Electronic Research Co.

National Labor Relations Board - Board Decisions

Jan 7, 1971

187 N.L.R.B. 733 (N.L.R.B. 1971)

ELECTRONIC RESEARCH CO.
Electronic Research Co. and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW). Case
17-CA-4145
January 7, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On September 15, 1970, Trial Examiner Herzel H.
E. Plaine issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging 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. Thereafter, the
Respondent and the Charging Party filed exceptions
to the Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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 rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner with the following modifications:
We agree with the Trial Examiner that the Respon-
dent violated Section 8(a)(4) and (1) of the Act by
denying a perfect attendance incentive award to
Luther Brandenburg, who was absent from work in
obedience to a Board subpena, while granting the
same award to employees who appeared at the same
Board hearing at the Respondent's request. In so
concluding, we do not rely on the Trial Examiner's
findings regarding Respondent's prior practices con-
cerning employee absences for court appearances.
The Trial Examiner found a similar violation with
respect to the denial of attendance awards to
employees Freida Robinson, Karen Skaggs and
Marie Bey.' None of these employees was alleged as a
discriminatee in the complaint, and the Respondent
was never subsequently made aware that the failure to
give awards to these employees was an issue in the
case. Moreover, the only testimony in the record
concerning these employees is that of Robinson who
did not believe she would have been entitled to an
award irrespective of her absence pursuant to the
subpena.2 Therefore, we shall find no violation
respecting Robinson, Skaggs, or Bey.
733
The Trial Examiner found an independent violation
of Section 8(a)(1) based on evidence that representa-
tives of the Respondent told employees that Board
subpenas are not "regular" or "legitimate" subpenas.
This conduct was not alleged as a violation in the
complaint and was not thereafter urged as the basis
for any additional remedial action. As the record
stands, the bare statements are insufficient, in our
judgment, to warrant finding an unalleged violation.
Accordingly, we do not adopt this finding.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner, as modified herein,
and hereby orders that the Respondent, Electronic
Research Co., Overland Park, Kansas, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order
as so modified:
1. Delete paragraph 1(c) and renumber paragraph
1(d) accordingly.
2. Delete paragraph 2(a) and substitute the follow-
ing:
"(a) Correct the attendance record of former
employee Luther Brandenburg to reflect an excused
absence under the perfect attendance award program
for November 18, 1969, when he was in attandance
under subpena at a Board hearing, and make him
whole by the appropriate award or awards or cash
equivalent (as he prefers) to which he is entitled by
virtue of the correction."
3. In footnote 9 of the Trial Examiner's Decision,
substitute "20" for "10" days.
4. Substitute the Notice to Employees attached
hereto for that recommended by the Trial Examiner.
I The Charging Party's motion to correct the transcript and the Trial
Examiner's Decision , to reflect the correct spelling of the first names of
Freida Robinson and Mane Bey , is hereby granted.
2 The source of the Trial Examiner's finding that these employees lost
awards through their attendance at Board hearings was the oral statement
of Respondent 's attorney , to which neither the General Counsel nor
Charging Party would stipulate
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all sides had the opportunity to
present their evidence, the National Labor Relations
Board has found that we violated the law and has
ordered us to post this notice:
WE WILL NOT deny perfect attendance credit to
otherwise eligible employees who are absent from
187 NLRB No. 100
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work as a result of compliance with National
Labor Relations Board subpenas or other process
for giving testimony under the National Labor
Relations Act, while allowing such credit to
employees who provide testimony under the Act at
our request.
WE WILL NOT discriminate, in making perfect
attendance awards, against otherwise eligible
employees who are absent from work as a result of
complying with National Labor Relations Board
subpenas or other process for giving testimony
under the National Labor Relations Act at the call
of the Union or of the Board's General Counsel.
WE WILL NOT in any like manner interfere with
your rights of self-organization and mutual aid
guaranteed by Section 7 of the National Labor
Relations Act or the vindication of those rights
through National Labor Relations Board process.
