Elston Electronics Corp.

510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Elston Electronics Corp and International Brother- hood of Electrical Workers, Local Union 840 Case 3-CA-12007 January 18, 1989 DECISION AND ORDER By MEMBERS JOHANSEN, CRACRAFT, AND HIGGINS On September 26, 1985, Administrative Law Judge Robert T Snyder issued the attached deci- sion The Respondent filed exceptions The Gener- al Counsel filed cross exceptions and a brief in sup port thereof The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions, cross exceptions, and brief and has decided to affirm the judge's rul ings, findings,' and conclusions2 only to the extent consistent with this Decision and Order The judge found that the Respondent violated Section 8(a)(1) of the Act when Group Leader (Su- pervisor) Carol Conklin stated to employee Shirley Hardy and three other employees that because she, as a group leader, had been advised she could not attend the upcoming union meeting she did not think anyone should go The judge found Conklin's statement was intended to discourage attendance at the union meeting and constituted direct interfer ence with employee Section 7 rights to engage in union activity We disagree and find there was no showing that Conklin's statement tended to threat ' The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 In finding that the Respondent violated Sec 8(a)(l) of the Act by an pouncing a 7 percent wage increase on December 17 1983 Member Cra craft does not adopt the judge s analysis that the announcement of a wage increase following commencement of an organizing campaign is presumptively unlawful Rather she would find that when the timing of a grant of benefits coincides with organizational activity absent an of firmative showing of some legitimate business reason for the timing it is not unreasonable to draw the inference of improper motivation and im proper interference with employee freedom of choice Litton Industrial Products 221 NLRB 700 701 (1975) enf denied 543 F 2d 1085 (4th Cir 1976) The Respondent has failed to make such an affirmative showing with respect to the timing of the announcement of the wage increase Thus the evidence reflects that the Respondent had no standard policy of granting wage increases and had not indicated prior to the organiza tional activity that it anticipated granting such an increase in December 1983 In April 1983 the Respondent explained to employees that its 3 1/2 percent ratio of sales to profits would not justify any increase in wages but that if the ratio could be improved it could give higher wages to its employees The ratio did indeed improve by December 1983 and assumably had been improving since April 1983 However this improve ment in the ratio standing alone does not afford the Respondent a legiti mate business reason for the timing of its announcement en or coerce any of the involved employees and that the statement fails to reach the level of a viola- tion The judge also found a violation of Section 8(a)(3) and (1) of the Act in the Respondent's al leged delay in promotion of and denial of a wage increase to employee Hardy based on her union ac tivities We disagree Employee Hardy claimed that as a result of her union activities she was denied an automatic monthly 10-cent an hour increase in wages and a promotion to Grade 2 The Respondent contended that the 10 cent increase was not automatic but rather was discretionary and was awarded based on attendance and work performance Hardy had at- tendance and tardiness problems She had been "job failed" from her earlier position in December 1983 She was taken back that same month on pro- bation In January 1984 she had several absences Consequently, she was not upgraded to Grade 2 until February 1984 when her attendance had im- proved Assuming her 10 cent an-hour increase was authorized in February, she would have first re ceived the increase in March, which she did Thus, we do not find any delay in promotion or denial of a wage increase Our review of the record con vinces us that Hardy was given the 10 cent an-hour increase and upgraded when her attendance and on-the job performance warranted it Assuming, arguendo, that there was some delay in her raise and upgrade, we believe that the Gen eral Counsel failed to meet her burden of proof on these issues and a preponderance of the evidence falls to show that employee Hardy's alleged delay in upgrade and denial of a wage increase were predicated on her union activities Accordingly, we do not find the delay a violation of Section 8(a)(3) and (1) Further, we do not agree with the judge s find ing that employee Doris Riek's conversations with other employees and management officials concern ing her eligibility for a wage increase and the dis- parity in wages between the Central and Lehigh plants did not constitute concerted activity and that the warning given to her by the Respondent on January 12, 1984, did not violate Section 8(a)(1) of the Act On December 17, 1983, the Respondent an nounced a 7-percent wage increase Riek was con- fused about her eligibility for the increase, and dis cussed her confusion about the increase with other employees She also discussed the wages at the Central and Lehigh plants with employee Horton Riek spoke with Group Leader McNeal, Personnel Administrator Schaup, and Schaup's assistant Erb about the wage increase, about whether she and 292 NLRB No 57 ELSTON ELECTRONICS CORP 511 the temporary employees would receive the in- crease, and about what she perceived as the wage disparity between the Central and Lehigh plants Riek was advised by Schaup on January 10, 1984,3 not to discuss wages or any perceived wage dis- crepancies with other employees at work On Janu- ary 12 Riek was given a written warning by McNeal and Schaup for "Disrupting production by distracting other employees by excessive talking Failure to follow directions when told to ease off on placing yokes on lines " Schaup admitted that the portion of the warning related to excessive talking was motivated by Riek's wage discussions with other employees, who brought these discus sions to the Respondent's attention We agree with the judge, for the reasons stated by him, that Schaup's statement to Riek on January 10 prohibiting the discussion of wages violated Section 8(a)(1) It follows, therefore, that the Janu- ary 12 warning, admittedly issued to Riek in part because of her violation of this prohibition, consti- tuted an unlawful enforcement of the unlawful rule in further violation of Section 8(a)(1) Jeannette Corp v NLRB, 532 F 2d 916, 920 (3d Cir 1976) In any event, we find, contrary to the judge, that Riek's wage discussions with other employees and management officials constituted concerted activi ty In Meyers Industries, 281 NLRB 882 (1986), the Board reiterated the definition of concerted activi ty as encompassing "those circumstances where in- dividual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management "4 The Board also noted its approval of the Third Circuit's comments in Mushroom Transportation Co v NLRB, 330 F 2d 683, 685 (1964), that a conversation may constitute a concerted ac- tivity although it involves only a speaker and a listener, but to qualify as such, it must appear at the very least that it was engaged in with the object of initiating or inducing or prepar- ing for group action or that it had some rela- tion to group action in the interest of the em- ployees 9 All dates are in 1984 unless otherwise noted 4 The Board s decision was enforced by the Court of Appeals for the District of Columbia Circuit Prill v NLRB 835 F 2d 1481 (1987) Member Johansen would find that a discussion between two or more employees regarding terms and conditions of employment (in this case wages) is necessarily concerted activity and he would not further require that the discussion otherwise appear calculated to induce or prepare for group action or that it otherwise be related to group action Salisbury Hotel 283 NLRB 685 In 10 (1987) Inasmuch as Members Cracraft and Higgins conclude that Riek s con duct constituted concerted activity under the precedent cited above in the text they find it unnecessary to decide whether Member Johansen s rationale furnishes a sufficient basis for reaching the same conclusion We find Riek's conduct encompassed within these principles Although Riek was indeed con- cerned with her own personal situation, she was also concerned with whether temporary employees would receive the wage increase and with what she perceived as an unfair disparity in the Central and Lehigh plant wages She discussed these con cerns with other employees, who also voiced their concerns to management officials These discus sions, therefore, clearly involved broader concerns than Riek's personal situation and can not accurate- ly be described, as did the judge, as pursuit of "a quest which related solely to her own prior work attendance history "5 To the contrary, as a direct result of Riek's discussions, other employees voiced similar concerns to management officials, which then prompted the Respondent to take action against Riek Accordingly, we find that Riek's wage discussions were "engaged in with the object of initiating or inducing or preparing for group action,"6 thereby constituting concerted activity Jeannette Corp, 217 NLRB 653 (1975), enfd 532 F 2d 916 (3d Cir 1976) AMENDED CONCLUSIONS OF LAW 1 In Conclusion of Law 3, delete "or attend a union meeting " 2 In Conclusion of Law 4, delete "and by delay- ing and denying a promotion and wage increases for Shirley Hardy because she joined, supported, and assisted the Union and engaged in concerted activities for the purpose of collective bargaining or other mutual aid and protection " ORDER The National Labor Relations Board orders that the Respondent, Elston Electronics Corp, Geneva, New York, its officers, agents, successors, and as signs, shall 1 Cease and desist from (a) Announcing or granting general wage in creases to discourage employees' membership in or other activity on behalf of the Union (b) Informing employees that they may not dis cuss their wage rates with other employees or dis cuss the Union on worktime (c) Threatening employees with a plant removal outside the State of New York because of their se- 5 Thus the cases relied on by the judge in which the Board found that the employees involved were merely griping over personal complaints are distinguishable Member Cracraft agrees that those cases are distin guishable but does not pass on whether she agrees with the results in those cases In any event the fact that Riek was seeking a raise for her self does not detract from the concerted nature of her discussions with other employees El Gran Combo 284 NLRB 1115 (1987) enfd 853 F 2d 996 (1st Cir 1988) 6 Mushroom Transportation Co v NLRB supra 330 F 2d at 685 512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lection of the Union as their collective-bargaining representative (d) Creating an impression among its employees that their union activities are under surveillance (e) Promising employees wage increases and other unspecified benefits if they abandon their support of the Union (f) Maintaining, giving effect to, or enforcing in a disparate and discriminatory manner an invalid no-distribution rule which prohibits employees from distributing written or printed literature on company premises without written authorization from the personnel department (g) Suspending or warning employees because they distribute union literature or engage in other union activities or protected concerted activities for the purpose of collective bargaining or other mutual aid and protection (h) Issuing written warnings to employees for discussing wage rates (i) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Rescind the rule which prohibits employees from distributing written or printed literature on company premises without written authorization from the personnel department (b) Rescind the written suspension issued to Sally Quinter and make Quinter whole for any loss of earnings or other benefits she may have suffered by reason of the discrimination against her , plus inter- est 7 (c) Revoke and remove from its personnel records or other records that portion of the written warning issued to Doris Riek on January 12 which states "Disrupting production by distracting other employees by excessive talking" and notify her in writing that this has been done and that the ex- punged portion of the warning will not be used as a basis for future discipline against her (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order I In accordance with our decision in New Horizons for the Retarded 283 NLRB 1173 (1987) interest on and after January 1 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued poor to January 1 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) (e) Revoke and remove from its personnel and other records the written warning and suspension of Sally Quinter issued to her for distributing union literature and notify her in writing that this has been done and that this unlawful warning and sus pension will not be used as a basis for future disci pline against her (f) Post at its plant in Geneva, New York, copies of the attached notice marked "Appendix "8 Copies of the notice, on forms provided by the Re- gional Director for Region 3, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply IT IS FURTHER ORDERED that in all other re spects the complaint is dismissed 8If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT announce or grant general wage increases to discourage our employees' membership in or other activity on behalf of International Brotherhood of Electrical Workers, Local Union 840, or any other labor organization WE WILL NOT inform our employees that they may not discuss their wage rates with other em- ployees or discuss the Union on worktime WE WILL NOT threaten our employees with a plant removal outside the State of New York be cause of their selection of the Union as their collec- tive-bargaining representative WE WILL NOT promise our employees wage in creases and other unspecified benefits if they aban- don their support of the Union ELSTON ELECTRONICS CORP 513 WE WILL NOT create an impression among our employees that their union activities are under sur veillance WE WILL NOT maintain, give effect to, or en- force in a disparate and discriminatory manner our invalid no-distribution rule which prohibits em- ployees from distributing written or printed litera- ture on company premises without written authori- zation from the personnel department WE WILL NOT suspend or warn employees be cause they distribute union literature or engage in other union