they fired Burket testified that on May 12 he reported for work him he was going to the Union, but if they laid him off, at 7 a.m., his usual starting time. At approximately 8:30 fine. Accordingly, Buss told Kennedy to put Burket on a.m., he told Hawk that a recently purchased extension permanent layoff. Burket's termination notice, signed that day by Kenne- "The parties stipulated at the hearing that Burket's work skills played dy, showed that Burket had been given "Permanent lay- no role in the decision to terminate him. " While the Respondent disputes the determinative challenge to Hawk's ballot by the Union based on asserted supervisory status, it readi- ' It is Burket's position that he had been gone between 60 to 80 min- ly admits knowledge of Burket's union activities at the time of separation. utes. HIGH ENERGY CORPORATION 757 the General Counsel's assertion that Burket was let go cord was defective and that it would be necessary to because of his union activities, the Respondent contends return it to the store. Burket also informed Hawk that he that Burket was terminated for attending to personal had to pick up a tool from his home. Hawk approved his business at home while on company-paid time. 31 departure and Burket left the plant between 9:45 and 10 Burket testified that he had been hired by Maintenance a.m. Supervisor Earl Myers, who oversaw Burket's work Burket testified that using a company pickup truck he until Myers' promotion to plant superintendent of the ce- went directly to a hardware store in the town of Coates- ramic division in October 1979. Burket thereafter report- ville, approximately 8 miles from the plant, where he ob- ed to John Hawk, who replaced Myers as maintenance tained a new extension cord after 10 to 15 minutes of dis- supervisor,.cussion with the clerk. Approximately 90 percent of Burket's time was spent From the store, Burket went to his home to obtain the working principally alone on a special project; the build- needed tool. He explained that, after leaving the truck, it ing of a geconol mixing system to mix oil and additives was necessary to go by the garden to enter his house to produce an oil for use in the Respondent's capacitors. where the tool was. Burket's wife, then in the garden, Such oil was to have the properties of a product that the asked him to show her how to weed turnips. He com- Respondent had been purchasing from an outside suppli- plied and had been so engaged for about 5 minutes when er and, presumably, alleviate that dependence. When not Kennedy appeared over the front bank of the house. working on the geconol system, Burket did maintenance Kennedy loudly asked Burket what he was doing there. work in the oil-filled division. Burket, from the garden, called back that he was there to In building the geconol system, Burket worked from pick up a tool. When Kennedy responded that Burket hand-drawn designs less detailed than a blueprint. Pipe- was in his garden, Burket called back that he was show- lines, fittings, and various other specifics were designed ing his wife how to weed turnips but that he had just by Burket. Burket ordered parts for the system as needed stopped in garden. Kennedy replied that he wanted to and about three times a week it was necessary for him to see Burket when he returned to the plant. Burket went leave the plant to obtain components and tools as into his house, obtained the tool, and went back to the needed. The duration of these trips varied, depending on plant. After entering the plant, Burket asked Mainte- destination and requirements, but from January 1980 he nance Supervisor John Hawk to accompany him to Ken- obtained most of the parts brought in from the outside nedy's office to verify that Burket had had Hawk's per- from suppliers in a town about 8 miles from the plant,. mission to be away from the plant. Burket also supplied his own tools, some of which were Burket related that at 11 a.m. he, Kennedy, and Hawk kept at home and others at the plant. Before leaving the met in Kennedy's office. At Burket's request, Hawk con- plant, he always notified John Hawk. firmed that Burket had gone to his home and the hard- In March, Burket attended a meeting at James Cook's ware store with Hawk's permission. Burket denied Ken- home, with a union representative and about six or seven nedy's assertion that he had left the plant at 9 a.m., as- of the Respondent's employees, where they discussed serting that he had departed closer to 10 a.m., a time how to introduce the Union to the Company. All em- corroborated by Hawk. Kennedy announced that they ployees present signed union authorization cards. Cook were going to see Buss about this. Hawk returned to the and Burket took extra cards which Burket distributed shop and Kennedy and Burket went to Buss' office. among other employees at the Respondent's premises. Buss was at a meeting when they arrived but met with Burket did not believe that any supervisor with the ex- Kennedy and Burket in a side room. Kennedy told Buss ception of Hawk," 0 knew about his distribution of author- that Burket was supposed to be working but had been in ization cards, he did ask Hawk to sign such a card. his garden picking or weeding turnips. Kennedy did not Burket, as noted, confronted Kennedy during the lat- understand why it had been necessary for Burket to be ter's April 7 meeting with employees, accusing Kennedy gone from the plant for 2 hours. Burket, Kennedy con- of threatening to close the plant if the Union was select- tinued, contended that he had been gone for only an ed, and of failing to keep his promises. Thereafter, hour." Kennedy declared that 1 hour would have been a during the first week in May as found above, Kuklewski reasonable time for Burket to have been away for pur- unlawfully threatened Burket with plant closure if the poses approved but that Burket was a thief because he Union came in and offered him assistance in forming an had been stealing time from the Company. inside union. Burket's confrontation with Rowan during Burket pointed out that he had always been a good the latter's May 8 meeting with employees where he ac- employee, but all of a sudden the Respondent wanted to cused Rowan of falsely denying previous threats that the fire him. Buss asked what the penalty was for such an plant would be closed if the Union came in, has also infraction of the rules. Kennedy told him that there was been described. no written penalty. Burket interjected that if they fired Burket testified that on May 12 he reported for work him he was going to the Union, but if they laid him off, at 7 a.m., his usual starting time. At approximately 8:30 fine. Accordingly, Buss told Kennedy to put Burket on a.m., he told Hawk that a recently purchased extension permanent layoff. Burket's termination notice, signed that day by Kenne- "The parties stipulated at the hearing that Burket's work skills played dy, showed that Burket had been given "Permanent lay- no role in the decision to terminate him. " While the Respondent disputes the determinative challenge to Hawk's ballot by the Union based on asserted supervisory status, it readi- ' It is Burket's position that he had been gone between 60 to 80 min- ly admits knowledge of Burket's union activities at the time of separation. utes. HIGH ENERGY CORPORATION 757 the General Counsel's assertion that Burket was let go cord was defective and that it would be necessary to because of his union activities, the Respondent contends return it to the store. Burket also informed Hawk that he that Burket was terminated for attending to personal had to pick up a tool from his home. Hawk approved his business at home while on company-paid time. 31 departure and Burket left the plant between 9:45 and 10 Burket testified that he had been hired by Maintenance a.m. Supervisor Earl Myers, who oversaw Burket's work Burket testified that using a company pickup truck he until Myers' promotion to plant superintendent of the ce- went directly to a hardware store in the town of Coates- ramic division in October 1979. Burket thereafter report- ville, approximately 8 miles from the plant, where he ob- ed to John Hawk, who replaced Myers as maintenance tained a new extension cord after 10 to 15 minutes of dis- supervisor,.cussion with the clerk. Approximately 90 percent of Burket's time was spent From the store, Burket went to his home to obtain the working principally alone on a special project; the build- needed tool. He explained that, after leaving the truck, it ing of a geconol mixing system to mix oil and additives was necessary to go by the garden to enter his house to produce an oil for use in the Respondent's capacitors. where the tool was. Burket's wife, then in the garden, Such oil was to have the properties of a product that the asked him to show her how to weed turnips. He com- Respondent had been purchasing from an outside suppli- plied and had been so engaged for about 5 minutes when er and, presumably, alleviate that dependence. When not Kennedy appeared over the front bank of the house. working on the geconol system, Burket did maintenance Kennedy loudly asked Burket what he was doing there. work in the oil-filled division. Burket, from the garden, called back that he was there to In building the geconol system, Burket worked from pick up a tool. When Kennedy responded that Burket hand-drawn designs less detailed than a blueprint. Pipe- was in his garden, Burket called back that he was show- lines, fittings, and various other specifics were designed ing his wife how to weed turnips but that he had just by Burket. Burket ordered parts for the system as needed stopped in garden. Kennedy replied that he wanted to and about three times a week it was necessary for him to see Burket when he returned to the plant. Burket went leave the plant to obtain components and tools as into his house, obtained the tool, and went back to the needed. The duration of these trips varied, depending on plant. After entering the plant, Burket asked Mainte- destination and requirements, but from January 1980 he nance Supervisor John Hawk to accompany him to Ken- obtained most of the parts brought in from the outside nedy's office to verify that Burket had had Hawk's per- from suppliers in a town about 8 miles from the plant,. mission to be away from the plant. Burket also supplied his own tools, some of which were Burket related that at 11 a.m. he, Kennedy, and Hawk kept at home and others at the plant. Before leaving the met in Kennedy's office. At Burket's request, Hawk con- plant, he always notified John Hawk. firmed that Burket had gone to his home and the hard- In March, Burket attended a meeting at James Cook's ware store with Hawk's permission. Burket denied Ken- home, with a union representative and about six or seven nedy's assertion that he had left the plant at 9 a.m., as- of the Respondent's employees, where they discussed serting that he had departed closer to 10 a.m., a time how to introduce the Union to the Company. All em- corroborated by Hawk. Kennedy announced that they ployees present signed union authorization cards. Cook were going to see Buss about this. Hawk returned to the and Burket took extra cards which Burket distributed shop and Kennedy and Burket went to Buss' office. among other employees at the Respondent's premises. Buss was at a meeting when they arrived but met with Burket did not believe that any supervisor with the ex- Kennedy and Burket in a side room. Kennedy told Buss ception of Hawk," 0 knew about his distribution of author- that Burket was supposed to be working but had been in ization cards, he did ask Hawk to sign such a card. his garden picking or weeding turnips. Kennedy did not Burket, as noted, confronted Kennedy during the lat- understand why it had been necessary for Burket to be ter's April 7 meeting with employees, accusing Kennedy gone from the plant for 2 hours. Burket, Kennedy con- of threatening to close the plant if the Union was select- tinued, contended that he had been gone for only an ed, and of failing to keep his promises. Thereafter, hour." Kennedy declared that 1 hour would have been a during the first week in May as found above, Kuklewski reasonable time for Burket to have been away for pur- unlawfully threatened Burket with plant closure if the poses approved but that Burket was a thief because he Union came in and offered him assistance in forming an had been stealing time from the Company. inside union. Burket's confrontation with Rowan during Burket pointed out that he had always been a good the latter's May 8 meeting with employees where he ac- employee, but all of a sudden the Respondent wanted to cused Rowan of falsely denying previous threats that the fire him. Buss asked what the penalty was for such an plant would be closed if the Union came in, has also infraction of the rules. Kennedy told him that there was been described. no written penalty. Burket interjected that if they fired Burket testified that on May 12 he reported for work him he was going to the Union, but if they laid him off, at 7 a.m., his usual starting time. At approximately 8:30 fine. Accordingly, Buss told Kennedy to put Burket on a.m., he told Hawk that a recently purchased extension permanent layoff. Burket's termination notice, signed that day by Kenne- "The parties stipulated at the hearing that Burket's work skills played dy, showed that Burket had been given "Permanent lay- no role in the decision to terminate him. " While the Respondent disputes the determinative challenge to Hawk's ballot by the Union based on asserted supervisory status, it readi- ' It is Burket's position that he had been gone between 60 to 80 min- ly admits knowledge of Burket's union activities at the time of separation. utes. 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD off, due to employee observed gardening at home on Kennedy told Buss that while reviewing gasoline re- company time." Burket's comments in the space on the ceipts that morning he had found that a higher amount form reserved for the employee was, "I do not accept of gasoline was being charged to the company pickup supervisor's final remarks as true. They are not com- truck. Suspecting that Burket might be siphoning gas, he plete." and Myers had driven to Burket's house and had found The Respondent contends that Burket was disciplined him hoeing in his garden. Kennedy related that they had on May 12 for abusing company time by gardening at his waited exactly 15 minutes, had made themselves known home while being paid. to Burket, and had come back to the plant. Kennedy Kennedy testified that while in the office of Joann stated that he now was there with Burket who was being Johnson, plant superintendent of the oil-filled division,42 paid for the time at issue. on the morning of May 12, she showed him gasoline pur- When Buss asked Burket if this was true and why, chase slips signed by Burket on five different days be- B urket agreed that it was and that he had made a mis- tween April 28 and May 7, asking him whether this did take. not show that an awful lot of gas was being charged to After some discussion, Buss went to another office and the truck 43 during that period. 44 Kennedy responded that called Rowan After telling Rowan what had happened, he wanted to check this out and to know when Burket Buss stated that, in the past, whenever employees had next went on a trip. Johnson replied that Burket already l ft the plant without authorization while on the clock, was out on an errand that morning. At that point, they always had been let go. He asked whether a like course should be followed here as a union election was around 10 a.m., Earl Myers, plant superintendent for the c o u r s e sh o u d b e fo l l o w e dw as a unon election was ceramic division, entered Johnson's office. Kennedy Union . 4 Rwan repliedt as active on behalf of the asked Myers, who, when he was maintenance supervisor, cedure ust because the election was pending. He in- had worked directly with Burket, if he knew where ce d u re j u st b e cau se t h e election was pending. He m_ had worked directly with Burket, if he knew where structed Buss to do exactly what he would have done if Burket lived. When Myers said that he did, Kennedy there had been no union election. suggested that they take a ride. Kennedy testified that his Buss returned to Burket and Kennedy and discussed Buss returned to Burket and Kennedy and discussed only stated reason to Johnson for going to Burket's discharge. Burket responded that if the Company fired house was that he suspected that Burket was siphoning him he would be very violent and cause a lot of prob- gasoline from the truck. There had been no discussion as lems. However, he agreed to accept permanent layoff. to how long Burket was away from the plant. Accordingly, Burket was permanently laid off. Kennedy and Myers drove to Burket's address in Ken- In support of Kennedy's contention that Burket had nedy's car. As they passed Burket's home, they could see been using extraordinary amounts of fuel in the company him and his wife in the garden. They continued on, stop- truck, the Respondent introduced receipts showing that ping at a small parking area on the corner where they Burket had charged gasoline purchases for the truck as waited for approximately 15 minutes, until 10:45 a.m. follows: April 3-$12.30, April 28-$14.20, April 29-$7, Kennedy then drove from the parking area back to Bur- May 1-$13.80, May 5-$12.80, and May 7-$11.65. 47 ket's house, left the car, approached, and asked Burket The record of an earlier state unemployment compensa- what he was doing. Burket replied that he had stopped tion hearing conerning Burket shows that Kennedy had at home to pick up a drill. Kennedy retorted that the testified that his suspicions had been aroused after Burket drill was not in his garden and that they would talk had purchased $14 worth of gasoline when plant superin- about the matter when Burket got back to the shop. tendent Johnson had filled the truck's tank the same Kennedy and Myers then returned to the plant. morning on the way to work. As the truck had but a 4- When Kennedy arrived at the plant, he called Hawk cylinder engine, large gasoline purchases would not ordi- into his office and asked if he knew where Burket had narily appear to be warranted.4' gone. Hawk had replied that Burket had to go to the hardware store at Coatesville and to his house to pick up Rowan testified that when Buss had called him earlier, before his an electric drill. In response to Kennedy's inquiry, Hawk May 8 meeting with employees, he told Rowan about the Union's cam- told him that Burket had left the plant between 9:30 and paign, stating that warehouseman Jim Cook was greatly over qualified for his job, that he felt that Cook was there as a union organizer, and that 10 a.m. Burket, too, was a union instigator. At or about that time, Burket arrived. Kennedy told "The May 7 purchase included $2.50 for oil. Burket that they would go together to Buss' office and " The transcript of the state unemployment compensation hearing indi- let Buss judge where they would go from there. cated certain mild inconsistencies in the testimony of both Kennedy and Burket from that given during the hearing in this matter. In this proceed- ing, as noted, Kennedy testified thst he had driven to Burket's home on *2 Johnson was responsible for the Company's vehicles. the morning of May 12 following a conversation with Johnson where she " The truck used by Burket had a 4-cylinder engine. had called to Kennedy's attention the quantity of gasoline purchases 4 Others, including Johnson and maintenance man Ed LaMarche, also charged to the Respondent by Burket. At the state hearing, Kennedy, in were authorized to use this truck. LaMarche had fueled the truck twice explaining his trip to Burket's home, did not refer to such a conversation in March and on two occasions in April. Johnson, who uses the truck on with Johnson. Instead, he related only his independent suspicions raised a regular basis, filled the gas tank four times in April. Kennedy explained by multiple purchases of gas for the truck on the same day and purchas- that Burket had just started using the company truck after Kennedy had ing agent Robins' accepted suggestion of the month before, based on instructed him to do so as Burket had been putting so many miles on his costliness, that Burket no longer be permitted to charge mileage for use own vehicle and that it had become too costly to the Respondent to con- of his own vehicle for errands, but, instead, require that Burket use a tinue its use. Company-owned truck. Burket, in turn, also had testified at the state pro- 4' The following account of Burket's terminal interview is a synthesis ceeding that, while he had been in the garden on May 12 for what of the testimony of Kennedy, Buss, and Rowan. Continued 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD off, due to employee observed gardening at home on Kennedy told Buss that while reviewing gasoline re- company time." Burket's comments in the space on the ceipts that morning he had found that a higher amount form reserved for the employee was, "I do not accept of gasoline was being charged to the company pickup supervisor's final remarks as true. They are not com- truck. Suspecting that Burket might be siphoning gas, he plete." and Myers had driven to Burket's house and had found The Respondent contends that Burket was disciplined him hoeing in his garden. Kennedy related that they had on May 12 for abusing company time by gardening at his waited exactly 15 minutes, had made themselves known home while being paid. to Burket, and had come back to the plant. Kennedy Kennedy testified that while in the office of Joann stated that he now was there with Burket who was being Johnson, plant superintendent of the oil-filled division,4 2 paid for the time at issue. on the morning of May 12, she showed him gasoline pur- Wh e n Buss asked Burket if this was true and why, chase slips signed by Burket on five different days be- Burket agreed that it was and that he had made a mis- tween April 28 and May 7, asking him whether this did take. not show that an awful lot of gas was being charged to A f t e r s o m e discussion, Buss went to another office and the truck 43 during that period." 4 Kennedy responded that c a ll ed Rowan. After telling Rowan what had happened, he wanted to check this out and to know when Burket Buss stated that, in the past, whenever employees had next went on a trip. Johnson replied that Burket already le f t t h e plant without authorization while on the clock, was out on an errand that morning. At that point, t h ey always had been let go. He asked whether a like course should be followed here as a union election was around 10 a.m., Earl Myers, plant superintendent for the p e an d as Burk et was activenon elftof the ceramic division, entered Johnson's office. Kennedy Upnin1 4Ro an d as Burket was active on behalf of the asked Myers, who, when he was maintenance supervisor, U n; 0 "-' R ow an rep11^d t h at Bu ss co u l d n o t al te r his pro- haskd Me directly with Burket, if he knew wherev c ed u r e j u st b ec au se t h e election was pending. He in- hadu worket ed. diretlyers wit d tatf he knew whenned st r u c t e d , B u s s t o d o ex a c tly w h at h e w o ul d h a v e d o n e if Burket lived. When Myers said that he did, Kennedy there had been no union election. suggested that they take a ride. Kennedy testified that his B r t B a K an discussed - .. , , „ * . r> . > ~~~Buss returned to Burket and Kennedy and discussed only stated reason to Johnson for going to Burket's discharge. Burket responded that if the Company fired house was that he suspected that Burket was siphoning him he would be very violent and cause a lot of prob- gasoline from the truck. There had been no discussion as lems. However, he agreed to accept permanent layoff. to how long Burket was away from the plant. Accordingly, Burket was permanently laid off. Kennedy and Myers drove to Burket's address in Ken- In support of Kennedy's contention that Burket had nedy's car. As they passed Burket's home, they could see been using extraordinary amounts of fuel in the company him and his wife in the garden. They continued on, stop- truck, the Respondent introduced receipts showing that ping at a small parking area on the corner where they Burket had charged gasoline purchases for the truck as waited for approximately 15 minutes, until 10:45 a.m. follows: April 3-$12.30, April 28-$14.20, April 29-$7, Kennedy then drove from the parking area back to Bur- May 1-$13.80, May 5-$12.80, and May 7-$11.65. 47 ket's house, left the car, approached, and asked Burket The record of an earlier state unemployment compensa- what he was doing. Burket replied that he had stopped tion hearing conerning Burket shows that Kennedy had at home to pick up a drill. Kennedy retorted that the testified that his suspicions had been aroused after Burket drill was not in his garden and that they would talk had purchased $14 worth of gasoline when plant superin- about the matter when Burket got back to the shop. tendent Johnson had filled the truck's tank the same Kennedy and Myers then returned to the plant. morning on the way to work. As the truck had but a 4- When Kennedy arrived at the plant, he called Hawk cylinder engine, large gasoline purchases would not ordi- into his office and asked if he knew where Burket had narily appear to be warranted."' gone. Hawk had replied that Burket had to go to the hardware Store at Coatesville and to his house to pick up " Rowan testified that when Buss had called him earlier, before his an electric drill. In response to Kennedy's inquiry, Hawk May 8 meeting with employees, he told Rowan about the Union's cam- told him that Burket had left the plant between 9:30 and paig"n stating th a t warehouseman Jim Cook was greatly over qualified 10 am. „for his job, that he felt that Cook was there as a union organizer, and that 10 a.m. Burket, too, was a union instigator. At or about that time, Burket arrived. Kennedy told "The May 7 purchase Included $2.50 for oil. Burket that they would go together to Buss' Office and '" Th e transcript of the state unemployment compensation hearing indi- let Buss judge where they would go from there. 