WE WILL correct the attendance records of
former employee Luther Brandenburg to reflect an
excused absence, under the perfect attendance
award program, for November 18, 1969, when he,
as one of our employees, was in attendance under
subpena at the National Labor Relations Board
hearing.
WE WILL give Brandenburg the appropriate
award or awards or cash equivalent (as he prefers)
to which he is entitled by virtue of the correction of
the attendance records.
ELECTRONIC RESEARCH
Co.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
office, 610 Federal Building, 601 East 12th Street,
Kansas City, Missouri 64106, Telephone
816-374-5181.
TRIAL EXAMINER'S DECISION
HERZEL H. E. PLAINE, Trial Examiner: The Respondent
maintains a perfect attendence award program to encour-
age better employee attendance at work and, thereby, to
reduce employee absences and tardiness . It uses the
incentive of merchandise awards of increasing value to
each employee who progresses through uninterrupted
attendance at regular hours over consecutive periods of I
month , 6 months, and 12 months.
I Under Section 8(a) of the Act, "It shall be an unfair labor practice for
an employer-( 1) to interfere with, restrain , or coerce employees in the
exercise of the rights guaranteed in section 7; (4) to . discriminate
In this proceeding, the complaint, issued April 17, 1970
(on a charge by the Union filed November 28, 1969),
charges the Respondent with administering the perfect
attendance award program in violation of employee rights
under Section 8(a)(1) and (4) of the National Labor
Relations Act (the Act). It is alleged that Respondent has
denied attendance credit and the awards to otherwise
eligible employees who were away from their work at the
plant because they complied with subpoenas, issued at the
request of the Union or of the General Counsel, to attend
Board hearings (including, as it developed, this trial), but
that Respondent gave attendance credit and made the
awards to eligible employees who were also away from their
work at the plant to attend the Board hearings at
Respondent's request.'
Respondent has sought to justify the different treatment
of the two sets of employees who attended the Board
hearings on the ground that those who attended the
hearings under government subpoena were not at work,
while those who attended the hearings at its request were
"at work" and hence their work attendance suffered no
interruption.
The case was tried May 25, 1970, at Kansas City,
Missouri. Counsel for the General Counsel, for the
Respondent, and for the Union have filed briefs.
Upon the entire record of the case, including my
observation of the witnesses , and on due consideration of
the briefs, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a corporation with its principal place of
business at Overland Park, Johnson County, Kansas,
engaged in the manufacture and wholesale distribution of
components for electronic devices and temperature con-
trols . Annually, Respondent ships goods valued in excess of
$50,000 directly to points outside Kansas.
Respondent is, as it admits , an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
The Union is, as Respondent admits , a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Respondent's Perfect Attendance Award Program
For several years Respondent has had a program
providing merchandise awards to employees as an incentive
to achieve perfect attendance at work. According to
Respondent's comptroller, Charles Roberson, and the
bulletin on the subject for 1969, exhibit GC-2, perfect
attendance meant uninterrupted attendance during an
employee's regular hours, for a 40-hour week in a normal 8-
hour day, Monday through Friday. The only excuses or
exceptions recognized , according to the 1969 bulletin, were
earned vacation time , death in the immediate family of the
employee , tardiness of not more than one hour due to
transportation , and a temporary layoff. Actually, other
exceptions were recognized or allowed , as noted under
against an employee because he has . . given testimony under this Act.
ELECTRONIC RESEARCH CO.
heading B, below. Exceptions claimed had to be noted on
the employee's time card on the day of the occurrence and
approved by his supervisor.
The awards to employees who qualified were on a
monthly basis, for perfect attendance during the month,
and special prizes of greater value were awarded for
consecutive 6-month and 12-month perfect attendance. In
dollar value, the prizes ranged from $2.45 for the monthly
award to $35 for the 12-month award.