activities or protected concerted active ties for the purpose of collective bargaining or other mutual aid and protection WE WILL NOT issue written warnings to employ- ees for discussing wage rates WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act WE WILL rescind the rule which prohibits em- ployees from distributing written or printed litera ture on company premises without written authors zation from the personnel department WE WILL rescind the written suspension issued to Sally Quinter and make whole Quinter for any loss of earnings or other benefits she may have suf- fered by reason of the discrimination against her, plus interest WE WILL revoke and remove from our personnel records and other records the written warning issued to Doris Riek which relates to her talking to other employees and WE WILL notify her that this has been done and that evidence of this warning will not be used as a basis for future discipline against her WE WILL revoke and remove from our personnel and other records the written warning and suspen- sion of Sally Quinter issued to her for distributing union literature and WE WILL notify her that this has been done and that evidence of this warning and suspension will not be used as a basis for future discipline against her ELSTON ELECTRONICS CORP William B Kenney Esq for the General Counsel Raymond W Murray Jr Esq (Bond Schoeneck & King Esqs) of Syracuse, New York for the Respondent DECISION STATEMENT OF THE CASE ROBERT T SNYDER Administrative Law Judge This proceeding was tried at Geneva New York on 2 and 3 May 1984 1 The complaint, issued on 13 February 1984 and amended at the opening of hearing, alleges that Elston Electronics Corp (Respondent or Elston) by named agents announced a wage increase benefit which it subsequently implemented in an effort to undermine union support told employees not to discuss their wage rates, to confine union discussions to breaktime not to attend a union meeting created an impression that em ployee union activities were under surveillance threat ened to move its facilities outside New York to avoid ne gotiating with the Union International Brotherhood of Electrical Workers Local Union 840, issued a written warning to an employee, and promised an employee un specified benefits if she abandoned the Union all in vio lation of Section 8(a)(1) of the Act, and maintained and enforced an employee work rule prohibiting unauthor ized posting or distribution of unofficial material on com pany time and property suspended an employee for dis tributing union literature, demoted and denied a wage in crease to another employee, all in violation of Section 8(a)(1) and (3) of the Act By its second amended answer, filed 27 April 1984, and by further oral amend ment made at the hearing Elston denied the material and conclusionary allegations of the complaint All parties were given full opportunity to participate, to introduce relevant evidence to exmaine and cross ex amine witnesses to argue orally and to file briefs The General Counsel and Respondent each filed posttrial briefs that have been carefully considered On the entire record in the case including my observation of the wit nesses and their demeanor I make the following FINDINGS OF FACT I JURISDICTION AND LABOR ORGANIZATION STATUS Elston a New York corporation maintains its princi pal office and place of business at 35 Lehigh Street in the city of Geneva, State of New York (the Lehigh plant) and a second plant located on Central Avenue also in Geneva, New York where it is engaged in the manu facture, sale and distribution of video display monitors for the computer industry Elston also maintains a third small facility in Phelps New York near Geneva not in volved in this proceeding Annually Elston in the course and conduct of its business operations manufac tures sells and distributes at its Geneva, New York plants products valued in excess of $50 000 of which products valued in excess of $50 000 are shipped from the plants directly to States of the United States other than the State of New York Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act Subsequently on an uncontested motion made by the General Coun sel the record in this proceeding was reopened and it was consolidated for continued hearing with another case Case 3-CA-12290 on my Order dated 9 August 1984 Thereafter on further motion also uncontested made by the General Counsel based on resolution of the underlying dis pute in Case 3-CA-12290 I issued a further order dated 9 September 1984 closing the record in the instant proceeding and remanding Case 3- CA-12290 to the Regional Director for Region 3 for such further action as he deemed appropriate 514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The complaint also alleges , Respondent admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. H. THE ALLEGED UNFAIR LAI3OR PRACTICES A. Background and Commencement of the Union's Organizational Campaign Elmer Stone is Elston's founder, president, and princi- pal stockholder. The Company began operations in April 1973. By the end of its first year it employed a dozen employees. By the end of 1982, it employed over 200. By the hearing in May 1984, it employed 579, having added more than 300 new employees in 1.983. Until the Union commenced an organizing campaign in November 1983, Elston had no prior union involvement and its employees had never been represented by a union. Elston's history of substantial growth resulted in the leasing of the second Geneva plant, located on Central Avenue, in December 1982, to supplement its principal manufacturing plant on Lehigh Avenue. Edward Bolger, the Union's business manager, testified that Local 840 commenced an organizational drive among Elston employees at the end of November 1983. On 6 December 1983 Bolger and International Union Representative Pat Gino handbilled the employees out- side the two Geneva plants from 6 to 7 a.m. before the start of the workday, and again between 2:45 and 3:30 p.m. at its conclusion. The parties stipulated that this was the first occasion on which Elston had knowledge of union activity at its plants. B. The Continuing Union Campaign, Respondent's Reaction to it, and the Alleged Conduct Violative of Section 8(a)(1) and (3) of the Act On 17 December 1983, at Respondent's Christmas Party, Stone announced to the assembled employees that as of 1 January 1984, the employees would be receiving a general wage increase. At least one employee testified that in the announcement Stone mentioned a figure of 7 percent. This employee also recalled Stone saying that this was the first time the Company was able to give such a raise because of productivity-everyone worked hard for this. In a two page memorandum, with a two page attach- ment itemizing benefits, dated 1 January 1984, addressed to "All Elston Employees," Stone referred on page 2 of the memorandum to the wage increase in the following terms: "There are few companies our size and age that have the benefits we share, the latest being a Profit Shar- ing and Pension Plan, an employee: emergency finanical loan program,2 and a flat, across-the-board seven (7%) per wage increase effective January 1st." Earlier, on page 1 of the memorandum, among other statements, Stone informed the employees, "Only we, the employees with dedicated effort, our ideas, and our will- ingness to work together as a mighty team can guarantee our success, our jobs! (Don't let anyone tell you that our Government or a labor union or I personally can guaran- tee job security!) We not only have to compete in the price war with `off shore' manufacturers, but we, unfor- tunately, have a large bank loan to pay off."3 All employees received the 7-percent increase on their basic salary effective 1 January 1984. Shirley Hardy commenced employment with Re- spondent on 9 September 1983. She first worked at the Central Avenue plant under Group Leader Carol Conk- lin4 in the parts preparation department, receiving the minimum wage of $3.35 per hour for a 40-hour week. On 17 November 1983, she was transferred to field returns in the Lehigh Avenue plant. Field returns was in the quality control department. Mary Ellen Miller was one of two group leaders in that department who observed her work and Miller's superior was David Bruzee, qual- ity control superior. Bruzee, in turn, reported to Tom O'Donnell, quality assurance manager. Hardy's transfer to field returns in the Lehigh plant was dictated by a need for additional help in that func- tion, aiding the technicians in replacing parts in a kit ver- sion monitor and repackaging the finished unit. Hardy had punched a timeclock when working at the Central Avenue plant. On her transfer Hardy testified that she was told by Beverly Erb, an employee in the personnel department, that the timeclock at the Lehigh plant would not take her card but that she should not worry about it too much, they would fill her time in. Erb added that Mary Ellen Miller, Hardy's supervisor, would take care of it. On 6 December 1983, on the way in to work, Hardy took an orange-colored union pamphlet being handed out to employees that day by the union organizers, and she read it as she walked into the Lehigh plant and upstairs to her workplace. Hardy testified that a group leader, Karen McNicholas, saw her reading the pamphlet as McNicholas, who was ahead of her, turned and held open the door for Hardy to enter the plant. Hardy had sought out the Union as early as the end of October or early November, a month and a half after starting work. After obtaining information about unions from the Finger Lakes Legal Services Office, she at- tempted to telephone the International Union in Wash- ington, D.C., without success. After learning of the Union's opening of its drive among Elston employees, Hardy contacted Gino to become involved in the cam- paign. Hardy testified that she talked openly in favor of the Union all the time, during break time, at work, starting in November 1983. Much of the time, during these breaks, and at lunchtime, before her 17 November trans- 2 The complaint allegation of announcement of a wage increase benefit in violation of Sec. 8 (a)(1) also included the profit-sharing and pension plan and loan program as other benefits whose announcement also violat- ed the Act. At the opening, of hearing the portion of the allegation relat- ing to the profit-sharing and pension plan and loan program grants of benefit were withdrawn from the complaint without objection. ' The Company's debt, $2,148,907, by the end of 1982, had more than doubled to approximately $5.6 million by the end of 1983. 4 Respondent stipulated that Carol Conklin and another employee, Helen Rodman, are group leaders, and that group leaders are supervisors within the meaning of Sec. 2(11) and (13) of the Act. ELSTON ELECTRONICS CORP fer, Carol Conklin, Hardy s supervisor was present During these conversation before the transfer, Hardy spoke up in favor of having a union for employees at Elston, but not specifically about IBEW, Local 840 I credit Hardy on her testimony here, particularly because Respondent failed to call Conklin as a witness to rebut the thrust of Hardy s testimony According to Hardy and again not disputed by Re spondent, on another occasion, about a week after 6 De cember 1983, while she had retained the orange colored union pamphlet in her pocket or purse, Don Nellis, a group leader in field returns,5 asked her about the pam phlet She asked him if he had received one When he replied he had not, and two other employees also asked her questions about it, Hardy said they could read it if they wanted to A time came after her physical transfer to the Lehigh plant, probably in late November or early December 1983, when she was told to report back to Central Avenue plant to work on field return repairs of mom tors Her supervisor, Mary Ellen Miller, told her she should walk back over to Lehigh plant and punch in at the beginning and out at the end of the day there at the time clock Apparently, although not crystal clear from the testimony the Lehigh plant timeclock was now capa ble of accepting Hardy s timecard As Hardy explained it, I was still programmed into the Lehigh plant, but I was still working at Central Avenue (Tr 25) When Hardy asked Conklin if she could punch in at Central, because her timecard was over there, she said she would check into it and came back and told her no According to Hardy in the week prior to the week commencing Monday, 19 December 1983 there were ice storms the whole week As her ride home-she traveled to and from work in a fellow worker s car - was leav ing from Central Avenue plant and the traffic was very heavy to the Lehigh plant Hardy dust decided to skip punching at Lehigh and have Miller fill in her card for her Hardy added that this was common practice at El ston s On Thursday 22 December Miller approached her about this problem Hardy told Miller she did not punch in and out Miller said she knew and that Hardy didn t punch a couple of days Hardy said, I in sorry but the weather was really bad and I had been feeling ill that week, so I didn t punch in Miller told her don t worry about it too much, we 11 take care of it Hardy then asked if she was going to work at Central for a long time, if she could be programmed back into that time clock Miller replied that she did not think she could help her it would be too much of a bother to program Hardy in there The following day, 23 December Hardy worked all day There were Christmas activities in the plant About 2 45 p in Carol Conklin came up to her at her workplace 5 A fellow employee in field returns Betty Cosgrove had informed her that Nellis was a group leader and that if she had any problem to take it over to Nellis Although Respondent s counsel during Hardy s cross examination appeared to question Nellis status as a group leader Respondent failed to offer any evidence disputing Hardy s understanding although Bruzee testified that the two group leaders who worked for him in quality control were Mary Ellen Miller and Chuck Randall 515 and said that Mary Schaup, the personnel administrator, wanted to talk to her at the Lehigh plant Hardy went to Schaup s office Schaup told her they had bad news for her that they were going to terminate her from the field returns position Hardy asked why Schaup responded that because of her negligence of not punching her time card in and out Hardy asked if they thought there was a problem with that, why did not someone tell her about the severity of the punishment for that 6 She surely would have made some effort to go to the Lehigh plant to punch in and out Under cross examination Hardy denied that Schaup discussed with her a