Hy-Gain Electronics

National Labor Relations Board - Board Decisions

Sep 19, 1977

232 N.L.R.B. 85 (N.L.R.B. 1977)

HY-GAIN ELECTRONICS
Hy-Gain Electronics and International Union, Allied
Industrial Workers of America, AFL-CIO. Case
17-CA-7368
September 19, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On May 25, 1977, Administrative Law Judge Anne
F. Schlezinger 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 2 of the Administrative Law Judge,
to modify her remedy, 3 and to adopt her recom-
mended Order.
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 and
hereby orders that the Respondent, Hy-Gain Elec-
tronics, Lincoln, Nebraska, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
I 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 are incorrect. Standard Dry Wall Products,
Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing her findings.
2 We agree with the Administrative Law Judge's conclusion that
Respondent violated Sec. 8(aX3) of the Act by discharging Robert Howard
because of his activities on behalf of the Union. Thus, we find it unnecessary
to consider whether Howard's discharge was also in violation of Sec. 8(a)4)
of the Act, as the remedy in either case provides for reinstatement and
backpay.
3 In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977). we shall apply the current seven-percent rate for periods
prior to August 25, 1977, in which the "adjusted pnme interest rate" as used
by the Internal Revenue Service in calculating interest on tax payments was
at least 7 percent.
DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER, Administrative Law Judge:
Upon a charge and an amended charge filed respectively
on November 5 and December 13, 1976,' by International
Union, Allied Industrial Workers of America AFL-CIO,
herein called the Charging Party or the Union, the General
Counsel of the National Labor Relations Board, by the
Regional Director for Region 17 (Kansas City, Kansas),
issued a complaint and notice of hearing on December 28.
The complaint, as amended at the hearing, alleges in
substance that Hy-Gain Electronics, herein called the
Respondent, has, by various acts and conduct during the
period September-November, interfered with, restrained,
and coerced employees in the exercise of the rights
guaranteed in Section 7 of the National Labor Relations
Act, as amended; discharged Robert Howard on or about
November 3, and failed and refused thereafter to reinstate
him, because of his activity on behalf of the Union and/or
because he filed a charge with the Board; and thereby
engaged in unfair labor practices within the meaning of
Section 8(aX1), (3), and (4) of the Act. In its answer, duly
filed, and amended at the hearing, the Respondent admits
some of the factual allegations of the complaint, but denies
that it engaged in conduct violative of the Act.
Pursuant to notice, a hearing was held before me in
Lincoln, Nebraska, on February 3, 1977. All the parties
appeared at the hearing and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and
to introduce relevant evidence. At the close of the hearing
the parties waived closing argument. Subsequent to the
hearing, the General Counsel and the Respondent filed
briefs on or about March 15, 1977, which have been fully
considered.
Upon the entire record in this case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a corporation, is engaged in the
manufacture of electronic products at its plant in Lincoln,
Nebraska. In the course and conduct of its business
operations at this plant, the Respondent annually pur-
chases goods and materials valued in excess of $50,000
directly from sources located outside the State of Nebras-
ka, and sells goods and materials valued in excess of
$50,000 directly to customers located outside the State of
Nebraska. The complaint alleges, the Respondent in its
answer admits, and I find that the Respondent is, and at all
times material herein has been, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II1. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent in its answer
admits, and I find that the Union is, and at all times
material herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
All dates hereinafter refer to 1976 unless otherwise indicated.
232 NLRB No. 20
85
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The complaint, as amended at the hearing, alleges that
the Respondent, in or about September and continuing
through November 3, by Kenneth and Don Janssen,
supervisors, imposed illegal restrictions on Howard regard-
ing distribution of union campaign literature; in or about
September, by Kenneth Janssen, interrogated Howard
concerning his union membership and activities including
Howard's communications with union personnel; in or
about October unlawfully assisted employees opposed to
the Union by printing certain materials containing threat-
ening language for distribution by said employees; at all
times material herein, promulgated and enforced an illegal
no-solicitation rule; on or about November 3 discharged
Howard and thereafter failed and refused to reinstate him,
because of Howard's activity on behalf of the Union
and/or because he filed a charge with the Board; and
thereby engaged in unfair labor practices in violation of
Section 8(a)(I), (3), and (4) of the Act.