B. Application of Program to Employees Attending
Hearings
On November 18, 1969, employee Luther Brandenburg
and several other employees attended the Board heanng of
November 18-19, 1969, held in Kansas City in Case
17-RC-6226, a case affecting the representation of
Respondent's employees in collective bargaining.
Employee Brandenburg, and employees Freda Robinson,
Karen Skaggs, and Mary Bey were four employees who
attended under subpoena, issued at the instance of the
Union. All four had an otherwise perfect work attendance
record in November if the time spent in the courtroom had
not been counted against their receiving the awards?
Employee Brandenburg and the three women employees
were served with the subpenas on the night before the
hearing, and came to the plant on the morning of the
hearing to so advise their supervisor. Both employees
Brandenburg and Robinson testified that each of them
came in (separately) about 8 a.m. of November 18 and
showed the subpena each had received to Supervisor Frank
Wilson. Wilson, who enjoyed the authority of a supervisor
to excuse absences, told employee Brandenburg that it was
alright for him to go but did not say whether Brandenburg
was excused or not excused for purposes of the perfect
attendance award. Supervisor Wilson explained, at trial,
that he felt he had no choice, in the face of the subpena, but
to tell Brandenburg it was all right to go. In employee
Robinson's case, Wilson read the subpena without
comment.
None of the subpenaed employees clocked in on the
morning of November 18 and no one for Respondent
suggested that they should. Employee Brandenburg
testified that his usual starting time was 6 a.m., but because
there was no one at the plant to whom he could report the
subpena that early, and the need for him to be dressed to go
to court, he reported to Supervisor Wilson at 8 a.m.,
without clocking in. Brandenburg was at the hearing all day
until 6 p.m., but was not called upon to testify, and, along
with some of the others, was excused from attendance on
the following day, November 19. Employee Robinson was
required to be present both days of the hearing, November
18 and 19.
On November 19, employee Brandenburg reported back
to work, clocked in at his usual starting time, 6 a.m., and
thereafter completed regular and punctual attendance at
2 The complaint named Brandenburg as the only employee so affected,
but the evidence provided by Respondent indicated that employees
Robinson , Skaggs, and Bey were similarly treated and denied awards
While the General Counsel failed to seek amendment of the complaint in
this respect , the matter having been litigated , fairness and completeness
require that, sua sponte, I direct amendment of the complaint to include
735
work for the balance of the month of November. He had
had perfect attendance in the 5 previous months and five
monthly awards. An award for November would have
given him a sixth consecutive monthly award and the
special and more valuable prize for 6 consecutive months of
perfect attendance.
Employee Brandenburg inquired of Supervisor Wilson
on November 24 as to whether his, Brandenburg's, absence
of November 18 had been an excused absence. Wilson said
he would check the matter with Comptroller Roberson.
Supervisor Wilson testified that he had on previous
occasions excused, without checking with management,
employee attendance at court under subpena, because he
understood it was company policy to do so since neither the
employee nor employer had control of the matter of the
subpena. Such was the case, he said, when he excused
employee Betty Colton, who was summoned for jury duty
in June 1969, and she received her perfect attendance
award for that month. This time he felt obliged to check,
said Supervisor Wilson, because a union was involved.
Comptroller Roberson told him, said Wilson, that Branden-
burg's absence could not be excused because it involved the
Union, the UAW, and was a matter with the National
Labor Relations Board. Wilson then reported to employee
Brandenburg that Comptroller Roberson refused to
recognize the subpena as a valid excuse for the absence,
because it was not a "regular subpena ." Brandenburg and
the three eligible employees who had been subpenaed were
denied the monthly award for November and, in Branden-
burg's case, the 6-month award.