failure to fill out daily worksheets Hardy did recall being told by Schaup about not calling in when she was out ill within the week commencing Monday, 19 December 1983, but claimed it was not true and she always called in or had someone call in for her if she was not going to be at work Hardy later explained that although she did not have a telephone at the time, she would have someone call in for her usually her mother Her husband went to her mother's house and waited while she called the plant The call was placed before the 8 a in starting time to either Joanie, the assistant group leader, or to Carol Conklin Hardy further testified that Schaup told her that Tom 0 Donnell, manager for field returns and quality control, had come in to her office, put Hardy's timecard on her desk and said he wanted her terminated Schaup went on that because it was Christmas and everything she would call Carol Conklin and ask her if she would take Hardy back into her department with the understanding that Hardy would be on a 40 hour probationary period, if Hardy did not punch her timecard in and out during that week she would probably be terminated Schaup added it showed poor attitude by not punching her timecard and that congeniality and behavior were as important to a person s work record as their performance which she said was very good During this meeting Hardy saw on the corner of Schaup s desk, an employee warning record with her name on it Schaup told her what was written on it She was not asked to sign it It was later introduced into evi dence by Respondent It was dated 23 December 1983 and was checked for both disobedience and tardiness Under remarks was written Failure to punch time card and fill out daily worksheet as instructed failure to call in and tardy two times within the week of 12/23/83 The box was checked indicating that employee had been warned previously The form noted that Carol Conklin had previously warned her twice, once orally and once in writing Under action to be taken the notation ap peared- fob fail as of 3 30 p in on 12/13/83' -and it was signed by Thomas L 0 Donnell as supervisor Later after Hardy left the words were adduced to the 6 A listing of employee work rules complied and issued in 1982 and in effect at all times material in this proceeding did not include any rule relating to punching a timecard The listing which included specific acts of misconduct subject to disciplinary action under the heading Attend ance and Attention to Work referred inter alia to tardiness and ab sences but not to employee recording of time worked (Employee Stand ards of Conduct G C Exh 4 ) 516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD form transferred back to Carol on a 40 hr trial basis Hardy denied that she had ever received a prior written warning and Respondent failed to produce such a docu ment Conklin was called in while Hardy was still present and she said she would be glad to have Hardy back in her department Hardy returned on 27 December to parts preparation department apparently, in the Central Avenue plant At this point, Hardy was still in labor grade 1 receiving $3 35 an hour the minimum wage, as her rate of pay It was her understanding, based on statements made to her when she was hired that she would receive a 10 cent per hour wage increase every month after she became permanent until she reached the top of her labor grade Later on cross examination Hardy clarified that the pro bationary period was 60 days and she was told by Carol Conklin that 30 days after becoming permanent she would receive an automatic 10 cent raise Accordingly, it was Hardy s contention that she should have received her first 10 cent an hour increase effective 9 December 1983, 90 days after she started employment Effective 1 January 1984 Hardy, along with all other employees re ceived the 7 percent wage increase increasing her salary to $3 59 an hour Hardy s understanding of the automatic nature of the increases was disputed by Respondent at the hearing but was consistent with a statement of benefits appearing in a newspaper article in the Seneca Falls, New York The Reveille of 7 March 1984 and distributed by superviso ry personnel to employees as they punched out that day However that article offered in evidence by the Gener al Counsel could not be received for the truth of its con tents being hearsay and even Respondents conduct in distributing it to employees could not be said to consti tute an adoption of its contents that would overcome the hearsay disability According to Hardy during the first 2 weeks of Janu ary, 1984 two pieces of company campaign literature were distributed at the workplace during worktime She received her copies from Carol Conklin who went up and down the work line handing them out Also during the same period of time a petition was also circulated at work asking employees if you don t want a union if you don t think we need a union you should sign this 7 Hardy saw the petition on Conklin desk at the end of her worktable Conklin placed it on the seat of the employee who set next to Hardy When that employee who was away came back to the workplace she passed it down the line in front of and past Hardy because of Hardy s known prounion stance Hardy saw the petition passed back and forth at her worktable three times that day The third time it passed Hardy she folded it up and 7 The petition was not made part of the record Various pieces of cam paign literature were introduced Two of them are single page mimeo graphed sheets dated 1-6-84 and 1-12-84 respectively and ad dressed to Dear Fellow Employees and signed by four employees below the designation Committee For A Future Elston They are re sponses to union promises and claims and opposed to union represents tion A prounion five sided leaflet dated 9 January 1984 addressed to all Elston employees was signed Your Committee for a Better Tomor row Your Fellow Elston s Employees Organizing Committee and The Membership of I B E W Local 840 Geneva walked away from the station to the timeclock and placed it in a sunshine fund box Assistant Group Leader Joan Wattams had followed her and asked what she was going to do with the petition Another employee, Linda Conley, testified that her group leader in final assembly Helen Clark passed out copies of Elston s two page leaflet dated 1 January 1984 addressed to all Elston employees previously described, at the workplace while employees were working on the line This antiunion activity among employees on worktime, known to and encouraged by supervision took place in the face of a work rule then in effect 8 characterizing as a specific act of misconduct against the best interests of Elston and subject to disciplinary action Unauthorized posting or distribution of unofficial material on company time and property No evidence was adduced by Re spondent that the unoffical petition received prior Em ployer authorization On 13 January 1984 prior to a union meeting sched uled for that evening Hardy returned to her workplace from a scheduled work break but before the second bell had rung requiring employees to return to work and found two employees talking in a negative manner about the Union Hardy asked one, Debbie Weino if she was going to attend the meeting and she said absolutely not Hardy said, [Y]ou should you might hear something about it and then went to her workplace About 45 min utes later, Conklin asked to speak to her She said [A]ren t you aware that there are rules against talking about the Union during work time and Debbie Weino claims you are harassing her Hardy responded she was very aware of that She said she could not understand why they could talk about antiunion and couldn t talk about prounion Hardy advised Conklin it was not on her work time it was still during her break Although union organizing was thus singled out for prohibition the General Counsel s witnesses testified at length to the freedom with which employees and super visors solicited their fellow workers both during breaks and working time at the workplace with respect to raffle tickets Girl Scout cookies Christmas ornaments and the like On another occasion shortly before the union meeting on 13 January 1984 Hardy and three other employees were talking about the meeting and who could and could not go Conklin who was present, told them that she had been advised by someone that, because she was a group leader she could not attend the union meeting and also that because she was not going to go she did not think anyone should go Also, in January and before the union meeting, when the union representatives handbilled in front of the Cen tral Avenue plant-a blue, six sided leaflet signed by the employee union committee was dated 9 January 1984- Hardy went outside got some of them and then handed them out to employees in the rear of the plant she knew who had come to work through the back door where no 8 See fn 6 supra ELSTON ELECTRONICS CORP handbilling was taking place because the rear area was on company property A few days after the meeting on 16 January 1984 Hardy approached President Stone at his desk in the Central Avenue plant floor She told him she was aware there was literature around the plant and posted up over the timeclock and in various areas The reference was to unsigned antiunion literature directed to employees She asked him who was responsible and if it was done with his permission, as it had no signature on it She said she was not sure who was responsible for posting it and she thought it represented a kind of intimidation, and was causing a lot of tension within the plant On cross exami nation, Hardy said she also told Stone that not many people showed up at the union meeting and they felt in timidated referring to the employees who did not attend Hardy said she had gone, she added she was a very openminded person and always liked to know both sides of the story She felt every person in the plant deserved the same right and they did not feel they had the right any more Stone replied that he wasn t aware of any thing and he would check into it and try to find out who was responsible Hardy said she wanted to know if it was done with his permission At that point he said he did not know anything about the petition that had been passed around,9 and that if she felt intimidated why did she, because she was prounion9 Hardy denied saying that Stone said that he had heard that she was and he said he would give her a list of six or seven people that were in a committee for the people for future Elston to He asked Hardy about a girl with dark curly hair who had been spreading rumors that he was making a certain amount of money every week Hardy said she had no idea who he was talking about He asked if she knew Judy McNeal and she said yes According to Hardy they then talked for a while about his past experience when he worked at a union factory for many years Hardy then asked if there would be any retaliation against the prounion committee people for their opinions Stone said he would do anything he could to keep the Union out They then talked about union wages and the wages that other union factories had and Stone said that if he had to compete with union pay, he would have to go offshore to compete Hardy also asked Stone about her vacation time that she thought she had to wait a long time to get vacation pay after becoming permanent Stone said that he could not believe that one had to wait 60 days after becoming permanent to get vacation, he would check into it and get back to her Hardy thanked him and left After being refreshed about the of the phase police officer, Hardy now also recalled that Stone also said he would like to avoid having police officers go around lis tening to conversations of people who are promoting the union B Hardy swore that the subject of the employee antiunion petition had not come up in the conversation before Stone brought it up 10 Hardy was unsure of the name There is apparent confusion here be tween the names of the employee committee opposed to union organiza tion-committee for a future Elston-and the pro union employee group-Your Committee for a better tomorrow see fn 7 Hardy was clearly attributing to Stone reference to the prounion group 517 Subsequently Stone came back to Hardy and said she was correct You did have to wait that amount of time following your permanent status before you were paid for vacation Hardy testified that her renewed probationary period commenced 27 December 1983 when she was returned to her old parts preparation Department at Central Avenue, lasted a week, as she was informed it would Thereafter, around 4 January 1984 Carol Conklin told her she would be upgraded (promoted) to grade in the second week in January By 1 January 1984, Hardy had also still not received her first 10 cent an hour monthly increase On 17 Janu ary 1984, Conklin told her she would not be getting her monthly increase due to the fact that she had been absent she and that although wanted to give her a raise there was nothing she could do about it She said it was out of her hands Hardy acknowledged missing days during January By 24 or 25 January 1984, when Hardy had not re ceived the promotion to labor grade two earlier prom ised her by Conklin, after repeatedly asking Conklin about it Conklin told her she would not be getting it When Hardy asked why Conklin said the paperwork had not been done yet in personnel Subsequently, effec tive 18 February 1984, Hardy was upgraded to labor grade two and she received a 16 cent an hour increase, from $3 59 to 3 65 an hour Hardy then requested and had a meeting with Mary Schaup and another superviso ry employee, Jack Changral at which she sought to make the upgrading retroactive back to when she was told by Conklin she would be getting it a month earlier Schaup told her she did not believe Carol Conklin would ever say anything like that because Hardy had been placed on 40 hours probationary period after her return from the Field Returns job and no one in his or her right mind would give a person a grade two with that kind of record Schaup and Changral then called Conklin over and she denied telling Hardy she would be receiving the upgrading by the second week of January Hardy insist ed the promise had been made in early January not only to herself but to another employee Elizabeth Farley who sat next to Hardy at work and that Conklin had promised they would both be getting grade two at the same time By the time of the hearing Farley was de ceased It was not until the first payroll period in March 1984 that Hardy received her first 10 cent an hour monthly in crease increasing her pay to $4 75 an hour On 16 February 1984 an article appeared in