Heinemann Electric Co.

National Labor Relations Board - Board Decisions

Dec 4, 1972

200 N.L.R.B. 723 (N.L.R.B. 1972)

HEINEMANN ELECTRIC COMPANY
Heinemann Electric Company and American Federa-
tion of Technical Engineers , AFL-CIO, CLC Case
22-CA-4772
December 4, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On July 28, 1972, Administrative Law Judge' John
M Dyer issued the attached Decision in this
proceeding Thereafter, Respondent filed exceptions
and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith 2
The Administrative Law Judge found that Respon-
dent had violated Section 8(a)(1) of the Act by
Supervisor Christopher Bromberg's interrogation of
Suzanne Day concerning her umon sentiments We
agree with this conclusion of the Administrative Law
Judge 3 However, the Administrative Law Judge also
found that by its discharge of Suzanne Day,
Respondent violated Section 8(a)(3) and (1) of the
Act since he found this discharge was because of her
actual and suspected umon sympathies and activities
We do not agree with that conclusion for the reasons
we note below
A recounting of the facts shows as follows
Suzanne Day began her employment with Respon-
dent as a stenographer on August 23, 1971 As she
testified, she had no prior experience at this type of
work and that she was told prior to her hire that she
would be in a probationary period for 90 days,
during which time she would be rated and her work
progress reviewed after 30, 60, and 90 days on the
job She was to work for four different men and it
was estimated that she worked 10 percent of her time
for Robert Warner, 20 percent for Amerigo Constan-
tino, 30 percent for Christopher Bromberg, and the
balance (40 percent) for Richard Kurtz Kurtz was
designated her principal supervisor
I The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board s established policy not to
overrule an Administrative Law Judge s resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products Inc 91 NLRB 544 enfd 188 F 2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing his findings
723
With regard to Suzanne Day's umon-related
activities the record reveals that shortly after Day
began working at Respondent, she was approached
by a fellow employee who asked her if she wished to
attend a union meeting The Charging Union was at
that time trying to organize certain of Respondent's
employees 4 Day did attend this meeting and three
other union meetings while she worked at Respon-
dent These meetings were held in the evening, away
from Respondent's premises, at a nearby motel On
September 22, 1971, Day signed an authorization
card The extent of Day's direct union activities at
work, however, seems limited to her once asking a
fellow employee, Edith Parker, to attend a union
meeting about a week before the election
It appears from the record that during Day's
employment there was much discussion about the
unionization attempts going on there, and Day
herself had individual conversations with three
different supervisors of Respondent on umon-related
matters Day testified that the first of these conversa-
tions was with Kurtz, her immediate supervisor, and
was initiated by her During the conversation, Day
testified she asked Kurtz his opinions on the Union
so she could make a better judgment on it The
second incident was the discussion Day had with
Christopher Bromberg about a week before the
union election of November 18 During the course of
this incident occurred the interrogation found by the
Administrative Law Judge to have violated Section
8(a)(1) of the Act Also in this conversation, Day
characterized a letter sent by Respondent to its
employees during the union campaign as "very
childish " Bromberg, according to her credited
testimony, was very upset at her calling the letter
childish The third occasion on which Day discussed
umon-related matters with one of Respondent's
supervisors was a few days after the Bromberg
interrogation but before the election At that time,
Respondent's Product Sales Manager Lisnay5 told
Day that he had been informed that some prounion
people had been seen at Day's desk and he had seen
them there also and so he wanted to be sure that no
one was pressuring her about the Union Day
testified that Lisnay spoke to her in a friendly way
and she took his inquiry as an "act of friendship "
Significantly, Day testified that in none of the three
conversations did the supervisor involved ask her if
3 We correct however the Administrative Law Judge s inadvertent error
that the interrogation lasted up to an hour According to Suzanne Day s
own testimony the interrogation lasted about one half hour
4 On November 18 1971 the Charging Party did in fact win an election
at Respondent and subsequently was certified as collective bargaining
representative of an appropriate unit
5 Lisnay was supervisor of Edith Parker, the woman whom Day had
asked to attend the union meeting
200 NLRB No 103
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she had signed an authorization card And in two of
the three situations, the Bromberg situation exclud-
ed, Day testified that she was never asked about her
sentiments concerning the Union by the supervisor
involved 6 Day further testified that in her conversa-
tion with Bromberg, since she felt it was none of
Respondent's business how she felt about the Union
and since she did not want Respondent to know she
was in favor of the Union, she attempted to give
Bromberg the impression she was not in favor of the
Union 7
As noted before, Kurtz had informed Day that at
30-day intervals during her 90-day probationary
period she and her work would be reviewed
Pursuant to that policy, at the end of her first 30
days, Day met with Kurtz to discuss her work
progress At this time, she received a work rating of