Comptroller Roberson gave an explanation somewhat
similar to Wilson's in a meeting of the plant employees
Roberson called on March 25, 1970. Roberson called them
together, he said, to inform them of the date of the
representation election , and that the Board was instituting a
complaint (this case) on behalf of Brandenburg (who had
left Respondent's employment in January). According to
employee Freda Robinson, Comptroller Roberson told the
employees that Brandenburg did not get the attendance
award because "the subpoena was not legitimate."
Roberson's notes (exhibit R-4) also indicate that he told the
employees that Brandenburg did not receive the attendance
award because he went to the Board hearing, which was an
absence not excused by the attendance award rules, and it
would be unfair to all employees if the company didn't
apply the rules.
Employee Shirley Waterman stood up in the meeting and
asked Comptroller Roberson, how come employees
Deanna Summerskill and Helen McCorkle who, like
Brandenburg, attended the same Board hearing, but as
company witnesses, received their perfect attendance
awards. Roberson replied they did not receive awards and
were not on the list of recipients.
It turned out, however, that employees Summerskill and
McCorkle were on the November 1969 list for perfect
attendance awards (exhibit GC-3), and did receive their
within its gravamen , in particular paragraphs 5, 6, and 7, employees Freda
Robinson , Karen Skaggs, and Mary Bey. Dennison Manufacturing Co v
N L R B, 419 F.2d 1080, 1083-84 (C.A. 1, 1969), cert denied 397 U.S.
1023, A N Belo Corp v. N.LR B,411 F.2d 959, %5-966 (CA. 5, 1%9),
cert . denied 369 U S 1007; Montgomery Ward and Co. v N LR. B., 385
F 2d 760, 763-764 (C.A 8, 1%7)
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prizes. Comptroller Roberson admitted, at trial, that he had
been wrong when he denied the fact at the March 1970
meeting and further admitted that he never bothered to
explain this to the employees as a whole, or to explain to
them the basis for the awards to the two employees
Summerskill and McCorkle.
Comptroller Roberson's explanation, at trial, for giving
credit toward the awards for regular attendance at work to
those employees who appeared on its behalf at the Board
hearing of November 1969 (and at the Board trial in this
case on May 25, 1970), and for denying similar credit to
those employees who appeared under subpena at the
instance of the Union (or at the instance of the General
Counsel in this trial) was as follows: The purpose of the
perfect attendance award program is to encourage
employee attendance at work and to discourage absence
and tardiness. The awards are an added incentive, above
regular pay, and the company limits the exceptions or
excused absences to those few reasons written down in the
rules governing the awards. Though there may be other
good excuses for absence, the company applies a "tough"
or strict policy, and absence from work because a subpena
requires the employee to attend court is not one of the
excuses in the written rules. In the case of those employees
attending court, or a Board hearing at the company's
request, though the employees are not performing their
normal duties we treat them, said Roberson, as if they were
at work, because we direct them to come to the courthouse
and give testimony. Those employees who appear under
subpena are not in court at our direction. Hence for the
perfect attendance award, the company excuses those
employees who appear in court at its direction, but not
others even though they may be compelled to attend court
by force of law.
This explanation, said Comptroller Roberson, represents
Respondent's past and current policy, as it was in 1969 and
as it is now. In consequence, he said, those employees who
appear and testify, pursuant to subpena, for the Govern-
ment or for the Union in National Labor Relations Board
proceedings, will not be credited with attendance for the
perfect attendance award, on the ground that they are not
within the excuses for absence recognized by the program
and are not working.3
On the other hand, said Roberson, in the case of
employees who appear and testify on behalf of the
company at its request, as have employees Richardson and
Downen in the trial of this case, their otherwise perfect
attendance will not be affected-"we call this work," he
said.
Notwithstanding the alleged strict application of the
written rules (exhibit GC-2) governing the award program,
it is obvious from a reading of the rules that the exception,
or credit for work attendance, spelled out by Comptroller
Roberson for employees attending Board or court hearings
at the company's direction or request is not written into the
rules. It is also obvious, from Roberson's testimony
3 Roberson made clear that, whether the subpenaed employees clocked
in or not, would not excuse the absence incurred to comply with the
subpenas , because the employees while absent would not be performing
work directed by the company.