45 cated certain mild inc onsist encies in the testimo ny of bot h Kennedy and Burket from that given during the hearing in this matter. In this proceed- ing, as noted, Kennedy testified thst he had driven to Burket's home on "1 Johnson was responsible for the Company's vehicles. the morning of May 12 following a conversation with Johnson where she " The truck used by Burket had a 4-cylinder engine. had called to Kennedy's attention the quantity of gasoline purchases 4 1 Others, including Johnson and maintenance man Ed LaMarche, also charged to the Respondent by Burket. At the state hearing, Kennedy, in were authorized to use this truck. LaMarche had fueled the truck twice explaining his trip to Burket's home, did not refer to such a conversation in March and on two occasions in April. Johnson, who uses the truck on with Johnson. Instead, he related only his independent suspicions raised a regular basis, filled the gas tank four times in April. Kennedy explained by multiple purchases of gas for the truck on the same day and purchas- that Burket had just started using the company truck after Kennedy had ing agent Robins' accepted suggestion of the month before, based on instructed him to do so as Burket had been putting so many miles on his costliness, that Burket no longer be permitted to charge mileage for use own vehicle and that it had become too costly to the Respondent to con- of his own vehicle for errands, but, instead, require that Burket use a tinue its use. Company-owned truck. Burket, in turn, also had testified at the state pro- 4' The following account of Burket's terminal interview is a synthesis ceeding that, while he had been in the garden on May 12 for what of the testimony of Kennedy, Buss, and Rowan. Continued 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD off, due to employee observed gardening at home on Kennedy told Buss that while reviewing gasoline re- company time." Burket's comments in the space on the ceipts that morning he had found that a higher amount form reserved for the employee was, "I do not accept of gasoline was being charged to the company pickup supervisor's final remarks as true. They are not com- truck. Suspecting that Burket might be siphoning gas, he plete." and Myers had driven to Burket's house and had found The Respondent contends that Burket was disciplined him hoeing in his garden. Kennedy related that they had on May 12 for abusing company time by gardening at his waited exactly 15 minutes, had made themselves known home while being paid. to Burket, and had come back to the plant. Kennedy Kennedy testified that while in the office of Joann stated that he now was there with Burket who was being Johnson, plant superintendent of the oil-filled division,4 2 paid for the time at issue. on the morning of May 12, she showed him gasoline pur- Wh e n Buss asked Burket if this was true and why, chase slips signed by Burket on five different days be- Burket agreed that it was and that he had made a mis- tween April 28 and May 7, asking him whether this did take. not show that an awful lot of gas was being charged to A f t e r s o m e discussion, Buss went to another office and the truck 43 during that period." 4 Kennedy responded that c a ll ed Rowan. After telling Rowan what had happened, he wanted to check this out and to know when Burket Buss stated that, in the past, whenever employees had next went on a trip. Johnson replied that Burket already le f t t h e plant without authorization while on the clock, was out on an errand that morning. At that point, t h ey always had been let go. He asked whether a like course should be followed here as a union election was around 10 a.m., Earl Myers, plant superintendent for the p e an d as Burk et was activenon elftof the ceramic division, entered Johnson's office. Kennedy Upnin1 4Ro an d as Burket was active on behalf of the asked Myers, who, when he was maintenance supervisor, U n; 0 "-' R ow an rep11^d t h at Bu ss co u l d n o t al te r his pro- haskd Me directly with Burket, if he knew wherev c ed u r e j u st b ec au se t h e election was pending. He in- hadu worket ed. diretlyers wit d tatf he knew whenned st r u c t e d , B u s s t o d o ex a c tly w h at h e w o ul d h a v e d o n e if Burket lived. When Myers said that he did, Kennedy there had been no union election. suggested that they take a ride. Kennedy testified that his B r t B a K an discussed - .. , , „ '. r> . > ~~~~Buss returned to Burket and Kennedy and discussed only stated reason to Johnson for going to Burket's discharge. Burket responded that if the Company fired house was that he suspected that Burket was siphoning him he would be very violent and cause a lot of prob- gasoline from the truck. There had been no discussion as lems. However, he agreed to accept permanent layoff. to how long Burket was away from the plant. Accordingly, Burket was permanently laid off. Kennedy and Myers drove to Burket's address in Ken- In support of Kennedy's contention that Burket had nedy's car. As they passed Burket's home, they could see been using extraordinary amounts of fuel in the company him and his wife in the garden. They continued on, stop- truck, the Respondent introduced receipts showing that ping at a small parking area on the corner where they Burket had charged gasoline purchases for the truck as waited for approximately 15 minutes, until 10:45 a.m. follows: April 3-$12.30, April 28-$14.20, April 29-$7, Kennedy then drove from the parking area back to Bur- May 1-$13.80, May 5-$12.80, and May 7-$11.65. 47 ket's house, left the car, approached, and asked Burket The record of an earlier state unemployment compensa- what he was doing. Burket replied that he had stopped tion hearing conerning Burket shows that Kennedy had at home to pick up a drill. Kennedy retorted that the testified that his suspicions had been aroused after Burket drill was not in his garden and that they would talk had purchased $14 worth of gasoline when plant superin- about the matter when Burket got back to the shop. tendent Johnson had filled the truck's tank the same Kennedy and Myers then returned to the plant. morning on the way to work. As the truck had but a 4- When Kennedy arrived at the plant, he called Hawk cylinder engine, large gasoline purchases would not ordi- into his office and asked if he knew where Burket had narily appear to be warranted."' gone. Hawk had replied that Burket had to go to the hardware Store at Coatesville and to his house to pick up " Rowan testified that when Buss had called him earlier, before his an electric drill. In response to Kennedy's inquiry, Hawk May 8 meeting with employees, he told Rowan about the Union's cam- told him that Burket had left the plant between 9:30 and paig"n stating th a t warehouseman Jim Cook was greatly over qualified 10 am. „for his job, that he felt that Cook was there as a union organizer, and that 10 a.m. Burket, too, was a union instigator. At or about that time, Burket arrived. Kennedy told "The May 7 purchase Included $2.50 for oil. Burket that they would go together to Buss' Office and '" Th e transcript of the state unemployment compensation hearing indi- let Buss judge where they would go from there. 45 cated certain mild inc onsist encies in the testimo ny of bot h Kennedy and Burket from that given during the hearing in this matter. In this proceed- ing, as noted, Kennedy testified thst he had driven to Burket's home on "1 Johnson was responsible for the Company's vehicles. the morning of May 12 following a conversation with Johnson where she " The truck used by Burket had a 4-cylinder engine. had called to Kennedy's attention the quantity of gasoline purchases 4 1 Others, including Johnson and maintenance man Ed LaMarche, also charged to the Respondent by Burket. At the state hearing, Kennedy, in were authorized to use this truck. LaMarche had fueled the truck twice explaining his trip to Burket's home, did not refer to such a conversation in March and on two occasions in April. Johnson, who uses the truck on with Johnson. Instead, he related only his independent suspicions raised a regular basis, filled the gas tank four times in April. Kennedy explained by multiple purchases of gas for the truck on the same day and purchas- that Burket had just started using the company truck after Kennedy had ing agent Robins' accepted suggestion of the month before, based on instructed him to do so as Burket had been putting so many miles on his costliness, that Burket no longer be permitted to charge mileage for use own vehicle and that it had become too costly to the Respondent to con- of his own vehicle for errands, but, instead, require that Burket use a tinue its use. Company-owned truck. Burket, in turn, also had testified at the state pro- 4' The following account of Burket's terminal interview is a synthesis ceeding that, while he had been in the garden on May 12 for what of the testimony of Kennedy, Buss, and Rowan. Continued 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD off, due to employee observed gardening at home on Kennedy told Buss that while reviewing gasoline re- company time." Burket's comments in the space on the ceipts that morning he had found that a higher amount form reserved for the employee was, "I do not accept of gasoline was being charged to the company pickup supervisor's final remarks as true. They are not com- truck. Suspecting that Burket might be siphoning gas, he plete." and Myers had driven to Burket's house and had found The Respondent contends that Burket was disciplined him hoeing in his garden. Kennedy related that they had on May 12 for abusing company time by gardening at his waited exactly 15 minutes, had made themselves known home while being paid. to Burket, and had come back to the plant. Kennedy Kennedy testified that while in the office of Joann stated that he now was there with Burket who was being Johnson, plant superintendent of the oil-filled division,4 2 paid for the time at issue. on the morning of May 12, she showed him gasoline pur- Wh e n Buss asked Burket if this was true and why, chase slips signed by Burket on five different days be- Burket agreed that it was and that he had made a mis- tween April 28 and May 7, asking him whether this did take. not show that an awful lot of gas was being charged to A f t e r s o m e discussion, Buss went to another office and the truck 43 during that period." 4 Kennedy responded that c a ll ed Rowan. After telling Rowan what had happened, he wanted to check this out and to know when Burket Buss stated that, in the past, whenever employees had next went on a trip. Johnson replied that Burket already le f t t h e plant without authorization while on the clock, was out on an errand that morning. At that point, t h ey always had been let go. He asked whether a like course should be followed here as a union election was around 10 a.m., Earl Myers, plant superintendent for the p e an d as Burk et was activenon elftof the ceramic division, entered Johnson's office. Kennedy Upnin1 4Ro an d as Burket was active on behalf of the asked Myers, who, when he was maintenance supervisor, U n; 0 "-' R ow an rep11^d t h at Bu ss co u l d n o t al te r his pro- haskd Me directly with Burket, if he knew wherev c ed u r e j u st b ec au se t h e election was pending. He in- hadu worket ed. diretlyers wit d tatf he knew whenned st r u c t e d , B u s s t o d o ex a c tly w h at h e w o ul d h a v e d o n e if Burket lived. When Myers said that he did, Kennedy there had been no union election. suggested that they take a ride. Kennedy testified that his B r t B a K an discussed - .. , , „ '. r> . > ~~~~Buss returned to Burket and Kennedy and discussed only stated reason to Johnson for going to Burket's discharge. Burket responded that if the Company fired house was that he suspected that Burket was siphoning him he would be very violent and cause a lot of prob- gasoline from the truck. There had been no discussion as lems. However, he agreed to accept permanent layoff. to how long Burket was away from the plant. Accordingly, Burket was permanently laid off. Kennedy and Myers drove to Burket's address in Ken- In support of Kennedy's contention that Burket had nedy's car. As they passed Burket's home, they could see been using extraordinary amounts of fuel in the company him and his wife in the garden. They continued on, stop- truck, the Respondent introduced receipts showing that ping at a small parking area on the corner where they Burket had charged gasoline purchases for the truck as waited for approximately 15 minutes, until 10:45 a.m. follows: April 3-$12.30, April 28-$14.20, April 29-$7, Kennedy then drove from the parking area back to Bur- May 1-$13.80, May 5-$12.80, and May 7-$11.65. 47 ket's house, left the car, approached, and asked Burket The record of an earlier state unemployment compensa- what he was doing. Burket replied that he had stopped tion hearing conerning Burket shows that Kennedy had at home to pick up a drill. Kennedy retorted that the testified that his suspicions had been aroused after Burket drill was not in his garden and that they would talk had purchased $14 worth of gasoline when plant superin- about the matter when Burket got back to the shop. tendent Johnson had filled the truck's tank the same Kennedy and Myers then returned to the plant. morning on the way to work. As the truck had but a 4- When Kennedy arrived at the plant, he called Hawk cylinder engine, large gasoline purchases would not ordi- into his office and asked if he knew where Burket had narily appear to be warranted."' gone. Hawk had replied that Burket had to go to the hardware Store at Coatesville and to his house to pick up " Rowan testified that when Buss had called him earlier, before his an electric drill. In response to Kennedy's inquiry, Hawk May 8 meeting with employees, he told Rowan about the Union's cam- told him that Burket had left the plant between 9:30 and paig"n stating th a t warehouseman Jim Cook was greatly over qualified 10 am. „for his job, that he felt that Cook was there as a union organizer, and that 10 a.m. Burket, too, was a union instigator. At or about that time, Burket arrived. Kennedy told "The May 7 purchase Included $2.50 for oil. Burket that they would go together to Buss' Office and '" Th e transcript of the state unemployment compensation hearing indi- let Buss judge where they would go from there. 45 cated certain mild inc onsist encies in the testimo ny of bot h Kennedy and Burket from that given during the hearing in this matter. In this proceed- ing, as noted, Kennedy testified thst he had driven to Burket's home on "1 Johnson was responsible for the Company's vehicles. the morning of May 12 following a conversation with Johnson where she " The truck used by Burket had a 4-cylinder engine. had called to Kennedy's attention the quantity of gasoline purchases 4 1 Others, including Johnson and maintenance man Ed LaMarche, also charged to the Respondent by Burket. At the state hearing, Kennedy, in were authorized to use this truck. LaMarche had fueled the truck twice explaining his trip to Burket's home, did not refer to such a conversation in March and on two occasions in April. Johnson, who uses the truck on with Johnson. Instead, he related only his independent suspicions raised a regular basis, filled the gas tank four times in April. Kennedy explained by multiple purchases of gas for the truck on the same day and purchas- that Burket had just started using the company truck after Kennedy had ing agent Robins' accepted suggestion of the month before, based on instructed him to do so as Burket had been putting so many miles on his costliness, that Burket no longer be permitted to charge mileage for use own vehicle and that it had become too costly to the Respondent to con- of his own vehicle for errands, but, instead, require that Burket use a tinue its use. Company-owned truck. Burket, in turn, also had testified at the state pro- 4' The following account of Burket's terminal interview is a synthesis ceeding that, while he had been in the garden on May 12 for what of the testimony of Kennedy, Buss, and Rowan. Continued HIGH ENERGY CORPORATION 759 The Respondent further contends that it was aware for two offenses, a 3-to 5-day disciplinary layoff for a third some while that Burket was not effectively utilizing his offense, and discharge for the fourth offense occurring worktime. Buss testified that in late March, Duane within a 1-year period of time. It also is provided that Jenson, a consultant responsible for the design of the oil employees who engage in personal work of any nature system Burket was building, expressed concern that its without authorization shall receive a written warning for construction was taking too long. Jenson told Buss that it the first offense, a 5- to 10-day disciplinary layoff for the seemed as though Burket was gone half the time getting second offense, and discharge for a third offense. Em- parts and that the job would never be completed if ployees are subject to immediate discharge for, among Burket did not "shape up." Although Buss had hoped other things, knowingly punching, or removing, another that the project would be completed by the end of employee's timecard or permitting it to be done by an- March, he neither spoke to Burket nor discussed Burket's other. trips from the plant with other members of the supervi- The Respondent argues, however, that it consistently sion. has followed a policy of immediately terminating em- Earlier, in December 1979, Plant Superintendent ployees without prior warning for improperly taking Myers, while driving past Burket's home during working paid time away from the plant while not performing hours, had seen Burket's car parked by his house, but did their duties. Gary Greiser 49 testified that on Saturday, not see him. January 15, 1979, while manager of the Respondent's Myers testified that about 2 weeks after the foregoing Malvern plant, he discharged Allen Linderman, em- incident, when he looked for Burket in the plant, he ployed there in the assembly area, when he found Lin- learned that Burket had been gone for over 2 hours. derman's timecard in the rack showing him to be at Myers thereupon drove to Burket's home, but, after work on overtime premium pay, 50 but when, in fact, he having traveled about 1-1/2 miles, Myers, seeing Burket had gone home 2 hours before. Linderman had not re- driving by him en route back to the plant, around and ceived prior warning before discharge. On Linderman's also returned. On that occasion, Myers had seen Burket termination notice, Greiser noted the following final re- depart at around 8:30 a.m. and did not go out after him marks, "Employee caught cheating on timeclock." 5 ' until around 11 a.m. Buss testified that employee James McWilliams was Myers did not report the first incident, when he had terminated when Buss was unable to find him in the seen Burket's car parked at home during working hours, plant during working hours in October 1978, following a to Kennedy until 3 or 4 months later, after the occur- search. The next day, Buss, without providing prior rence of several other incidents, when he also had been warning, terminated McWilliams. The reasons for dis- unable to find Burket in the plant. On the day he went charge given on McWilliams' termination notice were out after Burket, only to follow him back to the plant, he "Employee left work before quitting time without per- had asked Burket where he had been. Burket replied that mission and had another employee clock out his timecard he had gone to a certain supplier for parts. When Myers which is against rules and regulations of company reported this incident to Kennedy, Kennedy merely reported this incident to Kennedy, Kennedy merely policy." Employee Stephen Bodnar, Jr., also was concur- agreed that Burket had taken a long time for the trip. rently terminated withot havng receed prior warnin Although before becoming a plant superintendent in for having punche o u t McWilliam' card October 1979, Myers had noticed that Burket, who then for out McWilliams card. reported to him in maintenance, had been gone from the 2. Discussion and conclusions plant for long periods on about three or four occasions, he mentioned only one such instance to Kennedy. John Analyzing the above evidence under Wright Line, a Hawk, Myers' successor as maintenance supervisor, did Division of Wright Line, Inc.,5 2 I find that the General not call Myers' attention to any subsequent prolonged Counsel made a prima facie showing that Burket's pro- absences by Burket from the plant. In any event, it is un- tected activities were a motivating factor in the Re- disputed that before May 12 nothing was said to Burket spondent's decision to lay him off permanently. The Re- by the Respondent's management or supervision con- spondent's president, Buss, who finally made the decision cerning time he was spending away from the plant to discipline Burket, admitted that he knew at the time of during work hours. Burket was never disciplined nor his layoff that Burket was one of the main organizers for the work criticized. Union. About 6 days before, management trainee Kuk- The Respondent's published "Rules and Regulations of lewski had told Burket several times during a conversa- Personal Conduct," issued January 1, provide progres- tion that if the Union came in the plant would be closed, sive discipline for various work rule infractions. Accord- and had encouraged and offered assistance for the forma- ingly, the rules establish, in relevant part, that employees tion of a company union. Earlier, on April 7, when Ken- who frequently are absent from work without proper au- nedy, during his meeting with employees, also had men- thorization or reasonable cause (three times in a 30-day period), who habitually fail to punch their timecards, Greiser, currently the Respondent's design engineer, had held a vari- who are absent without authorization from their regular ety of positions with the Respondent since May 1973. From October work station, or who "loaf" on the job-in washrooms 1974 through August 1979, he served as plant manager of the Respond- ent's Malvern. Pennsylvania, plant, heading the oil-filled division. or elsewhere-are subject to a written notice for the first s0 According to Greiser, Linderman had been putting in much over- time. seemed to him to have been 5 minutes, he had not checked the time. He On cross-examination, Greiser conceded that Linderman subsequent- generally appeared less certain as to how long he had been in the garden ly was rehired by the Respondent. than his testimony in the present matter would indicate. 5251 NLRB 1083 (1980). Jen~~~~~~~~~~~~~~~~~s:n a5 cNsulRB resonsbl fo0h9eig8fteoi0mlyeswoeggei)esnaokoayntr HIGH ENERGY CORPORATION 759 The Respondent further contends that it was aware for two offenses, a 3-to 5-day disciplinary layoff for a third some while that Burket was not effectively utilizing his offense, and discharge for the fourth offense occurring worktime. Buss testified that in late March, Duane within a 1-year period of time. It also is provided that Jenson, a consultant responsible for the design of the oil employees who engage in personal work of any nature system Burket was building, expressed concern that its without authorization shall receive a written warning for construction was taking too long. Jenson told Buss that it the first offense, a 5- to 10-day disciplinary layoff for the seemed as though Burket was gone half the time getting second offense, and discharge for a third offense. Em- parts and that the job would never be completed if ployees are subject to immediate discharge for, among Burket did not "shape up." Although Buss had hoped other things, knowingly punching, or removing, another that the project would be completed by the end of employee's timecard or permitting it to be done by an- March, he neither spoke to Burket nor discussed Burket's other. trips from the plant with other members of the supervi- The Respondent argues, however, that it consistently sio n . has followed a policy of immediately terminating em- Earlier, in December 1979, Plant Superintendent ployees without prior warning for improperly taking Myers, while driving past Burket's home during working paid time away from the plant while not performing hours, had seen Burket's car parked by his house, but did their duties. Gary Greiser 49 testified that on Saturday, not see him. January 15, 1979, while manager of the Respondent's Myers testified that about 2 weeks after the foregoing Malvern plant, he discharged Alien Linderman, em- incident, when he looked for Burket in the plant, he ployed there in the assembly area, when he found Lin- learned that Burket had been gone for over 2 hours. derman's timecard in the rack showing him to be at Myers thereupon drove to Burket's home, but, after work on overtime premium pay, 50 but when, in fact, he having traveled about 1-1/2 miles, Myers, seeing Burket had gone home 2 hours before. Linderman had not re- driving by him en route back to the plant, around and ceived prior warning before discharge. On Linderman's also returned. On that occasion, Myers had seen Burket termination notice, Greiser noted the following final re- depart at around 8:30 a.m. and did not go out after him marks, "Employee caught cheating on timeclock.""l until around 11 a.m.