Electro-Netic Products Corp.

National Labor Relations Board - Board Decisions

Jun 17, 1970

183 N.L.R.B. 482 (N.L.R.B. 1970)

482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Electro -Netic Products Corporation and United Fur-
niture Workers of America , AFL-CIO. Case
13-CA-9084
June 17, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On December 30, 1969, Trial Examiner Sydney
S. Asher issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. He also found that Respon-
dent had not engaged in other unfair labor prac-
tices alleged in the complaint and recommended
dismissal of those allegations. Thereafter, the
General Counsel filed exceptions and an answering
brief, the Respondent filed cross-exceptions and a
brief in support and in answer to the General Coun-
sel's exceptions, and the General Counsel filed a
memorandum replying to Respondent's answerintg
brief.
Pursuant to the provisions of Section 3(b) of-the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The Board has
considered the Trial Examiner's Decision, the ex-
ceptions and briefs, and the entire record in this
proceeding, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner,
except as modified below.'
The Trial Examiner finds that Respondent's
discharge of employees Carolyn Gliniecki and Mary
Roberts was not in violation of Section 8(a)(3) and
(1) of the Act. The General Counsel excepts to
these findings. We find merit in these exceptions.
Gliniecki was hired by Respondent in August
1967 as a full -time assembly line worker at wages
of $1.45 an hour. At that time she informed the of-
ficial who hired her that she had a throat condition
and that as a result was subject to sickness during
' In adopting the Trial Examiner 's finding that Julia Nelson , Angie Alder-
son, and Claudia Ice were not agents of Respondent during their i nterroga-
tion of employees, we do not agree that the Board, under the Taft-Hartley
amendments , is bound by common law rules of agency but find that the
General Counsel has failed to establish agency within the meaning of such
cases as Dan Honard Mfg Co , 158 NLRB 805, 811-812 , Smith 's Transfer
Corporation of Staunton, Virginia, 162 NLRB 143, 157, Finesilver
183 NLRB No. 59
winter months. The official told her to call in when-
ever she was going to be absent and to report to
work the next day.2 In August 1968, despite only an
average attendance record as a rank-and-file em-
ployee, Respondent promoted Gliniecki to the posi-
tion of group leader and her hourly rate was in-
creased to $2. Respondent concedes that she did a
good job as a group leader.
In March 1969, Gliniecki became active in the
Union. On March 17, 1969, Gliniecki and four or
five other employees met with a union official in a
local tavern. Two supervisors who went to the
tavern for a drink witnessed this meeting and sub-
sequently reported it to Respondent's plant superin-
tendent, Bob Galloway, and Respondent's vice
president, Albert Stamiti. The next day, Gliniecki's
immediate supervisor, Bruce Heyden, interrogated
Gliniecki about the meeting.
During the period from March 18, 1969, to April
23, 1969, the date of her discharge, Gliniecki was
active in organizing and passed out about 25 blank
authorization cards and also collected signed union
authorization cards. Respondent's knowledge of
Gliniecki's continued union activities is amply
demonstrated by Heyden's interrogation of her on
April 11, and particularly by her extended conver-
sation with Stamiti on April 17, just 5 days before
her discharge. During the April 17 conversation
Stamiti asked Gliniecki "What's the problem with
the girls," or words to that effect. When Gliniecki
told Stamiti that the girls wanted more money and
better insurance, Stamiti tried to impress her with
the fact that the economics were such that Respond-
ent could not raise wages without going bankrupt.3
In addition, on the day of one of the union
meetings, Stamiti remarked to Gliniecki, "hey, your
meeting is tonight."
On April 23, Respondent discharged Gliniecki,
allegedly for excessive absenteeism . Although
Gliniecki was absent on April 21 and 22, in our
opinion this reason was pretextual. We note that
despite only an average attendance record,
Gliniecki was promoted in August 1968, and given
a sizeable wage increase. In 1969, Gliniecki's at-
tendance record, according to her uncontradicted
testimony, actually improved over her 1968 at-
tendance. We also note that at no time was
Gliniecki warned about her attendance and as a
result of her statement at the time of her initial em-
Manufacturing Company, 160 NLRB 1400, 1402, fn 3
' Gliniecki's testimony as to this conversation is uncontradicted
' Gliniecki contended the Union was mentioned during the conversation
while Stamiti claims that it was not We do not find it necessary to resolve
this conflict as it is apparent from the context in which the conversation oc-
curred that both Gliniecki and Stamiti understood that they were
discussing the union activity at the plant
ELECTRO-NETIC PRODUCTS CORPORATION
ployment, the Respondent had reason to expect
that she would have some absences.' Only after she
became quite active in the union organizing cam-
paign was Respondent concerned about her at-
tendance and then discharged her without prior
warning. Respondent's opposition to the Union was
demonstrated on several occasions as detailed by
the Trial Examiner. Accordingly, as a result of our
examination of all the evidence in the record, and
particularly because of the timing of the discharge
so soon after she was called to the office by Vice
President Stamiti following attendance at a union
meeting on April 16, and told the plant could not
afford wage increases, the precipitous nature of the
discharge, and the condoning of her absenteeism
prior to the advent of the Union, we conclude that
Respondent discharged Gliniecki because of her
union activities.' Accordingly, we find that
Gliniecki was discriminatorily discharged in viola-
tion of Section 8(a)(3) and (1).
Mary Roberts began working for Respondent in
September 1968 as a full-time assembly line em-
ployee. In January 1969, at her request, she was
transferred to part-time status. At the time, Manu-
facturing Manager Bob Galloway told her new
foreman, Clyde Castle, that Roberts "was a good
worker." During the period January through March
1969, Roberts had a high rate of absenteeism. In
mid-March, as a result of a dispute over her super-
vision, Roberts threatened to quit. Despite her high
rate of absenteeism, Foreman Castle urged her to
stay and she did. In April 1969, her attendance im-
proved considerably, with only one absence in
April prior to the date of her discharge .6 On April
3, Roberts signed a union authorization card. Sub-
sequently, Roberts passed out union authorization
cards to some of the part-time employees at the
plant at breaktime. She also attended a union meet-
ing. On April 22, Castle coercively interrogated
Roberts about whether she was a member of the
Union, stating that the persons who placed union
flyers on employees' cars could be arrested and in-
forming her that two employees had complained
that Roberts was pestering them about the Union.