the Finger Lake Times a local newspaper entitled Compa ny Accused of Anti Union Moves' with a subheading Elston officials deny allegations The article referred to the instant charge the fact that a complaint had issued against Elston and noted that Regional Director Thomas Seeler had scheduled a 2 May hearing before an adminis trative law judge The article went on to summarize the changes made by the Union and included in the com plaint for hearing Among them was one of the charges involving Hardy that Elson had demoted employee Shirley Hardy for her involvement in union activities 518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The article also recounted that Elston President Elmer Stone planned to fight the charges at the hearing and had ruled out settling with the Union before the case was heard He also refused to comment on the charges individually but denied restricting anyone s rights or tell ing employees that they could not belong to the Union, as that would be illegal Hardy had become aware of the article On the following day, Friday, 17 February 1984, Carol Conklin called Hardy away from her work station and told her that she would not be receiving her pay raise for that month Hardy objected Hardy said that she hadn t gotten any raises at all, except for the 1 January raise and she asked Conklin if she could at least have a nickel because she really needed the money Conklin said it was out of her hands, there was nothing she could do about it Hardy asked if she was getting a lot of pressure from the people over her, because she acted very fidg ety, and she was quite agitated Conklin replied yes, she was Hardy said she felt that way too Conklin said she knew that I was getting myself into a great deal of trou ble with the mess that 1 was in, and that if I would just be quiet and stay out of trouble, that I could go real far in that Company and I would get my raises and I would be doing better Conklin said Oh you know your name was in the paper Hardy said yes Conklin said Hardy could retract her statement, if she wanted to, to the newspaper and that would get her out of a lot of trouble Hardy replied she did not make that statement to the newspaper She added she felt that nothing she had been doing was wrong Conklin responded that she did not think so either She was just being a good friend to Hardy, giving her good advice on how to stay out of trouble because she had been through it herself Hardy acknowledged that she and Conklin were friends C The Conduct Directed Toward Employee Sally Quinter and Enforcement of the No Distribution Rule Sally Quinter started with Elston on 27 July 1983 She worked on the assembly line Excluding her first 2 weeks of day training she worked on the second shift from 3 30 p m to midnight Her supervisor was Group Leader Helen Rodman On 12 January 1984, the day before the union meeting she and five or six other employees were sitting and talk ing, when the subject of union came up Quinter was the only one talking for the Union Another employee, Cindy Dean, was praising the Company Quinter said you should go to one of the union meetings to see what the difference is A few minutes later Nelson Morse, Elston superintendent came by and told them to quiet down The employees did for a few minutes and contin ued talking An assistant group leader in parts prepara tion who worked nearby, Jean Parrish, who had earlier come over to the group and commented about Quinter s earlier complaint about Rodman s radio playing too loudly if you complain about the radio , the Union comes in, you wouldn't have to worry about it because there won t be a plant, 11 now came over to the group again and spoke against the Union Quinter next saw Par rish leave the employees and go up front toward Rod man s and Morse s work stations Earlier that evening, the employee who sat next to Quinter at work, Mary Hadden, asked to see the union flyer that had recently been distributed Quinter gave the one in her possession to Hadden Hadden also asked to see a company leaflet or flyer that was distributed during worktime at their work bins but which Hadden had not received Quinter also handed her one of these The two employers had a limited discussion about the company flyers that were handed out and that the employees were allowed to read Shortly after Parrish had gone up front, Quinter was relieved by an employee who told her she was wanted at the office Quinter went to Morse s office Rodman was also present Morse told her, I warned you before about your attitude I have to suspend you now Quinter asked why and Morse then showed her an employee warning record written up for her on that date and asked if she had any comments Quinter said, no and then signed it at Morse s direction Quinter asked for a copy, Morse agreed to supply one, and she left On the warning the conduct box was checked Under remarks appeared Attitude toward Elston s-Passing Union Flyer and urging fellow employees to read while working on stuff line It was noted that this was a second written warning and that Morse had warned Quinter previously on 17 November 1983 Under action to be taken was the notation, As was previously stated Sally is to get three days suspension January 13th, 16th and 17th It was signed by Morse as supervisor, Rodman as group leader and Quinter Quinter explained she made no entry under employee remarks because she was too upset The prior written warning Quinter had received, signed by both Morse and Rodman as well as Quinter was for uncooperative conduct The warning stated Sally has a poor attitude and is extremely sarcastic when spoken to She also visits the restrooms much too frequently Under employees remarks Quinter wrote I feel I am not going to restroom as often as you say I am in there for one reason only to go to the bathroom During the meeting in Morse s office, Quinter did ask when did she pass out a union flyer Morse and Rodman both said, Well, Melissa saw you (Melissa was her as sistant group leader) Quinter had previously been given antiunion flyers signed by the Committee For a Future Elston while at work One was given to her by Jean Parrish in the ladies room and the other had been passed out to her at her work station shortly after starting time for her shift by a woman she did not recognize who also left leaflets at other employee work stations on her line Often while working, Quinter and the other employ ees who work near her carry on conversations about " The complaint allegation that this comment constituted a threat in violation of the Act was withdrawn by the General Counsel at the outset of the hearing as was the allegation that Parrish was an agent and super visor of Elston ELSTON ELECTRONICS CORP matters unrelated to work She, has also witnessed a number of solicitations and fund raisings conducted by other employees outside of breaktime involving the sale of such items as Girl Scout cookies and other items In the course of these solicitations, order forms have been passed around Rodman , Quinter s supervisor , was aware of this activity , in fact she purchased both cookies as well as candy Quinter was selling on both breaktime and worktime In September or October 1983, when she became per manent, Quinter received from personnel a copy of Re spondent s employee standards of conduct As already noted this document incorporated the work rules gov erning employee conduct, including the rule subjecting employees to discipline for unauthorized posting or dis tributing of unofficial material on companytime or prop erty D The Conduct Directed Toward Employee Doris Riek Doris Riek became employed on 22 March 1983 Since October 1983 , she has been in subassembly as a solderer on the yoke line Since that time her group leader was Judy McNeal Riek was out on disability leave in later 1983, and returned to work in early January 1984 Be cause of her absence she would not be receiving the 10 cent an hour monthly increase for the month of Decem ber On Friday 6 January 1984, she received from McNeal a copy of the memorandum with attachment addressed to all employees on Elston letterhead and signed by President Stone that, inter alia listed the benefits cur rently available to employees, including the flat, across the board seven (7%) per wage increase effective Janu ary 1 See section II B, above On Monday 9 January Riek went down to personnel three times to talk to Mary Schaup On each occasion she was either busy or not in her office Riek was con cerned about her eligibility to recieve the wage increase On 10 January right after coming to work, at 7 a in Riek asked McNeal whether she would receive the wage in crease because she wasn t getting the 10 cent an hour in crease that month because she had just come back from disability and the announcement read per wage in crease It was Riek s belief mistaken though it turned out to be, that unless she was eligible for the monthly wage increase she would not be receiving the across the broad increase made effective that month 12 McNeal told her she was not sure and she could not explain what the announcement meant At 8 05 a in Riek went to the ladies room saw em ployees Mary Hagel and Kathy London there, and asked Hagel how she interpreted this message as to the wage increase She asked Mary, an old time employee, the way I see it I didn't get a wage increase this month, which means I would not be getting a 7% is that how it 12 The Union had also raised a question about the meaning of Stone s description of the increase showing the distinction between a 7 percent across the board increase and a 7 percent wage increase in the 9 January 1984 three page six sided blue leaflet signed by the Elston s employees organizing committee 519 works, Mary? Mary said she did not know either On returning to her work station, Riek saw Hagel approach McNeal, after which Hagel came over and relieved Riek, Riek went to McNeal McNeal said, I told you, you were getting the raise Riek said, No you didn t, you thought so but weren t positive about it ' Riek now raised the subject of differential in pay between employ ees Riek asked why was it that one employee who had been there only 3 months was making more money than an employee that had been there a year He asked McNeal if McNeal thought that was fair McNeal said, no Riek went on, 'I know for a fact someone at Cen tral Avenue is making more than our utility operator McNeal repeated that it wasn t fair but she had nothing to do about this Riek then returned to her work sta. Lion At 9 15 a in break, Riek went down to the office again and caught Beverly Erb in personnel After raising her concern, Erb told her yes' that she was getting a 7 per cent increase Riek then asked her about the pay differ ential between Central and Lehigh Riek told Erb about the two employees involved Erb pulled the computer printout, showed it to Riek and said that was not so Riek agued there wasn t much difference between their pay rates Riek then returned to her work Around 10 30 a in Mary Schaup summoned Riek to her office Riek went there Schaup asked her if she had gotten every thing straightened out and Rick replied , yes she talked to Bev Schaup asked, about the 7 percent Rick said, Yes, she said yes, she told me about it Schaup then asked if Rick had told the other girls and if she had cleared the subject up Rick said yes she did Schaup said they were getting the 7 percent and that someone overheard her conversation in the girl s room At this point in the conversation, Rick brought up the subject of pay differential between the two plants Schaup asked Rick who told her that Rick refused to provide the name of the employee who told of the dis crepancy but did bring up the comparision relating to two employees whose salaries were similar but service time substantially different Schaup denied there was a differential Rick said she still did not think it was right that there was such a discrepancy Rick also refused to supply a name so Schaup could check the figures Rick had given her Schaup then said that most companies have a policy againt employees discussing wages and Rick, was not to discuss wages with another employee at work Rick replied Well, it is very understandable why, because it does get people upset when they find out that the girl next to them is making more than they are Any girl would get upset, just like I did when I found out about it Then the subject went on to Rick s health, where she was previously employed, and the con versation ended On 12 January 1984 Rick was summoned to the con ference room Mary Schaup and Jean McNeal were both there At this time Rick was given a written warning for Disrupting production by distracting other employees by excessive talking Failure to follow directions when told to ease off on placing yokes on line Rick wrote on the form, I disagree with above statement on certain 520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD points The warning also indicated Riek had been warned previously, orally and in writing in June 1983 Under actions to be taken, the warning recited You must follow directions and refrain from disrupting others by talking while working Failure to do so will result in suspension ' 13 Both McNeal and Riek signed the form When Riek was shown the warning McNeal said she disturbed all the other girls and production went down that day Both McNeal and Schaup told Riek there were things she should not talk about Mentioned were wages, any discrepancy The points that Riek disputed related to the claimed disobedience Riek testified that she did not put yokes on the line but that she does solder the yokes as they go by on the line (This means soldering wires to certain recep tacles ) On cross examination, Riek denied that in talking with other employees about the 7 percent general wage in crease she suggested that they might not receive it She suggested to the others that she might not get it To her knowledge, none of the other employees with whom she talked had the same problem she had of not getting the 10 cent raise in January based on her absence in Decem ber Under my further questioning, Riek explained that the comparision of wages was between an employee at Cen tral Avenue Plant employed only 6 months and a utility operator in her department at Lehigh Avenue employed 3 years, both making the same wage She identified the three year employee as Mary Ann Horton After leaving McNeal s office on 10 January, when Mary Horton later relieved her on the line, she asked and got from Horton her hourly rate Riek then asked Horton if she thought it was fair that the other girl is making the same amount as she Horton replied No nothing is fair in this place You just take it the way it