48 out of 100 possible points on Respondent's scale
of ratings for salaried employees and this total put
her at the upper end of the marginal (below average)
category 8 Day testified that Kurtz described her
work at that time as not satisfactory but he told her
not to worry because she had not been working there
very long
At the 60-day session, Kurtz was joined by
Bromberg and Constantino Day at this time re-
ceived a 56 out of 100 Although such a rating placed
Day at the lower end of the "Good (Average)"
category she admitted that she was told at that time
that her work was still unsatisfactory
Thereafter, at the 90-day session, on November 23,
1971, Day was told by Kurtz she had received a
lower grade, 50 out of 100, which grade was the
lowest in the "Good (Average)" category She was
discharged at this time According to Day's credited
testimony, she was also told by Kurtz that she was
being let go because she had too many people around
her desk and was making too many phone calls She
also stated that Kurtz refused to discuss her work
with her and simply said "you know why" when she
asked about her discharge
The Administrative Law Judge, in finding that her
discharge violated the Act, characterized Day on the
basis of her written ratings as an average employee
who was reasonably competent He then noted that
she was active in the Union and concluded that her
"friendliness" with known union adherents was
noticed by Respondent's supervisors and was in fact
the reason for Bromberg's and Lisnay's conversa-
tions with her Next, commenting on the fact of
Bromberg's interrogation of Day and his anger at her
6 As the Administrative Law Judge correctly points out Bromberg
admitted he directly asked Day her views on the Union and the reasons for
the need of one
7 It also appears from the record that Day also tried to give this
impression to Kurtz in her conversation with him
characterization of Respondent's letter as childish,
the Administrative Law Judge then noted that Kurtz
in a pretrial affidavit had said that it was only
because of the sentiments of the other supervisors
that he discharged Day Concluding that the refer-
ence to the "other supervisors" meant Bromberg, the
Administrative Law Judge found that Day would not
have been discharged except for (1) the fact that she
attacked Respondent's letter as childish and (2) her
apparent sympathies with known union proponents
as alluded to by Respondent's complaint that there
were too many people around her desk
For the following reasons, we disagree with the
Administrative Law Judge' s conclusions
Although, by her own credited testimony, Suzanne
Day was involved with the affairs of the Charging
Party, we think it has not been demonstrated that
Respondent was aware of her sympathies Thus, Day
attended four union meetings but these meetings
were off company property in the evening time, and,
as Day admitted, she did not make her presence at
them known to Respondent's officials Secondly,
with regard to Respondent's statement as a reason
for her discharge that there were too many people
around her desk, the Administrative Law Judge
concluded that this was a reference to union
adherents However, although it appears that certain
known union proponents were seen by certain of
Respondent's officials at Day's desk, it is also of
record that other employees, not identified as union
adherents, were also seen at her desk by Respon-
dent's officials, and Day, herself, admitted that
various employees would stop by her desk and talk to
her "for a few minutes" when they were waiting to
see Kurtz, whose office was directly behind Day's
desk Thirdly, although Bromberg admitted that he
heard union matters discussed at Day's desk, which
was some 2 feet from his desk, in light of her
admittedly conscious striving to ensure that Respon-
dent's officials did not realize she was for the Union,
we can not infer that Bromberg discovered her
sympathies in these overheard conversations
Fourthly, although it is true that three of Respon-
dent's supervisors talked to Day at various times
about union matters, it is also true that she, herself,
initiated one of the conversations and that in two of
the three conversations she was not asked her
sentiments about the Union and did not divulge any
either Although it is true with regard to the
remaining conversation that the 8(a)(1) interrogation
occurred herein, it is also true that Day was not
8 The Administrative Law Judge has fully set out the procedure and
explanation of the rating system used by Respondent in his Decision
Pertinent here are certain of Respondents grades Thus a 25-49 on
Respondents scale is Marginal (Below Average)", a 50-74 is Good
(Average) and 75-95 is Very Good (Above Average)
HEINEMANN ELECTRIC COMPANY
particularly singled out for questioning by Bromberg
Rather, Bromberg admitted that he talked to a
number of employees regarding their sentiments
about the Charging Party And, as Day admitted
with regard to her particular conversation with
Bromberg, she consciously attempted to convey an
antiunion sentiment to Bromberg
In light of the foregoing we can not agree with the
Administrative Law Judge that counsel for General
Counsel has sufficiently shown that Respondent was
aware or particularly suspicious of Day's union
activities and thus discharged her because of them 9
However, the Administrative Law Judge included
an additional factor demonstrating the illegality of
Day's discharge on which we must now comment As
noted above, the Administrative Law Judge credited
a statement made by Kurtz in a pretrial affidavit that
he would not have let Day go except for the
unfavorable opinions that the other supervisors had
The Administrative Law Judge then inferred that the