4 By at least one standard , Gliniecki's attendance record was good
Respondent gave a weekly attendance bonus to employees who had perfect
attendance during the week Gliiecki earned this monetary bonus in 12 of
the first 17 weeks in 1969 , while group leader Alderson earned it only 7 of
the 17 weeks and Claudia Ice, Gliniecki 's replacement as group leader,
earned it only 6 of the 17 weeks
' The Trial Examiner points to several factors in support of his finding
that Respondent did not discriminatorily discharge Glmiecki We have
considered these factors and conclude that they are not sufficient to over-
come the evidence of discrimination discussed above In particular, we
note that even though there are only three instances of independent
8(a)( 1) activity on the part of the Respondent , two of these instances were
directed toward Glmiecki The fact that Glmiecki failed to protest when
Respondent stated that her absence record was worse than other group
483
The following day Roberts was discharged, al-
legedly for excessive absenteeism. The reason ad-
vanced by the Respondent does not withstand scru-
tiny. We find it significant that Respondent urged
Roberts to keep working in March when she was
not involved in the Union and when her attendance
record was very poor. We also find significant that
she was discharged April 23, immediately after
Respondent's coercive interrogation about her
union activities, at a time her attendance record
showed marked improvement and that like
Gliniecki she had received no prior warning and
was, in fact, discharged prior to reporting for work.
These facts lead us to conclude that she was
discharged, not for excessive absenteeism, as ad-
vanced by the Respondent, but because of Respon-
dent's concern over her union activities. Ac-
cordingly, we conclude that Roberts was dis-
criminatorily discharged in violation of Section
8(a)(3) and (1) of the Act.
THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices in violation of Section
8(a)(3) and (1) of the Act, we shall order that it
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of
the Act.
Having found that Respondent violated Section
8(a)(3) and (1), we shall order Respondent to offer
Carolyn Gliniecki and Mary Roberts immediate and
full reinstatement to their former or substantially
equivalent positions and that they be made whole
for any loss of pay from the date of their discharges
to the date of the offer of reinstatement less their
net earnings during that period. Loss of pay shall be
computed and paid in accordance with the formula
adopted by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289, and with interest thereon at
the rate of 6 percent per annum as prescribed by the
Board in Isis Plumbing & Heating Co., 138 NLRB
716.
leaders is not surprising as there is no evidence that Gliniecki had such in-
formation The fact that Gliniecki was absent the 2 days prior to the
discharge is not contended by Respondent as the reason for the discharge
and, so far as the record shows , Respondent never made any attempt to
determine why she was absent The fact that the Union was not mentioned
during the discharge interview is not material as employers rarely tell em-
ployees that they are being discharged for their union activities Finally, the
fact that four other employees were discharged at the same time in the cir-
cumstances has little weight . One of the four was Mary Roberts , the other
discriminatee
Although she was absent on the day of her discharge, the decision to
discharge Roberts was made prior to her l o 'clock reporting time and
therefore the absence could not have been a factor in the decision to
discharge her
427-258 O-LT - 74 - 32
484 DECISIONS OF NATIONAL
AMENDED CONCLUSIONS OF LAW
1. Insert the following as paragraph 4:
By discriminatorily discharging employees
Carolyn Gliniecki and Mary Roberts, Respondent
has engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
2. Renumber present paragraph 4 as 5.
3. Renumber paragraph 5 as 6 and delete the
words "or that the Respondent discriminated
against Gliniecki or Roberts within the meaning of
Section 8 (a)(1) or (3) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Electro-Netic Products
Corporation, Carpentersville, Illinois , its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as modified herein:
1. Reletter paragraph 1(a) and 1(b) as para-
graphs 1(b) and (c), respectively, and insert the
following as paragraph 1(a):
"(a) Discouraging membership in the United
Furniture Workers of America, AFL-CIO, or any
other labor organization, by discharging employees
because they engaged in union activity or other
concerted activity, or otherwise discriminating
against them in regard to the hire and tenure of
their employment or any term or condition of em-
ployment, because they engaged in union activity
or other concerted activity."
2. Reletter paragraphs 2(a) and (b) as para-
graphs 2(c) and (d), respectively, and insert the
following as paragraphs 2(a) and (b):
"(a) Offer to Carolyn Gliniecki and Mary
Roberts immediate and full reinstatement to their
former jobs or, if these jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and
make them whole in the manner set forth in the
section entitled `The Remedy."'
"(b) Notify immediately the above-named in-
dividuals, if presently serving in the Armed Forces
of the United States, of the right to full reinstate-
ment, upon application after discharge from the
Armed Forces, in accordance with the Selective
Service Act and the Universal Military Training and
Service Act."
3. Substitute the attached appendix for Appen-
dix C of the Trial Examiner 's Decision.
LABOR RELATIONS BOARD
APPENDIX C
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in the
United Furniture Workers of America,
AFL-CIO, or any other labor organization, by
discharging employees because they engage in
union activity or otherwise discriminate against
them in regard to the hire and tenure of their
emplyment, or any term or condition of em-
ployment, because they engage in union activi-
ty or other concerted activity.
WE WILL NOT coercively question our em-
ployees about their union membership, activi-
ties , or sympathies.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-or-
ganization , to join or assist United Furniture
Workers of America, AFL-CIO, or any other
union , to bargain collectively through
representatives of their own choosing, to en-
gage in mutual aid or protection, or to refrain
from such activities, except to the extent that
such rights may be affected by an agreement
requiring membership as a condition of em-
ployment, as authorized in Section 8(a)(3) of
the Act, as amended.
WE WILL offer to Carolyn Gliniecki and
Mary Roberts immediate and full reinstate-
ment to their former jobs or, if their jobs no
longer exist , to substantially equivalent posi-
tions , without prejudice to their seniority and
other rights and privileges, and make them
whole for any loss of pay in accordance with
the Order of the National Labor Relations
Board.
WE WILL notify Carolyn Gliniecki and Mary
Roberts, if presently serving in the Armed
Forces of the United States , of their right to
full reinstatement , upon application, in ac-
cordance with the Selective Service Act, and
the Universal Military Training and Service
Act, as amended, after discharge from the
Armed Forces.
ELECTRO-NETIC
PRODUCTS CORPORATION
(Employer)
Dated By
(Representative ) (Title)
ELECTRO-NETIC PRODUCTS CORPORATION 485
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced , or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board 's Office, 881 U.S. Courthouse and Federal
Office Building , 219 South Dearborn Street,
Chicago , Illinois 60604 , Telephone 312-353-7572.
TRIAL EXAMINER 'S DECISION
SYDNEY S. ASHER, Trial Examiner: On April 30,
1969, United Furniture Workers of America,
AFL-CIO, herein called the Union, filed charges
against Electro-Netic Products Corporation, Car-
pentersville, Illinois , herein called the Respondent.
Amended charges were filed on June 30, 1969. On
July 1, 1969, the General Counsel of the National
Labor Relations Board issued a complaint alleging
that since on or about March 18, 1969, the Respon-
dent has interfered with, restrained, and coerced its
employees by certain specific conduct. It is also al-
leged that on or about April 23, 1969, the Respon-
dent discharged Carolyn Gliniecki and Mary
Roberts, its employees, because they joined or
assisted the Union and engaged in other concerted
activities. It is alleged that this conduct violated
Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended (29 U.S.C. Sec. 151, et
seq.), herein called the Act. The Respondent filed
an answer admitting the jurisdiction of the Board,
but denying the other allegations of the complaint.