happens out here They don t believe in fairness ' Riek acknowledged that Horton did not authorize her to take the matter further up the line and discuss it Riek explained she continued to raise the issue because it is not fair and if it is brought to their attention somebody, maybe, will do something about it In Riek s view the fact that Beverly Erb confirmed that both employees were paid approximately the same rate established the lack of fairness between the two employ ees because of the distinctive difference in their lengths of service Riek confirmed that the only thing she talked to other employees about was the 7 percent wage in crease Riek also confirmed that at her meeting with Mary Schaup on 10 January she was never informed that she was going to receive a warning on the 12 January With out any other event occuring between 10 and 12 Janu ary and with Riek having in her view kept her mouth shut in that period, her explanation for the warning coming where it did was that many people got riled up 13 The Employee Standards of Conduct provided generally that a three step procedure would be followed in taking disciplinary action starting with a warning then suspension from work and finally dis charge In each case a form would be completed and signed by the super visor and employee that would become a part of the employees person nel record about the pay differential Because Riek did not discuss it with others it was her conclusion that Horton had Under cross examination, Riek further explained that the failure to follow directions portion of the warning was explained to her at the time of the warning by McNeal as relating to her failure to listen to the girl in the end position on the line and relay it to the girl in the first position when told to skip pallets meaning refrain from placing a part on the unit as it moves down the line Rick s disagreement was with the direction to skip pallets, which was contrary to her own instructions never to stop production Riek also disagreed she disrupted production on the line She did acknowledge that Judy McNeal had criti cized her orally for excessive talking in her periodic written evaluations, and in her recommendations on jobs for which Riek had bid E Respondent s Defenses on Each of the Issues in Dispute and Credibility Resolutions 1 The wage increase On the 10th anniversary of the founding of the Com pany, on 15 April 1983, Elston held an all employee meeting at the Central Avenue plant to review the ac complishments of the prior year and outline the projec tions for the coming year It took place over a 3 hour period This was an annual event held at the Company Stone spoke for about 20 minutes, about finance, among other topics Included in his remarks were the following statements 14 The last meeting on March 4, you recall Dick had some specific statistics with regards to costs of sales How much did it cost first of all, the selling price Second I guess was the cost of materials The contribution of your labor Then what we call burden what it costs to do business, to but [sic] a building or light a building or heat a building, or buy a machine to automate places where we can And it left us at the bottom For every dollar of sales it left us, 3% Dick?, for last year 1982 And they just recently as recently as what a week ago? after all the massaging and trying every way to carve out any tax saving possible that that figure was established As you all know we have an out side accounting firm by the name of DeLoitte Haskin & Sell who monitor our position our earn ings sales profits and what not and fill out our income tax return But at any rate that 3% isn t very good 14 A video cassette tape of certain portions of Stones remarks were offered by Respondent transcribed by the reporter and received in evi dence conditioned on leave for the General Counsel to review the full video cassette of the proceedings made by Respondent and offer other portions for inclusion in the record On motion made by the General Counsel by order dated 30 May 1984 the General Counsel was author ized to submit additional portions of the video cassette A trancript of those portions has been received and marked in evidence as G C Exh 13 and the official transcript at 232-233 is amended accordingly The full video cassette tape is R Exh 5 The General Counsels motion and my order granting leave to submit additional portions of Stone s speech are hereby received in evidence as ALJ Exhs I and 2 respectively ELSTON ELECTRONICS CORP 521 You might stretch until you do something quick, and some how recover but 3% on sales after taxes isn t great You have to earn enough, first of all, to be as in your interest, that this company earn enough to secure your jobs Next year might not be the kind of a year that Lou tells us we re having this year, or that we are having this year And you have to be able to weather those slumps as well as the periods when we appear to prosper so unless we can find a way to better the 3% we don t have much hope, I in sorry to say of improving your wage position You heard Jeff talk about the possibility and potential of improving material costs I would almost guess that most of you here would say that if your life depended on it, you could probably work at 10% harder And I roughly identify those figures for last year, and, admittedly, these are estimates But, I think that in those catagones, saving 10% on labor, saving, I think it was 2% on material and quality down the line, I guess we could still have saved out of the 13 million dollars in sales I guess I estimated we could have saved $420,000 00 Now if you divide that by 200 people, or 250 people, that would be a nice bonus at the end of the year This year, even with 25 million dollars in sales, that figure could jump to $1,108 00 on the same very pre liminary, uneducated, not every well defined esti mates But what I in suggesting, Bill I hope is a part of the answer to your question is that if you help us to make the savings then the contributions in the areas that I ve cited I think that we could improve the 3% margin on sales, and give you higher wages So we have to it seems to me work out a scheme so that you all know what your labor what your wages are going to be and devise a system so that if we re successful and we make more money, that the company, but that s us, that s all of us that you get some of it And if we re not stuck like the automobile industry and segments of the electronics industry, that have simply gone broke because they had to commit or was foolish enough to commit for things that they didn t know they could do So if you understand what I am saying I think we can devise a scheme that we can have at least what I consider a fair base wage and if we can snowball sales and profits I am here to promise you we will share it With respect to the prospects for an improvement in the employees' economic position, Stone s remarks may be summarized as follows 1 There would be no wage increase unless we can find a way to better the 3% (actually 3 2%)' profit/sales ratio 2 If sales and profits were to increase appropriately, the Company would share the results with the em ployees This meeting was held more than 7 months prior to the commencement of the Union s campaign in Novem ber 1983 Stone readily admitted announcing on 17 December 1983, at the Company s Christmas party, a general wage increase to become effective the beginning of the New Year, 1984 He denied that any figure was then quoted In this matter, I credit Stone Corroborating him is the union committees 9 January leaflet refers only to the 1 January Stone letter to employees and not any earlier speech for the source of its knowledge of the 7 percent figure Respondent adduced certain evidence to support its defense that in the 9 month period between the 15 April speech and 17 December announcement, Respondents fi nancial position improved sufficiently to justify a general wage increase consistent with Stone s promise to share the results of that improvement Documents submitted include an annual report for the calendar year ending 1982 and consolidated statements of income and retained earnings for the fiscal years ended 30 December 1983 and 31 December 1982 The former document included a 5 year summary of key financial data It was Stone s assertion, which the General Counsel was in no position to dispute, that although the latter document was not available until March, 1984, based on monthly profit and loss statements provided by the Re spondent s lending institutions, by mid December Stone had figures for 1983 that confirmed the financial projec tions the Company had forecast a year before, in particu lar the $24 5 million in sales The pertinent comparisons between 1982, when Elston determined not to grant an increase and 1983 when in December it announced the increase the first of its kind, is set forth in below 1982 1983 % Change Sales 13 02M 24 57M 88 7 Profits (i e net income after taxes) 411M 1 81M 1873 Profits as a Percent of Sales 3 2% 4 8% 50 It appears that by December 1983, Elston Electronics had enjoyed sustantial improvement in all these three crucial areas mentioned by Stone earlier in the year Respondent also defends the size of its increase by stating that it estimated labor costs to be 11 percent of its total sales income and that an increase of 1 percent of the sales figure would translate to an increase of about 7 percent in wages Allowing for some minor inaccuracy in these percentage estimates, Respondent is about right For 1983 Total Sales 2457M 11% of Total Sales (i e, est labor costs) 2 64 M 1% of Total Sales (i a est 522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD wage increase) .2457 M 7% of Est. Labor Costs (i.e., actual wage increase) .1848 M The actual (7-percent) increase was .75 percent of the total sales, and a 1-percent increase of total sales would have been a 7.7-percent wage increase. So assuming the original 11-percent figure is an estimate, Respondent is in the ballpark. 2. The conduct directed toward Shirley Hardy Mary Ellen Miller, a senior group leader in the quality control department and Hardy's supervisor while Hardy worked in that Department, testified for Respondent. Miller characterized Hardy's work performance as sat- isfactory. Hardy missed work on a number of days and in late November or early December 1983 Miller spoke to her about her poor attendance. Hardy explained she had a back problem. Because of it, Hardy was trans- ferred out of Miller's department for a while so she could work sitting down and then came back to quality control. Miller also spoke to Hardy about her tardiness, she was late to work two or three times. Also, around the same time, late November, Miller spoke to Hardy about her failure to turn in timesheets (or worksheets) on which employees record the times spent on a specific job. All employees are required to fill them out; they are used by cost accounting to cost out jobs and, in the case of field returns, to determine how much labor is in- volved for billing purposes in the repair of monitors that are out of warranty. Later, in mid-December 1983, Miller spoke to Hardy about her failure to punch in and out on the timeclock. She was then working in Central but had to punch the clock at Lehigh. Shortly before, in early December, when Hardy had been transferred temporarily to per- forming quality control work at Central, Miller asked Hardy to return to Lehigh to punch the clock rather than going through the red tape of transferring her time- card. When Hardy said she could not see the sense of going back to Lehigh to punch because of the distance t s and possible weather problems, Miller explained she could make arrangements for somebody to take her over. She had to punch her own card. The Company had con- stant runs between the buildings. Then, on Wednesday, 21 December 1983, Miller again spoke to Hardy. She had been absent the day before and Miller had not received a telephone call. Hardy was also late reporting for work on Wednesday, arriving at ap- proximately 9:30 a.m. Miller had contacted Conklin and her assistance group leader earlier that morning to let her know when Hardy came in and if she had called in the prior day. After Hardy reported, Miller went over to central and asked Hardy why she was absent the day before, where she was, and why she did not call. Hardy told Miller she had been ill and that somebody called in 15 The buildings, parallel to each other, are 500 to 700 feet apart and separated by a railroad and raised embankment. The distance to be cov- ered by automobile or walking is greater because of the necessity of tra- versing the streets between them and the fact that the entrances of each plant face in opposite directions. for her. Miller said she had checked all day with the switchboard operator (later clarified to mean the Lehigh Plant operator) and with Conklin trying to find out if anybody had taken a call, and to the best of her knowl- edge nobody had heard from her. Miller asserted she checked to this extent because of Hardy's attendance problem. In the same conversation, Miller also spoke to Hardy about filling out her time sheets again, and Hardy said she had not filled them out, because she did not know who to give them to. Miller instructed her to fill out the ones she had not done and turn them into Donna. Hicks, her assistant at Central, who would get them to Miller, and to continue to turn them in on a daily basis. The conversation also concluded with an understand- ing that in the future if Hardy was absent she would call and specifically ask for Miller. On Friday morning, 23 December, Miller started pre- liminary work on her usual practice of gathering the timecards and totaling the hours for the week for the purpose of transmitting this information to payroll after recording the Friday hours later at the end of the work- day. An examination of Hardy's card showed she had not punched out Wednesday, in or out on Thrusday, or in on Friday. Because Miller knew Hardy had been at work on Thursday and Friday, she sought to determine Hardy's hours for Thursday and starting time on Friday. She did not contact Hardy, nor did she check with Conklin although she had, previously, on Wednesday for another purpose because she knew Hardy had worked for Conklin. Instead, Miller went to the cost accounting department and asked to see Hardy's timesheets for that week through Thrusday, 22 December. She was directed to several large boxes that contained 400 or 500 papers in a stack-all employee timesheets for that week. Miller tes- tified she might possibly have found one of Hardy's; she counld not really remember what she found, she found