"other supervisors" to which Kurtz referred were in
fact Bromberg only, and, having found that Respon-
dent's written ratings demonstrated Day was a
reasonably competent employee, the Administrative
Law Judge concluded that Bromberg's unfavorable
opinion was based on her attacking Respondent's
antiunion letter as "childish "
We cannot agree with the Administrative Law
Judge that the "other supervisors" to which Kurtz
referred necessarily meant Bromberg alone, since
Day worked for two other people besides Kurtz and
Bromberg a not inconsiderable 30 percent of her
time Moreover, one of these men, Constantino, had
been consulted regularly on Day's work progress
Moreover, even if we were to assume that Kurtz' use
of the phrase "other supervisors" did mean Brom-
berg alone, we can not conclude that Bromberg's
unfavorable opinion of Day was based on her attack
on Respondent's letter since we have determined in
disagreement with the Administrative Law Judge
that the written ratings Day received on her work
progress were such that an "unfavorable" opinion of
her work was a reasonable opinion for Respondent
to hold and a valia reason for her discharge
Our disagreement with the Administrative Law
Judge arises basically from a consideration of two
factors which he inadvertently omitted from his
analysis of Day's written ratings The first of these
factors, already mentioned, is that Day admitted that
at the 60-day session as well as the 30-day session,
Respondent's supervisors characterized her perform-
ance to date as "unsatisfactory " Significant it is that,
even when Day received the 56 rating at the 60-day
session, (a rating 6 points higher than her final
rating), she was still termed unsatisfactory Hence, at
all three sessions her ratings were unsatisfactory
725
And secondly, Harold Vickers, Respondent's person-
nel manager and the man responsible for supplying
numerical grades to each employee's rating, testified
without contradiction that a new employee's progres-
sion should be such that his rating would be between
60 and 75 after 90 days Day's rating was only 50 at
the time of her discharge It is thus reasonable to
conclude that Day's rating was not up to Respon-
dent's standards at the end of her probationary
period 10
In sum then, we find that the evidence presented
does not show that Respondent violated Section
8(a)(3) of the Act in its discharge of Suzanne Day 11
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent,
Heinemann Electric Company, its officers, agents,
successors , and assigns , shall take the action set forth
in the Administrative Law Judge' s recommended
Order as so modified
1 Delete paragraph 1(a) and reletter the subse-
quent paragraphs accordingly
2 Delete paragraphs 2(a), (b), (c), and (d) and
reletter the subsequent paragraphs accordingly
3 Substitute the attached notice for that of the
Administrative Law Judge
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed insofar as it alleges
unfair labor practices not found here
9 The only evidence of Day s union activities at work was her solicitation
of Edith Parker to attend a union meeting We have taken into account the
fact that Parker was secretary to one of the three supervisors with whom
Day spoke about the Charging Party but we do not impute knowledge to
Respondent on this basis alone nor can we when we consider all the
evidence presented on Respondent s alleged knowledge Nor do we find any
unlawful implication in Kurtz statement to Day concerning her discharge,
you know why Contrary to the Administrative Law Judge who assigned
an antiunion sentiment to this statement , we find on the facts of this case
that such a statement is too vague to support such an inference
io This is so notwithstanding the Administrative Law Judges correct
observation that Lay received no criticism of her work between the 60- and
90 day periods in light of the facts ( 1) that Day herself admitted that there
had been no criticism by Respondent of her work either before the 30-day
rating session or during the 30 to 60 day rating period and (2) that at the
end of each Day s work was termed unsatisfactory
ii We are mindful of certain inconsistencies in certain of Respondents
attempts to categorize Day s use of the phones as excessive (i e , the varying
statements of Kurtz and Bromberg as to whose line Day used) and in its
comments on her ability to get along with others However , the conflicts in
these particular defenses of Respondent raise suspicion in our minds at the
most and such is not sufficient to support a finding of a violation of Section
8(a)(3)
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which the Company, the Union, and
the General Counsel of the National Labor Relations
Board participated and offered evidence, the Nation-
al Labor Relations Board found that we violated the
law and ordered us to post this notice and we intend
to carry out the Order of the Board and abide by the
following
WE WILL NOT ask our employees about their
union sympathies, activities, desires, or member-
ship
WE WILL NOT in the same or any similar
manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-
organization, to form labor organizations, to loin
or assist American Federation of Technical
Engineers, AFL-CIO, CLC, to bargain collective-
ly with representatives of their own choosing, or
to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or
protection
All our employees are free to become or remain
union members
HEINEMANN ELECTRIC
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 16th Floor, Federal Building, 970
Broad Street, Newark, New Jersey 07102, Telephone
201-645-2100
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN M DYER, Trial Examiner The American Federa-
tion of Technical Engineers , AFL-CIO, CLC, herein called