The Respondent in its answer, as amended at the
hearing, admits that it discharged Howard and has failed
and refused to reinstate him, but denies that it was for the
discriminatory reasons asserted in the complaint. It also
denies that it engaged in certain other conduct set forth in
the complaint, and that conduct in which it engaged was
violative of the Act.
The issues are, therefore, whether the Respondent
discharged Howard for cause or for discriminatory rea-
sons; whether it engaged in other conduct set forth in the
complaint; and, if so, whether such conduct constitutes
violations of the Act.
B. Interference, Restraint, and Coercion
1. The Respondent's rules
Two employee handbooks of the Respondent are in
evidence as joint exhibits. The parties stipulated that the
first was effective from about January 1975 until December
20, 1976, when it was amended and the second one issued.
The first one provides that:
Solicitations: Collection and solicitation of funds for
gifts or for any other reason will not be allowed on
Company time, or property without express Company
approval. The distribution of unauthorized literature or
the posting or removal of notices, or signs, or [sic ] any
description on or about the premises during work time
without permission is prohibited.
The revised edition provides that:
Solicitations: Collection and solicitation of funds for
gifts or for any other reason will not be allowed on
Company time, or property without express Company
approval.
Both handbooks provide that:
2 The witnesses for both the General Counsel and the Respondent were
vague about dates.
Trespassing: Employees shall enter Company property
only when they are here on specific business or on duty
at assigned working hours. At other times, they must
obtain Company permission before entering the build-
ing. Anyone attempting to enter without permission
will be considered a trespasser and treated accordingly.
2. Union organization
Howard was hired by the Respondent on or about
August 27, 1973, as an inspector in the quality control
department. Kenneth Janssen, referred to herein as
Janssen, was the quality control manager, and Don Janssen
was the quality control supervisor. The parties stipulated
that both Janssens were supervisors within the meaning of
the Act. Howard's immediate supervisor for approximately
a year after his hire was Powers. Howard's work, which
took him to different departments of the plant, was to
check parts for conformance to specifications. He rejected
parts he found not to conform, which occurred frequently.
During the fall of 1974,2 Howard got in touch with an
organizer for International Brotherhood of Electrical
Workers, herein referred to as IBEW, and requested
organization of the Respondent's inspectors. Howard
attended organizing meetings, talked to employees about
IBEW, and obtained cards and signed up several inspec-
tors. He testified that on one occasion during this period he
was in Janssen's office when Powers was there also, that
Janssen made an unfavorable comment to him, and that
Powers said, "The office has been upset with Bob since
they heard he's been attending union meetings." Powers
was not called as a witness and Janssen did not contradict
this testimony. During the IBEW campaign, Howard
handed a card to Grundmayer, an employee, who declined
it.3 Shortly after that Grundmayer was promoted and
became Howard's supervisor. Howard testified, without
contradiction, that he initiated conversations about IBEW
with Janssen and with Whitcomb, then the personnel
director, in their respective offices, "to get the company's
point of view about ... the issue of the union." The IBEW
campaign fizzled out in late 1974 after 2 or 3 months of
organizing activity.
In the summer of 1976, Howard heard there was another
campaign in progress to organize the Respondent's
employees. When Howard learned it was the Union that
was organizing, he discussed it with Pratt, a union
organizer, was assured this campaign would continue
longer than 2 or 3 months, and volunteered his assistance.
Howard attended a number of meetings held at a motel;
got both membership and organizing committee cards to
distribute; solicited employees in the plant cafeteria, the
parking lot, and at employees' homes; and began wearing a
committee button, as did some other employees, in about
September. Pratt testified that he held employee organizing
meetings on June 10 and September 21. On October 4 he
sent a telegram to Sachs, plant manager, about the in-plant
organizing committee, listing 39 names including Howard.