^Buss testified that employee James McWilliams was Myers did not report the first incident, when he had terminated when Buss was unable to find him in the seen Burket's car parked at home during working hours, plant during working hours in October 1978, following a to Kennedy until 3 or 4 months later, after the occur- search. The next day, Buss, without providing prior rence of several other incidents, when he also had been w , terminated McWilliams. The reasons for dis- unable to find Burket in the plant. On the day he went charge given on McWilliams' termination notice were, out after Burket. only to follow him back to the plant, he "Employee left work before quitting time without per- had asked Burket where he had been. Burket replied that m employee clock out his timecard he had gone to a certain supplier for parts. When Myers which is against rules and regulations of company reported this incident to Kennedy, Kennedy merely r ,c i 0 1 01 repoted his ncidnt t KenedyKenndy mrely policy." Employee Stephen Bodnar, Jr., also was concur- agreed that Burket had taken a long time for the trip. Prentl trne witou hav ng re pri o w a rn ing Although before becoming a plant superintendent in fo h i n gu ed o utM ias r d. October 1979, Myers had noticed that Burket, who then f o r ^"^ ^ w c ^ o u t McWilliams card. reported to him in maintenance, had been gone from the 2. Discussion and conclusions plant for long periods on about three or four occasions, he mentioned only one such instance to Kennedy. John Analyzing the above evidence under Wright Line, a Hawk, Myers' successor as maintenance supervisor, did Division of Wright Line, Inc.," I find that the General not call Myers' attention to any subsequent prolonged Counsel made a prima facie showing that Burket's pro- absences by Burket from the plant. In any event, it is un- tected activities were a motivating factor in the Re- disputed that before May 12 nothing was said to Burket spondent's decision to lay him off permanently. The Re- by the Respondent's management or supervision con- spondent's president, Buss, who finally made the decision cerning time he was spending away from the plant to discipline Burket, admitted that he knew at the time of during work hours. Burket was never disciplined nor his layoff that Burket was one of the main organizers for the work criticized. Union. About 6 days before, management trainee Kuk- The Respondent's published "Rules and Regulations of lewski had told Burket several times during a conversa- Personal Conduct," issued January 1, provide progres- tion that if the Union came in the plant would be closed, sive discipline for various work rule infractions. Accord- and had encouraged and offered assistance for the forma- ingly, the rules establish, in relevant part, that employees tion of a company union. Earlier, on April 7, when Ken- who frequently are absent from work without proper au- nedy, during his meeting with employees, also had men- thorization or reasonable cause (three times in a 30-day period), who habitually fail to punch their timecards, Oreiser, currently the Respondent's design engineer, had held a vari- who are absent without authorization from their regular cty of positions with the Respondent since May 1973. From October work station, or who "loafr on the job-in washrooms 19 74 thr ough August 1979, he served as plant manager of the Respond- ent's Malvern. Pennsylvania, plant, heading the oil-filled division. or elsewhere-are subject to a written notice for the first According to Greiser, Linderman had been putting in much over- time. seemed to him to have been 5 minutes, he had not checked the time. He "1 On cross-examination, Greiser conceded that Linderman subsequent- generally appeared less certain as to how long he had been in the garden ly was rehired by the Respondent. than his testimony in the present matter would indicate. 52251 NLRB 1083 (1980). HIGH ENERGY CORPORATION 759 The Respondent further contends that it was aware for two offenses, a 3-to 5-day disciplinary layoff for a third some while that Burket was not effectively utilizing his offense, and discharge for the fourth offense occurring worktime. Buss testified that in late March, Duane within a 1-year period of time. It also is provided that Jenson, a consultant responsible for the design of the oil employees who engage in personal work of any nature system Burket was building, expressed concern that its without authorization shall receive a written warning for construction was taking too long. Jenson told Buss that it the first offense, a 5- to 10-day disciplinary layoff for the seemed as though Burket was gone half the time getting second offense, and discharge for a third offense. Em- parts and that the job would never be completed if ployees are subject to immediate discharge for, among Burket did not "shape up." Although Buss had hoped other things, knowingly punching, or removing, another that the project would be completed by the end of employee's timecard or permitting it to be done by an- March, he neither spoke to Burket nor discussed Burket's other. trips from the plant with other members of the supervi- The Respondent argues, however, that it consistently sio n . has followed a policy of immediately terminating em- Earlier, in December 1979, Plant Superintendent ployees without prior warning for improperly taking Myers, while driving past Burket's home during working paid time away from the plant while not performing hours, had seen Burket's car parked by his house, but did their duties. Gary Greiser 49 testified that on Saturday, not see him. January 15, 1979, while manager of the Respondent's Myers testified that about 2 weeks after the foregoing Malvern plant, he discharged Alien Linderman, em- incident, when he looked for Burket in the plant, he ployed there in the assembly area, when he found Lin- learned that Burket had been gone for over 2 hours. derman's timecard in the rack showing him to be at Myers thereupon drove to Burket's home, but, after work on overtime premium pay, 50 but when, in fact, he having traveled about 1-1/2 miles, Myers, seeing Burket had gone home 2 hours before. Linderman had not re- driving by him en route back to the plant, around and ceived prior warning before discharge. On Linderman's also returned. On that occasion, Myers had seen Burket termination notice, Greiser noted the following final re- depart at around 8:30 a.m. and did not go out after him marks, "Employee caught cheating on timeclock.""l until around 11 a.m.^Buss testified that employee James McWilliams was Myers did not report the first incident, when he had terminated when Buss was unable to find him in the seen Burket's car parked at home during working hours, plant during working hours in October 1978, following a to Kennedy until 3 or 4 months later, after the occur- search. The next day, Buss, without providing prior rence of several other incidents, when he also had been w , terminated McWilliams. The reasons for dis- unable to find Burket in the plant. On the day he went charge given on McWilliams' termination notice were, out after Burket. only to follow him back to the plant, he "Employee left work before quitting time without per- had asked Burket where he had been. Burket replied that m employee clock out his timecard he had gone to a certain supplier for parts. When Myers which is against rules and regulations of company reported this incident to Kennedy, Kennedy merely r ,c i 0 1 01 repoted his ncidnt t KenedyKenndy mrely policy." Employee Stephen Bodnar, Jr., also was concur- agreed that Burket had taken a long time for the trip. Prentl trne witou hav ng re pri o w a rn ing Although before becoming a plant superintendent in fo h i n gu ed o utM ias r d. October 1979, Myers had noticed that Burket, who then f o r ^"^ ^ w c ^ o u t McWilliams card. reported to him in maintenance, had been gone from the 2. Discussion and conclusions plant for long periods on about three or four occasions, he mentioned only one such instance to Kennedy. John Analyzing the above evidence under Wright Line, a Hawk, Myers' successor as maintenance supervisor, did Division of Wright Line, Inc.," I find that the General not call Myers' attention to any subsequent prolonged Counsel made a prima facie showing that Burket's pro- absences by Burket from the plant. In any event, it is un- tected activities were a motivating factor in the Re- disputed that before May 12 nothing was said to Burket spondent's decision to lay him off permanently. The Re- by the Respondent's management or supervision con- spondent's president, Buss, who finally made the decision cerning time he was spending away from the plant to discipline Burket, admitted that he knew at the time of during work hours. Burket was never disciplined nor his layoff that Burket was one of the main organizers for the work criticized. Union. About 6 days before, management trainee Kuk- The Respondent's published "Rules and Regulations of lewski had told Burket several times during a conversa- Personal Conduct," issued January 1, provide progres- tion that if the Union came in the plant would be closed, sive discipline for various work rule infractions. Accord- and had encouraged and offered assistance for the forma- ingly, the rules establish, in relevant part, that employees tion of a company union. Earlier, on April 7, when Ken- who frequently are absent from work without proper au- nedy, during his meeting with employees, also had men- thorization or reasonable cause (three times in a 30-day period), who habitually fail to punch their timecards, Oreiser, currently the Respondent's design engineer, had held a vari- who are absent without authorization from their regular cty of positions with the Respondent since May 1973. From October work station, or who "loafr on the job-in washrooms 19 74 thr ough August 1979, he served as plant manager of the Respond- ent's Malvern. Pennsylvania, plant, heading the oil-filled division. or elsewhere-are subject to a written notice for the first According to Greiser, Linderman had been putting in much over- time. seemed to him to have been 5 minutes, he had not checked the time. He "1 On cross-examination, Greiser conceded that Linderman subsequent- generally appeared less certain as to how long he had been in the garden ly was rehired by the Respondent. than his testimony in the present matter would indicate. 52251 NLRB 1083 (1980). HIGH ENERGY CORPORATION 759 The Respondent further contends that it was aware for two offenses, a 3-to 5-day disciplinary layoff for a third some while that Burket was not effectively utilizing his offense, and discharge for the fourth offense occurring worktime. Buss testified that in late March, Duane within a 1-year period of time. It also is provided that Jenson, a consultant responsible for the design of the oil employees who engage in personal work of any nature system Burket was building, expressed concern that its without authorization shall receive a written warning for construction was taking too long. Jenson told Buss that it the first offense, a 5- to 10-day disciplinary layoff for the seemed as though Burket was gone half the time getting second offense, and discharge for a third offense. Em- parts and that the job would never be completed if ployees are subject to immediate discharge for, among Burket did not "shape up." Although Buss had hoped other things, knowingly punching, or removing, another that the project would be completed by the end of employee's timecard or permitting it to be done by an- March, he neither spoke to Burket nor discussed Burket's other. trips from the plant with other members of the supervi- The Respondent argues, however, that it consistently sio n . has followed a policy of immediately terminating em- Earlier, in December 1979, Plant Superintendent ployees without prior warning for improperly taking Myers, while driving past Burket's home during working paid time away from the plant while not performing hours, had seen Burket's car parked by his house, but did their duties. Gary Greiser 49 testified that on Saturday, not see him. January 15, 1979, while manager of the Respondent's Myers testified that about 2 weeks after the foregoing Malvern plant, he discharged Alien Linderman, em- incident, when he looked for Burket in the plant, he ployed there in the assembly area, when he found Lin- learned that Burket had been gone for over 2 hours. derman's timecard in the rack showing him to be at Myers thereupon drove to Burket's home, but, after work on overtime premium pay, 50 but when, in fact, he having traveled about 1-1/2 miles, Myers, seeing Burket had gone home 2 hours before. Linderman had not re- driving by him en route back to the plant, around and ceived prior warning before discharge. On Linderman's also returned. On that occasion, Myers had seen Burket termination notice, Greiser noted the following final re- depart at around 8:30 a.m. and did not go out after him marks, "Employee caught cheating on timeclock.""l until around 11 a.m.^Buss testified that employee James McWilliams was Myers did not report the first incident, when he had terminated when Buss was unable to find him in the seen Burket's car parked at home during working hours, plant during working hours in October 1978, following a to Kennedy until 3 or 4 months later, after the occur- search. The next day, Buss, without providing prior rence of several other incidents, when he also had been w , terminated McWilliams. The reasons for dis- unable to find Burket in the plant. On the day he went charge given on McWilliams' termination notice were, out after Burket. only to follow him back to the plant, he "Employee left work before quitting time without per- had asked Burket where he had been. Burket replied that m employee clock out his timecard he had gone to a certain supplier for parts. When Myers which is against rules and regulations of company reported this incident to Kennedy, Kennedy merely r ,c i 0 1 01 repoted his ncidnt t KenedyKenndy mrely policy." Employee Stephen Bodnar, Jr., also was concur- agreed that Burket had taken a long time for the trip. Prentl trne witou hav ng re pri o w a rn ing Although before becoming a plant superintendent in fo h i n gu ed o utM ias r d. October 1979, Myers had noticed that Burket, who then f o r ^"^ ^ w c ^ o u t McWilliams card. reported to him in maintenance, had been gone from the 2. Discussion and conclusions plant for long periods on about three or four occasions, he mentioned only one such instance to Kennedy. John Analyzing the above evidence under Wright Line, a Hawk, Myers' successor as maintenance supervisor, did Division of Wright Line, Inc.," I find that the General not call Myers' attention to any subsequent prolonged Counsel made a prima facie showing that Burket's pro- absences by Burket from the plant. In any event, it is un- tected activities were a motivating factor in the Re- disputed that before May 12 nothing was said to Burket spondent's decision to lay him off permanently. The Re- by the Respondent's management or supervision con- spondent's president, Buss, who finally made the decision cerning time he was spending away from the plant to discipline Burket, admitted that he knew at the time of during work hours. Burket was never disciplined nor his layoff that Burket was one of the main organizers for the work criticized. Union. About 6 days before, management trainee Kuk- The Respondent's published "Rules and Regulations of lewski had told Burket several times during a conversa- Personal Conduct," issued January 1, provide progres- tion that if the Union came in the plant would be closed, sive discipline for various work rule infractions. Accord- and had encouraged and offered assistance for the forma- ingly, the rules establish, in relevant part, that employees tion of a company union. Earlier, on April 7, when Ken- who frequently are absent from work without proper au- nedy, during his meeting with employees, also had men- thorization or reasonable cause (three times in a 30-day period), who habitually fail to punch their timecards, Oreiser, currently the Respondent's design engineer, had held a vari- who are absent without authorization from their regular cty of positions with the Respondent since May 1973. From October work station, or who "loafr on the job-in washrooms 19 74 thr ough August 1979, he served as plant manager of the Respond- ent's Malvern. Pennsylvania, plant, heading the oil-filled division. or elsewhere-are subject to a written notice for the first According to Greiser, Linderman had been putting in much over- time. seemed to him to have been 5 minutes, he had not checked the time. He "1 On cross-examination, Greiser conceded that Linderman subsequent- generally appeared less certain as to how long he had been in the garden ly was rehired by the Respondent. than his testimony in the present matter would indicate. 52251 NLRB 1083 (1980). 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aced them with the prospect of plant closure and for This evidence submitted by the General Counsel and more stringent work rules if they selected the Union, he Union effectively shifted the burden to the Respondent was confronted by Burket, who accused him of making a to show that it would have permanently laid off Burket threat.53 It also is noted that Burket's services to the Re- even in the absence of his protected activities. The Re- spondent were valuable as he was the only employee in- spondent's contention that it disciplined Burket because volved in the skilled work of building the Respondent's he attended to personal business away from the plant geconol system, the quality of his work was satisfactory, while "on the clock," therefore stealing company time, is and his summary layoff without prior warning or repri- countered by the tolerance it previously has shown in mand, timed but 4 days before the representation elec- this regard. Buss had received reports from Jenson in tion, for the reasons stated, contravened the Respond- late March that Burket was taking too much time to ent's published policy of progressive discipline where build the geconol system, while, from Myers, Kennedy discharge is rendered only after a series of lesser penal- had known for months that Burket had been taking too ties. 54 Contrary to the Respondent, no clear policy has long to run errands. However, as noted, Burket was been followed of terminating employees for leaving never cautioned about these practices. work without punching their timecards and instances of Noting that the Respondent recognized Burket as a prior discharge on these grounds cited by the Respond- principal union its hostility to the Union ex- principal union activist; its hostility to the Union ex- ent are distinguishable. Although Linderman, who had atvs ent are distinguishable. Although Linderman, who had pressed through the various acts found unlawful herein, been drawing much suspicious overtime at premium pay, soe hh wee direct at u t the tiin f hi initially was terminated without prior warning for leav- some of which were day reted at Burket; the timing of h ing the plant without punching out while again on over- discipline but 4 days before the election in the context of ing the plant without punching out while again on over- previous toleration of his prolonged errands that under time, his subsequent rehire illustrates that such an infrac- preius toleration of hs prolonged errands; that under tion is not a final determinant for employability with the the circumstances ivolved, the permanent layoff afford- Respondent. 55 Also, McWilliams' earlier discharge differs ed, without prior warning, did not conform to the Re- in circumstance from that of Burket as his termination spondent's published system of progressive discipline; notice affirms that he was let go not only for having left and Burket's usefulness to the Respondent as a skilled work before quitting time without permission, but also maintenance employee principally assigned to building because he had breached company rules by having the geconol system, show that such discipline as might Bodnar clock out his timecard. Accordingly, McWil- have been afforded because of the garden incident would liams' offense was multiple because, in addition to absent- not, without prior warning, have resulted in loss of em- ing himself, he also had induced another employee to ployment."5 wrongfully punch his card-which at the time warranted In view of the foregoing, I conclude that the Respond- the summary termination afforded Bodnar. 5 6 McWil- ent has failed to show that the same action would have liams' inducement of another employee to engage in an taken place in the absence of Burket's protected activi- offense calling for summary discharge involved consider- ties. I, therefore, find that his permanent layoff was in ations not present with respect to Burket. violation of Section 8(a)(3) and (1) of the Act. 58 The Respondent's other activities in violation of Sec- tion 8(a)(l), particularly Kennedy's statement to Jelke, also in May, that if a union came in the employees could probably lose existing benefits and be relegated to only " Contrary to the Respondent, even the gasoline purchase slips one raise a year, Phiambolis' coercive interrogation of charged by Burket to the Company, and asserted by Kennedy as the Jelke, and the unlawful solicitation of grievances by both reason for his trip to Burket's home on May 12, do not provide a consist- ent, proximate cause for his going there on that date. Burket's last fuel implementation of the suggestion box and Kennedy's in- purchase was on May 7, 1 week before layoff. While Kennedy, at the vitation to employees to bring their problems to him fur- state unemployment compensation hearing, had taken particular excep- ther indicate the Respondent's hostility toward the tion to a $14 charge by Burket, the last slip approximating that amount Union's campaign. was dated May i, almost 2 weeks before layoff. Burket made two gas U~n ion'~ !~s> ~ camLpa i~gns.~ purchases after that. As noted, in his testimony at the earlier state hearing as to reasons for going to Burket's home on May 12, Kennedy made no " Threats to close the plant if the Union was designated also were reference to a current reminder from Johnson concerning these slips and made to other employees by management trainee Phiambolis. It had been had never asked Burket to account for expenditures deemed unusual. found above that these threats were not effectively retracted by Rowan 5" Pork King Company. Inc., 252 NLRB 99 (1980), cited by the Re- during his May 8 meeting with employees. spondent, is not applicable. There, a shop steward, active in processing "' The work rules breached by Burket which appear most applicable grievances, was discharged after he had left the ignition key in his truck on their face are those prohibiting unauthorized absenteeism by employ- while he went into an off-track betting office. This was learned by a su- ees from their work stations, idling on the job and engaging in personal pervisor who, on the stated concern that the steward had been taking too work of any nature without authorization. All of these infractions are in- long to make deliveries, followed the steward on his truck route. The eluded under the progressive discipline policy and, in such instances, first Board majority found that the steward had been lawfully terminated for offenses do not lead to summary discharge. exposing the respondent's truck and its freight to theft. In fact, the truck " Burket's impropriety was less severe than Linderman's as Burket was had been driven back to the employer's premises while the steward was on straight time when found in his garden. still inside the betting office. In the present matter, Burket's infraction of " When McWilliams and Bodnar were discharged in October 1978, the working in his garden, while hardly to be condoned, afforded far less po- Respondent's published "Rules and Regulations of Personal Conduct" tential for employer loss than did the steward in Pork King, who had provided for immediate discharge for employees who knowingly placed a truck and its cargo at hazard. The most significant difference, punched or removed the timecards of other employees. Following the however, is that here, unlike Pork King, where a bargaining relationship McWilliams-Bodnar incident, this rule was broadened to subject any em- was established, Burket's separation occurred close to the time of a repre- ployee to immediate discharge who knowingly punched or removed an- sentation election in the context of numerous unlawful acts by the Em- other employee's timecard or permitted it to be done by another. ployer intended to discourage union activity and to defeat the Union. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aced them with the prospect of plant closure and for This evidence submitted by the General Counsel and more stringent work rules if they selected the Union, he Union effectively shifted the burden to the Respondent was confronted by Burket, who accused him of making a to show that it would have permanently laid off Burket threat. 53 It also is noted that Burket's services to the Re- even in the absence of his protected activities. The Re- spondent were valuable as he was the only employee in- spondent's contention that it disciplined Burket because volved in the skilled work of building the Respondent's he attended to personal business away from the plant geconol system, the quality of his work was satisfactory, while "on the clock," therefore stealing company time, is and his summary layoff without prior warning or repri- countered by the tolerance it previously has shown in mand, timed but 4 days before the representation elec- this regard. Buss had received reports from Jenson in tion, for the reasons stated, contravened the Respond- late March that Burket was taking too much time to ent's published policy of progressive discipline where build the geconol system, while, from Myers, Kennedy discharge is rendered only after a series of lesser penal- had known for months that Burket had been taking too ties. 54 Contrary to the Respondent, no clear policy has long to run errands. However, as noted, Burket was been followed of terminating employees for leaving never cautioned about these practices. work without punching their timecards and instances of Noting that the Respondent recognized Burket as a prior discharge on these grounds cited by the Respond- p u a it h to t Union ex- * ,. ..- . , „ .- „ 1.T..1 i~i..principal union activist; its hostility to the Union ex- ent are distinguishable. Although Linderman, who had,, ,. r i i * ent are distinguishable. Although Linderman, who had pressed through the various acts found unlawful herein, been drawing much suspicious overtime at premium pay, s whic were d a B k t in f initially was terminated without prior warning for leav- d so m e o f w hb c h w er e dabfcted at Burket; the timing of his ing the plant without punching out while again on over- 'p1'" 6 b u t 4 d^- b ef o re t h e e le ct t o n on t h e context of time, his subsequent rehire illustrates that such an infrac- tpheir m toleration of hls prolonged errands; that under tion is not a final determinant for employability with the t h e circumstances involved, the permanent layoff afford- Respondent. 55 Also, McWilliams' earlier discharge differs ed , without prior warning, did not conform to the Re- in circumstance from that of Burket as his termination spondent's published system of progressive discipline; notice affirms that he was let go not only for having left a n d Burket's usefulness to the Respondent as a skilled work before quitting time without permission, but also maintenance employee principally assigned to building because he had breached company rules by having the geconol system, show that such discipline as might Bodnar clock out his timecard. Accordingly, McWil- h a v e been afforded because of the garden incident would liams' offense was multiple because, in addition to absent- not, without prior warning, have resulted in loss of em- ing himself, he also had induced another employee to ployment." wrongfully punch his card-which at the time warranted In view of the foregoing, I conclude that the Respond- the summary termination afforded Bodnar. 