the Union or Charging Party, filed the charge in this matter
on January 26, 1972, alleging that Hememann Electric
Company, herein called the Company or Respondent,
violated Section 8(a)(1) and (3) of the Act in discharging
Mrs Suzanne M Day on November 23, 1971 1
The Regional Director for Region 22 issued the
complaint in this matter on March 15 , 1972, alleging, in
addition to the standard jurisdictional and commerce
allegations , that Respondent violated Section 8(a)(3) and
(1) by its discharge of Mrs Day and violated Section
8(a)(1) through Supervisor Christopher Bromberg's mterro-
gation of employees regarding their union membership and
activities Respondent 's March 23 , 1972, answer admitted
the jurisdictional and commerce allegations and the
supervisory status of Marketing Engineer Christopher
Bromberg , the then product research manager , Richard S
Kurtz, and Product Sales Manager Eugene Lisnay
Respondent stipulated to the Union's status during the
hearing and in its answer admitted it discharged and did
not reinstate her, stating that she was a probationary
employee and the discharge followed the designation by
the employees of the Union as their bargaining agent
Respondent claimed it had no knowledge of her union
activity , sympathies, or membership and denied that the
discharge was unlawful Respondent denied that Christo-
pher Bromberg engaged in unlawful interrogation , stating
that he asked some questions out of curiosity
In resolving the issues in this case I have credited Mrs
Day's testimony on several disputed issues and discredited
the contrary testimonies of Bromberg and Kurtz, finding
that their testimonies in some respects were in conflict with
Respondent's records and in one area were contradictory
of one another Kurtz further contradicted flatly a crucial
statement in a prior affidavit , and his explanation of the
answer was inadequate Mrs Day appeared to search her
memory and I regard her as a truthful witness despite the
fact that she appeared to stretch the truth in one area I do
not credit Bromberg and Kurtz where their testimony
differs from that of Mrs Day Therefore I deny Respon-
dent's reserved trial motion to dismiss the proceeding
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses , and to argue orally
at the hearing held in Trenton, New Jersey, on May 2 and
3, 1972 All parties have filed briefs which have been fully
considered
On the entire record in this proceeding, including my
evaluation of the reliability of the witnesses based on the
evidence received and my observation of their demeanor, I
make the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Respondent is a New Jersey corporation with its
principal office and plant in Trenton, New Jersey, where it
is engaged in the manufacture, sale, and distribution of
electrical equipment and related products Respondent
annually manufactures, sells, and distributes goods and
materials valued in excess of $50 ,000 which are shipped by
it in interstate commerce directly to points outside the
State of New Jersey
I Unless otherwise stated all dates herein refer to 1971
HEINEMANN ELECTRIC COMPANY
Respondent admits and I find that it is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
Respondent admits and I find that the Union herein is a
labor organization within the meaning of Section 2(5) of
the Act
II THE UNFAIR LABOR PRACTICES
A Background and Undisputed Facts
Richard Kurtz, who is now the manager of the
Company, has been with Respondent since 1946 In
August Respondent was looking for a stenographer to
work for Kurtz, Bromberg, and two other men Personnel
Manager Hal Vickers screened a number of employees and
sent Suzanne Day to Kurtz for an interview Kurtz
explained that she would be working for himself, Christo-
pher Bromberg, Mr Constantino, and Mr Warner, and
that her principal duty would be in answering correspond-
ence He gave her a test and told her what the benefits
were, that she would have a 3-month probationary period
during which she would be rated at 30, 60, and 90 days,
and that, in addition to whatever help he could give her,
the two secretaries who were in or near the same room
would help tram her for the job She was informed that
others were being interviewed and she would be notified if
they selected her A few days later she was hired and began
work on August 23 Her desk was outside Kurtz' office and
was parallel to and some 2 feet away from the desk of
Christopher Bromberg Warner and Constantino had
offices some 25 or more feet away It was estimated that
she worked about 10 percent of her time for Warner, 20
percent for Constantino, 30 percent for Bromberg, and the
balance for Kurtz
In ascertaining the abilities and attitudes of its salaried
employees, Respondent uses rating sheets which provide
five gradations in eight categories Employees are rated
annually or semiannually, but new employees are rated at
30, 60, and 90 days during their 90-day probationary
period The supervisor rates the employee from poor to
excellent in the following categories quality of work,
quantity of work, knowledge of the job, dependability,
cooperation, initiative, organization of work, and personal
characteristics When the rating was completed the sheets
were sent to the personnel department where the personnel
manager gave them a numerical value with various
characteristics being weighted in their value to Respon-
dent On the total point value, under 25 was considered
poor or unsatisfactory, 25 to 49 below average or marginal,
50 to 74 average or good, 75 to 95 very good or above
average, and 96 to 100 points excellent or exceptional
After attaching the numerical value the rating sheets were
sent back to the supervisor so that he could be apprised of