He filed a charge on October 15, later withdrawn, alleging
unlawful conduct by the Respondent with regard to
3 Grundmayer was not called to testify.
86
HY-GAIN ELECTRONICS
Howard and Schwartz, who was also an active member of
the organizing committee.4
3. Distribution of union literature
Schwartz, a former employee and member of the union
organizing committee, testified that he handbilled in
August with Pratt at the front entrance, outside company
property, about 20 feet from the highway and about 10 feet
from the Respondent's fence; that the personnel manager
said this was on company property so they moved about 2
feet toward the highway; that on October 5 he was
distributing copies of the union telegram at the employee
entrance when Price and Robinson, supervisors, told him
to take this material and get off company property; and
that he moved closer to the highway but, as it was dark and
he was almost hit by passing cars, Pratt told him to stop the
distribution. DeLunger, a former employee and member of
the union organizing committee, had been distributing the
telegram with Schwartz but went in on his shift while
Schwartz was still distributing.
Schwartz' was called by Robinson to General Foreman
Garrison's office that day. 5 Schwartz testified credibly, and
without contradiction, that Garrison said the supervisor
found him violating the company distribution rule in
August and again that day, and asked Schwartz to sign a
reprimand; that he refused on the grounds he was not sure
of the company policy nor that he did anything illegal; and
that, about a week later, Garrison called him to the office
again, said the company would forget the reprimand, and
tore it up. Schwartz and DeLunger both testified credibly
that they had seen political candidates distributing cam-
paign materials at the employee entrance. This testimony
was unrefuted.
Sometime in the fall of 1976, Howard distributed union
literature on company premises near the employee en-
trance. He testified that he saw both Janssens in a nearby
area looking at him, that he never previously saw either of
them in the area at that time of day, and that he never saw
them there together. At or about 3 o'clock Peterson, the
safety director,6 told Howard there was a problem and
Sachs, the plant general manager, wanted to see Howard in
the office. Howard said he was not due to start work until
3:30 and preferred to see Sachs then. Peterson agreed, and
waited nearby while Howard completed the distribution.
Howard tried to reach one of the union organizers on the
telephone but was not able to do so. Peterson directed
Howard to go to the personnel office. Sachs was not there
but both Janssens were. Howard testified that Janssen said,
"he was going to tell me the ground rules of this campaign
on handing out literature . . . I could hand it out in the
cafeteria during break times, but I wasn't to hand it out in
the parking lot, I wasn't to come to work early or to stay
late after work, or I would be trespassing and might be
arrested." Howard asked for these rules in writing so he
could refer to them but, he testified, Janssen replied that
the rules were fair, there was no need of them in writing,
and there should be no further problems. Howard testified
that Janssen then asked whether the Union said that
4 The charge was sent to Sachs, who sent it to O'Gara, the plant
personnel manager.
I Neither Robinson nor Garrison was called to testify.
Howard could distribute as he had been doing, or was
aware that he was doing so.
Janssen testified that Peterson notified him, in Septem-
ber or October, that Howard was passing out literature at
the door that was the only entrance and exit for plant
employees, and that was near the driveway used by
employees in their cars and also by trucks; that he went to
observe Howard doing so; and that he, with Don Janssen
also present, spoke to Howard about this in the personnel
office after Howard clocked in. Janssen testified that:
I said, "Robert, we're not going to do anything to you
for passing out those literatures, however, we would
appreciate it if you would discontinue the practice in
the future"; and I went into explaining that it was not
only against our solicitation policy, but it was also a
safety hazard.... I said he would not receive a
reprimand.... He went on to say after I explained to
him what the rules were of handing out the literature
thing, he said something to the effect, "But I have my
rights" . . . I replied, I realized he had his rights . . .
and he could exercise those rights during breaks, during
lunch hours in those areas provided for breaks and
lunch.... He more or less acknowledged that he
would do that. .... He asked if he could have that in
writing, and I understood that to be our solicitation
policy, and I said, "No, it is not necessary to put that
into writing, it's already in writing in our employee's
manual." And as I recall, I told him not to come to
work early and not to stay late because there again it is
a security problem. When you have 500 people milling
around after work. I think that was about the extent of
our conversation.?
Janssen admitted that there was a security guard who
patrols the employee entrance; that he did not know of any
pedestrian or vehicle accidents at that location; that
Howard was the only one distributing literature and people
were "flowing around him on both sides"; that he asked
Howard to refrain from distributing literature at the
employee entrance in the future; and that he never after
that spoke to Howard about passing out union literature,
and did not know whether Howard did so. Janssen testified
that he was not aware that policital candidates had been
allowed to distribute literature in the same location. Don
Janssen, who did not take part in the conversation with
Howard, testified similarly to Janssen as to what Janssen
said.