4 Respondent provided evidence that it had not excused all court-
connected absences in administering the award program , such as in
concerning the meeting with the employees in March 1970
that he didn't know or believe, as late as March 25, 1970,
that the rules permitted such exception or giving credit, and
he publicly said so to the assembled employees that day.
Nor did the employees and their supervisor understand that
the rules contained this exception even up until the day of
this trial in May 1970. Employee Lela Downen, who
testified at the request and on behalf of the Respondent,
testified that she asked her supervisor, Poindexter, before-
hand, whether she would be excused if she came to court or
would lose her award, which was then only two months
short of a twelve month award. Supervisor Poindexter said
he would find out, according to employee Downen, and
after inquiring advised her that she would be excused.
There was evidence of other kinds of deviations from so-
called strict adherence to the written rules. Former
employee Evelyn Fuller testified that in September 1968 she
attended court (without subpena) as a character witness in
a criminal trial. She informed her supervisor, Goble,
beforehand that she had been requested to appear by the
defendant's counsel and she was excused for the absence
and tardiness involving a few hours of one day. Employee
Fuller received her perfect attendance award for September
1968, notwithstanding the fact that a question was raised
because she had not clocked in for work on the day of her
court appearance until 10:32 a.m. She was permitted to
make up the full eight hours of work that day by cutting
lunch and break times but did not work her regular 8 a.m. -
4:30 p.m. hours, as required under the eligibility rules for
the award.
Another example, already alluded to, was the absence of
employee Betty Colton, whose attendance in a state court
for jury duty (that lasted part of a day) in June 1969 was
excused beforehand by Supervisor Wilson. Employee
Colton received her perfect attendance award for June
1969.
In connection with the Colton incident, Supervisor
Wilson, who has been a supervisor for nine years,
encompassing the five years of the perfect attendance
award program, testified that, while there is nothing written
down in the program about jury duty, he understood it was
an excusable absence as a matter of company policy,
because the employee had no control over the subpena or
summons. Wilson said that he had, on a later occasion,
discussed the Colton incident with Comptroller Roberson
and Supervisor Poindexter, and while they noted that the
written rules hadn't covered her case they did not
reprimand him.
The same policy, said Supervisor Wilson, also applied in
excusing absences if an employee had to attend court, so
long as the National Labor Relations Board or the Union
was not involved. The latter exception to excused absences,
said Wilson, was invoked for the first time by Comptroller
Roberson when employee Brandenburg asked for the
excused absence in November 1969.4
employee Richardson's case , when Richardson , as he testified, attended
court to protect his property interest in an easement sought by a
municipality Respondent supplied the names and dates of a number of
such unexcused employee absences , but did not identify the nature of the
case or employee connection , other than the foregoing Richardson matter.
ELECTRONIC RESEARCH CO. 737
C The Section 8(a)(4) and (1) Findings
The evidence is clear that Respondent has administered
its perfect attendance award program to penalize Branden-
burg and fellow employees who testified or attended to
testify before the Board at the call of the Union or the
Government and presumably adversely to Respondent, and
to reward those employees who appeared on Respondent's
request and behalf at the same Board hearing and trial. As
Comptroller Roberson said, at one point, if employee
Brandenburg had appeared at the request of company he
would have received the award for perfect attendance at
work (his attendance having been otherwise perfect),
because such appearance would have been treated as work.
As it was, he appeared under subpena at the call of the
Union, and his appearance was treated as an absence from
work.