On August 7, 1969, the Union filed second
amended charges. On August 18, 1969, the General
Counsel issued an amendment to the complaint,
which contained additional allegations of inter-
ference, restraint, and coercion by the Respondent.
Upon due notice, a hearing was held before me'
on August 26 and 27, 1969, at Chicago, Illinois. All
parties were afforded an opportunity to be
represented and to participate fully in the hearing.
During the hearing the Respondent filed an addi-
tional answer denying the allegations of the amend-
ment to the complaint. At the close of the hearing,
upon my own motion, I struck subparagraph VI(e)
of the complaint, as amended, and the Respon-
dent's corresponding denial, as redundant and un-
necessary. After the close of the hearing, the
General Counsel and the Respondent filed briefs.
These have been carefully considered.
Upon the entire record in this case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
The complaint alleges, the answer admits, and it,
is found that the Respondent is, and at all times has;
been, an employer engaged in commerce as defined,
in the Act, and its operations meet the Board's ju-
risdictional standards;' and that the Union is, and at
all material times has been, a labor organization as
defined in the Act.
A. The Setting
The Respondent utilizes a system of manufacture
which is essentially an assembly line operation.
There is no conveyor belt; the product is hand
passed from one worker to another down the line.
There is only one shift of full-time employees (8:30
a.m. to 4:30 p.m.) but a number of shifts for part-
time employees (9 a.m. to 2:30 p.m.; 1 to 7:30
p.m.; and 4 to 8 p.m.). At all material times, the
Respondent employed a complement of approxi-
mately 200 workers, of whom about 120 were full-
time employees.
At all material times, Fred J. Kitty was the
Respondent's vice president and general manager.
Albert Stamiti, Kitty's immediate subordinate, also
held the title of vice president. Under Stamiti was
Robert N. Galloway, manufacturing manager,2 and
beneath him a number of foremen, including Bruce
C. Hayden and Clyde Castle. The Respondent ad-
mits, and it is found, that at all material times Kitty,
Stamiti, Galloway, Hayden, and Castle were super-
visors within the meaning of the Act. The Respon-
dent also employs a number of group leaders on the
various feeder and assembly lines. The parties
agree, and it is found, that these group leaders are,
and at all material times have been, employees
lacking supervisory authority.
So far as the record shows, no union had at-
tempted to organize the Respondent's employees
prior to March 1969. On March 17,3 the Union
held its first meeting attended by employees of the
Respondent. The Respondent 's management
became aware of this development almost im-
mediately. The organizing campaign launched that
day culminated on April 30 in the filing of a peti-
tion (Case 13-RC-11856) in which the Union
sought to represent the Respondent's employees in
collective bargaining . The events with which we are
here concerned occurred during the Union's or-
ganizing campaign.
B. Interference, Restraint, and Coercion
1. By Bruce C. Hayden
a. Facts
Although March 17 was a working day, Carolyn
Gliniecki, a group leader, did not report for work
' The Respondent is, and at all material times has been , an Illinois cor- outside the State of Illinois
poration with its principal office and place of business at Carpentersville, ' Both Stamiti and Galloway left the Respondent's employ before the
Illinois, where it engages in the manufacture , sale, and distribution of elec- hearing herein
tronic components During the calendar or fiscal year 1968, the Respon- ' All dates hereafter refer to the year 1969 unless otherwise noted
dent shipped products valued at more than $50,000 directly to destinations
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that day. That evening, about 7 p.m., she and three
or four rank-and-file employees of the Respondent
met with a representative of the Union in a public
tavern in Carpentersville. About 8:15 p.m., while
the meeting was still in progress, Castle and another
of the Respondent's supervisors entered the tavern.
Castle recognized the Respondent's employees and
was told by the bartender that this was a union
meeting.
On the morning of March 18, Castle reported
what he had seen and heard to Galloway and
Stamiti. Both Castle and Galloway told Hayden,
Gliniecki's supervisor, of the incident. Hayden
came up to Gliniecki in the plant and asked her if
she had been too sick to be at work the previous
day but well enough to go out drinking. Gliniecki
replied that she had been sick, and that she had had
an appointment that evening with a representative
of a cosmetics distributor or she would not have
gone out at all." She then asked Hayden how he
knew she had been at the tavern, and Hayden
responded that Castle had told him.'
On the night of April 10, Gliniecki attended
another' meeting of the Union. On the next day,
April 11, Hayden asked Gliniecki how the meeting
went the night before. Gliniecki retorted that, if
Hayden wanted to know, he should have gone to
the meeting to find out.'
b. Contentions and conclusions
The complaint alleges, and the answer denies,
that on or about March 18, at the plant, Hayden
"interrogated employees concerning their union
membership, activities and sympathies." The
General Counsel in his brief states:
It is submitted that Respondent violated Sec-
tion 8 (a)(1) of the Act when
1. Bruce Heyden (sic) questioned Carol
Gliniecki on or around March 18, 1969, as to
the union meeting held at a tavern in Carpen-
tersville on the previous night, and
2. Bruce Heyden (sic) asked Carol Gliniecki
on or around April 11, 1969, how the union
meeting of the previous night had gone, and
4. Clyde Castle and Bob Galloway informed
other officials of Respondent of the names of
4 This was not the truth At the hearing Gliniecki explained " I couldn't
very well tell him [Hayden) I was going to a union meeting " She added
"What I do after work I don't think was any of his [Hayden 's) business "
s The findings regarding the Hayden-Gliniecki conversation are based on
a synthesis of the testimony of both participants
Later that morning Glmiecki confronted Castle and accused him of hav-
ing "squealed" on her Castle 's reply is a matter of dispute I deem it un-
necessary to resolve this conflict
' The findings regarding this conversation are based on Glmiecki's
testimony Although Hayden denied that he ever had a conversation with
all the employees who had attended the union
meeting of March 17, 1969.
There is no contention herein that Castle engaged
in surveillance or otherwise violated the Act by or
during his visit to the tavern.
I agree with the General Counsel that Hayden en-
gaged in conduct proscribed by the Act on the two
occasions when he questioned Gliniecki about
meetings . Even though, as the Respondent points
out, the Union was not mentioned in haec verba,
nevertheless in each case the reference was clearly
to union meetings. Therefore, the interrogations, in
the context of Castle's almost contemporaneous in-
terrogation, described below, were coercive.7
Moreover, they could reasonably be expected to
create in Gliniecki's mind the impression that her
union activities were under surveillance. However, I
am not convinced that Castle and Galloway vio-
lated the Act by informing other members of the
Respondent's management of facts which they
themselves had obtained without having engaged in
any illegal surveillance. In addition, this matter is
not mentioned in the complaint and was not fully
litigated at the hearing.