4. The antiunion committee
At the time some employees were wearing union buttons,
other employees who had formed an antiunion committee
wore badges, one imprinted with the name "Hy-Gain" and
the message "You've got a friend," the other imprinted the
same way with the added message "Like it or leave it." The
parties stipulated at the hearing that the Respondent
permitted the printing of the "Like it or Leave it" message
on company presses, and that the "Love Hy-Gain Commit-
6 Peterson was not called to testify.
? The Respondent's employees worked on three shifts.
87
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tee" was an independent employee committee. Damian, a
former pressroom employee, testified credibly, and without
contradiction, that he printed the "friend" badges and
other committee materials in late September or early
October on company printing presses, that no work could
be done on these presses unless authorized by a supervisor,
and that this work was so authorized.
Sorenson, a tool clerk, called as a witness by the
Respondent, testified that she was one of about six
members of the Love Hy-Gain Committee; that the
employee who thought of the "Love it or Leave it" slogan
made a sign and put it on her truck and badge, and the
others liked and adopted the slogan; that she passed out
the committee badges on breaktime in the lunchroom and
had a box of them on a toolcrib shelf where anyone could
reach through the window and take one; and that
supervisors never handed them out to her knowledge.
Concluding Findings
I find, based upon the entire record, that the Respondent
promulgated and enforced a rule forbidding solicitation
"on Company time, or property" which was invalid on its
face.8 Further unrefuted testimony shows, and I find, that
the Respondent permitted the distribution of political
campaign materials at the employee entrance but criticized
Howard and other employees for distributing union
literature at or near that entrance. The evidence also shows,
and I find, that Janssen called Howard to the office to
discuss his distribution of union literature, that Janssen
imposed restrictions on such distribution by Howard in the
future, and that this restriction was not pursuant to a valid
rule nor required as a safety measure, but was designed to
discourage union membership and activities. I find,
however, that Janssen's interrogation of Howard about
union distribution instructions was not coercive and I will,
therefore, recommend dismissal of this allegation of the
complaint. Accordingly, I find that the Respondent
promulgated an unlawful solicitation-distribution rule and
enforced it disparately as to distribution of union litera-
ture.9 In addition, I find that the Respondent, while
discouraging union activities, gave assistance to an anti-
union employee committee by authorizing the printing
of committee materials on company presses.'m
Accordingly, I conclude, and find, that the Respondent
promulgated and disparately enforced an unlawful solicita-
tion-distribution rule, imposed unlawful restrictions on
distribution of union literature, and unlawfully assisted an
antiunion employee committee, and that the Respondent,
by the foregoing conduct, has interfered with, restrained,
and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, and thereby engaged in
unfair labor practices in violation of Section 8(a)(I) of the
Act.
I The Ohio Masonic Home, 205 NLiRB 357 (1973); Riverside Indu.stries,
Inc., 208 NLRB 311. 320 (1974); Florida Steel Corporation, 215 NLRB 97
(1974). 223 NLRB 174 (1976); C & E Stores, Inc.. C& E Supervalue Division,
221 NLRB 1321, 1325 (1976); The Presbyterian Medical Center, 227 NL RB
904 (1977).
9 Eastex, Inc v. N.L.R.B., 550 F.2d 198 ((C.A. 5, 1977); Innkeepers of
C. The Discharge of Howard
1. Howard's performance reviews
Howard was hired on or about August 27, 1973. During
the first year of his employment, his work was reviewed
every 3 months by Powers, his immediate supervisor, who
showed Howard the reviews and discussed them. The first
three were, as Howard testified, "quite favorable." Ho-
ward, who began working at or about $2.40 an hour, got a
10-cent increase at each of these reviews. At the third,
Powers said Howard was thereafter eligible for merit
increase reviews. When Howard was reviewed by Powers
in August 1974, the anniversary month of his hire, Howard
received a promotion from C to B class inspector and a 15-
cent raise, and Powers commented on the written review
that Howard was "doing good job in seven areas he is
covering. Progress in printed circuit and welding area very
good."