56 McWil- ent has failed to show that the same action would have liams' inducement of another employee to engage in an taken place in the absence of Burket's protected activi- offense calling for summary discharge involved consider- ties. I, therefore, find that his permanent layoff was in ations not present with respect to Burket. violation of Section 8(a)(3) and (1) of the Act. 58 The Respondent's other activities in violation of Sec- tion 8(a)(l), particularly Kennedy's statement to Jelke, also in May, that if a union came in the employees could probably lose existing benefits and be relegated to only Contrary to the Respondent, even the gasoline purchase slips one raise a year, Phiambolis' coercive interrogation of charged by Burket to the Company, and asserted by Kennedy as the Jelke, and the unlawful solicitation of grievances by both rea so n fo r his trip to Burket's ho m e o n Ma y 12, d o n ot provide a consist- en t, proximate cause for his going there on that date. Burket's last fuel implementation of the Suggestion box and Kennedy's in- purchase was on May 7, 1 week before layoff. While Kennedy, at the vitation to employees to bring their problems to him fur- state unemployment compensation hearing, had taken particular exccp- ther indicate the Respondent's hostility toward the tio n to a $14 charge by Burket, the last slip approximating that amount Uninn's ramnaicrn. w as da te d May 1, almost 2 weeks before layoff. Burket made two gas Uni ion's camdpaign. purchases after that. As noted, in his testimony at the earlier state hearing as to reasons for going to Burket's home on May 12, Kennedy made no " Threats to close the plant if the Union was designated also were reference to a current reminder from Johnson concerning these slips and made to other employees by management trainee Phiambolis. It had been had never asked Burket to account for expenditures deemed unusual. found above that these threats were not effectively retracted by Rowan 5" Pork King Company. Inc., 252 NLRB 99 (1980), cited by the Re- during his May 8 meeting with employees,.spondent, is not applicable. There, a shop steward, active in processing M1 The work rules breached by Burket which appear most applicable grievances, was discharged after he had left the ignition key in his truck on their face are those prohibiting unauthorized absenteeism by employ- while he went into an off-track betting office. This was learned by a su- ees from their work stations, idling on the job and engaging in personal pervisor who, on the stated concern that the steward had been taking too work of any nature without authorization. All of these infractions are in- long to make deliveries, followed the steward on his truck route. The eluded under the progressive discipline policy and, in such instances, first Board majority found that the steward had been lawfully terminated for offenses do not lead to summary discharge. exposing the respondent's truck and its freight to theft. In fact, the truck " Burket's impropriety was less severe than Linderman's as Burket was had been driven back to the employer's premises while the steward was on straight time when found in his garden.still inside the betting office. In the present matter, Burket's infraction of " When McWilliams and Bodnar were discharged in October 1978, the working in his garden, while hardly to be condoned, afforded far less po- Respondent's published "Rules and Regulations of Personal Conduct" tential for employer loss than did the steward in Pork King, who had provided for immediate discharge for employees who knowingly placed a truck and its cargo at hazard. The most significant difference, punched or removed the timecards of other employees. Following the however, is that here, unlike Pork King, where a bargaining relationship McWilliams-Bodnar incident, this rule was broadened to subject any em- was established, Burket's separation occurred close to the time of a repre- ployee to immediate discharge who knowingly punched or removed an- sentation election in the context of numerous unlawful acts by the Em- other employee's timecard or permitted it to be done by another,.ployer intended to discourage union activity and to defeat the Union. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aced them with the prospect of plant closure and for This evidence submitted by the General Counsel and more stringent work rules if they selected the Union, he Union effectively shifted the burden to the Respondent was confronted by Burket, who accused him of making a to show that it would have permanently laid off Burket threat. 53 It also is noted that Burket's services to the Re- even in the absence of his protected activities. The Re- spondent were valuable as he was the only employee in- spondent's contention that it disciplined Burket because volved in the skilled work of building the Respondent's he attended to personal business away from the plant geconol system, the quality of his work was satisfactory, while "on the clock," therefore stealing company time, is and his summary layoff without prior warning or repri- countered by the tolerance it previously has shown in mand, timed but 4 days before the representation elec- this regard. Buss had received reports from Jenson in tion, for the reasons stated, contravened the Respond- late March that Burket was taking too much time to ent's published policy of progressive discipline where build the geconol system, while, from Myers, Kennedy discharge is rendered only after a series of lesser penal- had known for months that Burket had been taking too ties. 54 Contrary to the Respondent, no clear policy has long to run errands. However, as noted, Burket was been followed of terminating employees for leaving never cautioned about these practices. work without punching their timecards and instances of Noting that the Respondent recognized Burket as a prior discharge on these grounds cited by the Respond- p u a it h to t Union ex- * ,. ..- . , „ .- „ 1.T..1 i~i..principal union activist; its hostility to the Union ex- ent are distinguishable. Although Linderman, who had,, ,. r i i * ent are distinguishable. Although Linderman, who had pressed through the various acts found unlawful herein, been drawing much suspicious overtime at premium pay, s whic were d a B k t in f initially was terminated without prior warning for leav- d so m e o f w hb c h w er e dabfcted at Burket; the timing of his ing the plant without punching out while again on over- d^'p 1" 16 b u t 4 d^- b ef o re t h e e le ct t o n on t h e context of time, his subsequent rehire illustrates that such an infrac- tpheir m toleration of hls prolonged errands; that under tion is not a final determinant for employability with the t h e circumstances involved, the permanent layoff afford- Respondent. 55 Also, McWilliams' earlier discharge differs ed , without prior warning, did not conform to the Re- in circumstance from that of Burket as his termination spondent's published system of progressive discipline; notice affirms that he was let go not only for having left a n d Burket's usefulness to the Respondent as a skilled work before quitting time without permission, but also maintenance employee principally assigned to building because he had breached company rules by having the geconol system, show that such discipline as might Bodnar clock out his timecard. Accordingly, McWil- have been afforded because of the garden incident would liams' offense was multiple because, in addition to absent- not, without prior warning, have resulted in loss of em- ing himself, he also had induced another employee to ployment." wrongfully punch his card-which at the time warranted In view of the foregoing, I conclude that the Respond- the summary termination afforded Bodnar. 56 McWil- ent has failed to show that the same action would have liams' inducement of another employee to engage in an taken place in the absence of Burket's protected activi- offense calling for summary discharge involved consider- ties. I, therefore, find that his permanent layoff was in ations not present with respect to Burket. violation of Section 8(a)(3) and (1) of the Act. 58 The Respondent's other activities in violation of Sec- tion 8(a)(l), particularly Kennedy's statement to Jelke, also in May, that if a union came in the employees could probably lose existing benefits and be relegated to only Contrary to the Respondent, even the gasoline purchase slips one raise a year, Phiambolis' coercive interrogation of charged by Burket to the Company, and asserted by Kennedy as the Jelke, and the unlawful solicitation of grievances by both rea so n fo r his trip to Burket's ho m e o n Ma y 12, d o n ot provide a consist- en t, proximate cause for his going there on that date. Burket's last fuel implementation of the Suggestion box and Kennedy's in- purchase was on May 7, 1 week before layoff. While Kennedy, at the vitation to employees to bring their problems to him fur- state unemployment compensation hearing, had taken particular exccp- ther indicate the Respondent's hostility toward the tio n to a $14 charge by Burket, the last slip approximating that amount Uninn's ramnaicrn. w as da te d May 1, almost 2 weeks before layoff. Burket made two gas Uni ion's camdpaign. purchases after that. As noted, in his testimony at the earlier state hearing as to reasons for going to Burket's home on May 12, Kennedy made no " Threats to close the plant if the Union was designated also were reference to a current reminder from Johnson concerning these slips and made to other employees by management trainee Phiambolis. It had been had never asked Burket to account for expenditures deemed unusual. found above that these threats were not effectively retracted by Rowan 5" Pork King Company, Inc., 252 NLRB 99 (1980), cited by the Re- during his May 8 meeting with employees,.spondent, is not applicable. There, a shop steward, active in processing M1 The work rules breached by Burket which appear most applicable grievances, was discharged after he had left the ignition key in his truck on their face are those prohibiting unauthorized absenteeism by employ- while he went into an off-track betting office. This was learned by a su- ees from their work stations, idling on the job and engaging in personal pervisor who, on the stated concern that the steward had been taking too work of any nature without authorization. All of these infractions are in- long to make deliveries, followed the steward on his truck route. The eluded under the progressive discipline policy and, in such instances, first Board majority found that the steward had been lawfully terminated for offenses do not lead to summary discharge. exposing the respondent's truck and its freight to theft. In fact, the truck " Burket's impropriety was less severe than Linderman's as Burket was had been driven back to the employer's premises while the steward was on straight time when found in his garden.still inside the betting office. In the present matter, Burket's infraction of " When McWilliams and Bodnar were discharged in October 1978, the working in his garden, while hardly to be condoned, afforded far less po- Respondent's published "Rules and Regulations of Personal Conduct" tential for employer loss than did the steward in Pork King, who had provided for immediate discharge for employees who knowingly placed a truck and its cargo at hazard. The most significant difference, punched or removed the timecards of other employees. Following the however, is that here, unlike Pork King, where a bargaining relationship McWilliams-Bodnar incident, this rule was broadened to subject any em- was established, Burket's separation occurred close to the time of a repre- ployee to immediate discharge who knowingly punched or removed an- sentation election in the context of numerous unlawful acts by the Em- other employee's timecard or permitted it to be done by another,.ployer intended to discourage union activity and to defeat the Union. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aced them with the prospect of plant closure and for This evidence submitted by the General Counsel and more stringent work rules if they selected the Union, he Union effectively shifted the burden to the Respondent was confronted by Burket, who accused him of making a to show that it would have permanently laid off Burket threat. 53 It also is noted that Burket's services to the Re- even in the absence of his protected activities. The Re- spondent were valuable as he was the only employee in- spondent's contention that it disciplined Burket because volved in the skilled work of building the Respondent's he attended to personal business away from the plant geconol system, the quality of his work was satisfactory, while "on the clock," therefore stealing company time, is and his summary layoff without prior warning or repri- countered by the tolerance it previously has shown in mand, timed but 4 days before the representation elec- this regard. Buss had received reports from Jenson in tion, for the reasons stated, contravened the Respond- late March that Burket was taking too much time to ent's published policy of progressive discipline where build the geconol system, while, from Myers, Kennedy discharge is rendered only after a series of lesser penal- had known for months that Burket had been taking too ties. 54 Contrary to the Respondent, no clear policy has long to run errands. However, as noted, Burket was been followed of terminating employees for leaving never cautioned about these practices. work without punching their timecards and instances of Noting that the Respondent recognized Burket as a prior discharge on these grounds cited by the Respond- p u a it h to t Union ex- * ,. ..- . , „ .- „ 1.T..1 i~i..principal union activist; its hostility to the Union ex- ent are distinguishable. Although Linderman, who had,, ,. r i i * ent are distinguishable. Although Linderman, who had pressed through the various acts found unlawful herein, been drawing much suspicious overtime at premium pay, s whic were d a B k t in f initially was terminated without prior warning for leav- d so m e o f w hb c h w er e dabfcted at Burket; the timing of his ing the plant without punching out while again on over- d^'p 1" 16 b u t 4 d^- b ef o re t h e e le ct t o n on t h e context of time, his subsequent rehire illustrates that such an infrac- tpheir m toleration of hls prolonged errands; that under tion is not a final determinant for employability with the t h e circumstances involved, the permanent layoff afford- Respondent. 55 Also, McWilliams' earlier discharge differs ed , without prior warning, did not conform to the Re- in circumstance from that of Burket as his termination spondent's published system of progressive discipline; notice affirms that he was let go not only for having left a n d Burket's usefulness to the Respondent as a skilled work before quitting time without permission, but also maintenance employee principally assigned to building because he had breached company rules by having the geconol system, show that such discipline as might Bodnar clock out his timecard. Accordingly, McWil- have been afforded because of the garden incident would liams' offense was multiple because, in addition to absent- not, without prior warning, have resulted in loss of em- ing himself, he also had induced another employee to ployment." wrongfully punch his card-which at the time warranted In view of the foregoing, I conclude that the Respond- the summary termination afforded Bodnar. 56 McWil- ent has failed to show that the same action would have liams' inducement of another employee to engage in an taken place in the absence of Burket's protected activi- offense calling for summary discharge involved consider- ties. I, therefore, find that his permanent layoff was in ations not present with respect to Burket. violation of Section 8(a)(3) and (1) of the Act. 58 The Respondent's other activities in violation of Sec- tion 8(a)(l), particularly Kennedy's statement to Jelke, also in May, that if a union came in the employees could probably lose existing benefits and be relegated to only Contrary to the Respondent, even the gasoline purchase slips one raise a year, Phiambolis' coercive interrogation of charged by Burket to the Company, and asserted by Kennedy as the Jelke, and the unlawful solicitation of grievances by both rea so n fo r his trip to Burket's ho m e o n Ma y 12, d o n ot provide a consist- en t, proximate cause for his going there on that date. Burket's last fuel implementation of the Suggestion box and Kennedy's in- purchase was on May 7, 1 week before layoff. While Kennedy, at the vitation to employees to bring their problems to him fur- state unemployment compensation hearing, had taken particular exccp- ther indicate the Respondent's hostility toward the tio n to a $14 charge by Burket, the last slip approximating that amount Uninn's ramnaicrn. w as da te d May 1, almost 2 weeks before layoff. Burket made two gas Uni ion's camdpaign. purchases after that. As noted, in his testimony at the earlier state hearing as to reasons for going to Burket's home on May 12, Kennedy made no " Threats to close the plant if the Union was designated also were reference to a current reminder from Johnson concerning these slips and made to other employees by management trainee Phiambolis. It had been had never asked Burket to account for expenditures deemed unusual. found above that these threats were not effectively retracted by Rowan 5" Pork King Company, Inc., 252 NLRB 99 (1980), cited by the Re- during his May 8 meeting with employees,.spondent, is not applicable. There, a shop steward, active in processing M1 The work rules breached by Burket which appear most applicable grievances, was discharged after he had left the ignition key in his truck on their face are those prohibiting unauthorized absenteeism by employ- while he went into an off-track betting office. This was learned by a su- ees from their work stations, idling on the job and engaging in personal pervisor who, on the stated concern that the steward had been taking too work of any nature without authorization. All of these infractions are in- long to make deliveries, followed the steward on his truck route. The eluded under the progressive discipline policy and, in such instances, first Board majority found that the steward had been lawfully terminated for offenses do not lead to summary discharge. exposing the respondent's truck and its freight to theft. In fact, the truck " Burket's impropriety was less severe than Linderman's as Burket was had been driven back to the employer's premises while the steward was on straight time when found in his garden.still inside the betting office. In the present matter, Burket's infraction of " When McWilliams and Bodnar were discharged in October 1978, the working in his garden, while hardly to be condoned, afforded far less po- Respondent's published "Rules and Regulations of Personal Conduct" tential for employer loss than did the steward in Pork King, who had provided for immediate discharge for employees who knowingly placed a truck and its cargo at hazard. The most significant difference, punched or removed the timecards of other employees. Following the however, is that here, unlike Pork King, where a bargaining relationship McWilliams-Bodnar incident, this rule was broadened to subject any em- was established, Burket's separation occurred close to the time of a repre- ployee to immediate discharge who knowingly punched or removed an- sentation election in the context of numerous unlawful acts by the Em- other employee's timecard or permitted it to be done by another,.ployer intended to discourage union activity and to defeat the Union. HIGH ENERGY CORPORATION 761 D. The Representation Case after recalled on September 8. Wharton was next in se- niority. 60 1. The challenged ballots Myers testified that at the time of the February layoff, The Report on Challenged Ballots issued by the Re- in response to questions by affected employees, including Wharton, Myers replied that he estimated that the layoff gional Director found that challenges to the ballots of six would last approximately t 3 m ths wever l would last approximately 2 to 3 months. However, sales individuals raised substantial issues which warranted a thereaftr hearing, ~~~~~~~~. ~did not thereafter increase. hearing. Myers related that between February 15 and the May a. Robert Burket 16 election date, Wharton returned to the plant several times to inquire about her status. During the first such Burket's ballot was challenged by the Employer on the conversation, Myers told Wharton that she might be re- ground that he had been permanently laid off on May 12, called at some time in the future. However, as time 1980. Having found that Burket was discriminatorily dis- passed, he told her that there had not been much change, charged by the Respondent before the election in viola- that chances of recall did not look good and that he had tion of Section 8(a)(3) and (1) of the Act, and thereby no way of knowing how long she would be on layoff. entitled to reinstatement, I further find that he was eligi- The last time Myers spoke with Wharton, he told her ble to vote in the election conducted on May 16, 1980, that the situation looked even gloomier than before and and, therefore, recommend that the challenge to his that he was going to have to lay off additional people, ballot be overruled. persons senior to herself. Myers does not recall whether in April he had asked Wharton how much more unem- b. Wanda J. Wharton ployment compensation she could collect. It is established that the entitlement of laid-off employ- The Employer challenged Wharton's ballot on the ees to vote in a representation election depends on ground that she had been permanently laid off on Febru- whether such employees have a reasonable expectancy of ary 15, 1980. recall in the near future. The determination of this expec- Wharton, who was hired in December 1978, and was tancy, in turn, depends on objective factors, including employed in painting ceramic capacitors, was laid off the past experience of the employer, the employer's twice by the Respondent. The first incident occurred in future plans, and the circumstances of the layoff, includ- September 1979, and was announced by Plant Manager ing what employees were told as to the likelihood of Kennedy who notified Wharton and other employees recall. 6' The appropriate time frame when determining that he had to lay off a certain number of people in each expectancy of recall is the situation as it existed at the department for a few weeks. time of the election rather than subsequent develop- Wharton was recalled that November and continued ments.62 to work in the ceramic division until February 15, 1980, While Wharton did not know if her job benefits had when Plant Superintendent Myers summoned her and been discontinued during her first described layoff, she other employees to the office and announced that he was was iformed b Buss secretary, Pearl, that such bene- * . .,~~~~~~~ ., rr r i 1fits were discounted following her February layoff. going to have to lay them off for 3 to 4 weeks because its ere discounted ollo of lack of work.59 Wharton testified that after her Febru- The Respondent's adverse business cmate at the co me ary layoff she returned to the plant on a number of occa- of Wharton's layoff, while not documented by company ary layoff she returned to the plant on a number of occa records, is illustrated by the stipulation describing the in- sions to check her recall prospects. On such an occasion dividuas aid off in the same period and what was done in Api 1980. she asked Myers how long shewouldbe dividuals laid off in the same period and what was done in April 1980, she asked Myers how long she would be with respect to recall. Although seven persons were laid laid off. In response, Myers asked how long Wharton off, none were recalled by the date of the election. could collect unemployment compensation, to which she I find it unnecessary to resolve on the basis of credibil- expressed belief that her benefits would not expire for 8 ity any conflicting testimony between Wharton, that she, more months. Myers told her that it was his guess that at first, had been told that the layoff would be for 3 to 4 she would be collecting unemployment compensation for weeks, and Myers' statement that he initially had given that period of time. In June, Wharton obtained employ- Wharton a hopeful estimate of from 2 to 3 months, as ment with another concern, where she was employed at Myers concedes that when the layoff began, he had the time of hearing. stated a belief that Wharton would be recalled sometime At the hearing, the parties stipulated the names and se- in the future. However, optimism dissolved as time niority dates of seven employees, including Wharton, passed with no improvement in sales. Myers' earlier ex- who were laid off on February 15 and March 21, 1980. pressed intent to recall Wharton, without more, is not Three of the employees so identified were employed in dispositive of her actual expectancy of recall months the oil-filled division and, unlike Wharton, did not report later when the election was held,'" and such hopeful to Myers. Myers explained that Wharton and other ce- ramic division employees were laid off in February be- 0 As few employees could work interchangeably in both divisions be- cause of work reductions caused by a sales slump. Only cause of differences in product and technology, it is not clear that Whar- the on senior-most employee of those laid off was there- ton could have been recalled to a position in the oil-filled division. the one senior-most employee of those laid off was there- 6 Precision Tumbling Company, Inc., 252 NLRB 1014 (1980). 6" Thomas Engine Corporation and Upshur Engine Co., Inc.. d/b/a To- "At the time of each layoff. Wharton signed a termination notice that madur, Inc.. 196 NLRB 706. 707 (1972). she was being laid off for lack of work. Precision Tumbling Company. Inc.. supra. HIGH ENERGY CORPORATION 761 D. The Representation Case after recalled on September 8. Wharton was next in se- niority. 60 1. The challenged ballots Myers testified that at the time of the February layoff, The Report on Challenged Ballots issued by the Re- in r es p o n se t o quest i o ns b y affected employees, including gional Director found that challenges to the ballots of six W ha rt o n , M y er s r epl ied t h at h e estiatedtha th e lf -,..,, . . „ . , . ,. i. .