the score
Testimony established that Kurtz, as the principal
supervisor of Mrs Day, met with Christopher Bromberg
and Constantino about 3 weeks after she was hired (on or
before September 17) and discussed the rating they should
give Mrs Day Kurtz met with her on September 17 and
went over the rating form with her She was rated below
average in quantity of work and knowledge of the job,
727
above average in cooperation and personal characteristics,
and average in quality of work, dependability, initiative,
and organization of work with a total point score of 48, the
upper end of the marginal category Mrs Day said that
after discussing the rating with her , Kurtz said she should
not worry about the rating because she had only been there
a month and although her work wasn't completely
satisfactory she had time to improve She testified that
during her first 30 days of employment Kurtz said nothing
to her about her work , the first discussion being at this
performance rating session
The 60-day rating was again prepared by Kurtz,
Bromberg, and Constantino, and all three of them met with
her and discussed the ratings They rated her again above
average in cooperation and personal characteristics and
average in the other six categories which gave her a point
total of 56, placing her in the good or average category of
employees The discussion apparently took about an hour
and the areas where she could improve her work were
pointed out to her She became a bit upset and shed a few
tears over some of the criticism but pointed out that she
had not had the assistance of, or the instruction from, the
other two secretaries in learning the work and that she was
forced to proceed on a trial-and-error basis and retype the
work when her errors were discovered She stated that
Bromberg agreed that she had not received assistance or
instructions from the other secretaries The men encour-
aged her, stating they felt she could do the work
B Contested Testimony
The performance rating at the 90-day level was marked
average in all categories, which was a downgrading from
the previous above-average marks in cooperation and
personal characteristics She received a total point value of
50 and was discharged Mrs Day said she was called into
the office by Kurtz who told her he had an unpleasant duty
to perform but was discharging her because she had too
many people around her desk and was making too many
phone calls She testified she was shocked by the discharge
and Kurtz agreed in his testimony that she appeared
shocked She said she protested to him that no one had
said anything to her about being discharged or had said
anything about her work, which she felt she had brought
up to a satisfactory level Kurtz said he didn't want to talk
about her work and, concerning her discharge, said "you
know why "
Kurtz did not deny making this remark to her but said
when he discharged her that the quantity and quality of her
work was not up to the Company's standard and was not
satisfactory He said he offered to go over the various
points with her but she declined He added that her
attitude was not as desirable as it should be for a company
employee
Mrs Day testified that some time after her 30-day
review Kurtz called her into the office and said he had
received complaints from others, although he had none
himself, that she was using the phone too much and either
getting or making too many phone calls, and he wanted her
to cut down on the number and the time taken in the
phone calls She agreed to do so
Kurtz testified that during the 30- and 60-day reviews the
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subject of phone calls was mentioned to her with the
admonition that she had been making too many phone
calls and was on the phone too long and should curtail
such activities He further testified that she used his phone
and that at times he was prevented from making phone
calls
Christopher Bromberg testified that for approximately
half of her employment she shared his telephone line and
for the other part of her employment she shared a
telephone line with an engineer named Laucius Bromberg
testified that she was on the phone too long and made too
many phone calls and at times he was prevented from
making phone calls He said he did not discuss the length
of her telephone calls with her, although working beside
her, but took it up with Kurtz since he felt Kurtz was her
immediate supervisor On one occasion he said he never
asked her to cut her telephone calls short but then reversed
himself and said sometimes he did and that she always
complied with his request His answer was unclear as to
whether he had any hesitancy about asking her to get off
the line He answered something to the effect that Kurtz
was her supervisor
The testimony of Kurtz concerning her use of his phone
and the testimony of Christopher Bromberg concerning her
using his phone and what phone lines were available to her
is contradictory According to Bromberg it was his line or
Laucius' that was being used and not Kurtz' It is clear that
the testimony of one of these men is erroneous as to line
use I believe both Kurtz and Bromberg exaggerated the
phone use by Mrs Day I credit her testimony that Kurtz
spoke to her about phone use after the 30-day review and
as a reason for discharge but at no other times
The oral testimony of Kurtz, Bromberg, and Constantino
is to the effect that Mrs Day's work was below average
and did not come up to average during the entire time she
was there Bromberg and Kurtz said she appeared to make
an effort to understand the work during her first 30 days
but that her willingness and cooperation decreased
thereafter and became worse during the last 30 days of
employment It would be anticipated that this testimony