very few, if any. After looking through the stack for a couple of hours, without success, Miller called her assist- ant, Donna Hicks, and asked if she had logged Hardy's hours. Hicks said she had and gave Miller the times. That morning, Hardy had reported in 15 minutes late, at 7:15 a.m. According to Miller, she had asked Hicks to keep track of Hardy's time when she went over to cen- tral because they knew they had a problem on Hardy's punching the card.'' Miller believed the best way to verify the hours was to see the actual official timesheets. At this point, on 23 December, Miller went to Dave Bruzee and told him about Hardy's tardiness, absence, and failures to punch that week. Under cross-examination, Miller testified that Bruzee then filled in the missing times on Hardy's card, except for time of having worked that day which Miller added later., Bruzee then got a blank warning form and dis- cussed with Miller what he was going to enter. Later in the day, around 3 p.m., Miller met with Bruzee and Tom O'Donnell to discuss the warning. O'Donnell asked the 16 Yet Miller did not initially call Hicks because "I wasn't aware that Shirley wasn't punching her card ..." (Tr. 319). ELSTON ELECTRONICS CORP 523 others for their recommendations Miller said she thought the violation called for termination They also discussed the alternative of a job failure from quality control At this point the warning did not contain any action to be taken 0 Donnell signed the warning and went to see Schaup to discuss it with her Earlier Miller being confused about it, Bruzee explained to Miller that the first oral warning noted on the form had been given by her in mid December (Actually, Wednesday 21 De cember, based on what Miller told Bruzee ) But Miller acknowledged that, contrary to company policy, she had not recorded any oral warning given at that time Mary Schaup confirmed that she arranged a temporary job in another department after Hardy complained to her in late November 1983 that she had injured her back, was out a few days, and could not lift the boxes in field returns On 23 December 1983, 0 Donnell called to say he wanted to terminate Hardy Schaup argued a little against this on the phone 0 Donnell went to her in person He cited Hardy s poor attendance and refusal to comply with company regulations to complete produc tion records Schaup reviewed Hardy s attendance cards, agreed that her attendance was poor , but stated that this was 23 December and she did not want to terminate her Later, 0 Donnell returned to her office with a warning he placed on her desk and said , 0 K , she is job failed " This is when Schaup called Conklin to take Hardy and Conklin agreed When Hardy was summoned to Schaup s office, alone Schaup spoke about Hardy s problems in abiding by the rules-keeping timecards and production records-and that they were not going to put up with it in that depart ment When Hardy protested that there was nothing to complain about her work Schaup explained there are more things that comprise a good employee than just work Hardy complained about a lot of bureaucratic non sense and then asserted she had not been properly coun seled by her supervisor Miller At this point Schaup paged Miller, who came in and reminded Hardy she had been told to punch her time cards and keep her produc tion records When Hardy reminded Miller she had told her not to worry about punching 1 day Miller agreed but said she had been told too late in the middle of the morning that was one time but Hardy had been coun seled to maintain her time records At this point Conklin arrived and agreed to take Hardy back if she shaped up Both Miller and Schaup denied any knowledge of Hardy s union activity at that point in late December Schaup also testified that Hardy never claimed that her union activity was the reason for her warning or job fail With respect to wage policy, Schaup testified as fol lows In labor grades 1, 2, and 3 employees may receive a 10 cent per hour a month increase up to $4 55 provided their work is satisifactory and attendance is good There is also a system of reviews or evaluations after either 3 to 6 or 6 to 9 months depending on labor grade which can result in a merit increase of 8 to 10 percent, 12 per cent or even below 8 percent on occasion Respondent also has a bid system Job openings are posted and if an employee is successful in bidding for a job in a higher labor grade, he goes into the entry level of that grade and, if presently earning above that level into the next level Employees may also receive an upgrading from grade 1 to 2, and from 2 to 3, on the recommendation of their supervisor David Bruzee, quality control supervisor testified that after receiving the report from Miller about Hardy s fail ures to punch her timecard or complete the timesheets, he made a decision to prepare the warning notice, leav ing the final decision as to Hardy s ultimate status open until he could consult Tom 0 Donnell , quality control manager 0 Donnell then told Bruzee he would take care of the matter In conflict with Miller , he denied she had made a recommendation to him regarding Hardy I credit Miller that she did Bruzee seemed ill at ease during his time on the witness stand and vague on cru cial points for example he was unsure whether he had consulted his boss, 0 Donnell, on the preparation of Hardy s warning although he admitted 0 Donnell was aware he was going to prepare the form (See Tr 293- 294) Bruzee also disputed Hardy s claim that he had ad wised her that the job she was doing in field returns (Quality Control) was the equivalent of a labor grade 3 or 4 Actually Hardy had testified that she asked, if she continued doing the job she was doing right now what would be its grade According to Bruzee , he did not know the labor grade or classification for the work she was performing She was a temporary helper to the tech nicians, unboxing and replacing various mechanical com ponents on a kit version of the monitor Elston produces, and then repackaging it Her work was satisfactory but it did not require a great deal of skill I credit Bruzee on the conflict although Hardy s inquiry was probably di rected to what her grade would be in the future a differ ent question but also conclude that the resolution does not aid significantly in determining the issues concerning the alleged discriminatory denials of a promotion and wage increase to Hardy More serious testimonial conflicts arose between Hardy and Stone with respect to the January 1984 con versation at his desk Stone sets the conversation taking place on 13 Janu ary before the union meeting that evening I credit Hardy here as to the date of 16 January after the meet ing particularly because of the references she made to intimidation of employees partially arising from the sparse attendance of employees at the meeting about which she commented as well as Stone s alluding to Hardy s comment about having attended the meeting Stone agreed with Hardy that she approached his desk and asked who had put up the posters on the wall there was a lot of confusion and problems with this union stuff going around Stone differs with Hardy here and says they were put up with his knowledge Stone and Hardy agree that Hardy did not directly disclose her prounion sentiments but acknowledged having gone to the union meeting just to hear both sides of the story Stone testi feed he told her that was commendable Next, he said You know how I feel about union You got a copy of my company policy letter that describes our position and I feel an obligation to provide whatever guidance and di 524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD rection within the law that I can to those who oppose it.,, Stone next testified that Hardy then said, "Well a lot of companies go off shore because they can save, think- ing they can save some money and they are not con- cerned about wages and things here." Stone stated that he replied, "Well, not all companies have that feeling, and this is one that is dedicated to competing with the people off shore. We are making the fluxion yoke and other components in our Phelps plant where the material cost is equal to what it would cost us to buy those off shore. But, we'd rather, if we can figure out how to automate and develope that product, we would rather make it here and keep the jobs here and have control of it." Stone mentioned that he had just heard that RCA was either making or going to make monitors in Mexico for the Tandy Corporation. Then, according to Stone, Hardy said, "Well, you know, we have a lot of problems around here." When Stone asked her what they were, she said, well, she had not had her permanent papers completed or signed, she had not received a medical-dental booklet, and she was not sure about when she got paid for holidays. This por- tion of the conversation accords with Hardy's version also. Stone said the booklets had not been available from the Aetna Corporation and he would check into the other two items. And she said, "okay thanks a lot, and walked away." Subsequently, Stone called Schaup to obtain the information for Hardy and went to Hardy's production station to give her the results. Stone specifically denied making any statement about policemen checking on people's union activity, or stating he knew the identity of the six or seven union committee people. Stone also asserted he did not know Hardy fa- vored the Union until the unfair labor practice charge was filed. Stone later explained that he had personally prepared a sign, approximately 17 by 22 inches, with the names of countries Taiwan, South Korea, Mexico, and China and a statement above, these are the countries that are com- peting for our jobs; and on the side a statement, these are the wages paid in these countries, listing the wages, ranging from 16 to 87 cents an hour. These signs were posted in all plants including two at Lehigh and one at Central. The signs were in response to a claim in a union flyer about improving wages. Stone acknowledged that the signs failed to show who was responsible for there posting. Stone also specifically denied that the word intimida- tion came up in their discussion. Instead, Stone said Hardy spoke of "confusion" because of all this union "stuff' going around. Stone agreed that since Elston had posted the sign about low wage rates, it was possible for employees to believe and draw the conclusion that the Company could consider having work done abroad at similar low wage rates and, further, that this belief had to do with Hardy's expression of confusion. I am convinced that Stone was shading the truth in his recital of his conversation with Hardy on 16 January 1984, and that Hardy's version, where it differs from Stone's, is far more credible. Hardy struck me as an out- spoken, frank union advocate. It would have been com- pletely in character for her to have confronted Stone di- rectly about her claim of intimidation arising from the company posters and the resulting low turnout at the Union meeting. Neither was Stone squeamish in con- fronting the union challenge. His antiunion leaflets, poster, and expressions of feeling on the witness stand all testify to a strong personality. Hardy's confrontation on the plant floor brought out the true nature of Stone's deeply held belief that a union relationship at that time would undermine the growth of a company that he had practically singlehandedly created, nurtured, and success- fully expanded. Within 9 months, from his speech in April 1983, the Company had more than doubled its work force, production and sales. Stone was placed on the defensive. Here was an employee questioning his tac- tics. He took the opportunity to bring home to her his feelings and at the same time sought to convince her that the union effort was futile and would be met with drastic measures. He also wanted Hardy to know that he was on top of things and was aware of the identity of the pro- union committee to whose leaflets he was responding in kind. I find it illogical and unreasonable to conclude that Stone would not, consistent with the unstated implica- tions implicit in the language on his posters, attempt to bring home to Hardy in words the Company's options should the union campaign prove successful. Those op- tions included subcontracting all or portions of the man- ufacturing conducted in Geneva, not necessarily operat- ing a plant overseas-the option Stone rejected as a viable alternative in his redirect examination. In sum, I credit Hardy's version of the conversation, including the remarks about police officers, and will draw the appropriate conclusions in the analysis section of this decision. I also credit Hardy with respect to those statements of an allegedly coercive nature she attributed to Carol Conklin, in particular, the statement of 13 January, em- phasizing the rule against talking about the Union during worktime and harassing Debbie Weino; the statement prior to the union meeting suggesting employees not attend; and the 17 February suggestions that Hardy was getting herself into trouble by associating her name with the union organizing effort and its unfair labor practice charges and that if she would be quiet and stay out of trouble she would get her raises and do better in the Company. Respondent called a number of supervisory personnel in its defense. It chose not to call Conklin, an admitted supervisor. By failing to call her, a witness within its control, Respondent subjected itself to the fair inference, that her testimony would not have conflicted with Hardy's or aided in its defense. 