~~would last approximately 2 to 3 months. However, sales individuals raised substantial issues which warranted a w thapproimate. hearing. ~~~~~~~~~~~~did not thereafter increase. hearing. Myers related that between February 15 and the May a. Robert Burket 16 election date, Wharton returned to the plant several times to inquire about her status. During the first such Burket's ballot was challenged by the Employer on the conversation, Myers told Wharton that she might be re- ground that he had been permanently laid off on May 12, called at some time in the future. However, as time 1980. Having found that Burket was discriminatorily dis- passed, he told her that there had not been much change, charged by the Respondent before the election in viola- that chances of recall did not look good and that he had tion of Section 8(a)(3) and (1) of the Act, and thereby no way of knowing how long she would be on layoff. entitled to reinstatement, I further find that he was eligi- T h e last time Myers spoke with Wharton, he told her ble to vote in the election conducted on May 16, 1980, that the situation looked even gloomier than before and and, therefore, recommend that the challenge to his t h a t h e w a s going t o h a v e t o lay o ff additional people, ballot be overruled. persons senior to herself. Myers does not recall whether in April he had asked Wharton how much more unem- b. Wanda J. Wharton ployment compensation she could collect. It is established that the entitlement of laid-off employ- The Employer challenged Wharton's ballot on the ees to vote in a representation election depends on ground that she had been permanently laid off on Febru- whether such employees have a reasonable expectancy of ary 15, 1980. recall in the near future. The determination of this expec- Wharton, who was hired in December 1978, and was tancy, in turn, depends on objective factors, including employed in painting ceramic capacitors, was laid off the past experience of the employer, the employer's twice by the Respondent. The first incident occurred in future plans, and the circumstances of the layoff, includ- September 1979, and was announced by Plant Manager ing what employees were told as to the likelihood of Kennedy who notified Wharton and other employees recall. 6' The appropriate time frame when determining that he had to lay off a certain number of people in each expectancy of recall is the situation as it existed at the department for a few weeks. time of the election rather than subsequent develop- Wharton was recalled that November and continued ments.62 to work in the ceramic division until February 15, 1980, Wh i le Wharton did not know if her job benefits had when Plant Superintendent Myers summoned her and been discontinued during her first described layoff, she other employees to the office and announced that he was w as in f o r m ed by Buss secretary, Pearl, that such bene- . ., ., rr r i . A 11-"~~fts were discounted following her February layoff. going to have to lay them off for 3 to 4 weeks becauseRescondentws he Fess layoff. of lack of work. 59 Wharton testified that after her Febru- The Respondent's adverse business climate at the time ary lackyoffshe returned Wton thespatfd t afterer ofeba- of Wharton's layoff, while not documented by company ary layoff she returned to the plant on a number of occa- records, is illustrated by the stipulation describing the in- sions to check her recall prospects. On suchewouldbe dividuals laid off in the same period and what was done in April 1980, she asked Myers how long she would be with respect to recall. Although seven persons were laid laid off. In response, Myers asked how long Wharton off, none were recalled by the date of the election. could collect unemployment compensation, to which she I find it unnecessary to resolve on the basis of credibil- expressed belief that her benefits would not expire for 8 ity any conflicting testimony between Wharton, that she, more months. Myers told her that it was his guess that at first, had been told that the layoff would be for 3 to 4 she would be collecting unemployment compensation for weeks, and Myers' statement that he initially had given that period of time. In June, Wharton obtained employ- Wharton a hopeful estimate of from 2 to 3 months, as ment with another concern, where she was employed at Myers concedes that when the layoff began, he had the time of hearing. stated a belief that Wharton would be recalled sometime At the hearing, the parties stipulated the names and se- in the future. However, optimism dissolved as time niority dates of seven employees, including Wharton, passed with no improvement in sales. Myers' earlier ex- who were laid off on February 15 and March 21, 1980. pressed intent to recall Wharton, without more, is not Three of the employees so identified were employed in dispositive of her actual expectancy of recall months the oil-filled division and, unlike Wharton, did not report later when the election was held,' and such hopeful to Myers. Myers explained that Wharton and other ce- ramic division employees were laid off in February be- As few employees could work interchangeably in both divisions be- cause Of work reductions caused by a Sales slump. Only c a us e o f differences in product and technology, it is not clear that Whar- .he .ne .enior-most ,mployee rf .,ose aid .ff , as rr er- .ton could have been recalled to a position in the oil-filled division. the one senior-most employee of those laid off was there- " Precision Tumbling Company, Inc., 252 NLRB 1014 (1980). -" Thomas Engine Corporation and Upshur Engine Co., Inc.. d/b/a To- "9 At the lime of each layoff. Wharton signed a termination notice that madur. Inc.. 196 NLRB 706. 707 (1972). she was being laid off for lack of work. " Precision Tumbling Company. Inc.. supra. HIGH ENERGY CORPORATION 761 D. The Representation Case after recalled on September 8. Wharton was next in se- niority. 60 1. The challenged ballots Myers testified that at the time of the February layoff, The Report on Challenged Ballots issued by the Re- in r es p o n se t o quest i o ns b y affected employees, including gional Director found that challenges to the ballots of six W ha rt o n , M y er s r epl ied t h at h e estimaed 1 tha th e lf -,..,, . . „ . , . ,. i. .~~would last approximately 2 to 3 months. However, sales individuals raised substantial issues which warranted a w thapproimate. hearing. ~~~~~~~~~~~~did not thereafter increase. hearing. Myers related that between February 15 and the May a. Robert Burket 16 election date, Wharton returned to the plant several times to inquire about her status. During the first such Burket's ballot was challenged by the Employer on the conversation, Myers told Wharton that she might be re- ground that he had been permanently laid off on May 12, called at some time in the future. However, as time 1980. Having found that Burket was discriminatorily dis- passed, he told her that there had not been much change, charged by the Respondent before the election in viola- that chances of recall did not look good and that he had tion of Section 8(a)(3) and (1) of the Act, and thereby no way of knowing how long she would be on layoff. entitled to reinstatement, I further find that he was eligi- T h e last time Myers spoke with Wharton, he told her ble to vote in the election conducted on May 16, 1980, that the situation looked even gloomier than before and and, therefore, recommend that the challenge to his t h a t h e w a s going t o h a v e t o lay o ff additional people, ballot be overruled. persons senior to herself. Myers does not recall whether in April he had asked Wharton how much more unem- b. Wanda J. Wharton ployment compensation she could collect. It is established that the entitlement of laid-off employ- The Employer challenged Wharton's ballot on the ees to vote in a representation election depends on ground that she had been permanently laid off on Febru- whether such employees have a reasonable expectancy of ary 15, 1980. recall in the near future. The determination of this expec- Wharton, who was hired in December 1978, and was tancy, in turn, depends on objective factors, including employed in painting ceramic capacitors, was laid off the past experience of the employer, the employer's twice by the Respondent. The first incident occurred in future plans, and the circumstances of the layoff, includ- September 1979, and was announced by Plant Manager ing what employees were told as to the likelihood of Kennedy who notified Wharton and other employees recall. 6' The appropriate time frame when determining that he had to lay off a certain number of people in each expectancy of recall is the situation as it existed at the department for a few weeks. time of the election rather than subsequent develop- Wharton was recalled that November and continued ments.62 to work in the ceramic division until February 15, 1980, Wh i le Wharton did not know if her job benefits had when Plant Superintendent Myers summoned her and been discontinued during her first described layoff, she other employees to the office and announced that he was w as in f o r m ed by Buss secretary, Pearl, that such bene- . ., ., rr r i . A 11-"~~fts were discounted following her February layoff. going to have to lay them off for 3 to 4 weeks becauseRescondentws he Fess layoff. of lack of work. 59 Wharton testified that after her Febru- The Respondent's adverse business climate at the time ary lackyoffshe returned Wton thespatfd t afterer ofeba- of Wharton's layoff, while not documented by company ary layoff she returned to the plant on a number of occa- records, is illustrated by the stipulation describing the in- sions to check her recall prospects. On suchewouldbe dividuals laid off in the same period and what was done in April 1980, she asked Myers how long she would be with respect to recall. Although seven persons were laid laid off. In response, Myers asked how long Wharton off, none were recalled by the date of the election. could collect unemployment compensation, to which she I find it unnecessary to resolve on the basis of credibil- expressed belief that her benefits would not expire for 8 ity any conflicting testimony between Wharton, that she, more months. Myers told her that it was his guess that at first, had been told that the layoff would be for 3 to 4 she would be collecting unemployment compensation for weeks, and Myers' statement that he initially had given that period of time. In June, Wharton obtained employ- Wharton a hopeful estimate of from 2 to 3 months, as ment with another concern, where she was employed at Myers concedes that when the layoff began, he had the time of hearing. stated a belief that Wharton would be recalled sometime At the hearing, the parties stipulated the names and se- in the future. However, optimism dissolved as time niority dates of seven employees, including Wharton, passed with no improvement in sales. Myers' earlier ex- who were laid off on February 15 and March 21, 1980. pressed intent to recall Wharton, without more, is not Three of the employees so identified were employed in dispositive of her actual expectancy of recall months the oil-filled division and, unlike Wharton, did not report later when the election was held,' and such hopeful to Myers. Myers explained that Wharton and other ce- ramic division employees were laid off in February be- As few employees could work interchangeably in both divisions be- cause Of work reductions caused by a Sales slump. Only c a us e o f differences in product and technology, it is not clear that Whar- .he .ne .enior-most ,mployee rf .,ose aid .ff , as rr er- .ton could have been recalled to a position in the oil-filled division. the one senior-most employee of those laid off was there- " Precision Tumbling Company, Inc., 252 NLRB 1014 (1980). -" Thomas Engine Corporation and Upshur Engine Co., Inc.. d/b/a To- "9 At the lime of each layoff. Wharton signed a termination notice that madur. Inc.. 196 NLRB 706. 707 (1972). she was being laid off for lack of work. " Precision Tumbling Company. Inc.. supra. HIGH ENERGY CORPORATION 761 D. The Representation Case after recalled on September 8. Wharton was next in se- niority. 60 1. The challenged ballots Myers testified that at the time of the February layoff, The Report on Challenged Ballots issued by the Re- in r es p o n se t o quest i o ns b y affected employees, including gional Director found that challenges to the ballots of six W ha rt o n , M y er s r epl ied t h at h e estimaed 1 tha th e lf -,..,, . . „ . , . ,. i. .~~would last approximately 2 to 3 months. However, sales individuals raised substantial issues which warranted a w thapproimate. hearing. ~~~~~~~~~~~~did not thereafter increase. hearing. Myers related that between February 15 and the May a. Robert Burket 16 election date, Wharton returned to the plant several times to inquire about her status. During the first such Burket's ballot was challenged by the Employer on the conversation, Myers told Wharton that she might be re- ground that he had been permanently laid off on May 12, called at some time in the future. However, as time 1980. Having found that Burket was discriminatorily dis- passed, he told her that there had not been much change, charged by the Respondent before the election in viola- that chances of recall did not look good and that he had tion of Section 8(a)(3) and (1) of the Act, and thereby no way of knowing how long she would be on layoff. entitled to reinstatement, I further find that he was eligi- T h e last time Myers spoke with Wharton, he told her ble to vote in the election conducted on May 16, 1980, that the situation looked even gloomier than before and and, therefore, recommend that the challenge to his t h a t h e w a s going t o h a v e t o lay o ff additional people, ballot be overruled. persons senior to herself. Myers does not recall whether in April he had asked Wharton how much more unem- b. Wanda J. Wharton ployment compensation she could collect. It is established that the entitlement of laid-off employ- The Employer challenged Wharton's ballot on the ees to vote in a representation election depends on ground that she had been permanently laid off on Febru- whether such employees have a reasonable expectancy of ary 15, 1980. recall in the near future. The determination of this expec- Wharton, who was hired in December 1978, and was tancy, in turn, depends on objective factors, including employed in painting ceramic capacitors, was laid off the past experience of the employer, the employer's twice by the Respondent. The first incident occurred in future plans, and the circumstances of the layoff, includ- September 1979, and was announced by Plant Manager ing what employees were told as to the likelihood of Kennedy who notified Wharton and other employees recall. 6' The appropriate time frame when determining that he had to lay off a certain number of people in each expectancy of recall is the situation as it existed at the department for a few weeks. time of the election rather than subsequent develop- Wharton was recalled that November and continued ments.62 to work in the ceramic division until February 15, 1980, Wh i le Wharton did not know if her job benefits had when Plant Superintendent Myers summoned her and been discontinued during her first described layoff, she other employees to the office and announced that he was w as in f o r m ed b Buss secretary, Pearl, that such bene- . ., ., rr r i . A 11-"~~fts were discounted following her February layoff. going to have to lay them off for 3 to 4 weeks becauseRescondentws he Fess layoff. of lack of work. 59 Wharton testified that after her Febru- The Respondent's adverse business climate at the time ary lackyoffshe returned Wton thespatfd t afterer ofeba- of Wharton's layoff, while not documented by company ary layoff she returned to the plant on a number of occa- records, is illustrated by the stipulation describing the in- sions to check her recall prospects. On suchewouldbe dividuals laid off in the same period and what was done in April 1980, she asked Myers how long she would be with respect to recall. Although seven persons were laid laid off. In response, Myers asked how long Wharton off, none were recalled by the date of the election. could collect unemployment compensation, to which she I find it unnecessary to resolve on the basis of credibil- expressed belief that her benefits would not expire for 8 ity any conflicting testimony between Wharton, that she, more months. Myers told her that it was his guess that at first, had been told that the layoff would be for 3 to 4 she would be collecting unemployment compensation for weeks, and Myers' statement that he initially had given that period of time. In June, Wharton obtained employ- Wharton a hopeful estimate of from 2 to 3 months, as ment with another concern, where she was employed at Myers concedes that when the layoff began, he had the time of hearing. stated a belief that Wharton would be recalled sometime At the hearing, the parties stipulated the names and se- in the future. However, optimism dissolved as time niority dates of seven employees, including Wharton, passed with no improvement in sales. Myers' earlier ex- who were laid off on February 15 and March 21, 1980. pressed intent to recall Wharton, without more, is not Three of the employees so identified were employed in dispositive of her actual expectancy of recall months the oil-filled division and, unlike Wharton, did not report later when the election was held,' and such hopeful to Myers. Myers explained that Wharton and other ce- ramic division employees were laid off in February be- As few employees could work interchangeably in both divisions be- cause Of work reductions caused by a Sales slump. Only c a us e o f differences in product and technology, it is not clear that Whar- .he .ne .enior-most ,mployee rf .,ose aid .ff , as rr er- .ton could have been recalled to a position in the oil-filled division. the one senior-most employee of those laid off was there- " Precision Tumbling Company, Inc., 252 NLRB 1014 (1980). -" Thomas Engine Corporation and Upshur Engine Co., Inc.. d/b/a To- "9 At the lime of each layoff. Wharton signed a termination notice that madur. Inc.. 196 NLRB 706. 707 (1972). she was being laid off for lack of work. " Precision Tumbling Company. Inc.. supra. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statements were clearly superseded when, as the election any employee or recommend that such actions be day approached, Myers told Wharton that the recall situ- taken.6 7 ation was gloomier than before. According to both Before Hawk's promotion to Myers' maintenance su- Myers and Wharton, after the initial layoff period, the pervisor position, Myers, while still maintenance supervi- latter clearly was given no encouragement as to recall, sor, had effectively recommended the hiring of Burket. and her job benefits had been canceled throughout her Although no pay raises were given to maintenance men period on layoff. Her recall from an earlier layoff during while Hawk was maintenance supervisor, in March or the preceding November, in view of the continued fur- April 1980, Kennedy had asked Hawk for a recommen- lough of other employees and Myers' subsequent dis- dation concerning a pay raise for Burket. When Hawk couragement of her recall prospects, represented no as- advised against this, Burket did not receive a pay in- surance that she could expect recall." crease. Also, it is clear from the testimony of both For the above reasons, I conclude that Wanda Whar- Burket and Kennedy in connection with Burket's perma- ton did not have a reasonable expectancy of returning to nent layoff, that maintenance employees were expected work. It, therefore, is recommended that the challenge to to seek Hawk's permission before leaving the plant Wharton's ballot be sustained. during worktime 68 and that Hawk was responsible for The Union challenged the ballots of Patricia Robins, knowing where they were. Employees also would notify John Hawk, C. Thomas Sheehan, and Margaret Wright Hawk if they were leaving early. as supervisors within the meaning of the Act. As the record shows that Hawk, while maintenance supervisor, was called on to make an effective recom- c. Patricia Robins mendation concerning Burket's pay increase, was gener- Having f d a e in c n wh te d n ally responsible for maintenance work performed in the plant, assigned work on a limited basis, could authorize concerning solicitation of grievances via the suggestion employees to leave work early, and his approval was re- box that Robins, in the preelection period, had been au- quired before an employee could leave the plant during thorized to interview, hire, assign work to, and discharge working hours on company business, I find that Hawk, her respective secretaries, it was concluded that she was while maintenance supervisor, was a supervisor within a supervisor within the meaning of Section 2(11) of the the meaning of Section 2(11) of the Act. In so conclud- Act. It, therefore, is recommended that the challenge to ing, it also is noted that while Hawk was not called on Robins' ballot be sustained. to hire or fire an employee or make recommendations d. John Hawk concerning the same, Myers, while in that capacity, had effectually recommended Burket's hire. In assuming Hawk, hired by the Respondent in August 1979 as a Myers' position as maintenance supervisor, without maintenance worker, served as maintenance supervisor stated limitation, it would appear that Hawk also was from January to September 1980, replacing Earl Myers vested with authority to effectively recommend hire. who, during that period, was plant superintendent of the Having found that Hawk during the preelection period Respondent's ceramic division.6 When Hawk became was a supervisor within the meaning of the Act, it is rec- maintenance supervisor, the two maintenance workers, ommended that the challenge to his ballot be sustained. beside himself, divided their tasks according to their spe- cialized skills. Ed LaMarche did most of the electrical e. C Thomas Sheehan work, Robert Burket usually worked on the oil-filled Sheehan, during the preelection period, was employed side, while Hawk, who continued to perform mainte- as a working leadman over pressing, machining, and nance services, worked in both the ceramic and oil-filled firing (starting) the ceramic kilns. Four employees divisions. worked with him.69 As an hourly rated maintenance supervisor, Hawk His duties included setting up the five presses in his spent about 75 percent of his time in maintenance work department, which then were run by the four operators and the remainder in ordering parts and related paper- who worked with him. Approximately 85 percent of work. He spent little time in making work assignments as Sheehan's time is spent in performing regular production the men were quite familiar with what had to be done work. During the balance, he does setup work and a cer- and, having been with the Respondent longer than he, tain amount of paperwork. often worked on their own initiative. However, Hawk Assignments made by Sheehan appear to be routine as coordinated their assignments, and requests for mainte- certain of his operators usually work on the presses and nance services customarily were filtered through him.66 others principally do machining work. Work is generally While Hawk was maintenance supervisor, no additions assigned to employees on the basis of their respective were made to the maintenance staff and Hawk was not skills and often is based on the job involved and which called upon to interview, hire, discipline, or discharge 67 As found, Burket was terminated in May. LaMarche was laid off by 4All-American Distributing Co. Inc., 221 NLRB 980, 981 (1975). either Kennedy or Myers in July 1980, but not by Hawk. " In September, when Myers again became maintenance supervisor, " It is undisputed that Kennedy consulted with Hawk on May 12 to Hawk was returned to his original position as maintenance employee. learn whether Burket had been authorized to leave the plant, his ap- " On becoming maintenance supervisor, Hawk did not receive a pay proved destinations, and time of departure. increase, continued to be paid time and a half for overtime work, and " Sheehan was hired as a leadman and has worked in the same position received the same benefits as other hourly employees. during his 3 years with the Respondent. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statements were clearly superseded when, as the election any employee or recommend that such actions be day approached, Myers told Wharton that the recall situ- taken. 