Thereafter Howard took a leading role in the IBEW
campaign, and later an active role in the campaign to
organize the Union. His participation in both campaigns
was known to management as well as to Grundmayer, who
replaced Powers as Howard's supervisor. After that change
in supervisors in or about January 1975, Howard received
from Grundmayer and Janssen a series of unfavorable
reviews and reprimands. The Respondent prepared a work
record file pertaining to Howard which was placed in
evidence as a joint exhibit. It contains copies of reviews
and reprimands. The Respondent admitted that one of the
favorable reviews was missing from this file as it had been
unable to locate a copy.
Howard received a verbal reprimand in January 1975.
He was called to Janssen's office and was told there were
five areas of complaint covered in the reprimand which
would go into his file. He signed the document and
requested a copy, which he testified he took home to review
and to try to improve on the points listed. The first point
referred to lack of tact in rejecting production materials,
and to complaints about this made to Janssen. Howard,
who had since his hire been rejecting materials many times
a day for failure to meet specifications, maintained there
had been no previous reference to his lack of tact in doing
so, and denied that he had known of the complaints.
Howard, during 1975, received a poor review in Febru-
ary, a review in April stating that he had improved but was
not being given a good review, a verbal reprimand on
September 8 for absenteeism for 32 hours missed since
January 27, a written reprimand on October 13 for
carelessness of inspection and poor work habits, a poor
review on October 27, a 3-day suspension for poor work
record on October 31, and a review on December 22
stating there was slight improvement but he was given a
poor review, and, during 1976, a poor review on June 2 and
a written reprimand for violation of company policy on
October 26. His pay increases were deferred or reduced at
Ohio, Inc., d/b/a Ramada Inn of Fremontr, 221 NLRB 331 (1975): C & E
Stores, supra; Head Ski Division, AMF, Inc., 222 NLRB 161 (1976);
Mangurian's, Inc., 227 NLRB 113 (1976):; Chrysler Corporation, Eight Mile
Road Stamping Plant, 227 NLRB 1256 (1977).
m Graham Ford, Inc., 218 N LRB 980 (1975).
88
HY-GAIN ELECTRONICS
times as a result of these reviews. Howard denied the
assertions that he was doing poor work. The reprimand for
violation of company policy referred to reading noncompa-
ny literature at his work station. Howard testified that he
received this about 3 weeks after handing out union
literature at the employee entrance, and that he thought
what he was reading was company literature as it was
critical of unions.
2. The layoffs
Although the General Counsel does not allege that the
November layoff was motivated by other than economic
considerations, the Respondent prepared for the hearing
herein, and introduced into evidence, many voluminous
computer printouts and other records pertaining to the
economic necessity for the November layoff and the
methods of implementing the reductions in personnel. The
Respondent's records include financial reports, inventory
reports, production and planning reports, finish goods
stock status reports, notes and memoranda of Material
Manager Neberman, employee attendance records, factory
personnel requirement reports, seniority rosters, and lists of
those hired, laid off, retained, or recalled in August and
November. The testimony of some of the Respondent's
witnesses was based on these records. The Respondent
manufactures about 300 products, with CB radio antennas
constituting about 50 percent of its business. Although it
laid off a number of employees in August, it found a
further reduction necessary a few months later because of a
ruling by a Government agency in the summer of 1976
permitting the change on January 1, 1977, from 23-band to
40-band CB sets, as a result of which consumers in the
interim ceased buying CB radios.
Sachs, the plant manager, testified that production
planning meetings are held twice monthly; that at such a
meeting held on a Wednesday in late October it was
decided that many products were overstocked and there
should be another layoff; and that, at a regular Monday
staff meeting in early November, he discussed with the
department managers the economic situation and the
necessity for another substantial layoff. Sachs also testified
that he thought the prior layoff was in August but he was
not sure of the date; that he did not know if he told the
managers how to make the selections for that layoff,
thought he did, but was not positive; and that he did not
recall the number affected by that layoff but it was less
extensive than the one in November. As to the November
layoff, Sachs testified that he told the department managers
to "Get rid of the slobs first" and, when asked what that
meant, explained that it was those with the worst work and
attendance records, then to select on the basis of seniority,
and to start immediately to make the selections. Sachs, who
was not sure of the criteria for determining who had poor
work or absenteeism records, of the number laid off or
when during the first 2 weeks of November, or of the
number discharged except that most were layoffs, testified
that these facts were not shown on the company exhibits.