would be reflected in the ratings which these gentlemen
gave her for the 30-, 60-, and 90-day rating periods But as
set forth above in the areas of cooperation and personal
characteristics she was rated above average at the 30- and
60-day ratings and average for the 90-day rating Kurtz
testified at one point that he had spoken to her about her
attitude at the 30-day rating but when it was pointed out to
him that he testified her attitude went down thereafter he
changed his testimony and said it had been mentioned at
the 60-day rating session If this were true it should have
been reflected in the rating she received, but, as stated, it
was an above-average rating When the apparent discre-
pancy between the rating sheets and the testimony was
pointed out to Bromberg he replied that the rating sheets
were a tool and not the best
In this area I find that the rating sheets prepared at the
respective periods are a more reliable guide than the
testimony of Kurtz, Bromberg, and Constantino, and the
categories and qualities are clear and not ambigious If
Suzanne Day was a below-average employee why was her
rating form not marked in that manner9 The answer is
supplied by Mrs Day's union activities and her being
observed with known prounion employees, plus her
interview with Bromberg and the reason given her for her
discharge with the cryptic "you know why "
Mrs Day testified that she thought her work had
improved and was current since the 60-day rating and that
she had receive no criticism between the 60- and 90-day
periods As Kurtz acknowledged , she was shocked when
told she was being discharged The downgrading of Mrs
Day in the cooperation and personal characteristics
categories is suspect when viewed in the light of Bromberg
and Lisnay' s questioning of her concerning the Union
during this rating period Her above -average rating in these
two categories at the 60-day level also contradicts Kurtz'
testimony that her cooperation went down after the 30-day
rating Kurtz' oral testimony that he was prepared to
discharge her at the 90 -day period is contradicted by his
pretrial sworn affidavit in which he said, "I probably
would have not let her go if it wasn 't for the unfavorable
opinions that the other supervisors had " I do not credit
Kurtz' confused contrary oral testimony that he personally
had decided to discharge Mrs Day The above statement
indicates that Bromberg's discharge recommendation was
relied on, and from the testimony discussed below it seems
clear that his opinion was based on Mrs Day's statements
and conversations with known union proponents and her
criticism of a company letter discussing the Union signed
by Bromberg's father who was the president of Respon-
dent
After several weeks' employment Mrs Day questioned
Kurtz about the Union and what it could do for the
employees Kurtz testified she said she had heard rumors
about a union and asked if she had to sign a card and how
he felt about the Union He said he replied that it was
something personal and he was not at liberty to give her
any advice or judgement and this was the only time the
Union was mentioned between them It was not alleged or
litigated that in the conversations Kurtz violated the Act,
but I credit Mrs Day's version of the incidents She said
she told Kurtz she had heard a lot about the Union and
wanted to know his views so she could weigh both sides
and better judge whether she wanted a union She testified
that their discussion in the office lasted about an hour and
touched on whether there should be timeclocks , items to be
negotiated and whether they start from scratch, company
benefits such as sick leave , a health insurance program,
and whether the costs would switch under a contract She
also testified that when she was late one morning on
another occasion Kurtz told her that on a personal basis,
such as the Company was then on, such things could be
overlooked but that if a union were in the picture she might
be docked for the time
Approximately 2 weeks after she began work, fellow
employee Loretta Wasihshen asked her to attend a union
meeting She went and attended three other meetings and
joined the Union Somewhere around the time of the union
election (November 18) Loretta and employee Kathy
Sefannelli talked to her, and Loretta asked Suzanne to talk
to Edith Parker, Product Sales Manager Lisnay's secretary,
and ask Parker to attend a union meeting Mrs Day did so
This testimony is uncontradicted
HEINEMANN ELECTRIC COMPANY 729
Mrs Day testified that approximately a week before
the election Christopher Bromberg said he wanted to talk
to her about something important and asked how she felt
about the Union She said she really didn't know and
didn't have anything to say to him about it He insisted on
talking to her and took her into Kurtz' office Kurtz was
not in the office at that time Again Bromberg asked how
she felt about the Union and she replied she really didn't
have anything to say about it He said he had been going
around talking to other people trying to get an idea and
wanted to know how she felt She said she hadn't been
there long enough and didn't know everybody' s reasons for
wanting a union and if he really wanted to know he should
ask people who had been there longer He mentioned the
letter the Union had sent to the employees She responded
that the letter the Company had sent was very childish at
which he became upset and asked how it was childish She
said "the Company was listing things employees had as if
to say children this is what you have and if you go to the
Union you won't have it " The conversation continued for
about an hour and broke up shortly after Kurtz returned to
the office and left after getting some papers
Bromberg testified that in November he asked Mrs Day