7 ation was gloomier than before. According to both Before Hawk's promotion to Myers' maintenance su- Myers and Wharton, after the initial layoff period, the pervisor position, Myers, while still maintenance supervi- latter clearly was given no encouragement as to recall, sor, had effectively recommended the hiring of Burket. and her job benefits had been canceled throughout her Although no pay raises were given to maintenance men period on layoff. Her recall from an earlier layoff during while Hawk was maintenance supervisor, in March or the preceding November, in view of the continued fur- April 1980, Kennedy had asked Hawk for a recommen- lough of other employees and Myers' subsequent dis- dation concerning a pay raise for Burket. When Hawk couragement of her recall prospects, represented no as- advised against this, Burket did not receive a pay in- surance that she could expect recall." crease. Also, it is clear from the testimony of both For the above reasons, I conclude that Wanda Whar- Burket and Kennedy in connection with Burket's perma- ton did not have a reasonable expectancy of returning to nent layoff, that maintenance employees were expected work. It, therefore, is recommended that the challenge to to seek Hawk's permission before leaving the plant Wharton's ballot be sustained. during worktime 6* and that Hawk was responsible for The Union challenged the ballots of Patricia Robins, knowing where they were. Employees also would notify John Hawk, C. Thomas Sheehan, and Margaret Wright Hawk if they were leaving early. as supervisors within the meaning of the Act. As the record shows that Hawk, while maintenance supervisor, was called on to make an effective recom- c. Patricia Robins mendation concerning Burket's pay increase, was gener- Having found above in, connection with the discussion ally responsible for maintenance work performed in the Having found above in connection with the discussion plant, assigned work on a limited basis, could authorize concerning solicitation of grievances via the suggestion employees to leave work early, and his approval was re- box that Robins, in the preelection period, had been au- quired before an employee could leave the plant during thorized to interview, hire, assign work to, and discharge working hours on company business, I find that Hawk, her respective secretaries, it was concluded that she was while maintenance supervisor, was a supervisor within a supervisor within the meaning of Section 2(11) of the the meaning of Section 2(11) of the Act. In so conclud- Act. It, therefore, is recommended that the challenge to ing, it also is noted that while Hawk was not called on Robins' ballot be sustained. to hire or fire an employee or make recommendations d John Hawk concerning the same, Myers, while in that capacity, had effectually recommended Burket's hire. In assuming Hawk, hired by the Respondent in August 1979 as a Myers' position as maintenance supervisor, without maintenance worker, served as maintenance supervisor stated limitation, it would appear that Hawk also was from January to September 1980, replacing Earl Myers vested with authority to effectively recommend hire. who, during that period, was plant superintendent of the Having found that Hawk during the preelection period Respondent's ceramic division."" When Hawk became was a supervisor within the meaning of the Act, it is rec- maintenance supervisor, the two maintenance workers, ommended that the challenge to his ballot be sustained. beside himself, divided their tasks according to their spe- cialized skills. Ed LaMarche did most of the electrical e. C Thomas Sheehan work, Robert Burket usually worked on the oil-filled Sheehan, during the preelection period, was employed side, while Hawk, who continued to perform mainte- as a working leadman over pressing, machining, and nance services, worked in both the ceramic and oil-filled firing (starting) the ceramic kilns. Four employees divisions. worked with him. 69 As an hourly rated maintenance supervisor, Hawk His duties included setting up the five presses in his spent about 75 percent of his time in maintenance work department, which then were run by the four operators and the remainder in ordering parts and related paper- who worked with him. Approximately 85 percent of work. He spent little time in making work assignments as Sheehan's time is spent in performing regular production the men were quite familiar with what had to be done work. During the balance, he does setup work and a cer- and, having been with the Respondent longer than he, tain amount of paperwork. often worked on their own initiative. However, Hawk Assignments made by Sheehan appear to be routine as coordinated their assignments, and requests for mainte- certain of his operators usually work on the presses and nance services customarily were filtered through him.'6 others principally do machining work. Work is generally While Hawk was maintenance supervisor, no additions assigned to employees on the basis of their respective were made to the maintenance staff and Hawk was not skills and often is based on the job involved and which called upon to interview, hire, discipline, or discharge -" As found, Burket was terminated in May. LaMarche was laid off by UAll-American Distributing C., Inc., 221 NLRB 980, 981 (1975). either Kennedy or Myers in July 1980. but not by Hawk. " In September, when Myers again became maintenance supervisor, " It is undisputed that Kennedy consulted with Hawk on May 12 to Hawk was returned to his original position as maintenance employee. learn whether Burket had been authorized to leave the plant, his ap- " On becoming maintenance supervisor, Hawk did not receive a pay proved destinations, and time of departure. increase, continued to be paid time and a half for overtime work, and " Sheehan was hired as a leadman and has worked in the same position received the same benefits as other hourly employees. during his 3 years with the Respondent. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statements were clearly superseded when, as the election any employee or recommend that such actions be day approached, Myers told Wharton that the recall situ- taken. 7 ation was gloomier than before. According to both Before Hawk's promotion to Myers' maintenance su- Myers and Wharton, after the initial layoff period, the pervisor position, Myers, while still maintenance supervi- latter clearly was given no encouragement as to recall, sor, had effectively recommended the hiring of Burket. and her job benefits had been canceled throughout her Although no pay raises were given to maintenance men period on layoff. Her recall from an earlier layoff during while Hawk was maintenance supervisor, in March or the preceding November, in view of the continued fur- April 1980, Kennedy had asked Hawk for a recommen- lough of other employees and Myers' subsequent dis- dation concerning a pay raise for Burket. When Hawk couragement of her recall prospects, represented no as- advised against this, Burket did not receive a pay in- surance that she could expect recall." crease. Also, it is clear from the testimony of both For the above reasons, I conclude that Wanda Whar- Burket and Kennedy in connection with Burket's perma- ton did not have a reasonable expectancy of returning to nent layoff, that maintenance employees were expected work. It, therefore, is recommended that the challenge to to seek Hawk's permission before leaving the plant Wharton's ballot be sustained. during worktime 6* and that Hawk was responsible for The Union challenged the ballots of Patricia Robins, knowing where they were. Employees also would notify John Hawk, C. Thomas Sheehan, and Margaret Wright Hawk if they were leaving early. as supervisors within the meaning of the Act. As the record shows that Hawk, while maintenance supervisor, was called on to make an effective recom- c. Patricia Robins mendation concerning Burket's pay increase, was gener- Having found above in, connection with the discussion ally responsible for maintenance work performed in the Having found above in connection with the discussion plant, assigned work on a limited basis, could authorize concerning solicitation of grievances via the suggestion employees to leave work early, and his approval was re- box that Robins, in the preelection period, had been au- quired before an employee could leave the plant during thorized to interview, hire, assign work to, and discharge working hours on company business, I find that Hawk, her respective secretaries, it was concluded that she was while maintenance supervisor, was a supervisor within a supervisor within the meaning of Section 2(11) of the the meaning of Section 2(11) of the Act. In so conclud- Act. It, therefore, is recommended that the challenge to ing, it also is noted that while Hawk was not called on Robins' ballot be sustained. to hire or fire an employee or make recommendations d John Hawk concerning the same, Myers, while in that capacity, had effectually recommended Burket's hire. In assuming Hawk, hired by the Respondent in August 1979 as a Myers' position as maintenance supervisor, without maintenance worker, served as maintenance supervisor stated limitation, it would appear that Hawk also was from January to September 1980, replacing Earl Myers vested with authority to effectively recommend hire. who, during that period, was plant superintendent of the Having found that Hawk during the preelection period Respondent's ceramic division."" When Hawk became was a supervisor within the meaning of the Act, it is rec- maintenance supervisor, the two maintenance workers, ommended that the challenge to his ballot be sustained. beside himself, divided their tasks according to their spe- cialized skills. Ed LaMarche did most of the electrical e. C Thomas Sheehan work, Robert Burket usually worked on the oil-filled Sheehan, during the preelection period, was employed side, while Hawk, who continued to perform mainte- as a working leadman over pressing, machining, and nance services, worked in both the ceramic and oil-filled firing (starting) the ceramic kilns. Four employees divisions. worked with him. 69 As an hourly rated maintenance supervisor, Hawk His duties included setting up the five presses in his spent about 75 percent of his time in maintenance work department, which then were run by the four operators and the remainder in ordering parts and related paper- who worked with him. Approximately 85 percent of work. He spent little time in making work assignments as Sheehan's time is spent in performing regular production the men were quite familiar with what had to be done work. During the balance, he does setup work and a cer- and, having been with the Respondent longer than he, tain amount of paperwork. often worked on their own initiative. However, Hawk Assignments made by Sheehan appear to be routine as coordinated their assignments, and requests for mainte- certain of his operators usually work on the presses and nance services customarily were filtered through him.'6 others principally do machining work. Work is generally While Hawk was maintenance supervisor, no additions assigned to employees on the basis of their respective were made to the maintenance staff and Hawk was not skills and often is based on the job involved and which called upon to interview, hire, discipline, or discharge -" As found, Burket was terminated in May. LaMarche was laid off by UAll-American Distributing C., Inc., 221 NLRB 980, 981 (1975). either Kennedy or Myers in July 1980. but not by Hawk. " In September, when Myers again became maintenance supervisor, " It is undisputed that Kennedy consulted with Hawk on May 12 to Hawk was returned to his original position as maintenance employee. learn whether Burket had been authorized to leave the plant, his ap- " On becoming maintenance supervisor, Hawk did not receive a pay proved destinations, and time of departure. increase, continued to be paid time and a half for overtime work, and " Sheehan was hired as a leadman and has worked in the same position received the same benefits as other hourly employees. during his 3 years with the Respondent. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statements were clearly superseded when, as the election any employee or recommend that such actions be day approached, Myers told Wharton that the recall situ- taken. 7 ation was gloomier than before. According to both Before Hawk's promotion to Myers' maintenance su- Myers and Wharton, after the initial layoff period, the pervisor position, Myers, while still maintenance supervi- latter clearly was given no encouragement as to recall, sor, had effectively recommended the hiring of Burket. and her job benefits had been canceled throughout her Although no pay raises were given to maintenance men period on layoff. Her recall from an earlier layoff during while Hawk was maintenance supervisor, in March or the preceding November, in view of the continued fur- April 1980, Kennedy had asked Hawk for a recommen- lough of other employees and Myers' subsequent dis- dation concerning a pay raise for Burket. When Hawk couragement of her recall prospects, represented no as- advised against this, Burket did not receive a pay in- surance that she could expect recall." crease. Also, it is clear from the testimony of both For the above reasons, I conclude that Wanda Whar- Burket and Kennedy in connection with Burket's perma- ton did not have a reasonable expectancy of returning to nent layoff, that maintenance employees were expected work. It, therefore, is recommended that the challenge to to seek Hawk's permission before leaving the plant Wharton's ballot be sustained. during worktime 6* and that Hawk was responsible for The Union challenged the ballots of Patricia Robins, knowing where they were. Employees also would notify John Hawk, C. Thomas Sheehan, and Margaret Wright Hawk if they were leaving early. as supervisors within the meaning of the Act. As the record shows that Hawk, while maintenance supervisor, was called on to make an effective recom- c. Patricia Robins mendation concerning Burket's pay increase, was gener- Having found above in, connection with the discussion ally responsible for maintenance work performed in the Having found above in connection with the discussion plant, assigned work on a limited basis, could authorize concerning solicitation of grievances via the suggestion employees to leave work early, and his approval was re- box that Robins, in the preelection period, had been au- quired before an employee could leave the plant during thorized to interview, hire, assign work to, and discharge working hours on company business, I find that Hawk, her respective secretaries, it was concluded that she was while maintenance supervisor, was a supervisor within a supervisor within the meaning of Section 2(11) of the the meaning of Section 2(11) of the Act. In so conclud- Act. It, therefore, is recommended that the challenge to ing, it also is noted that while Hawk was not called on Robins' ballot be sustained. to hire or fire an employee or make recommendations d John Hawk concerning the same, Myers, while in that capacity, had effectually recommended Burket's hire. In assuming Hawk, hired by the Respondent in August 1979 as a Myers' position as maintenance supervisor, without maintenance worker, served as maintenance supervisor stated limitation, it would appear that Hawk also was from January to September 1980, replacing Earl Myers vested with authority to effectively recommend hire. who, during that period, was plant superintendent of the Having found that Hawk during the preelection period Respondent's ceramic division."" When Hawk became was a supervisor within the meaning of the Act, it is rec- maintenance supervisor, the two maintenance workers, ommended that the challenge to his ballot be sustained. beside himself, divided their tasks according to their spe- cialized skills. Ed LaMarche did most of the electrical e. C Thomas Sheehan work, Robert Burket usually worked on the oil-filled Sheehan, during the preelection period, was employed side, while Hawk, who continued to perform mainte- as a working leadman over pressing, machining, and nance services, worked in both the ceramic and oil-filled firing (starting) the ceramic kilns. Four employees divisions. worked with him. 69 As an hourly rated maintenance supervisor, Hawk His duties included setting up the five presses in his spent about 75 percent of his time in maintenance work department, which then were run by the four operators and the remainder in ordering parts and related paper- who worked with him. Approximately 85 percent of work. He spent little time in making work assignments as Sheehan's time is spent in performing regular production the men were quite familiar with what had to be done work. During the balance, he does setup work and a cer- and, having been with the Respondent longer than he, tain amount of paperwork. often worked on their own initiative. However, Hawk Assignments made by Sheehan appear to be routine as coordinated their assignments, and requests for mainte- certain of his operators usually work on the presses and nance services customarily were filtered through him.'6 others principally do machining work. Work is generally While Hawk was maintenance supervisor, no additions assigned to employees on the basis of their respective were made to the maintenance staff and Hawk was not skills and often is based on the job involved and which called upon to interview, hire, discipline, or discharge -" As found, Burket was terminated in May. LaMarche was laid off by "All-American Distributing C., Inc., 221 NLRB 980, 981 (1975). either Kennedy or Myers in July 1980. but not by Hawk. " In September, when Myers again became maintenance supervisor, " It is undisputed that Kennedy consulted with Hawk on May 12 to Hawk was returned to his original position as maintenance employee. learn whether Burket had been authorized to leave the plant, his ap- " On becoming maintenance supervisor, Hawk did not receive a pay proved destinations, and time of departure. increase, continued to be paid time and a half for overtime work, and " Sheehan was hired as a leadman and has worked in the same position received the same benefits as other hourly employees. during his 3 years with the Respondent. HIGH ENERGY CORPORATION 763 employee usually works the machine that produces the ing agent, Robins, who, at Wright's request, would place work required. orders. Wright, herself, did not deal with suppliers. However, in June 1978, Sheehan interviewed job ap- While in inventory control, Wright also worked close- plicant Steven Bodnar, Jr., who, thereafter, was hired. ly with the warehouse. If the warehousemen did not While Sheehan's role in Bodnar's hire is not clear, the function properly, this could affect Wright in that inven- record shows that in April 1979 Sheehan completed and tory reports used in the performance of her duties were signed the supervisor's final remarks on the employee not correct. Accordingly, while she was not specifically termination notices of Clinton W. Cox and Ronald P. authorized to tell warehousemen how to do their jobs, McLaughlin. On Cox's form, Sheehan had written "Ex- she would do so from time to time, partly because of her cessive time off from work," while McLaughlin's form personal nature and partly because of their impact on her shows that he was terminated for "Excessive absence work. from work. Ronald's performance was good when he At Kennedy's request, she interviewed Michael Huff- was working, but personal problems interfered with his man for a warehouse job and, thereafter, reported to attendance." Kennedy that she had been impressed with Huffman's Sheehan explained that, when he is not satisfied with ability, had known Huffman personally, and recommend- an employee's performance, he takes the employee to ed his hire. Thereafter, Kennedy engaged Huffman. Kennedy's office, which was done with McLaughlin. Wright also interviewed James Cook and two other When Sheehan, on that occasion, told Kennedy that applicants to fill a vacancy in the warehouse. She report- McLaughlin was not doing a good job because he was ed to Kennedy and management trainee Kuklewski that not there most of the time, Kennedy told Sheehan to Cook was her first choice. Kuklewski also conducted his take care of it. Accordingly, Sheehan completed and separate interviews of these applicants and, according to signed McLaughlin's termination notice. Wright, the decision to hire Cook was made by Kennedy Sheehan, that month, also reported to Kennedy that and Kuklewski. Cox had missed too much time from work and did not Thereafter, Wright recommended to Kennedy that call in. Kennedy told Sheehan to terminate Cox and to Huffman and Cook receive pay increases. Wright ex- fill out the papers, which Sheehan did, effective April plained that, after a probationary period of about 3 25, 1979. months, employees are entitled to be reviewed for pay A third employee, Cheryl Mann, resigned from her raises. Wright had reminded Kennedy that Huffman had job after Sheehan told Kennedy of her lack of interest been with the Company for 3 months and asked if Ken- and lost time. When Sheehan informed Mann that Ken- nedy would consider reviewing him. When Kennedy nedy wanted to discuss these matters with her, Mann re- asked her opinion, she told him that, in her view, Huff- signed her position. Sheehan reported this to Kennedy man had been doing an excellent job in the warehouse. and also completed and signed Mann's termination After Cook had been with the Respondent for 3 notice, effective November 29, 1979, noting as reasons months, Kennedy asked if Wright thought that Cook "Missed time-lack of interest." was doing a good job. She replied in the affirmative, that Sheehan also initialed timecards for employees who Cook was doing a good job and that he should get a pay had forgotten to punch in, writing in times of arrival. raise. Thereafter, both Huffman and Cook received pay From the foregoing, it is clear that Sheehan has au- raises thority to evaluate employees and to effectively recom- Wright, like the others whose ballots were challenged, mend discharge, which he has done. Having also been was hourly paid, received time and a half for overtime authorized to sign employee termination notices as the work and had the same benefits as unit employees. responsible supervisor, the record establishes that the Re- Noting that Wright could effectively recommend hire spondent had placed Sheehan in a position where em- of and pay increases for warehouse personnel and that ployees could reasonably believe that he spoke on behalf her views on these matters were sought by Kennedy, it of management in bringing about these terminations. is concluded that she was a supervisor within the mean- Therefore, it is found that Sheehan is a supervisor within ing of Section 2(1) of the Act. In so concluding, it is the meaning of Section 2(11) of the Act, and it is recom- noted that Wright had been involved by Kennedy in the mended that the challenge to his ballot be sustained. process of interviewing various applicants to fill vacan- f. Margaret Elizabeth Wright cies in the warehouse. While she may have proceeded on her own initiative in injecting herself into certain person- During the preelection period, Wright worked alone in nel matters, such efforts were not discouraged by man- a clerical capacity in inventory control.'° She received agement. It, therefore, is recommended that the chal- orders for capacitors from the sales department, checked lenge to Wright's ballot be sustained. computer reports to see what was needed to make the ordered capacitors, and determined from other computer 2. The objections to the election printouts if the parts were in the warehouse or had to be The Unions objections to the election closely parallel ordered. Available parts were set aside, as required. The Union's objections to the election closely parallel ordered. Available parts were set aside, as required. certain of the unfair labor practice allegations set forth in Wright worked closely with the Respondent's purchas- the complaint, including the discriminatory discharge of the complaint, including the discriminatory discharge of . b Robert Burket and the Respondent's several threats, " Wright began her employment with the Respondent in September Robert Burket and the Respondent's several threats, 1978, working in inventory control. Since September 1980, she has been a through various supervisors, to close the plant if the em- production leadperson in ceramic assembly. ployees selected the Union as bargaining representative. HIGH ENERGY CORPORATION 763 employee usually works the machine that produces the ing agent, Robins, who, at Wright's request, would place work required. orders. Wright, herself, did not deal with suppliers. However, in June 1978, Sheehan interviewed job ap- While in inventory control, Wright also worked close- plicant Steven Bodnar, Jr., who, thereafter, was hired,. ly with the warehouse. If the warehousemen did not While Sheehan's role in Bodnar's hire is not clear, the function properly, this could affect Wright in that inven- record shows that in April 1979 Sheehan completed and tory reports used in the performance of her duties were signed the supervisor's final remarks on the employee not correct. Accordingly, while she was not specifically termination notices of Clinton W. Cox and Ronald P. authorized to tell warehousemen how to do their jobs, McLaughlin. On Cox's form, Sheehan had written "Ex- she would do so from time to time, partly because of her cessive time off from work," while McLaughlin's form personal nature and partly because of their impact on her shows that he was terminated for "Excessive absence work. from work. Ronald's performance was good when he At Kennedy's request, she interviewed Michael Huff- was working, but personal problems interfered with his man for a warehouse job and, thereafter, reported to attendance." Kennedy that she had been impressed with Huffman's Sheehan explained that, when he is not satisfied with ability, had known Huffman personally, and recommend- an employee's performance, he takes the employee to ed his hire. Thereafter, Kennedy engaged Huffman. Kennedy's office, which was done with McLaughlin. Wright also interviewed James Cook and two other When Sheehan, on that occasion, told Kennedy that applicants to fill a vacancy in the warehouse. She report- McLaughlin was not doing a good job because he was ed to Kennedy and management trainee Kuklewski that not there most of the time, Kennedy told Sheehan to Cook was her first choice. Kuklewski also conducted his take care of it. Accordingly, Sheehan completed and separate interviews of these applicants and, according to signed McLaughlin's termination notice. Wright, the decision to hire Cook was made by Kennedy Sheehan, that month, also reported to Kennedy that and Kuklewski. Cox had missed too much time from work and did not Thereafter, Wright recommended to Kennedy that call in. Kennedy told Sheehan to terminate Cox and to Huffman and Cook receive pay increases. Wright ex- fill out the papers, which Sheehan did, effective April plained that, after a probationary period of about 3 25, 1979. months, employees are entitled to be reviewed for pay A third employee, Cheryl Mann, resigned from her raises. Wright had reminded Kennedy that Huffman had job after Sheehan told Kennedy of her lack of interest been with the Company for 3 months and asked if Ken- and lost time. When Sheehan informed Mann that Ken- nedy would consider reviewing him. When Kennedy nedy wanted to discuss these matters with her, Mann re- asked her opinion, she told him that, in her view, Huff- signed her position. Sheehan reported this to Kennedy man had been doing an excellent job in the warehouse. and also completed and signed Mann's termination After Cook had been with the Respondent for 3 notice, effective November 29, 1979, noting as reasons months, Kennedy asked if Wright thought that Cook "Missed time-lack of interest." was doing a good job. She replied in the affirmative, that Sheehan also initialed timecards for employees who Cook was doing a good job and that he should get a pay had forgotten to punch in, writing in times of arrival. raise. Thereafter, both Huffman and Cook received pay From the foregoing, it is clear that Sheehan has au- raises. thority to evaluate employees and to effectively recom- Wright, like the others whose ballots were challenged, mend discharge, which he has done. Having also been was hourly paid, received time and a half for overtime authorized to sign employee termination notices as the work and had the same benefits as unit employees. responsible supervisor, the record establishes that the Re- Noting that Wright could effectively recommend hire spondent had placed Sheehan in a position where em- of and pay increases for warehouse personnel and that ployees could reasonably believe that he spoke on behalf her views on these matters were sought by Kennedy, it of management in bringing about these terminations. is concluded that she was a supervisor within the mean- Therefore, it is found that Sheehan is a supervisor within in o S 2 1 of t concluding, it is the meaning of Section 2(11) of the Act, and it is recom- noted that Wright had been involved by Kennedy in the mended that the challenge to his ballot be sustained. process of interviewing various applicants to fill vacan- f. Margaret Elizabeth Wright c i es in the warehouse. While she may have proceeded on her own initiative in injecting herself into certain person- During the preelection period, Wright worked alone in nel matters, such efforts were not discouraged by man- a clerical capacity in inventory control. 