2. By Stamiti and Galloway
a. Facts
Gliniecki attended another union meeting on
April 16. On the following day, April 17, Stamiti
called her to his office and, in Galloway's presence,
according to Gliniecki:
Mr. Stamiti had asked me about the union and
I told him that I had been there, and he said-
he asked me what we would gain by getting a
union, and I says, well, we wanted more
money, better working conditions and better
insurance. And well, he had told me at that
time, that in order to get better insurance, he
could get us better insurance but he'd have to
charge us. I mean , it would be taken out of our
paycheck. And he says he'd like to give
everybody a raise , he says, but the company
can't afford it; and that before-you know, be-
fore the plant would go bankrupt, he'd shut it
down. He says it was like pushing up against a
brick wall. He says that we just couldn't, you
know, afford to pay any more than what we
were paying.
On cross-examination Gliniecki admitted that
Stamiti also stated that the employees had a right to
Gliniecki " concerning the union," it is to be observed that, even according
to Glmiecki's versions of these two conversations , the Union was not men-
tioned by name in either
r Although March 18 is the only date mentioned in the complaint in con-
nection with Hayden 's conduct, I do not consider that a fatal variance ex-
ists between that allegation and proof that he again engaged in similar con-
duct on April I I Haynes Stellite Company, Division of Union Carbide Cor-
poration , 136 NLRB 95, 98, enforcement refused on other grounds 310
F2d844(CA 6)
ELECTRO-NETIC PRODUCTS CORPORATION
have a union if they wanted one, and that he was
not going to do anything to interfere with that
right.'
b. Contentions and conclusions
Paragraph VI(b) of the complaint alleges, and
the answer denies, that on or about April 10,
Stamiti, in the plant, "interrogated employees con-
cerning their union membership, activities and sym-
pathies." In his brief the General Counsel "con-
cedes there is no evidence to support" this allega-
tion. Paragraph VI(c) of the complaint further al-
leges, and the answer denies, that on or about April
16, Stamiti and Galloway, at the plant, "inter-
rogated employees concerning their union member-
ship, activities and sympathies, and told them they
were up against a brick wall and that if the Union
came in the Respondent would either go bankrupt
or would shut down." In his brief the General
Counsel concedes there is "insufficient evidence to
support" this allegation of the complaint "in as far
as it alleges that Stamiti threatened that if the
Union came in, Respondent would go bankrupt or
close the plant down," but he maintains "that
Respondent violated Section 8(a)(1) of the Act
when ... Stamiti asked Gliniecki on or around
April 17, 1969, about the union meeting of the
previous night." It is true that Stamiti interrogated
Gliniecki regarding her union sympathies (what
would be gained by getting a union), but when cou-
pled with Stamiti's assurance that he would do
nothing to interfere with the employees' right to
select a union to represent them, such interrogation
is stripped of its coercive character.9 And Stamiti's
attempt to persuade Gliniecki that the Respondent
would be unable to raise wages and remain solvent
constituted, in my opinion, mere argument pro-
tected by Section 8(c) of the Act.
3. By Clyde Castle
a. Facts
Mary Roberts, then a part-time employee of the
Respondent under Castle's supervision, testified
that on April 22, about 10 minutes before quitting
time, she was working on the line. Castle called her
aside . In his hand was a flyer announcing a union
meeting to be held on April 23. These had been
placed on employees' cars on the parking lot that
morning . Castle asked Roberts whether she had
heard "that they were trying to start a union."
Roberts admitted that she had heard this. Castle
inquired whether Roberts was a union member; she
denied it. (This was not true; Roberts had in fact al-
ready signed a union authorization card.) Showing
her the flyer, Castle said that "the people passing
e Stamiti gave a somewhat different version According to him, the
Union was not mentioned Galloway did not testify , and the Respondent's
able counsel stated on the record that Galloway's present whereabouts is
487
them out on the cars could be arrested." Roberts
replied that she was not passing them out and had
received one on her car also. Next, Castle stated
that two employees had complained that Roberts
"was pestering them about the union." Although
Roberts inquired who they had been, Castle refused
to divulge this information. Then Castle told
Roberts that five employees "on the regular line"
had signed union cards; Roberts responded that she
did not know anything about that. On cross-ex-
amination , Roberts testified:
Q. Did he [Castle] say anything to you
about stopping pestering employees about the
union on company time?
A. No, he did not.
Q. Did he say anything to you about
stopping pestering employees at any time?
A. No, he did not.
Castle gave a somewhat different version. Ac-
cording to Castle, two employees told him that
Roberts had talked to them about the Union during
working time; Castle reported this to Galloway;
Galloway directed Castle to ask Roberts if she were
doing this, and if she admitted it to tell her to stop.
According to Castle:
I called Mary Roberts away from her position
and told her that it had been reported to me
that she was talking union during company
time , and I told her that if she was, to please
cease it. And she denied doing it and I told her
to go back to work.
He further testified:
Q. Now, was anything else said by you or by
Mary Roberts at this conversation in April?
A. Nothing.
Q. Did you ever ask Mary Roberts whether
or not she was a member of the Union?
A. No.
Q. Did you ever warn Mary Roberts that she
or employees could be arrested for putting
leaflets on cars?
A. No, I did not.
b. Contentions and conclusions
The complaint alleges, and the answer denies,
that on or about April 22 Castle, at the plant, "in-
terrogated employees concerning their union mem-
bership, activities and sympathies."
At the hearing, the following colloquy took
place:
TRIAL EXAMINER: There's no allegation here
of an illegal rule against solicitation, is there?
MR. POURITCH: No.
unknown For the purpose of this decision it will be assumed , without
deciding, that Gliniecki 's version is the more accurate
s Blue Flash Express, Inc , 109 NLRB 591
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As the complaint does not allege the promulga-
tion, maintenance, or enforcement of an illegal no-
solicitation rule, as the General Counsel at the
hearing specifically disclaimed any such allegation
and made no attempt to amend the complaint so as
to include it, and as the issue was not fully litigated
at the hearing, the matter is not properly before me
for decision. I therefore need not, and do not,
determine whether Castle, on April 22, directed
Roberts to stop talking about the Union. I do, how-
ever, find-in accordance with Roberts' credited
testimony and rejecting Castle's denial thereof-
that on that date Castle asked Roberts whether she
had heard that the employees were trying to or-
ganize and whether she was a union member. Cou-
pled as these questions were with statements that
people who placed union flyers on employees' cars
in the parking lot should be arrested, and that two
employees had complained that Roberts was pester-
ing them about the Union (creating the impression
that Roberts' activities were under surveillance), I
am convinced, and find, that they constituted coer-
cive interrogation violative of the Act.
4. By Angela Alderson, Julia Nelson,
and Claudia Ice
a. Facts
On April 16, Lillian Schamne, an employee, at-
tended a meeting of the Union. Angela Alderson, a
group leader, also attended this meeting. On the
next day, April 17, Schamne was talking to other
employees about what had happened there. Her
group leader, Julia Nelson, warned her that if she
discussed the Union on working time there was a
chance she might be laid off or discharged.