about her union sympathies On direct examination he
testified that his conversation with her started at her desk
following several conversations with other people who hao
been around her desk He testified that there was a lot of
discussion going on at the Company and he asked for her
views of the Union He took her into Kurtz' office because
he didn't thank it was to the interest of everyone around to
hear what they were saying He stated they talked about it
for a few minutes with him asking what she thought of the
attempt to organize He stated she said she didn't see the
need for it They talked a bit about the union letter and she
said the Company's letter was childish He testified he told
her that he didn't see the need for the Company's letter as
it was written and that the conversation between them
remained friendly He testified that they were only in there
a few minutes and that Kurtz came in and the conversation
broke up
During cross-examination Bromberg testified that he had
seen Kathy Stefannelh and Loretta Wasilishen at Mrs
Day's desk and knew probably prior to the election that
Loretta was active on behalf of the Union Bromberg
admitted that he talked to Mrs Day on that occasion
because he had heard conversation at the desk concerning
the Union from some of the people who were around her
desk
Several days later Product Sales Manager Lisnay, an
admitted supervisor, came to her desk and asked if she had
any questions he could answer for her about the Union and
she said she had found out everything that she wanted,
having already talked to Kurtz, and there was nothing
further she needed to know Lisnay told her that certain
people had come into his office saying they had seen
prounion people at her desk and he had seen it too and he
wanted to be sure that no one was pressuring her about the
Union She told him that none of the union people were
pressuring her Lisnay told her that if the Union got in it
could hurt the Company He talked for a while and again
asked for assurance that no one was pressuring her about
the Union She told him that no one was and she was
getting tired of people wanting to know her opinion He
asked what she meant and she told him that Chris
Bromberg wanted to know how she felt about it He told
her that he wished he had known it because Bromberg had
no right to talk to her about the Union Lisnay identified
some of the prounion people as Loretta and Kathy
Lisnay testified that Mrs Day had never worked for him
and that on a day when Kurtz was out of town it was
reported to him that there was a lot of activity at her desk
and he took it upon himself to approach her and asked if
anybody was bothering her about joining the Union She
replied that no one was, and he did not recall asking how
she felt about the Union During cross-examination he
testified that he didn't know there were people at her desk
but was merely told that there was activity at her desk He
testified that he wasn't certain as to who told hun but
admitted it might have been his secretary, Edith Parker
This is the same Edith Parker whom Mrs Day asked to go
to a union meeting
C Conclusions
General Counsel has presented a prima facie case made
up of the facts that Mrs Day while employed was an
average employee, reasonably competent, and received
such ratings in contemporary written marks contrary to the
later oral testimony offered by Respondent She was active
in the Union and her friendliness with known union
adherents was not only noticed by company supervisory
personnel including Christopher Bromberg and Eugene
Lisnay but was commented on by them and indeed was the
reason for their conversations with Mrs Day
Additionally we have the fact that Mrs Day, while
speaking to the president's son, criticized as childish the
antiunion letter written by the president of the Company,
while the son, Christopher Bromberg, was unlawfully
interrogating Mrs Day, and that such criticism caused him
to become resentful and angry This I credit over his
statement that the conversation was friendly throughout
Moreover Kurtz, the immediate supervisor of Mrs Day,
acknowledged that he would not have discharged her
except for the sentiments of the other supervisors I
conclude that this reference is to Christopher Bromberg
under these circumstances Mrs Day was told by Kurtz
that she had too many people around her desk, an obvious
reference to known union proponents Loretta and Kathy,
and that she knew why she was being discharged The
logical conclusion is that Mrs Day would not have been
discharged except for her apparent sympathies with known
union proponents and the fact that she attacked Respon-
dent's antiumon letter as childish
Respondent's defense that she was a below-average
employee is refuted by the Company's record evidence and
Kurtz' statement I therefore conclude and find that Mrs
Day was discharged in violation of Section 8(a)(3) and (1)
of the Act
Respondent in its answer agreed that Christopher
Bromberg was a company supervisor It is clear that his
questioning of Mrs Day concerning her union sentiments
and sympathies was unlawful and without any lawful
motive or intent Christopher Bromberg's interrogation of
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mrs Day violated Section 8(a)(1) of the Act in that it
occurred without any of the safeguards which are necessar-
y to exempt such interrogation from a finding of violation
Here Bromberg noticed her talking with proumon advo-
cates, overheard some of the conversations, and thereupon
inquired as to her umon sentiments despite her protesta-
tions that she did not want to discuss it She was taken into
a supervisory office and the interrogation continued for up
to an hour It is clear, particularly in the light of