70 She received agement. It, therefore, is recommended that the chal- orders for capacitors from the sales department, checked lenge to Wright's ballot be sustained. computer reports to see what was needed to make the ordered capacitors, and determined from other computer 2. The objections to the election printouts if the parts were in the warehouse or had to be Th U o to t e c parallel ordered. Available parts were set aside, as required. The Union s objections to the election closely parallel ordered. Availabled ptse withe setspondetas required. c e r t a in o f t h e unfair labor practice allegations set forth in Wright worked closely with the Respondent's purchas- the complaint, including the discriminatory discharge of -,.„.. . , , ., . _ , . - . Robert Burket and the Respondent's several threats, "l Wright began her employment with the Respondent in September R B a th R s threats, 1978. working in inventory control. Since September 1980, she has been athrough various supervisors, to close the plant if the em- production leadperson in ceramic assembly,.ployees selected the Union as bargaining representative. HIGH ENERGY CORPORATION 763 employee usually works the machine that produces the ing agent, Robins, who, at Wright's request, would place work required. orders. Wright, herself, did not deal with suppliers. However, in June 1978, Sheehan interviewed job ap- While in inventory control, Wright also worked close- plicant Steven Bodnar, Jr., who, thereafter, was hired,. ly with the warehouse. If the warehousemen did not While Sheehan's role in Bodnar's hire is not clear, the function properly, this could affect Wright in that inven- record shows that in April 1979 Sheehan completed and tory reports used in the performance of her duties were signed the supervisor's final remarks on the employee not correct. Accordingly, while she was not specifically termination notices of Clinton W. Cox and Ronald P. authorized to tell warehousemen how to do their jobs, McLaughlin. On Cox's form, Sheehan had written "Ex- she would do so from time to time, partly because of her cessive time off from work," while McLaughlin's form personal nature and partly because of their impact on her shows that he was terminated for "Excessive absence work. from work. Ronald's performance was good when he At Kennedy's request, she interviewed Michael Huff- was working, but personal problems interfered with his man for a warehouse job and, thereafter, reported to attendance." Kennedy that she had been impressed with Huffman's Sheehan explained that, when he is not satisfied with ability, had known Huffman personally, and recommend- an employee's performance, he takes the employee to ed his hire. Thereafter, Kennedy engaged Huffman. Kennedy's office, which was done with McLaughlin. Wright also interviewed James Cook and two other When Sheehan, on that occasion, told Kennedy that applicants to fill a vacancy in the warehouse. She report- McLaughlin was not doing a good job because he was ed to Kennedy and management trainee Kuklewski that not there most of the time, Kennedy told Sheehan to Cook was her first choice. Kuklewski also conducted his take care of it. Accordingly, Sheehan completed and separate interviews of these applicants and, according to signed McLaughlin's termination notice. Wright, the decision to hire Cook was made by Kennedy Sheehan, that month, also reported to Kennedy that and Kuklewski. Cox had missed too much time from work and did not Thereafter, Wright recommended to Kennedy that call in. Kennedy told Sheehan to terminate Cox and to Huffman and Cook receive pay increases. Wright ex- fill out the papers, which Sheehan did, effective April plained that, after a probationary period of about 3 25, 1979. months, employees are entitled to be reviewed for pay A third employee, Cheryl Mann, resigned from her raises. Wright had reminded Kennedy that Huffman had job after Sheehan told Kennedy of her lack of interest been with the Company for 3 months and asked if Ken- and lost time. When Sheehan informed Mann that Ken- nedy would consider reviewing him. When Kennedy nedy wanted to discuss these matters with her, Mann re- asked her opinion, she told him that, in her view, Huff- signed her position. Sheehan reported this to Kennedy man had been doing an excellent job in the warehouse. and also completed and signed Mann's termination After Cook had been with the Respondent for 3 notice, effective November 29, 1979, noting as reasons months, Kennedy asked if Wright thought that Cook "Missed time-lack of interest." was doing a good job. She replied in the affirmative, that Sheehan also initialed timecards for employees who Cook was doing a good job and that he should get a pay had forgotten to punch in, writing in times of arrival. raise. Thereafter, both Huffman and Cook received pay From the foregoing, it is clear that Sheehan has au- raises. thority to evaluate employees and to effectively recom- Wright, like the others whose ballots were challenged, mend discharge, which he has done. Having also been was hourly paid, received time and a half for overtime authorized to sign employee termination notices as the work and had the same benefits as unit employees. responsible supervisor, the record establishes that the Re- Noting that Wright could effectively recommend hire spondent had placed Sheehan in a position where em- of and pay increases for warehouse personnel and that ployees could reasonably believe that he spoke on behalf her views on these matters were sought by Kennedy, it of management in bringing about these terminations. is concluded that she was a supervisor within the mean- Therefore, it is found that Sheehan is a supervisor within in o S 2 1 of t concluding, it is the meaning of Section 2(11) of the Act, and it is recom- noted that Wright had been involved by Kennedy in the mended that the challenge to his ballot be sustained. process of interviewing various applicants to fill vacan- f. Margaret Elizabeth Wright c i es in the warehouse. While she may have proceeded on her own initiative in injecting herself into certain person- During the preelection period, Wright worked alone in nel matters, such efforts were not discouraged by man- a clerical capacity in inventory control. 70 She received agement. It, therefore, is recommended that the chal- orders for capacitors from the sales department, checked lenge to Wright's ballot be sustained. computer reports to see what was needed to make the ordered capacitors, and determined from other computer 2. The objections to the election printouts if the parts were in the warehouse or had to be Th U o to t e c parallel ordered. Available parts were set aside, as required. The Union s objections to the election closely parallel ordered. Availabled ptse withe setspondetas required. c e r t a in o f t h e unfair labor practice allegations set forth in Wright worked closely with the Respondent's purchas- the complaint, including the discriminatory discharge of -,.„.. . , , ., . _ , . - . Robert Burket and the Respondent's several threats, "l Wright began her employment with the Respondent in September R B a th R s threats, 1978. working in inventory control. Since September 1980, she has been athrough various supervisors, to close the plant if the em- production leadperson in ceramic assembly,.ployees selected the Union as bargaining representative. HIGH ENERGY CORPORATION 763 employee usually works the machine that produces the ing agent, Robins, who, at Wright's request, would place work required. orders. Wright, herself, did not deal with suppliers. However, in June 1978, Sheehan interviewed job ap- While in inventory control, Wright also worked close- plicant Steven Bodnar, Jr., who, thereafter, was hired,. ly with the warehouse. If the warehousemen did not While Sheehan's role in Bodnar's hire is not clear, the function properly, this could affect Wright in that inven- record shows that in April 1979 Sheehan completed and tory reports used in the performance of her duties were signed the supervisor's final remarks on the employee not correct. Accordingly, while she was not specifically termination notices of Clinton W. Cox and Ronald P. authorized to tell warehousemen how to do their jobs, McLaughlin. On Cox's form, Sheehan had written "Ex- she would do so from time to time, partly because of her cessive time off from work," while McLaughlin's form personal nature and partly because of their impact on her shows that he was terminated for "Excessive absence work. from work. Ronald's performance was good when he At Kennedy's request, she interviewed Michael Huff- was working, but personal problems interfered with his man for a warehouse job and, thereafter, reported to attendance." Kennedy that she had been impressed with Huffman's Sheehan explained that, when he is not satisfied with ability, had known Huffman personally, and recommend- an employee's performance, he takes the employee to ed his hire. Thereafter, Kennedy engaged Huffman. Kennedy's office, which was done with McLaughlin. Wright also interviewed James Cook and two other When Sheehan, on that occasion, told Kennedy that applicants to fill a vacancy in the warehouse. She report- McLaughlin was not doing a good job because he was ed to Kennedy and management trainee Kuklewski that not there most of the time, Kennedy told Sheehan to Cook was her first choice. Kuklewski also conducted his take care of it. Accordingly, Sheehan completed and separate interviews of these applicants and, according to signed McLaughlin's termination notice. Wright, the decision to hire Cook was made by Kennedy Sheehan, that month, also reported to Kennedy that and Kuklewski. Cox had missed too much time from work and did not Thereafter, Wright recommended to Kennedy that call in. Kennedy told Sheehan to terminate Cox and to Huffman and Cook receive pay increases. Wright ex- fill out the papers, which Sheehan did, effective April plained that, after a probationary period of about 3 25, 1979. months, employees are entitled to be reviewed for pay A third employee, Cheryl Mann, resigned from her raises. Wright had reminded Kennedy that Huffman had job after Sheehan told Kennedy of her lack of interest been with the Company for 3 months and asked if Ken- and lost time. When Sheehan informed Mann that Ken- nedy would consider reviewing him. When Kennedy nedy wanted to discuss these matters with her, Mann re- asked her opinion, she told him that, in her view, Huff- signed her position. Sheehan reported this to Kennedy man had been doing an excellent job in the warehouse. and also completed and signed Mann's termination After Cook had been with the Respondent for 3 notice, effective November 29, 1979, noting as reasons months, Kennedy asked if Wright thought that Cook "Missed time-lack of interest." was doing a good job. She replied in the affirmative, that Sheehan also initialed timecards for employees who Cook was doing a good job and that he should get a pay had forgotten to punch in, writing in times of arrival. raise. Thereafter, both Huffman and Cook received pay From the foregoing, it is clear that Sheehan has au- raises. thority to evaluate employees and to effectively recom- Wright, like the others whose ballots were challenged, mend discharge, which he has done. Having also been was hourly paid, received time and a half for overtime authorized to sign employee termination notices as the work and had the same benefits as unit employees. responsible supervisor, the record establishes that the Re- Noting that Wright could effectively recommend hire spondent had placed Sheehan in a position where em- of and pay increases for warehouse personnel and that ployees could reasonably believe that he spoke on behalf her views on these matters were sought by Kennedy, it of management in bringing about these terminations. is concluded that she was a supervisor within the mean- Therefore, it is found that Sheehan is a supervisor within in o S 2 ot. In s concluding, it is the meaning of Section 2(11) of the Act, and it is recom- noted that Wright had been involved by Kennedy in the mended that the challenge to his ballot be sustained. process of interviewing various applicants to fill vacan- f. Margaret Elizabeth Wright c i es in the warehouse. While she may have proceeded on her own initiative in injecting herself into certain person- During the preelection period, Wright worked alone in nel matters, such efforts were not discouraged by man- a clerical capacity in inventory control. 70 She received agement. It, therefore, is recommended that the chal- orders for capacitors from the sales department, checked lenge to Wright's ballot be sustained. computer reports to see what was needed to make the ordered capacitors, and determined from other computer 2. The objections to the election printouts if the parts were in the warehouse or had to be Th U o to t e c parallel ordered. Available parts were set aside, as required. The Union s objections to the election closely parallel ordered. Availabled ptse withe setspondetas required. c e r t a in o f t h e unfair labor practice allegations set forth in Wright worked closely with the Respondent's purchas- the complaint, including the discriminatory discharge of -,.„.. . , , ., . _ , . - . Robert Burket and the Respondent's several threats, "l Wright began her employment with the Respondent in September R B a th R s threats, 1978. working in inventory control. Since September 1980, she has been athrough various supervisors, to close the plant if the em- production leadperson in ceramic assembly,.ployees selected the Union as bargaining representative. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD These unfair labor practices precluded the exercise of a in Case 4-RC-14152, held on May 16, 1980, should be free and uncoerced choice in the election. 71 set aside and a second election conducted at an appropri- Therefore, having sustained the challenges to the bal- ate time. lots of Wanda J. Wharton, John Hawk, Patricia Robins, C. Thomas Sheehan, and Margaret E. Wright, and CONCLUSIONS OF LAW having overruled the challenge to Robert Burket's ballot, it is found that Burket's ballot should be opened and I. The Respondent is an employer engaged in com- counted and that a revised tally of ballots be issued. In merce within the meaning of Section 2(2), (6), and 7) of the event that the Union receives a majority of the valid e Ac ballots cast, a certification of representative should issue. 2. The Union is a labor organization within the mean- In the event that the Union fails to receive a majority of ing of Section 2(5) of the Act. the valid ballots cast, as there is substantial evidence that 3. The Respondent violated Section 8(a)(1) of the Act the Respondent has engaged in unlawful conduct during by: the period subsequent to the filing of the petition and (a) Coercively and repeatedly threatening employees prior to the election, it is concluded that the Union's ob- with closure of its plant if they should select the Union jections to the election consolidated herewith be sus- as bargaining representative. tained and that a new election be scheduled at a time (b) Coercively interrogating an employee with respect found by the Regional Director to be appropriate. to his union sympathies or activities, and those of other employees. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES (c) Threatening to eliminate existing benefits, grant UPON COMMERCE fewer pay raises, and impose stricter working conditions The activities of the Respondent set forth in section if its employees assisted or supported the Union. III, above, occurring in connection with the Respond- (d) Soliciting grievances from employees to discourage ent's operations described in section I, above, have a them from selecting the Union to represent them. close, intimate, and substantial relationship to trade, traf- (e) Offering assistance and otherwise encouraging em- fic, and commerce among the several States and tend to ployees to abandon support for International Brother- lead to labor disputes burdening and obstructing com- hood of Electrical Workers, Local 1448, AFL-CIO, and merce and the free flow thereof. to form a company union. 4. The Respondent violated Section 8(a)(3) and (1) of V. THE REMEDY the Act by discriminatorily discharging Robert Burket Having found that the Respondent has engaged in cer- because of his activities and support for the Union. tain unfair labor practices, I shall recommend that it be 5. The aforesaid unfair labor practices are unfair labor required to cease and desist therefrom and to take certain practices affecting commerce within the meaning of Sec- affirmative action designed to effectuate the policies of tion 2(6) and (7) of the Act. the Act. 6. The Respondent's unlawful conduct interfered with Having found that the Respondent discharged Robert the representation election held on May 16, 1980. Burket in violation of the Act, I recommend that the Re- Upon the foregoing findings of fact, conclusions of spondent be ordered to offer him reinstatement to his law, and the entire record, and pursuant to Section 10(c) former position, or, if such job no longer exists, to a sub- of the Act, I hereby issue the following recommended: stantially equivalent job, and to make him whole for any loss of earnings and other benefits resulting from his dis- ORDER74 charge by payment to him of a sum of money equal to , h E y C, The Respondent, High Energy Corporation, Parkes- the amount he normally would have earned as wages R , C the amount he normally would have earned as wages burg, Pennsylvania, its officers, agents, successors, and and other benefits from the date of his discharge to the , date on which reinstatement is offered, less net earnings assigns, sa I. Cease and desist from: during that period. Backpay shall be computed in the manner set forth in F W Woolworth Company,7 2 with in- (a) Threatening to close its plant if its employees select terest thereon to be computed in the manner prescribed International Brotherhood of Electrical Workers, Local in Florida Steel Corporation. 3 1448, AFL-CIO, or any other labor organization as their It also is recommended that the ballot of Robert bargaining representative. Burket be opened and counted and a revised tally of bal- (b) Coercively interrogating employees with respect to lots issued. In the event that the Union receives a major- their union sympathies or activities, or those of other em- ity of the valid ballots cast, a certification of representa- ployees. tive should issue. In the event that the Union fails to re- (c) Threatening employees with the imposition of ceive the majority of the valid ballots cast, the election stricter working conditions, elimination of benefits, and other reprisals because of their assistance to or support " The Regional Director also had found that so much of Objection 2 as alleged that the Employer had interfered with the election by showing In the event no exceptions are filed as provided by Sec. 102.46 of slides or movies of antiunion propaganda at meetings with employees be the Rules and Regulations of the National Labor Relations Board, the overruled. findings, conclusions, and recommended Order herein shall, as provided 7 90 NLRB 289 (1950). in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and 73 231 NLRB 651 (1977). Also see Isis Plumbing & Heating Co., 138 become its findings, conclusions, and Order, and all objections thereto NLRB 716 (1962). shall be deemed waived for all purposes. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD These unfair labor practices precluded the exercise of a in Case 4-RC-14152, held on May 16, 1980, should be free and uncoerced choice in the election. 7 1 set aside and a second election conducted at an appropri- Therefore, having sustained the challenges to the bal- ate time. lots of Wanda J. Wharton, John Hawk, Patricia Robins, C. Thomas Sheehan, and Margaret E. Wright, and CONCLUSIONS OF LAW having overruled the challenge to Robert Burket's ballot, 1. T R i a e e it is found that Burket's ballot should be opened and mc i T h e Respondent is an employer engaged in co2 6 counted and that a revised tally of ballots be issued. In m er c e w lt h l n t h e Act.ing o f S e c t lo n 2(2), (6 ), a nd (7) o f the event that the Union receives a majority of the valid ballots cast, a certification of representative should issue. 2. T h e Union is a labor organization within the mean- In the event that the Union fails to receive a majority of ing of Section 2(5) of the Act. the valid ballots cast, as there is substantial evidence that 3. The Respondent violated Section 8(a)(l) of the Act the Respondent has engaged in unlawful conduct during by: the period subsequent to the filing of the petition and (a) Coercively and repeatedly threatening employees prior to the election, it is concluded that the Union's ob- with closure of its plant if they should select the Union jections to the election consolidated herewith be sus- as bargaining representative. tained and that a new election be scheduled at a time (b) Coercively interrogating an employee with respect found by the Regional Director to be appropriate. to his union sympathies or activities, and those of other employees. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES (c) Threatening to eliminate existing benefits, grant UPON COMMERCE fewer pay raises, and impose stricter working conditions The activities of the Respondent set forth in section i f it s employees assisted or supported the Union. Ill, above, occurring in connection with the Respond- (d) Soliciting grievances from employees to discourage ent's operations described in section I, above, have a them from selecting the Union to represent them. close, intimate, and substantial relationship to trade, traf- (e) Offering assistance and otherwise encouraging em- fic, and commerce among the several States and tend to ployees to abandon support for International Brother- lead to labor disputes burdening and obstructing com- hood of Electrical Workers, Local 1448, AFL-CIO, and merce and the free flow thereof. to form a company union. 4. The Respondent violated Section 8(a)(3) and (1) of V. THE REMEDY the Act by discriminatorily discharging Robert Burket Having found that the Respondent has engaged in cer- because of his activities and support for the Union. tain unfair labor practices, I shall recommend that it be 5. The aforesaid unfair labor practices are unfair labor required to cease and desist therefrom and to take certain practices affecting commerce within the meaning of Sec- affirmative action designed to effectuate the policies of tion 2(6) and (7) of the Act. the Act. 6. The Respondent's unlawful conduct interfered with Having found that the Respondent discharged Robert the representation election held on May 16, 1980. Burket in violation of the Act, I recommend that the Re- Upon the foregoing findings of fact, conclusions of spondent be ordered to offer him reinstatement to his law, and the entire record, and pursuant to Section 10(c) former position, or, if such job no longer exists, to a sub- of the Act, I hereby issue the following recommended: stantially equivalent job, and to make him whole for any loss of earnings and other benefits resulting from his dis- ORDER 74 charge by payment to him of a sum of money equal to T , H Er C Parkes- ., ", ,i 1.11. j~~~~~~~The Respondent, High Energy Corporation, Parkes- the amount he normally would have earned as wages . r , * a j the amount he normally would have earned as wages burg, Pennsylvania, its officers, agents, successors, and and other benefits from the date of his discharge to the a , 11 date on which reinstatement is offered, less net earnings assiCes a d during that period. Backpay shall be computed in the manner set forth in F W. Woolworth Company,72 with in- (a) Threatening to close its plant if its employees select terest thereon to be computed in the manner prescribed International Brotherhood of Electrical Workers, Local in Florida Steel Corporation."3 144 8, AFL-CIO, or any other labor organization as their It also is recommended that the ballot of Robert bargaining representative. Burket be opened and counted and a revised tally of bal- (b) Coercively interrogating employees with respect to lots issued. In the event that the Union receives a major- t h e ir union sympathies or activities, or those of other em- ity of the valid ballots cast, a certification of representa- ployees. tive should issue. In the event that the Union fails to re- (c) Threatening employees with the imposition of ceive the majority of the valid ballots cast, the election stricter working conditions, elimination of benefits, and other reprisals because of their assistance to or support " The Regional Director also had found that so much of Objection 2 as alleged that the Employer had interfered with the election by showing " In the event no exceptions are Filed as provided by Sec. 102.46 of slides or movies of antiunion propaganda at meetings with employees be the Rules and Regulations of the National Labor Relations Board, the overruled. findings, conclusions, and recommended Order herein shall, as provided " 90 NLRB 289 (1950). in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and 73 231 NLRB 651 (1977). Also see Isis Plumbing d Heating Co., 138 become its findings, conclusions, and Order, and all objections thereto NLRB 716 (1962). shall be deemed waived for all purposes. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD These unfair labor practices precluded the exercise of a in Case 4-RC-14152, held on May 16, 1980, should be free and uncoerced choice in the election. 