3. The conduct directed toward Doris Riek Personnel Administrator Mary Schaup testified as to the events culminating in the warning issued to Doris Riek. On' 9 January, Beverly Erb, her assistant, told Schaup that Riek had come to the office and asked some ques- tions concerning the 7-percent increase and concerning ELSTON ELECTRONICS CORP 525 what she felt was an inequity between Central Avenue and Lehigh Avenue wages Bev said she had answered the questions but did not think Doris was satisfied with the answers On 10 January Schaup saw Riek look in to see her when Schaup was busy Later Schaup asked her group leader, Judy McNeal to excuse Riek to come to her office Schaup asked Riek what her problem was Riek ex plained her confusion with the wage increase announce ment for herself as well as for temporary employees Schaup said several employees had already asked for clarification so she proceeded to explain it It was not tied to the monthly increase There was no differentia tion between temporary or permanent employees Nei ther was poor attendance the month before a factor At this point Riek brought up the allegation that people in Lehigh were receiving less pay than those in Central for doing the same jobs Also some people with less seniority were receiving more than those with great er seniority Schaup explained this was possible She asked for Riek s knowledge of specific employees Riek supplied one name Schaup asked how did she know Riek said didn t want to tell because she did not want to get anyone in trouble Riek then said Erb had told her something about the rates, but it was not true what she had thought when she questioned Erb originally Riek said everyone should get equal pay for equal work Schaup then explained that several factors should enter into that decision, including monthly increases and in creases by periodic review Schaup also said some people had come to complain they had been told by Doris Rick they would not re ceive the 7 percent increase and asked Rick if she had told them this Rick admitted she had but that it was cleared up then Schaup pressed, had she cleared it up with the others and had she corrected the erroneous in formation Rick said she had and that there was nothing wrong with discussing wages Schaup said Doris I don t think there is anything wrong with discussing wages I know some companies have a system or ruling that you cannot discuss wages Schaup here mentioned two companies where on hire she had been told not to discuss her salary But there is something wrong with discussing wages if you don t know what you are talking about and if you are giving erroneous information and you should come and get the information yourself first or if someone else wants to know at Personnel we have an open door policy You can come in and get your wage grade wage level all of it Doris agreed with this but said she had been upset because of her that belief she would not get it, having been out 10 weeks on disability and not back until early January They then discussed Rick s health and Rick left On 11 January Judy McNeal reported to Schaup that some of the girls were still upset and did not understand they were going to get the 7 percent increase One em ployee in particular had earlier came to Schaup to coin plain that Rick was telling her she would not get the 7 percent increase Among other complaints being re ceived from employees voiced to McNeal and Schaup were that Rick was asking a lot of personal questions during work hours and actually disrupting them while they were working They were being asked what they earned if they got paid for their birthday, were they temporary One girl was actually in tears about the situa tion 17 On 12 January Schaup and McNeal met with Rick late in the afternoon after a warning was prepared At the meeting Rick acknowleged that she talked a lot She said it was easy talking with someone near her She ac knowledged she speaks rather loudly She said she was sorry it disrupted others She disagreed with the charge that she refused to ease off on putting yokes on the line She did not put them on in fact she was repairing some and there were some in front of her and she wanted to get rid of them so she placed two on a pallet in front of her Schaup had also been aware by virtue of supervisory evaluations prepared of employees as well as superviso ry comments on bid sheets that Rick had been cautioned to control her talking and giggling and that it was dis tracting and embarrassing to others I credit Rick that Schaup instructed her at their meet ing on 10 January 1984 not to discuss wages with other employees at the plant Schaup acknowledged that her admonition to Rick concerned only passing along errone ous wage information Yet, the full input of Schaup s own admitted remarks informing Rick of prohibitions placed on her at previous jobs Rick s talking without knowing what she was talking about when all Rick was basically seeking was clarification and information and then advising that Rick can come in and receive informs tion about her own wages only, articulates a point of view on the basis of which Rick could have reasonably concluded she had been instructed to refrain from dis cussing wages which would invariably be upsetting to some employees I will in the analysis section deal with the legal con clusion that flows from this finding, as well as the legal result assuming Schaup s direction was limited to prohib iting the dissemination of erroneous wage data F Analysis and Conclusions 1 The announcement of a wage increase later implemented Elston s 17 December 1983 announcement was made after commencement of the Union s organizing cam paign In such circumstances the Board will presume that the incease was granted in an effort to influence the campaign The burden then shifts to Respondent to rebut the pre sumption by showing that the increase would have been granted regardless of the protected union activity This showing can be made by demonstrating that, through the existence of an established pattern of wage increases or a 17 Although I refused to receive this hearsay testimony for the truth of what was reported to Schaup it is clear that the witness could report that these statements of complaint were indeed made to her To that extent Schaup s testimony is received in evidence See e g NLRB v Na tional Car Rental System 672 F 2d 1182 (3d Cir 1982) Jones Evidence Civil and Criminal § 8 6 (6th ed) Accordingly my ruling appearing at Tr 347 is modified and corrected 526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD preorganizing administrative commitment to the increase, or any similar legitimate business justification the in crease was unconnected to the organizing campaign Chester Valley Inc, 251 NLRB 1435 1449 (1980) Contrary to Respondents contention appearing at page 31 of its brief the presumption of invalidity is made automatically on a showing of the increase, no further showing of motive or effect is needed to establish a prima facie case Absent a showing by the employer of some legitimate business reason for the timing of a wage increase the Board will draw an inference of improper motivation and interference with employees rights under the Act Mariposa Press 273 NLRB 528 (1984) It is difficult to articulate precisely what will satisfy Respondents burden in this regard, but it is generally necessary to show that the employer would have grant ed the increase absent the employees union activity Phoenix Glove Co, 268 NLRB 680, 688 (1984) See also Village Thrift Store, 272 NLRB 572 (1984) However, so compelling are the policy considerations involved in this area , such a general statement is not a trustworthy guide The appropriate standard of rebuttal is best gleaned from a consideration of the evil that the Act seeks to avoid The unlawfulness of the granting or announcing of benefits during the union s organizational effort de pends on whether from all the circumstances the employer's purpose was to cause employees to accept or reject a representative for collective bar gaining and upward revisions in employment terms are presumptively unlawful even if based upon determinations made prior to the advent of union ac tivity [Zarda Brothers Dairy 234 NLRB 93 112 (1978) emphasis added ] Surely a major indication of unlawful interference is the timing of the granting or announcement of the in crease The presumption is so strong that the burden is on Respondent to establish that the timing of such in creases was motivated by factors other than the Union campaign The burden is met where the increases are shown to be granted in accordance with an estab lashed regular wage program Mariposa Press supra As is the case with Elston, the past practices or other financial records of a Respondent are subject to strict scrutiny when they are offered in rebuttal of presumably unlawful wage increases For examples of methods of analysis of company records in this context see American Model & Pattern, 269 NLRB 309 311-312 (1984) and Phoenix Glove Co supra at 688 (company records exam fined to determine if disputed wage increases fits into past pattern) For an example of an employers appeal to gen eral business justification see St Francis Federation of Nurses and Health Professionals v NLRB, 729 F 2d 844 850-852 (D C Cu 1984) One further aspect to this matter of presumed illegality is a dilemma known popularly as Hobson s Choice" If [Respondent] granted a benefit, it might be charged with committing an unfair labor practice Yet the withholding of benefits during a union cam paign that are customarily granted to employees also violated the Act [St Francis supra at 8511 However the problem dissolves by permitting em ployers to inform employees that the scheduled wage in crease will be deferred but not canceled in order to avoid the appearance of interference Village Thrift Stores, supra at 3 Based on the facts adduced by Respondent, presented an earlier section of this decision, it would appear that the December 1983 announced wage increase was con sistent with the announcement made in April 1983 by President Stone However it is my understanding of Re spondents burden of rebuttal that a cogent rationale for a presumptively illegal wage increase is illuminating but not exculpatory, particularly, where the increase is not warranted by a past history but is a matter of discretion based on current business performance With respect to timing of the announcement less than weeks after Respondent admittedly obtained knowledge of the union activity Respondent publicized a general wage increase The increase was clearly not part of a pattern of a regular wage increase policy Respondent had never before granted such an increase Although business conditions had substantially improved particu larly a 50 percent increase in the ratio of net income after taxes as a percent of sales Elston s debt had also substantially increased I am finally not convinced that Respondent would have announced or granted the increase regardless of the Union s organizing activity The actual fixing of the per centage increase in Elston s 1 January 1984 memorandum to its employees is pointedly contrasted with the inability of a labor union to guarantee any success in the work place This mailing was part of an overall pattern of other conduct including the posters other mailings con duct of superviors and Stone himself (in his conversation with Shirley Hardy later in January) suggesting a cam paign to influence employee selection of a bargaining representative Finally Respondent had the recognized legal option of advising its employees that although their efforts had earned a salary increase none would be then granted be cause of the appearance it would give of interference with their free choice to select or not the Union as their bargaining representative The increase would be de ferred until the completion of the campaign Respondent would thereby have been able to reap the benefit of making clear that an increase would be available to its work force at a future time and that it had nothing to do with the Union s advent but solely their efforts and also thereby have avoided the appearance that its conduct was unfairly influencing the outcome of the campaign Respondent however, did not choose this valid alterna tive but must be left with the consequences of its an nouncement Elston s attempt to rebut the presumption of illegality arising from the timing of its announcement of the increase and the other factors described is in effec tive I conclude its conduct here interfered with employ ee rights under the Act ELSTON ELECTRONICS CORP 527 2 The conduct directed toward Hardy The General Counsel clarified the conduct it alleged Respondent directed toward Hardy that violated Section 8(a)(3) and (1) of the Act First the General Counsel as serts that on 23 December 1983 Respondent issued Hardy a written warning that was motivated by her union activity Since the warning resulted in a new pro bationary status for Hardy her wage increase from grade I to grade 2 was not made effective until 18 February 1984 a month later than would otherwise have been the case This delay in Hardy s promotion is alleged as viola tive of the Act Second, the General Counsel contends that as a conse quence of her union activity that resulted in the same warning, as well as later union activity on Hardy s part, Respondent was motivated to delay granting her a first 10 cent an hour a month increase until March 1984 A close review of the evidence relating to Respond ent s issuance of the 23 December warning to Hardy warrants the conclusion that the General Counsel has failed to demonstrate that it was motivated by her union activity or that even if it was Respondent has shown that it would have taken such action against her even if Hardy had not engaged in such activity 18 The circumstances surrounding Hardy s physical trans fer to the Lehigh plant show that she was faced with real difficulties in recording her work hours at one plant while working at another Elston s unwillingness or in ability to permit Hardy to punch where she was phys ically assigned undoubtedly contributed to the problem Yet, I am also unwilling to conclude that Respondent had a discriminatory motive to manufacture these diffi culties to create a situation where it could appear to have acted reasonably in disciplining Hardy Hardy s union activity in the period prior to her warn ing on 23 December was only minimally directly related to the Charging Union nor was there any evidence ad duced by the General Counsel that Respondent had ex pressed any concern about it through December Respondent s real concern with Hardy s failure to record her work or production hours was however amply demonstrated by her supervisor Miller Even Hardy's claim that Miller had excused a failure to punch on one occasion was adequately explained as having been limited to the one day in question Hardy herself acknowledged that Miller had offered to have Hardy transported to the other plant for the purpose of punch ing in and out Hardy also failed to explain her tardiness on two occasions earlier in the week in which she was issued the warning, or her failures to record her produc tion records even after she was told by Miller the proce dure to follow in getting them to her for use by cost ac counting Finally, Schaup s successful effort to retain Hardy on the payroll even after her troubles in quality control sur faced does not evince an employer determined to punish a known, outstanding union adherent, even with the in vocation of a 40 hour trial period Having concluded that Hardy was not discriminatorily demoted on 23 December 1983, it follows that any delay in promotion or wage increase premised on that event must also be found to have been nondiscriminatory Whether