Bromberg's further admission that he interrogated other
employees, that this was an unwarranted intrusion into an
employee's protected private affairs and constitutes a
violation of Section 8(a)(1) of the Act
III THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent as set forth in section II,
above, have herein been found to constitute unfair labor
practices in violation of Section 8(a)(3) and (1) of the Act,
and, occurring in connection with Respondent's business
operations as described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce
IV THE REMEDY
Having found that Respondent discriminatorily termi-
nated Suzanne M Day on or about November 23, 1971,
because of her actual and suspected umon sympathies and
activities, I recommend that Respondent offer her immedi-
ate and full reinstatement to her former position or, if that
position no longer exists, to a substantially equivalent
position without prejudice to any seniority or rights and
privileges she may enjoy Respondent shall make her whole
for any loss of pay she may have suffered by reason of the
discrimination against her, by payment to her of a sum
equal to that which she would have received as wages from
the date of her discharge until she is fully reinstated, less
any net interim earnings Backpay is to be computed on a
quarterly basis in the manner established by the Board in
F W Woolworth Company, 90 NLRB 289, with interest at
the rate of 6 percent per annum to be computed in the
manner set forth in Isis Plumbing & Heating Co, 138
NLRB 716 I further recommend that Respondent, upon
request, make available to the Board payroll and other
records to facilitate checking the amounts of backpay and
any other rights due Suzanne Day
Respondent also engaged in interrogation of its employ-
ees concerning their umon membership, activities, or
sympathies, and I recommend that Respondent be ordered
to cease and desist from violating the Act in the same
manner or any manner similar to these violations
On the basis of the foregoing findings and the entire
record, I make the following
CONCLUSIONS OF LAW
1 Heinemann Electric Company is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
2 The Union is a labor organization within the
meaning of Section 2(5) of the Act
3 By discriminatorily terminating Suzanne Day on or
about November 23, 1971, and not thereafter reinstating
her to her position, because of her actual and suspected
union sympathies and activities, Respondent engaged in
and is engaging in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(3) and (1)
and 2(6) and (7) of the Act
4 Respondent has engaged in and is engaging in unfair
labor practices affecting commerce within the meaning of
Sections 8(a)(1) and 2(6) and (7) of the Act by interrogat-
ing employees concerning their union membership, activi-
ties, and sympathies
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended 2
ORDER
Respondent, Hememann Electric Company , its officers,
agents, successors, and assigns, shall
1 Cease and desist from
(a) Discharging employees and refusing to reinstate them
in order to discourage these employees and other employ-
ees from being or becoming union members
(b) Interrogating employees concerning their union
sympathies , activities , desires , or membership
(c) In the same or any similar manner interfering with,
restraining, or coercing its employees in the exercise of
their rights to self-organization , to form labor organiza-
tions, to join or assist American Federation of Technical
Engineers, AFL-CIO, CLC, to bargain collectively with
representatives of their own choosing , and to engage in
concerted activities for the purpose of collective bargaining
or other mutual aid or protection
2 Take the following affirmative action which is
necessary to effectuate the policies of the Act
(a) Offer to Suzanne Day reinstatement in accordance
with the recommendations set forth in the section of this
Decision entitled "The Remedy "
(b) Make Suzanne Day whole for any loss of pay she
may have suffered by reason of Respondent's discrimina-
tion against her according to the recommendations set
forth in the section of this Decision entitled "The
Remedy "
(c) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records , social security payment records, timecards,
personnel records and reports , and all other records
necessary to analyze the amount of backpay due and the
rights and privileges accorded to Suzanne Day as set forth
in the section of this Decision entitled "The Remedy "
(d) Notify immediately the above-named individual, if
2 In the event no exceptions are filed as provided by Sec 102 46 of the 102 48 of the Rules and Regulations be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board the findings its findings conclusions and Order and all objections thereto shall be
conclusions and recommended Order herein shall as provided in Sec deemed waived for all purposes
HEINEMANN ELECTRIC COMPANY
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act
(e) Post at its Trenton, New Jersey, plant and office
copies of the attached notice marked "Appendix "3 Copies
of said notice, on forms provided by the Regional Director
for Region 22, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
3 In the event that 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 National 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
731
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material
(f) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith 4
4 In the event that this recommended Order is adopted by the Board
after exceptions have been filed this provision shall be modified to read
Notify the Regional Director for Region 22 in writing within 20 days
from the date of this Order what steps the Respondent has taken to comply
herewith