The evidence is also clear that the discrimination between
employee witnesses who appeared for the Union and those
who appear for the employer arose because of union
animus on the part of the employer. Although Respondent
claimed that its rules governing the attendance awards
provided no excuse for absences of employees obliged to
attend court proceedings, the evidence indicated that a
number of such absences were excused before the question
of attendance by employees at Board hearings arose. When
that question arose in November 1969, it arose, as
Supervisor Wilson said, because the Union was involved in
the case. Comptroller Roberson told Supervisor Wilson
there would be no excuse because the Union-the
UAW-was involved, and the employees were informed by
both Wilson and Roberson that a Board subpena was not a
"regular" or "legitimate" subpena and could not be the
basis for excusing the subpenaed employee's absence.
Thereafter, at trial, in May 1970, Respondent proclaimed
the additional rule (though not written down as it argued
the excusing rules must be), that those employees attending
Board hearings and trials at Respondent's request are
regarded as at work for the perfect attendance awards.5
It is a violation of Section 8(a)(4) of the Act for an
employer, as here, to discriminate against employees who
obey subpenas and give testimony6 under the Act, Block-
Southland Sportswear, Inc., 170 NLRB No. 101, (Bd D & 0)
67 LRRM 1566, 1570 (1968), aff'd sub nom.
Amalgamated Clothing Workers v. N.L.R B., 420 F.2d 1296,
1301 (C.A.D.C., 1969). And, irrespective of any proof of
discrimination or union animus, it is a violation of Section
8(a)(1) of the Act for the employer, as here, to engage in
conduct that obstructs Board process, Amalgamated
Clothing Workers (Block-Southland) v. N.L.R.B, supra, 420
F.2d 1296, 1300-1301. Respondent has not only discrimina-
torily administered its perfect attendance award program to
favor (by declaring present at work) those employees who
appear before the Board on its behalf and to penalize (by
5 Respondent does not appear to push, in its brief, nor would it likely
do so, the somewhat overdone claim of Comptroller Roberson (presumably
to create an equation between work and testifying) that the company was
directing these employees to attend and give testimony on its
behalf--which, if true, would be in itself an act of coercion under Section
8(a)(1) of the Act
6 The protection against reprisal applies regardless of the nature of the
proceeding and regardless of whether the potential witness actually
declaring absent) from work those who appear against it.
Respondent has also denigrated and obstructed Board
process by telling its employees that Board subpenas are
not "regular" or "legitimate," compared with the process of
the courts, and by denying Board process the credit, in
excusing employee absences for purpose of the award
program, previously accorded by Respondent to court
process. See Winn-Dixie Stores, Inc., 128 NLRB 574,
578-579 (1960).7
CONCLUSIONS OF LAW
1. Respondent's denial of perfect attendance awards to
otherwise eligible employees who appear at Board hearings
and trials in compliance with Board subpenas at the call of
the Union or the General Counsel , and allowance of such
awards to employees who appear at the same hearings and
trials at the request of the Respondent , is a discrimination
against employees who obey Board process and an unfair
labor practice within the meaning of Section 8 (a)(4) of the
Act.
2. Respondent 's advice to employees that Board
subpenas are not regular or legitimate process of the same
validity as court process , and its denial of equal credit with
court process towards perfect attendance awards for
employees who comply with Board subpenas, is an
obstruction of Board process and an unfair labor practice
within the meaning of Section 8(a)(1) of the Act.
3. The said unfair labor practices affect commerce
within the meaning of Section 2 (6) and (7) of the Act.
THE REMEDY
It will be recommended that Respondent, (1) cease and
desist from the unfair labor practices; (2) correct the
attendance records of, and make whole, the employees who
were wrongfully denied the perfect attendance awards; and
(3) post the notices provided for herein.
The Union has requested two additional remedial
measures.