On April 23, Nelson and Alderson attended a
meeting of the Union at which some rank-and-file
employees expressed their hope that advent of
Union would result in the rank-and-file workers
being permitted to select their own group leaders.
Concerned about the security of her position as
group leader Nelson, on April 24, sought a con-
ference with Kitty. In response to this request, Kitty
called a meeting of all group leaders. According to
Nelson:
Mr. Kitty said that he could not interfere when
it came to the union, that as far as the union
was concerned that he could not tell us what to
do about it because he had no voice in it at all
and it was up to us. If us group leaders wanted
our own union, we could have a union of our
own. There was not a thing that he could do
about it. But as far as the union coming in and
taking over the plant, this is not true, that the
union-well, he would still run his own plant,
and if the union would give the group leaders a
hard time, that was no problem either because
he would put us on salary.
On the same day, April 24, Nelson and Jeanette
Mewdo, another group leader, came out of the of-
fice, each holding a slip of paper on which names
were written. Nelson approached Lillian Schamne,
an employee in the group of which she was
group leader. Nelson stated she had been given a
list of employees who "supposedly" had signed
union cards, and that Schamne's name was on that
list. Then Nelson asked Schamne whether Schamne
had signed a union card. Schamne denied having
done so. Nelson inquired "if you [Schamne] want
to change your mind, otherwise you might get laid
off." Schamne repeated that she had not signed any
card. Then Nelson asked other employees in her
group "if they had signed cards for the Union";
they all denied having done so. A little later,
Mewdo asked one of the employees in her group
whether the employee wanted to change her mind.
About a week later, Schamne attended another
union meeting. The next day Nelson stated to
Schamne : "You signed a card for the Union."
Schamne again denied having done so. Nelson then
told Schamne: "well, there was a spy at the meeting
last night and they snitched on you and they said
you had signed a card."
On April 24, the day after she had attended a
union meeting , Alderson talked to Galloway during
working hours in the plant. Alderson showed Gal-
loway a piece of paper and Galloway pointed to
certain employees. Alderson put the piece of paper
in her pocket and took out another piece and ap-
proached some of the employees on the line of
which she was group leader. She said to each em-
ployee that she (Alderson) heard that the employee
had signed a union card, and "if they would sign
this piece of paper, relinquish that card and turn
the card over to the company, there would be no
trouble." This conduct continued for several work-
ing days. Some of the employees to whom Alderson
talked admitted that they had signed union cards,
some turned union cards (either signed or blank)
over to Alderson, some refused to do so, and some
signed a piece of paper tendered by Alderson, the
contents of which is not shown in the record. Al-
derson put these papers and cards in her pocket;
the record does not reveal what ultimately became
of them. During these conversations between Al-
derson and various employees on her line, Gal-
loway was on the floor and in a position to observe
what occurred. On approximately the same days
Claudia Ice, then a rank-and-file employee (later a
group leader), told certain other employees that
she (Ice) had heard they had signed union cards,
and stated that "if they would sign this piece of
paper relinquishing their card and turn it over to
the company, there would be no trouble." Her con-
duct was observed by Bernice Sturtevant, a rank-
and-file employee who was active in the Union's
behalf. Although it was working time, Alderson and
Ice then summoned about five employees ("the
whole front of the line") from the production line,
all at the same time, and escorted them out, in the
general direction of the office and the plant
cafeteria. It is not clear how long they remained
ELECTRO-NETIC PRODUCTS CORPORATION 489
away from the line, but apparently no other work-
ers were substituted for them; the remainder of
the production line was able to continue operations
because these employees "just fortunately had
enough work ahead." Galloway was not on the
floor during this incident.
b. The agency status of Alderson, Nelson, and Ice
The amendment to the complaint alleges , and the
answer thereto denies, that during the events re-
lated above Nelson, Ice, and Alderson "were agents
of Respondent acting on its behalf" and that, as
such, they engaged in surveillance of union acitvi-
ties, coercive interrogation of employees, and
threats of reprisals. The General Counsel made it
clear at the hearing that , to support these allega-
tions , he does not rely on the fact that Alderson
and Nelson were group leaders, as group leaders
are nonsupervisory employees; he relies only on
agency. And on this subject the United States Court
of Appeals for the Fifth Circuit recently stated:
Under the Taft-Hartley Amendments, more is
required to charge the [employer] than that
those [alleged to be his agents ] act "in the in-
terest of the employer." Under those amend-
ments, employers are responsible only for the
acts of their common law agents.10
The General Counsel points to certain facts to
bolster his case on common law agency:
1. "At least three group leaders [Nelson, Mew-
do, and Alderson] almost simultaneously inter-
rogated employees during working time about their
union sympathies." This may logically be explained
by the events of the April 23 meeting of the Union.
After that, it is not surprising that the group
leaders-fearing loss of their jobs by union action-
banded together to oppose the Union. And, as non-
supervisory employees, their right to engage in such
concerted activities is proctected by Section 7 of
the Act.
2. Shortly before Nelson herself engaged in in-
terrogation of employees and antiunion activities
on working time, she had instructed the employees
on her line not to discuss the Union on working
time. But putting aside her lack of authority to issue
such an order (she was a nonsupervisory em-
ployee), the mere fact that her behavior was unfair
or inconsistent does not tend to prove that the
Respondent had made her its agent.
3. "Just before [Nelson and Mewdo] inter-
rogated employees as to their union sympathies
they were seen coming from the direction of
Respondent's offices with pieces of paper in their
hands," and that "Nelson told Shamne . . . `that she
had gotten"' this list. But Mewdo was not alleged to
be an agent. Nelson testified:
Q. Did any supervisor request or ask you or
direct you to report on the union activities of
any other employees?
A. No.
Moreover, her statement to Schamne about the list
does not help the General Counsel's case, because
in his brief he states: "Admittedly the mere claims
by Angie Alderson and Claudia Ice that they were
acting as agents of Respondent ... do not ipso facto
make them agents of Respondent." The same may
be said for Nelson. Agency must be shown by some
act or acquiescence of the alleged principal.
4. "Galloway pointed out to Alderson the em-
ployees she interrogated" and that "this took place
on working time." In this connection, the General
Counsel emphasizes that Galloway had instructed
Castle to tell Roberts to cease talking about the
Union on company time. It is significant, however,
that there existed no rule prohibiting solicitation at
any time; moreover no employee testified about
having been warned not to talk about the Union on
company time." In the absence of such a rule, an
employer cannot be faulted merely because he per-
mits, or even encourages, antiunion activity on
working time. 1'
5. Alderson and Ice "took employees from their
working stations during working time. . . . It seems
very unlikely this could be done without the
knowledge of any of Respondent's officials." But
this incident must be evaluated in the light of all the
surrounding circumstances, including the admission
of the General Counsel in his brief that "Galloway
was not on the floor when this occurred."
Moreover, even had Galloway known what was
going on, he was not obliged to put a halt to the an-
tiunion activity. His failure to do so is not entitled
to more than slight probative weight on the agency
issue.
