Elston Electronics Corp.

National Labor Relations Board - Board Decisions

Jan 18, 1989

292 N.L.R.B. 510 (N.L.R.B. 1989)

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