Hardy s protected concerted activity subse quent to December 1983 motivated delays in raises will be dealt with shortly Conklin s enforcement on 13 January 1984 of a rule against Hardy singling out talk about the Union as pro hibited conversation violated Section 8(a)(1) of the Act An empoyer may not select the topic of the Union as the sole topic of conversation to be prohibited during work time The Board has said [A]n employer may prohibit employees from engaging in activities not association with their work during working time, however, such a prohibition may not single out union activities Montgomery Ward, 269 NLRB 598, 599 (1984), see also Greensboro News Co, 272 NLRB 135 (1984) Conklin coupled her prohibition with a claim that Hardy s inquiring of Weino as to whether she was going to attend the union meeting and encouragement of her attending interfered with Wemo s work 19 Even if she had neither Conklin nor Weino testified As a result, no evidence was offered by Respondent tending to support such a defense From all that appears Conklin was de fending the concerns of antiunion or neutral employees to be free of union inquiry or solicitation By doing so, particularly in a context in which she was aware of and acquiesced in employee antiunion solicitation taking place during working time, even apart from benign worktime solicitations, Conklin s statement violated Hardy s Section 7 rights If, as Hardy claimed the con versation with Weino took place before the second bell requiring employees to return to work, Conklin s state ment wold be coercive in any event Conklin s related statement made on or about the same date to a group of employees including Hardy discourag ing them from attending the 13 January union meeting was a direct interference with employee rights to attend and thereby engage in that union activity Finally Conklin s association of Hardy s trouble with her union affiliation and promise that if Hardy stayed out of trouble she would receive raises and other unspecified benefits constitutes a blatant promise of bene fits in violation of Section 8(a)(1) of the Act President Stone s 16 January 1984 statement to Hardy that he could give her a list of six or seven people that were on the employee organizing committee surely con stituted the creation of an impression with Hardy that the union activities of Elston s employees were under surveillance by Respondent in violation of the Act The identity of the signatures to the committee's leaflets had not been publicly disclosed Stone could reasonably infer that this assertion to a known strong union adherent but not necessarily one of the committee members would become known by the members and serve to inhibit their future activities on behalf of the Union and its organizing campaign Stone emphasized his intent to seek further in formation about employee union involvement by refer 18 NLRB v Transportation Management Corp 462 U S 393 (1983) 19 See American Thread Co 270 NLRB 526 (1984) 528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ring to the aid in this respect that police officers could provide President Stone s subsequent response to Hardy s inquiry that he would do everything he could to keep the Union out coupled with the statement that if he had to compete with union pay-he would have to go off shore to compete-constitutes a threat to remove work from Elston s employees, resulting in layoff and/or terminations in order to avoid having to negotiate with the Union as the collective bargaining representative of its employees, inviolation of Section 8(a)(1) of the Act Stone s coercive comments to Hardy and Conklin s later warning and promise to Hardy that she was getting herself into a great deal of trouble with the mess she was in, and that if she would just be quiet and stay out of trouble, that she would go real far in that company and get her raises and would be doing better, convinces me that Respondent was substantially motivated by Hardy s union activities, including her prominent association with the Union s unfair labor practice case against the Compa ny, in delaying both her promotion to grade 2 and her first 10 cent a month increase in pay In addition to these statments, Respondent also pre varicated in denying Hardy the promotion in January, Conklin informing her the paperwork was delayed and Schaup later hinging the delay on her December trail period Although Hardy s trial period may have legiti mately delayed her moving to labor Grade 2 this con versation aids in establishing Elston s true motive for de laying that change beyond January Conklin s 17 Febru ary statement further establishes that Hardy was denied even an initial 10 cent increase by the end of January 1984 because of the trouble she was causing the Com pany Although the monthly increase in grades 1 2 and 3 was not automatic as Hardy believed and could be denied for reasons of work performance and attendance Respondent did not present evidence of any January 1984 absences by Hardy sufficient to warrant denial and Hardy s work performance was always satisfactory I conclude Respondents discretion here was exercised against Hardy because of her union adherence and it unduly delayed her monthly increase for at least a month 3 The conduct directed toward Quinter In Quinter s case she fell victim to Respondent s no distribution rule invalid on its face because it was overly broad as well as having been applied in her case in a dis parate and discriminatory manner Because the 3 day sus pension was predicted on receipt of the second invalid warning Respondent must be found to have discriminat ed against her thereby in violation of Section 8(a)(3) and (1) of the Act Respondents written rule, clearly in effect at all rele vant times prohibiting and making subject to disciplinary action unauthorized posting or distribution of unofficial material on companytime and property reached by its terms distributions even if conducted on nonwork (break or meal) time and portions of the plants reserved for em ployee rest or relaxation 20 20 Elston s prohibition not being limited to working time but reaching company property as well is presumptively invalid under Our Way Inc As such it restricted union solicitations and leafletting clearly protected under the Act in violation of Section 8(a)(1) Furthermore, in view of Respondents disparate enforcement of the rule, permitting and encouraging em ployee circulation of antiunion solicitations and petitions on worktime and property and, in Quinter s case, prohib iting and disciplining her for similar prounion conduct, Respondent disparately and discriminatonly enforcerd its rule against her by its warning and suspension Even the wording of the warning and suspension shows its discriminatory nature by its opening phrase criticizing Quinter for her Attitude toward Elston s In its defense, Respondent did not and indeed could not, show that Quinter s passing of two leaflets, one the Company s and the other the Union committee s inter fered with Hadden s work or that the written rule was necessary for the maintenance of production or plant dis cipline See Republic Aviation Corp v NLRB 324 U S 793 (1945) Hadden had not reported the distribution an assistant group leader had observed it Because the sus pension was solely motivated by conduct and association that was union related, and Respondent has failed to show that its rule prohibiting distribution validly prohib ited that conduct Quinter s suspension violated the Act 4 The conduct directed toward Riek Doris Riek s complaints to other employees concern mg her prospective pay increase did not constitute con certed activity within the meaning of Meyers Industries 268 NLRB 493 (1984), remanded sub nom Prill v NLRB, 755 F 2d 941 (D C Cir 1985) I draw this con clusion despite the fact that wage discussions have often been afforded special protection by the Board and the courts Neither did her assertions to supervision and management concerning a claimed disparity in pay be tween other employees rise to the level of concerted pro tected activity because this conduct was engaged in without the authority of the employees involved Id at 497 Individual gripes about wages are neither concerted nor protected See e g Shamrock Coal Co 271 NLRB 617 (1984) Allied Erecting Co 270 NLRB 277 (1984) United Pacific Reliance 270 NLRB 981 (1984) Parker Laboratories 267 NLRB 1174 (1983) National Wax Co 251 NLRB 1064 (1980) These cases and now Meyers make clear that in order for activity to be concerted it must be engaged in with or on the authority of other employees not solely on behalf of the employee himself Riek was concerned about her own receipt of the 7 percent increase because of her disability leave the prior month The thrust of all her inquiries of other employees dealt with this concern Although the other employees she approached may have been disconcerted by her comments none joined forces with her in questioning the interpretation of the wage in creases announcement although according to Schaup, others raised questions of the personnel director inde pendently of Riek Riek was pursuing a quest that related 268 NLRB 394 (1983) That presumptive invalidly was never clanfied And the rule was discriminatorily maintained ELSTON ELECTRONICS CORP solely to her own prior work attendance history When this individual investigation led to complaints by other employees affecting the, Riek s conduct legitimately in pinged on work performance and morale justifying the Employers response not based on any activity protected by the Act The portion of the 12 January warning di rected to Riek s failure to ease off on placeing yokes on the line was clearly unrelated to any Section 7 conduct Thus, the warning issued to Riek did not interfere with any rights protected under Section 7 of the Act Schaup s oral direction to Riek, on 10 January 1984,21 to cease discussing wages with other employees at the plant does constitute conduct interfering with Riek s Sec tion 7 rights in violation of Section 8(a)(1) of the Act A general employer rule prohibiting employees from discussing wages among themselves is prima facie unlaw ful unless the employer offers a substantial business justi fication for it Waco Inc, 273 NLRB 746 (1984), Interna tional Business Machines Corp 265 NLRB 638 (1982) W R Grace Co, 240 NLRB 813 (1979), Jeanette Corp, 217 NLRB 653 (1975), enfd 532 F 2d 916 (3d Cir 1976) Moreover, it is not a substantial business justification if the employer contends that wage discussions foster jeal ousy and animosity among employees Id at 919 Nor is it a requirement that the wage information discussed among employees be strictly accurate See NLRB v American Chain Link Fence Co, 670 F 2d 1236, 1242 (1st Cir 1982) Employers are, of course free to limit discus sions during worktime-the topic of wages notwithstand mg-which effect productivity Sierra Hospital Founda tion 274 NLRB 427 (1985) NLRB v General Indicator Corp, 707 F 2d 279 (7th Cir 1983) Here Schaup expressed no concern about worktime or work productivity her emphasis was on upsetting other employees with wage talk in the plant Schaup s prohibi tion was pervasive and thus unlawful Even if limited to the passing of erroneous information the restriction unduly impeded employee interchange on a subject cen tral to the Act's concerns where Schaup herself was aware of the interest Stone s wage announcement had among employees including those who had earlier sought clarification from her NLRB v American Chain Link Fence Co cited supra CONCLUSIONS OF LAW 1 Respondent is an employesr engaged in commerce and in an activity affecting commerce within the mean ing of Section 2(2) (6) and (7) of the Act 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 21 The complaint alleges this conduct as occurring on 10 December 1983 I conclude this was a minor error probably inadvertent which was cured in any event by the allegation having been fully litigated I also now grant General Counsels motion to conform the pleadings to the proofs 529 3 By announcing or granting to its employees general wage increases in order to discourage employees mem bership in or other activity on behalf of the Union, by informing its employees that they may not discuss their wage rates with other employees or discuss the Union on worktime or attend a union meeting by creating an im pression among its employees that their union activities are under surveillance, by threatening to remove its fa cilities outside the State of New York because of their selection of the Union as their collective bargaining rep resentative by promising wage increases and other un specified benefits and by maintaining giving effect to, and enforcing in a disparate and discriminatory manner an invalid no distnbtion rule prohibiting employees from distributing written or printed literature on company premises without written authorization from the person nel department Respondent has engaged in, and is en gaging in, unfair labor practices written the meaning of Section 8(a)(1) of the Act 4 By enforcing its invalid no distribution rule by warning and suspending Sally Quinter because she dis tributed union literature, and by delaying and denying a promotion and wage increases for Shirley Hardy because she joined supported and assisted the Union and en gaged in concerted activities for the purpose of collec tive bargaining or other mutual aid and protection Re spondent had engaged in, and is engaging in unfair prac tices within the meaning of Section 8(a)(3) and (1) of the Act 5 The aforesaid unfair labor practices described above are unfair labor practices within the meaning of Section 2(6) and (7) of the Act 6 Respondent has not committed unfair labor prac tices in violation of the Act in any other manner not spe cifically found above THE REMEDY In addition to the usual cease and desist order and notice posting, my recommended Order will require Re spondent to make whole both Sally Quinter and Shirley Hardy for the losses of earnings or other benefits they may have suffered by reason of the discriminations against them computed in the manner set forth in F W Woolworth Co 90 NLRB 289 (1950) with interest to be computed in the manner described in Florida Steel Corp 231 NLRB 651 (1977) See generally Isis Plumbing Co, 138 NLRB 716 (1962) My Order will also require Respondent to revoke and remove from the personnel and other records of Sally Quinter the written warning and suspension issued to her for distributing union literature and to notify her writing that this has been done and that this unlawful warning and suspension will not be used as a basis for future dis ciplme against her [Recommended Order omitted from publication ]