6. "Respondent did not call Angie Alderson or
Claudia Ice as witnesses," and "It is highly unlikely
that Alderson was collecting union authorization
cards to keep for herself." However, it was not
shown that the purported agents turned over any
authorization cards to the Respondent, and the fact
that two of them did not testify does not supply the
missing evidence. Moreover, given the antagonism
of Nelson and Alderson toward the Union arising
from the union meeting of April 23, it is not unlike-
ly that they may have collected cards and antiunion
signatures on their own initiative, and then
destroyed the cards.
7. "The activities of these group leaders took
place only a very few days after Stamiti had told a
10 N L R B v Master Stevedores Association of Texas , eta! , 418 F 2d 140
(C A 5)
" As previously mentioned, Roberts denied receiving such a warning
The only testimony that such a warning was ever given came from Castle, a
supervisor , and he testified that employees have alvays been permitted to
converse with one another during working time, regardless of subject
matter , so long as the talking does not interfere with their work
12 The General Counsel cites Dan Howard Mfg Co , and Dan Howard
Sportswear, Inc 158 NLRB 805, 811-812 There, however, the agent's
activity "was in the teeth of the no-solicitation rule" Id at 812 Here,
there was no such rule I therefore consider that case inapposite
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
group leader that group leaders were expected to
be for the Company and only a few days after the
discharge for union activities of one group leader,
Carol Gliniecki ." It is true that Gliniecki, then a
group leader , testified that on April 17, Galloway
"said something about being a group leader was sup-
posed to be for the company ." But in my opinion
this vague testimony does not rise to the dignity of
adequate proof that a direct order was issued or
that an agency relationship was intended . Rather, I
view it either as a protected attempt to persuade or
as the expression of a pious hope . Moreover, none
of the alleged agents were present during this inter-
view, nor was its purport communicated to any of
them , so far as the record shows. Finally , as related
below , I am not convinced that Gliniecki's
discharge was proved to be discriminatory.
8. "Stamiti [ sic] had told the group leaders at
the meeting of April 24, 1969, that if the group
leaders carried on their antiunion activities and the
Union got in, they would be promoted to super-
visors and taken out of the unit ." It is true, as
quoted above , that Kitty promised to put the group
leaders on salary, but only " if the union would give
the group leaders a hard time ," i.e., would demand
the right to select the group leaders without
management participation . This is a far cry from
proving agency . It can reasonably be viewed merely
as a promise of assistance by the Respondent in
case the Union should make demands, during bar-
gaining, which the group leaders considered detri-
mental to their interests.
On balance , while the matter is not entirely free
from doubt , I conclude that the General Counsel
has failed to prove by a preponderance of the
evidence that Alderson , Nelson , or Ice was at any
time an agent of the Respondent . Accordingly, the
Respondent is not chargeable with their conduct.
C. The Discharge of Carolyn Gliniecki
1. Facts
Carolyn Gliniecki began to work for the Respon-
dent in August 1967 as a full -time assembly line
worker , at wages of $ 1.45 per hour . In August
1968, she was promoted to group leader of a line of
approximately 30 workers , and her hourly rate was
increased to $2. Hayden was her immediate superi-
or.
Gliniecki was one of the four or five employees
of the Respondent who attended the first union
meeting on March 17 in the tavern in Carpenters-
ville. She played a part in obtaining the attendance
there of some of the other employees. She signed a
union authorization card at that meeting, and was
given 50 blank cards to distribute . As related
above , she was seen there by Castle , and the fact of
her presence related to Galloway and Hayden on
the next day ; Hayden thereupon illegally inter-
rogated her about her attendance.
Gliniecki handed out about 25 blank authoriza-
tion cards to her fellow employees ; some signed
them and gave them back to her . These activities
took place on nonworking time . As related above,
Gliniecki attended another union meeting on April
10, and April 11 was again coercively questioned
by Hayden. And as previously described , she at-
tended another such meeting on April 16; on the
next day Stamiti summoned her to his office and,
after asking what the employees would gain
through a union , attempted to convince Gliniecki
that the Respondent could not raise wages without
courting financial disaster . In addition , on the day
of one of these three meetings , Stamiti remarked to
Gliniecki "hey, your meeting is tonight."
Gliniecki was absent on April 21 and 22, but
returned to work on April 23. At or about noon
that day Gliniecki was called to Stamiti 's office. In
Galloway's presence, Stamiti announced he had an
unpleasant duty to perform. He showed Gliniecki a
paper containing the percentages of absences of all
group leaders. According to Gliniecki's testimony,
Stamiti then stated that Gliniecki had been absent
"quite a bit, more than the rest of the group
leaders," and because of this he would have to let
her go . According to Stamiti 's testimony , he told
her:
Carolyn, I'm letting you go for poor attendance
I think I said . . . . She really didn't say very
much. I think she just stood there and nodded
her head. . . . I think I said that as a group
leader we expect you to set examples ... for
the good. Your attendance, based on our
review , is ... no better than [that of] the
average plant performer, and you're three to
four times worse than the average group leader
[in) attendance . So, on that basis I'm going to
let you go, Carolyn.
Within an hour, Gliniecki clocked out and left the
plant. So far as the record shows, she has not
returned. Her final timecard bears the notation:
"Terminated Excessive absenteeism." A few weeks
after her discharge, Gliniecki 's position as group
leader was filled by promoting Ice, a rank-and-file
employee.
2. Contentions of the parties
The complaint alleges that on or about April 23,
the Respondent discharged Gliniecki because "she
joined or assisted the Union and/or had engaged in
other union or concerted activities ." The answer
admits that on April 23 the Respondent discharged
five employees, including Gliniecki, but denies that
it did so for the reason alleged in the complaint. On
the contrary , the answer alleges that Gliniecki was
discharged "for good and lawful cause , namely, for
excessive absenteeism." The issue thus narrows
down to a question of motivation , the Generai
Counsel and the Union maintaining that the
motivating factor was Gliniecki 's known support of
the Union , and the Respondent contending, conver-
ELECTRO-NETIC PRODUCTS CORPORATION 491
sely, that the motivating factor was Gliniecki's ex-
cessive absenteeism.
3. Conclusions
Absenteeism had been a problem at the Respon-
dent's plant for some time. To combat absenteeism
the Respondent promulgated a rule (not rigid, but
flexible) that 3 days' continuous absence without
notification constituted grounds for discharge; for a
while maintained and posted a weekly list of em-
ployees who had been absent; and awarded a
weekly cash bonus to any full-time employee who
worked a full 40-hour week without an absence.
Despite these measures, the problem persisted.
Therefore Stamiti and Galloway conferred infor-
mally from time to time concerning which offend-
ers should be discharged. There were no hard-
and-fast rules. Other supervisors also occasionally
discharged employees for excessive absenteeism.