7 1 set aside and a second election conducted at an appropri- Therefore, having sustained the challenges to the bal- ate time. lots of Wanda J. Wharton, John Hawk, Patricia Robins, C. Thomas Sheehan, and Margaret E. Wright, and CONCLUSIONS OF LAW having overruled the challenge to Robert Burket's ballot, 1. T R i a e e it is found that Burket's ballot should be opened and mc i T h e Respondent is an employer engaged in co 2 counted and that a revised tally of ballots be issued. In m er c e w lt h l n t h e Act.ing o f S e c t lo n 2(2), (6 ), a nd (7) o f the event that the Union receives a majority of the valid ballots cast, a certification of representative should issue. 2. T h e Union is a labor organization within the mean- In the event that the Union fails to receive a majority of ing of Section 2(5) of the Act. the valid ballots cast, as there is substantial evidence that 3. The Respondent violated Section 8(a)(l) of the Act the Respondent has engaged in unlawful conduct during by: the period subsequent to the filing of the petition and (a) Coercively and repeatedly threatening employees prior to the election, it is concluded that the Union's ob- with closure of its plant if they should select the Union jections to the election consolidated herewith be sus- as bargaining representative. tained and that a new election be scheduled at a time (b) Coercively interrogating an employee with respect found by the Regional Director to be appropriate. to his union sympathies or activities, and those of other employees. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES (c) Threatening to eliminate existing benefits, grant UPON COMMERCE fewer pay raises, and impose stricter working conditions The activities of the Respondent set forth in section i f its employees assisted or supported the Union. Ill, above, occurring in connection with the Respond- (d) Soliciting grievances from employees to discourage ent's operations described in section I, above, have a them from selecting the Union to represent them. close, intimate, and substantial relationship to trade, traf- (e) Offering assistance and otherwise encouraging em- fic, and commerce among the several States and tend to ployees to abandon support for International Brother- lead to labor disputes burdening and obstructing com- hood of Electrical Workers, Local 1448, AFL-CIO, and merce and the free flow thereof. to form a company union. 4. The Respondent violated Section 8(a)(3) and (1) of V. THE REMEDY the Act by discriminatorily discharging Robert Burket Having found that the Respondent has engaged in cer- because of his activities and support for the Union. tain unfair labor practices, I shall recommend that it be 5. The aforesaid unfair labor practices are unfair labor required to cease and desist therefrom and to take certain practices affecting commerce within the meaning of Sec- affirmative action designed to effectuate the policies of tion 2(6) and (7) of the Act. the Act. 6. The Respondent's unlawful conduct interfered with Having found that the Respondent discharged Robert the representation election held on May 16, 1980. Burket in violation of the Act, I recommend that the Re- Upon the foregoing findings of fact, conclusions of spondent be ordered to offer him reinstatement to his law, and the entire record, and pursuant to Section 10(c) former position, or, if such job no longer exists, to a sub- of the Act, I hereby issue the following recommended: stantially equivalent job, and to make him whole for any loss of earnings and other benefits resulting from his dis- ORDER 74 charge by payment to him of a sum of money equal to T , H Er C Parkes- ., ", ,i 1.11. j~~~~~~~The Respondent, High Energy Corporation, Parkes- the amount he normally would have earned as wages . r , * a j the amount he normally would have earned as wages burg, Pennsylvania, its officers, agents, successors, and and other benefits from the date of his discharge to the a , 11 date on which reinstatement is offered, less net earnings assiCes a d during that period. Backpay shall be computed in the manner set forth in F W. Woolworth Company,72 with in- (a) Threatening to close its plant if its employees select terest thereon to be computed in the manner prescribed International Brotherhood of Electrical Workers, Local in Florida Steel Corporation."3 144 8, AFL-CIO, or any other labor organization as their It also is recommended that the ballot of Robert bargaining representative. Burket be opened and counted and a revised tally of bal- (b ) Coercively interrogating employees with respect to lots issued. In the event that the Union receives a major- t h e ir union sympathies or activities, or those of other em- ity of the valid ballots cast, a certification of representa- ployees. tive should issue. In the event that the Union fails to re- (c) Threatening employees with the imposition of ceive the majority of the valid ballots cast, the election stricter working conditions, elimination of benefits, and other reprisals because of their assistance to or support " The Regional Director also had found that so much of Objection 2 as alleged that the Employer had interfered with the election by showing " In the event no exceptions are Filed as provided by Sec. 102.46 of slides or movies of antiunion propaganda at meetings with employees be the Rules and Regulations of the National Labor Relations Board, the overruled. findings, conclusions, and recommended Order herein shall, as provided " 90 NLRB 289 (1950). in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and 73 231 NLRB 651 (1977). Also see Isis Plumbing d Heating Co., 138 become its findings, conclusions, and Order, and all objections thereto NLRB 716 (1962). shall be deemed waived for all purposes. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD These unfair labor practices precluded the exercise of a in Case 4-RC-14152, held on May 16, 1980, should be free and uncoerced choice in the election. 7 1 set aside and a second election conducted at an appropri- Therefore, having sustained the challenges to the bal- ate time. lots of Wanda J. Wharton, John Hawk, Patricia Robins, C. Thomas Sheehan, and Margaret E. Wright, and CONCLUSIONS OF LAW having overruled the challenge to Robert Burket's ballot, 1. T R i a e e it is found that Burket's ballot should be opened and mc i T h e Respondent is an employer engaged in co2 6 counted and that a revised tally of ballots be issued. In m er c e w lt h l n t h e Act.ing o f S e c t w n 2(2), (6 ), a nd (7) o f the event that the Union receives a majority of the valid ballots cast, a certification of representative should issue. 2. T h e Union is a labor organization within the mean- In the event that the Union fails to receive a majority of ing of Section 2(5) of the Act. the valid ballots cast, as there is substantial evidence that 3. The Respondent violated Section 8(a)(l) of the Act the Respondent has engaged in unlawful conduct during by: the period subsequent to the filing of the petition and (a) Coercively and repeatedly threatening employees prior to the election, it is concluded that the Union's ob- with closure of its plant if they should select the Union jections to the election consolidated herewith be sus- as bargaining representative. tained and that a new election be scheduled at a time (b) Coercively interrogating an employee with respect found by the Regional Director to be appropriate. to his union sympathies or activities, and those of other employees. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES (c) Threatening to eliminate existing benefits, grant UPON COMMERCE fewer pay raises, and impose stricter working conditions The activities of the Respondent set forth in section i f its employees assisted or supported the Union. Ill, above, occurring in connection with the Respond- (d) Soliciting grievances from employees to discourage ent's operations described in section I, above, have a them from selecting the Union to represent them. close, intimate, and substantial relationship to trade, traf- (e) Offering assistance and otherwise encouraging em- fic, and commerce among the several States and tend to ployees to abandon support for International Brother- lead to labor disputes burdening and obstructing com- hood of Electrical Workers, Local 1448, AFL-CIO, and merce and the free flow thereof. to form a company union. 4. The Respondent violated Section 8(a)(3) and (1) of V. THE REMEDY the Act by discriminatorily discharging Robert Burket Having found that the Respondent has engaged in cer- because of his activities and support for the Union. tain unfair labor practices, I shall recommend that it be 5. The aforesaid unfair labor practices are unfair labor required to cease and desist therefrom and to take certain practices affecting commerce within the meaning of Sec- affirmative action designed to effectuate the policies of tion 2(6) and (7) of the Act. the Act. 6. The Respondent's unlawful conduct interfered with Having found that the Respondent discharged Robert the representation election held on May 16, 1980. Burket in violation of the Act, I recommend that the Re- Upon the foregoing findings of fact, conclusions of spondent be ordered to offer him reinstatement to his law, and the entire record, and pursuant to Section 10(c) former position, or, if such job no longer exists, to a sub- of the Act, I hereby issue the following recommended: stantially equivalent job, and to make him whole for any loss of earnings and other benefits resulting from his dis- ORDER 74 charge by payment to him of a sum of money equal to T R n Hig E C o n Parkes ., ", ,i 1.11. j~~~~~~~The Respondent, High Energy Corporation, Parkes- the amount he normally would have earned as wages . r , * a j the amount he normally would have earned as wages burg, Pennsylvania, its officers, agents, successors, and and other benefits from the date of his discharge to the a , 11 date on which reinstatement is offered, less net earnings assiCes a d during that period. Backpay shall be computed in the manner set forth in F W. Woolworth Company,72 with in- (a) Threatening to close its plant if its employees select terest thereon to be computed in the manner prescribed International Brotherhood of Electrical Workers, Local in Florida Steel Corporation."3 144 8, AFL-CIO, or any other labor organization as their It also is recommended that the ballot of Robert bargaining representative. Burket be opened and counted and a revised tally of bal- (b) Coercively interrogating employees with respect to lots issued. In the event that the Union receives a major- t h e ir union sympathies or activities, or those of other em- ity of the valid ballots cast, a certification of representa- ployees. tive should issue. In the event that the Union fails to re- (c) Threatening employees with the imposition of ceive the majority of the valid ballots cast, the election stricter working conditions, elimination of benefits, and other reprisals because of their assistance to or support " The Regional Director also had found that so much of Objection 2 as alleged that the Employer had interfered with the election by showing " In the event no exceptions are Filed as provided by Sec. 102.46 of slides or movies of antiunion propaganda at meetings with employees be the Rules and Regulations of the National Labor Relations Board, the overruled. findings, conclusions, and recommended Order herein shall, as provided " 90 NLRB 289 (1950). in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and 73 231 NLRB 651 (1977). Also see Isis Plumbing d Heating Co., 138 become its findings, conclusions, and Order, and all objections thereto NLRB 716 (1962). shall be deemed waived for all purposes. HIGH ENERGY CORPORATION 765 for the above-named union, or any other labor organiza- Copies of said notice, on forms provided by the Regional tion. Director for Region 4, after being duly signed by the Re- (d) Soliciting grievances from employees to discourage spondent's authorized representative, shall be posted by them from selecting the above-named Union, or any the Respondent immediately upon receipt thereof, and be other labor organization, to represent them. maintained by it for 60 consecutive days thereafter, in (e) Offering assistance and otherwise encouraging em- conspicuous places, including all places where notices to ployees to form a company union, thereby inducing them employees are customarily posted. Reasonable steps shall to abandon support for the above-named labor organiza- be taken by the Respondent to insure that the notices are tion. not altered, defaced, or covered by any other material. (f) Permanently laying off, discharging, or otherwise (d) Notify the Regional Director for Region 4, in writ- discriminating against any employee because of his sup- ing, within 20 days from the date of this Order, what port for and activities on behalf of the above-named steps the Respondent has taken to comply herewith. Union or any other labor organization. IT IS FURTHER ORDERED that the challenge to the (g) In any like or related manner interfering with, re- ballot of Robert Burket, cast in the election conducted in straining, or coercing employees in the exercise of rights Case 4-RC-14152 on May 16, 1980, be overruled and the guaranteed them under Section 7 of the Act. ballot counted,7 6 nd e eonl reor 2. Take the following affirmative action necessary to Region 4 shall issue and serve o n te pares a revi effectuate the policies of the Act: tally of ballots. If the revised tally of ballots indicates (a) Offer Robert Burket immediate and full reinstate- that the Uion has reeived the majy of baots vca ment to his former job or, if his job no longer exists, to a votes cast in the eecti v ed the R ajonl Diretor shali substantially equivalent position, without prejudice to his v o te s c ast the electionf the Regional Director shall seniority or other rights and privileges, and make him is sue th eay o aoate certification. In the event the re- whole for any loss of pay and other benefits in the vised t aly of ballots shows that the Union has not re- manner set forth in the section of this Decision entitled c v ed a t y o f t he v a lid vo te s cas t t h e electio n '*"~~~The Remedy." ~~~shall be set aside and a new election scheduled at a time "The Remedy." (b) Preserve and, upon request, make available to the and place found b the said Regional Director to be ap- Board or its agents, for examination and copying, all proprate payroll records, social security payment records, time- IT IS FURTHER ORDERED that the complaint be, and it cards, personnel records and reports, and all records nec- hereby is, dismissed insofar as it alleges violations not essary to analyze the amount of backpay due under the found herein. terms of this recommended Order. (c) Post at its plant in Parkesburg, Pennsylvania, Order of the National Labor Relations Board" shall read "Posted Pursu- copies of the attached notice marked "Appendix." 7 5 ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." "7 As found above, the challenges to the ballots of Wanda Wharton, 75 In the event that this Order is enforced by a Judgment of a United John Hawk, Patricia Robins, C. Thomas Sheehan, and Margaret Wright Stales Court of Appeals, the words in the notice reading "Posted by have been sustained, and accordingly their ballots should not be counted. HIGH ENERGY CORPORATION 765 for the above-named union, or any other labor organiza- Copies of said notice, on forms provided by the Regional tion. Director for Region 4, after being duly signed by the Re- (d) Soliciting grievances from employees to discourage spondent's authorized representative, shall be posted by them from selecting the above-named Union, or any the Respondent immediately upon receipt thereof, and be other labor organization, to represent them. maintained by it for 60 consecutive days thereafter, in (e) Offering assistance and otherwise encouraging em- conspicuous places, including all places where notices to ployees to form a company union, thereby inducing them employees are customarily posted. Reasonable steps shall to abandon support for the above-named labor organiza- be taken by the Respondent to insure that the notices are tio n . not altered, defaced, or covered by any other material. (f) Permanently laying off, discharging, or otherwise (d) Notify the Regional Director for Region 4, in writ- discriminating against any employee because of his sup- ing, within 20 days from the date of this Order, what port for and activities on behalf of the above-named steps the Respondent has taken to comply herewith. Union or any other labor organization. IT IS FURTHER ORDERED that the challenge to the (g) In any like or related manner interfering with, re- ballot of Robert Burket, cast in the election conducted in straining, or coercing employees in the exercise of rights Case 4-RC-14152 on May 16, 1980, be overruled and the guaranteed them under Section 7 of the Act. c a e - C 1 1 e n a 6 1 8 ' b v r u e n h guarateedthem nderSectin 7 f theAct.ballot counted, 76 and that the Regional Director for 2. Take the following affirmative action necessary to R o n4s ls a nd serv e o e pa r a r e vised effectuate the policies of the Act: Rt gl o n ly of ballots If t se rv i t of balplts a r ev ts ed (a) Offer Robert Burket immediate and full reinstate- tal ly o f b al l o tsn I f th e revised tally of ballots vdicales ment to his former job or, if his job no longer exists, to a th a t t h e U n c on h a s e r ec e t v ed t h e majority of the valid substantially equivalent position, without prejudice to his v o t es c asta n t h e .electionf the Regional Director shall seniority or other rights and privileges, and make him vs su e th e, appropriate certification. In the event the re- whole for any loss of pay and other benefits in the vc s ed t a oy of ballots shows that the Union has not re- manner set forth in the section of this Decision entitled c el v ed a "l ajo r t y o f t h e v a ll d vo te s ca st, t h e el ectio n manner set forth in the section of this Decision entitled shall be s et aside and a new election scheduled at a time "The Remedy."anplcfonbytesiReinlDrcrtoea- (b) Preserve and, upon request, make available to the a n d p.'B^ f o u n d ^ t h e s a id Regional Director to be ap- Board or its agents, for examination and copying, all ProPnate payroll records, social security payment records, time- I T IS FURTHER ORDERED that the complaint be, and it cards, personnel records and reports, and all records nec- hereby is, dismissed insofar as it alleges violations not essary to analyze the amount of backpay due under the found herein. terms of this recommended Order. (c) Post at its plant in Parkesburg, Pennsylvania, Order of the National Labor Relations Board" shall read "Posted Pursu- copies of the attached notice marked "Appendix." 7 5 ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." -" As found above, the challenges to the ballots of Wanda Wharton, 75 In the event that this Order is enforced by a Judgment of a United John Hawk, Patricia Robins, C. Thomas Sheehan, and Margaret Wright Stales Court of Appeals, the words in the notice reading "Posted by have been sustained, and accordingly their ballots should not be counted. HIGH ENERGY CORPORATION 765 for the above-named union, or any other labor organiza- Copies of said notice, on forms provided by the Regional tion. Director for Region 4, after being duly signed by the Re- (d) Soliciting grievances from employees to discourage spondent's authorized representative, shall be posted by them from selecting the above-named Union, or any the Respondent immediately upon receipt thereof, and be other labor organization, to represent them. maintained by it for 60 consecutive days thereafter, in (e) Offering assistance and otherwise encouraging em- conspicuous places, including all places where notices to ployees to form a company union, thereby inducing them employees are customarily posted. Reasonable steps shall to abandon support for the above-named labor organiza- be taken by the Respondent to insure that the notices are tio n . not altered, defaced, or covered by any other material. (f) Permanently laying off, discharging, or otherwise (d) Notify the Regional Director for Region 4, in writ- discriminating against any employee because of his sup- ing, within 20 days from the date of this Order, what port for and activities on behalf of the above-named steps the Respondent has taken to comply herewith. Union or any other labor organization. IT IS FURTHER ORDERED that the challenge to the (g) In any like or related manner interfering with, re- ballot of Robert Burket, cast in the election conducted in straining, or coercing employees in the exercise of rights Case 4-RC-14152 on May 16, 1980, be overruled and the guaranteed them under Section 7 of the Act. c a e - C 1 1 e n a 6 1 8 ' b v r u e n h guarateedthem nderSectin 7 f theAct.ballot counted, 76 and that the Regional Director for 2. Take the following affirmative action necessary to R o n4s ls a nd serv e o e pa r a r e vised effectuate the policies of the Act: tally of ballots. If The se rv i t of balplts a r ev ts ed (a) Offer Robert Burket immediate and full reinstate- tal ly o f b al l o tsn I f th e revised tally of ballots vdicales ment to his former job or, if his job no longer exists, to a th a t t h e U n c on h a s e r ec e t v ed t h e majority of the valid substantially equivalent position, without prejudice to his v o t es c asta n t h e .electionf the Regional Director shall seniority or other rights and privileges, and make him vs su e th e, appropriate certification. In the event the re- whole for any loss of pay and other benefits in the vc s ed t a oy of ballots shows that the Union has not re- manner set forth in the section of this Decision entitled c el v ed a "l ajo r t y o f t h e v a ll d vo te s ca st, t h e el ectio n manner set forth in the section of this Decision entitled shall be s et aside and a new election scheduled at a time "The Remedy."anplcfonbytesiReinlDrcrtoea- (b) Preserve and, upon request, make available to the a n d p.'B^ f o u n d ^ t h e s a id Regional Director to be ap- Board or its agents, for examination and copying, all ProPnate payroll records, social security payment records, time- I T IS FURTHER ORDERED that the complaint be, and it cards, personnel records and reports, and all records nec- hereby is, dismissed insofar as it alleges violations not essary to analyze the amount of backpay due under the found herein. terms of this recommended Order. (c) Post at its plant in Parkesburg, Pennsylvania, Order of the National Labor Relations Board" shall read "Posted Pursu- copies of the attached notice marked "Appendix." 7 5 ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." -" As found above, the challenges to the ballots of Wanda Wharton, 75 In the event that this Order is enforced by a Judgment of a United John Hawk, Patricia Robins, C. Thomas Sheehan, and Margaret Wright Stales Court of Appeals, the words in the notice reading "Posted by have been sustained, and accordingly their ballots should not be counted. HIGH ENERGY CORPORATION 765 for the above-named union, or any other labor organiza- Copies of said notice, on forms provided by the Regional tion. Director for Region 4, after being duly signed by the Re- (d) Soliciting grievances from employees to discourage spondent's authorized representative, shall be posted by them from selecting the above-named Union, or any the Respondent immediately upon receipt thereof, and be other labor organization, to represent them. maintained by it for 60 consecutive days thereafter, in (e) Offering assistance and otherwise encouraging em- conspicuous places, including all places where notices to ployees to form a company union, thereby inducing them employees are customarily posted. Reasonable steps shall to abandon support for the above-named labor organiza- be taken by the Respondent to insure that the notices are tio n . not altered, defaced, or covered by any other material. (f) Permanently laying off, discharging, or otherwise (d) Notify the Regional Director for Region 4, in writ- discriminating against any employee because of his sup- ing, within 20 days from the date of this Order, what port for and activities on behalf of the above-named steps the Respondent has taken to comply herewith. Union or any other labor organization. IT IS FURTHER ORDERED that the challenge to the (g) In any like or related manner interfering with, re- ballot of Robert Burket, cast in the election conducted in straining, or coercing employees in the exercise of rights Case 4-RC-14152 on May 16, 1980, be overruled and the guaranteed them under Section 7 of the Act. c a e - C 1 1 e n a 6 1 8 ' b v r u e n h guarateedthem nderSectin 7 f theAct.ballot counted, 76 and that the Regional Director for 2. Take the following affirmative action necessary to R o n4s ls a nd serv e o e pa r a r e vised effectuate the policies of the Act: tally of ballots. If The se rv i t of balplts a r ev ts ed (a) Offer Robert Burket immediate and full reinstate- tal ly o f b al l o tsn I f th e revised tally of ballots vdicales ment to his former job or, if his job no longer exists, to a th a t t h e U n c on h a s e r ec e t v ed t h e majority of the valid substantially equivalent position, without prejudice to his v o t es c asta n t h e .electionf the Regional Director shall seniority or other rights and privileges, and make him vs su e th e, appropriate certification. In the event the re- whole for any loss of pay and other benefits in the vc s ed t a oy of ballots shows that the Union has not re- manner set forth in the section of this Decision entitled c el v ed a "l ajo r t y o f t h e v a ll d vo te s ca st, t h e el ectio n manner set forth in the section of this Decision entitled shall be s et aside and a new election scheduled at a time "The Remedy."anplcfonbytesiReinlDrcrtoea- (b) Preserve and, upon request, make available to the a n d p.'B^ f o u n d ^ t h e s a id ^gional Director to be ap- Board or its agents, for examination and copying, all ProPnate payroll records, social security payment records, time- I T IS FURTHER ORDERED that the complaint be, and it cards, personnel records and reports, and all records nec- hereby is, dismissed insofar as it alleges violations not essary to analyze the amount of backpay due under the found herein. terms of this recommended Order. (c) Post at its plant in Parkesburg, Pennsylvania, Order of the National Labor Relations Board" shall read "Posted Pursu- copies of the attached notice marked "Appendix." 7 5 ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." -" As found above, the challenges to the ballots of Wanda Wharton, 75 In the event that this Order is enforced by a Judgment of a United John Hawk, Patricia Robins, C. Thomas Sheehan, and Margaret Wright Stales Court of Appeals, the words in the notice reading "Posted by have been sustained, and accordingly their ballots should not be counted.