First, it is asked that Respondent be directed to pay the
regular working pay of all employees who complied and
comply with Board subpenas and are absent from their
work while giving or awaiting to give testimony, on the
ground that Respondent has paid and pays for regular
working time of employees who attend Board hearings or
trials to testify at Respondent's request. This matter of pay
was not an issue in this case under the complaint, and was
specifically ruled out from becoming an issue at the request
of counsel for the General Counsel, as having no bearing on
the discrimination and obstruction practiced in making the
perfect attendance awards. Whether or not there is an issue
of discrimination in pay that is not satisfied by the payment
of subpena fees and other costs due witnesses under
subpena has not been examined in the trial of this case or
testified, Dal Tex Optical Co, 131 NLRB 715, 730 (1961), enf'd NLRB
v Dal Tex Optical Co, 310 F 2d 58, 62 (C A 5, 1962)
r That loss of perfect attendance credit has been a concern to the
employees in their considering whether to appear at Board hearings was
illustrated in the testimony of the employee witness for the Respondent,
Downen. who sought and obtained from Respondent an assurance of work
attendance credit towards her award before she appeared
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
determined by this decision. The Union is not precluded
from filing a charge (which would appear to be timely,
based upon the occurrences of the May 1970 trial) that
would cause the matter to be investigated and a complaint
brought if there is merit to the charge.
Second, the Union asks that, as the Charging Party, it be
made whole by Respondent for all expenses, particularly
legal expenses , for, as it says, "enforcing the vital public
right" encompassed by this case. The difficulty with the
request is that the public right involved has been enforced
by the public prosecutor, the General Counsel, at public
expense. True, the Union had the initial bother of filing a
charge, and an informal appeal to reinstate the charge, but
there has been no indication that the cost of this triggering
step (an inevitable necessary step in any public prosecution,
civil or criminal), has been great or unusual or has inflicted
any hardship on any individual or organization. To the
extent that the Union chose to be additionally represented
at the trial by its own counsel, this, as observed in M.F.A.
Milling Co., 170 NLRB No. I11, pp. 43-44, was a voluntary
decision on its part, and reimbursement for this expense
would not appear to be warranted in effectuating the
purposes of the Act.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions, and upon
the entire record, it is recommended that Respondent, its
officers, agents, successors, or assigns shall:
1. Cease and desist from:
(a) Denying perfect attendance credit to otherwise
eligible employees who are absent from work as a result of
compliance with Board subpenas or other process for giving
testimony under the Act, while allowing such credit to
employees who provide testimony under the Act at
Respondent's request.
(b) Discriminating, in making perfect attendance awards,
against otherwise eligible employees who are absent from
work as a result of compliance with Board subpenas or
8 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
other process for giving testimony under the Act at the call
of the Union or of the Board's General Counsel.
(c) Advising employees that Board subpenas are any less
regular or legitimate than court process, or according less
credit for compliance with Board subpenas than may be
given compliance with court process, in excusing absences
under the perfect attendance award program.
(d) In any like manner, interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed under Section 7 of the Act or in the vindication of
those rights through Board process.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Correct the attendance records of former employee
Luther Brandenburg and employees Freda Robinson,
Karen Skaggs, and Mary Bey, to reflect excused absences,
under the perfect attendance award program, for the days
in November 1969 and May 1970, when each of them, as an
employee of Respondent, was in attendance under subpena
at the Board hearing or trial, and make each of them whole
by the appropriate award or awards or cash equivalent (as
each prefers) for the 1-month, 6-month, or 12-month
awards to which each is entitled by virtue of the corrections.
(b) Post in Respondent's facilities at Overland Park,
Kansas, copies of the attached notice marked Appendix.
Immediately upon receipt of copies of said notice, on forms
to be provided by the Regional Director for Region 17
(Kansas City, Missouri), the Respondent shall cause the
copies to be signed by one of its authorized representatives
and posted, the posted copies to be maintained for a period
of sixty consecutive days thereafter in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other matenal.s
(c) Notify the Regional Director for Region 17, in
writing, within twenty days from the date of the receipt of
this decision, what steps Respondent has taken to comply
therewith.9
National 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 "
9 In the event that the Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within ten days from the date of this order, what steps Respondent
has taken to comply therewith "