From the beginning of 1969 to the date of
Gliniecki's discharge, the Respondent discharged,
because of excessive absenteeism, an average of
about seven employees monthly. (See Appendix.) It
is against this background that we must assess
Gliniecki's discharge.
Gliniecki had been considered "an excellent
worker." As a rank-and-file employee her absentee
record had been average. When she was promoted
to group leader, she was told (as apparently all
rank-and-file employees promoted to group leader
were told) that she would be expected to set a good
example for the employees on her production line.
During her final 17 weeks of employment by the
Respondent, she attained a weekly attendance
bonus 12 times, was absent 8 full days, and her
total absences (full days plus partial days)
amounted to 70 hours. (See Appendix B.)
Stamiti testified that, before deciding to
discharge Gliniecki, he compared her record of
absences with that of all the other group leaders,
and ascertained that her record was the worst.
Stamiti impressed me as a candid and forthright wit-
ness,13 and his testimony in this respect fits in well
with other evidence: The testimony of Hayden that,
about 2 months before Gliniecki's discharge, he
complained to Galloway about Gliniecki's absen-
teeism ; the fact that when Gliniecki was discharged
on April 23, she was told she was the worst of the
group leaders and shown the figures on which this
statement presumably was based; and comparison
of Gliniecki's absentee record with those of Alder-
son and Nelson, the only other group leaders for
whom figures are available in the record. It is true
that in the first 17 weeks of 1969, Alderson only at-
tained the attendance bonus 7 times, as against 12
for Gliniecki and 12 for Nelson. On the other hand,
during this period Nelson was only absent I or 2
full days and Alderson was only absent 4 full days''
as against Gliniecki's 8, and Alderson was absent a
total of only 49.75 hours as against 70 for
Gliniecki. (See Appendix B.)15
There is no doubt that the decision to discharge
Gliniecki was made by Stamiti on the morning of
April 23, and that for some time before that Stamiti
had known that Gliniecki was a union supporter.
Yet this does not add up to convincing proof of dis-
crimination against Gliniecki. In view of the rela-
tively minor violations of Section 8(a)(1) found
herein (none of them by Stamiti); the failure of
Gliniecki to protest Stamiti's statement (reinforced
by figures shown her at the time) that her absentee
record was worse than that of any other group
leader; Gliniecki's absence on 2 consecutive days
immediately prior to her discharge; the fact that the
Union was not mentioned during Gliniecki's final
interview with Stamiti; and the fact that four other
employees were discharged for excessive absentee-
ism at the same time, Gliniecki's discharge would
seem to have been accomplished in a routine
manner for valid business reasons. I therefore con-
clude that, although the matter is not entirely free
from doubt, the General Counsel has failed to
prove by a preponderance of the evidence that
Gliniecki's discharge was motivated, in substantial
part, by antiunion or discriminatory considerations.
D. The Discharge of Mary Roberts
1. Facts
Mary Roberts began to work for the Respondent
in September 1968, as a full-time assembly line
worker, under Hayden's supervision. In January she
requested Galloway to transfer her to part-time
work. In -response, Galloway assigned her to Cas-
tle's part-time production line, with hours from 1 to
7:30 p.m. At the time, Galloway told Castle that
Roberts "was a good worker." In mid-March
Roberts announced her intention to leave the
Respondent's employ. However, Castle asked her
to reconsider, and she accordingly remained.
On April 3 Roberts signed an authorization card
for the Union. She attended a union meeting and
was given about nine blank authorization cards to
distribute. During the early part of April, Roberts
passed out these cards to some of the part-time em-
ployees at the plant at breaktime. As previously re-
lated in more detail, on April 22 Castle coercively
questioned Roberts about whether she had heard
" This is based on several factors his demeanor on the witness stand, the
fact that his testimony stood up under cross -examination , and the fact that,
when he testified, he was no longer employed by the Respondent
'" Excluding the 2-day interval (payweek ending March 14) between the
time she quit and the time she returned to work
" The statement In the General Counsel's brief "Moreover the records
reveal that during this period of time Alderson missed more working hours
than did Glmiecki" is not supported by the record Even if the 2-day inter-
val between Alderson's quitting and her rehire should be viewed as an
"absence," which I deem to be erroneous, the total hours missed by
Gliniecki would still exceed Alderson's total
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"that they were trying to start a union" and about
whether she was a member of the Union, stated
that the individuals who passed out union flyers on
employees' cars in the parking lot "could be ar-
rested," and informed her that two employees
(whose identity Castle would not reveal) had com-
plained to him that Roberts "was pestering them
about the Union."
On the next day, April 23, Roberts was due to re-
port for work at 1 p.m. About 12:40 p.m., realizing
that she would be late, Roberts telephoned to the
Respondent's plant and informed Carolyn Muscari,
the receptionist, that she (Roberts) would arrive
late; Muscari replied "it was all right."16 About
3:45 p.m. Muscari telephoned to Roberts and
stated that Roberts "was terminated because of
twenty-four percent absenteeism." Roberts asked:
"Is that all the notice I get?" and Muscari replied
"Yes." So far as the record shows, this was the last
communication between Roberts and anyone con-
nected with the Respondent. On Roberts' final
timecard appears the notation: "Terminate-Absen-
teeism."
2. Contentions and conclusions
The opposing positions of the parties regarding
Roberts' discharge are basically the same as their
positions regarding Gliniecki's discharge. Stamiti,
who made the decision to discharge Roberts,
testified flatly: "I discharged Mary Roberts because
of an absentee record, for no other reason." This
testimony, if believed, is a complete defense to the
allegation that Roberts' discharge was discriminato-
ry.
It is undoubtedly true that by April 22, Castle,
Roberts' immediate superior, suspected Roberts' in-
terest in the Union," and this suspicion is attributa-
ble to the Respondent. However, analysis of
Roberts' attendance record shows that her absentee
record was dismal indeed. During the last 17 weeks
of her employment with the Respondent, she
averaged slightly over 24 work hours per week,
although a full workweek for part-time employees
normally is 30 hours.18 During this period she was
absent 17 days- averaging 1 day per week. Hours
that she worked totalled 327-1/2 while hours that
she missed amounted to 100-1/2. Certainly this is
not a record which covers Roberts with glory. The
only other nongroup leader whose absence appears
in the record is Ice , a full-time employee. During
the same period Ice was only absent 3 full days and
her hours missed totalled only 49. ( See Appendix
B.)
In view of the persuasive testimony of Stamiti re-
garding his reason for discharging Roberts, the
validity of his stated reason in the light of Roberts'
absentee record , and the fact that four other em-
ployees were simultaneously discharged for exces-
sive absenteeism , it would seem likely that Roberts
was the victim of a routine procedure adopted and
adhered to in the exercise of sound business discre-
tion, which should not lightly be disturbed.'s It is
accordingly concluded that the General Counsel
has failed to establish by clear and convincing
evidence that Roberts ' prounion activities or sym-
pathies constituted a substantial motivating factor
in her discharge.
Upon the basis of the above findings of fact and
upon the entire record in this case , I make the fol-
lowing:
CONCLUSIONS OF LAW
1. Electro-Netic Products Corporation is, and at
all material times has been, an employer within the
meaning of Section 2(2) of the Act, engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. United Furniture Workers of America,
AFL-CIO, is, and at all material times has been, a
labor organization within the meaning of Section
2(5) of the Act.
3. By coercively interrogating its employees re-
garding their union membership, activity, and sym-
pathies, thereby interfering with, restraining, and
coercing them in the exercise of rights guaranteed
in Section 7 of the Act, the Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. The above-described unfair labor practices
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce,
and constitute unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7)
of the Act.
5. The General Counsel has failed to establish by
a preponderance of the evidence that either Alder-
son, Nelson, or Ice was, at any material time, an
agent of the Respondent within the meaning of Sec-
tion 2(13) of the Act, or that the Respondent dis-
criminated against Gliniecki or Roberts within the
meaning of Section 8(a)(1) or (3) of the Act.
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in
this case, I make the following:
16 Castle testified that employees who were going to be late or absent
"normally call the officegirl, and she records it on a pad of paper (but)
she doesn't make it a point to inform anybody " There is nothing in the
record to indicate that Muscari had authority to excuse absences or tardi-
ness
" When Castle began his conversation with Roberts that day, he of
course had grounds for suspecting Roberts' interest in the Union During
the conversation she denied that she was a union member There is no way
of determining from the record whether Castle' s suspicions were allayed by
her denial Contrast American Freightways Co , Inc , 124 NLRB 146
" In this connection , the record shows that the payweek ending April 11,
unlike other payweeks , was only 24 hours
19 As the United States Court of Appeals for the Fifth Circuit has said
"management is for management Neither Board nor Court can second-
guess it or give it gentle guidance by over-the-shoulder supervision
NLRB v McGahey, 233 F 2d 406,413
ELECTRO-NETIC PRODUCTS CORPORATION 493
RECOMMENDED ORDER
It is recommended that Electro-Netic Products
Corporation, Carpentersville, Illinois, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees con-
cerning their union membership, activities, or sym-
pathies.
(b) In any like or related manner interfering
with, restraining , or coercing its employees in the
exercise of rights protected by Section 7 of the Act,
except to the extent that such rights may be af-
fected by an agreement requiring membership in a
labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as
amended.
2. Take the following affirmative action, which
is found will effectuate the policies of the Act:
(a) Post at its plant in Carpentersville, Illinois,
copies of the attached notice marked "Appendix C
[Board's Appendix substituted for Trial Ex-
aminer's]."20 Copies of said notice, on forms pro-
vided by the Regional Director for Region 13, after
being duly signed by the Respondent's representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(b) Notify said Regional Director, in writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.21
IT IS FURTHER RECOMMENDED that the complaint
herein be dismissed , insofar as it alleges that the
Respondent violated the Act, as amended, except
as specifically found herein.
30 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals , the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
Z' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith "
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
Employees TerminaLea for Absenteeism
Workweeks ending December 6, 1968, through April 25, 1969
Payweek Name Consecutive
ending days absent a,
12/6/68 4alker, Pat
12/13/68 Salyers, Linda
12/13/68 Yell, Evelyn
12/13/68 Shults, Linda
1/3/69 Porter, Dave
1/3/69 Jones, Jean
1/17/69 Feliciano, Josefina
1/17/69 Roeder, Carol
1/17/69 DeMotto, Debra
1/17/69 Jones, Beatrice
1/17/69 Ebert, Mary
1/31/69 Garnhardt, Judith
2/7/69 Hogrewe, Beverly
2/7/69 Hogrewe, Valerie
2/14/69 Jawny, Louise
3/7/69 Sickels, Norma
3/14/69 Irwin, Josephine
3/14/69 Lancaste, Bruce
3/28/69 Seeley, William
3/28/69 Seeley, Janice
4/4/69 McGee, Joan
4/4/69 Simmons, Barbara
4/25/69 Anderson, Roy
4/25/69 Cunningham, John
4/25/69 Jurgens, Adeline
4/25/69 Roberts, Mary
4/25/69 Gliniecki, Carolyn
Brown, Georgia
Smith, Louise
a/ Minimum; as prior weeks' timecards are not in evidence, it is
possible in some cases that the consecutive days absent may be
more than shown on the record.
b/ Timecard not in evidence; record reveals no other details.
c/ Based on Stamiti's testimony.
APPENDIX B
Comparative Attenuance Records
January 1 through April 23, 1969
GLINIECKI ALDERSON NELSON ICE
(Group Leader ) (Group Leader ) (Group Leader)(Rank-and-file) (Rank-and-file)
full-time part-time after 1//69f/
Payweek Hours Hours Bonus Hours Bonus Hours Bonus Hours Hours
ending worked absent awarded absent awarded absent awarded worked absent
1/3/69 0 X 0 X 2 32 8
1/10/69 0 X 1.5 12 18 12
1/17/69 64.0a/ 0 X 8 8 23.5 6.5
1/24/69 30.3 14.5 6.5 2.5 23.5 6.5
1/31/69 48.3 0 X 0 X 0 X 24 6
2/7/69 52.8a/ 0 X 0 X 3.5 X 15.5 14.5
2/14/69 27.5 15.5b/ 0 X 4 21 9
2/21/69 47.5 0 X 8 0 24 6
2/28/69 48 0 c/ 0 X 3.5 22 8g/
3/7/69 58.8a/ 0 X 3.5 0 X 30 0
3/14/69 0 X Od/ 8 30.5 6
3/21/69 8 Xc/ 0 X 4 12
3/28/69 0 X 6.25 0 X 0 Oh/
4/4/69 31.3 16 0 X Oe/ X Oi/
4/11/69 48 0 X 8 1.5 18 6j/
4/18/69 47.5 0 X 8 0 X 32.5 0
4/25/69
(Partial)
5.5 16 13 0
Total hours 509.5 70 49.75 49 327.5 100.5
hrs. per wk. 44.3 24.3
Total days 8 4d/ 1 or 2 3 17
Total weeks 12 7 12 6
a/ Includes hours worked on Saturday.
b/ Weekday time lost totaled 20.25 hours, but 4.75 hours were worked on Saturday.
c/ Bonus earned w.e . 2/28/69 but not awarded; no bonus earned w.e. 3/21 /69 but nevertheless awarded, perhaps
to offset w.e. 2/28/69.
d/ Excluding 2 days during w.e . 3/14/69 for which her timecard is marked "quit."
e/ Credited for a day on which she did not punch in.
f/ Part-time employees are ineligible for the attendance bonus.
Weekday time lost totaled 12 hours, but 4 hours were worked on Saturday.
h/ Excused absence for entire week.
ii Excused absence all day April 4.
j/ The evening shift was shut down this week, shortening Roberts' work hours.