Sachs also testified that he left the determination of the
numbers to be laid off to the managers; that this was
difficult to determine in some of the large departments but
easy as to the inspectors, who are employed in a particular
ratio to manufacturing personnel; and that he did not
know if anyone other than Howard was laid off or
terminated on November 2, the day after he issued the
layoff directive, or if any other inspector was terminated.
Sachs testified that those laid off were told it was for lack of
work and they would be rehired if business picked up, that
quite a few who were laid off have come back, and that he
thought virtually everyone on the layoff list had been asked
to do so.
Each department manager who was at the Monday staff
meeting with Sachs promptly held a meeting with the
supervisors in his department and discussed the staff
reductions. Each supervisor keeps a personnel jacket on the
employees he supervises in addition to the files kept in the
personnel office.
Neberman, the materials manager, who controls invento-
ries and production, testified that he was at the late
October planning meeting and the staff meeting on
Monday, November 1, that Sachs told the managers at the
November I meeting that the slobs with poor work or
attendance records were to go first, and that Sachs
discussed numbers only as to the production people.
Neberman also testified that he held a staff meeting that
afternoon with the supervisors in his operations and told
them of the layoff; that he directed them to screen
employees by poor work and absenteeism, and then by
seniority, and he would review their lists; that no
distinction was made, regarding number of absences, as to
the reason for the absence; and that, of the approximately
80 employees in the materials department on November 1,
about 20 were laid off early in November. He testified
further that the documents relating to his operations
showed the first one laid off was DeLunger on November
19, that no dates were shown for five others laid off prior to
that date, and that he could name two of the five but not
the others. Finally, he testified that he did not instruct his
supervisors as to the factors for determining whether to
discharge or lay off, as he considered all those selected to
be "permanent type layoff terminations" not to be recalled.
Vibral, who described his position as the "production
manager" with "the overall responsibility of the manufac-
turing department . . . as well as quality throughout the
manufacturing area," had about 380 employees in his
department in the summer of 1976. He testified that he
attended the planning meeting in late October at which the
decision was reached that "The indicators were that we
would probably be faced with a layoff.... Due to the
overstock situation"; he also attended the Monday staff
meeting on November 1; the same people were present plus
the quality control and personnel departments; it was
decided there would be a cutback in production personnel
of about 140; and he was told to eliminate the slobs first
and, other than poor performance, was given no criteria to
follow, but would consider seniority after poor perfor-
mance.
Vibral met immediately after that with his 17 supervisors
and told them to give him a list of slobs within 2 days. They
gave him a list of about 40 whose files showed disciplinary
actions or attendance problems. He testified that he
reviewed these files with supervisory and personnel people
and they decided about 35 had corrected their problems;
89
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that 6 came under closer scrutiny "but the final evaluation
among the group of us was that there was not enough
difference to effect termination at that point in time....
that they were not so different from other people in that
department"; that no one in manufacturing was terminat-
ed; that 168 out of 345 were selected for layoff based on
seniority; that third-shift people were laid off on November
5, and others on "about the 10th or 12th"; and that status
reports were not prepared as to any of these layoffs.
O'Gara, personnel manager, testified that a change in
employee status is recorded on a status voucher by the
supervisor, with copies for payroll, personnel, and the
supervisor, but not the employee; that it is prepared in the
case of layoff or permanent layoff; and that permanent
layoff is the same as discharge. One of the Respondent's
exhibits lists a great many names as laid off on November
5. O'Gara testified that most of these employees were on
the third shift as the entire shift was laid off on that date,
that a few may have been listed on that date through
clerical error, that the date may indicate when the
personnel office recorded it whereas the layoffs in question
were possibly made earlier, and that vouchers were not
prepared when large groups such as this were involved.
O'Gara testified that among the documents prepared for
the hearing were lists as to the effect of the layoffs on the 39
employees named in the Union's telegram to the Respon-
dent and on the 6 employees named as discriminatees in
the November charge but not in the amended charge filed
in December; that it showed, as to those named in the
charge, 3 were laid off, I was terminated for cause, and 2
resigned, and, as to those named in the telegram, several
were still employed, some did not respond to recall from
layoff so were terminated, some who were not laid off
resigned, some were still on layoff status since the August
or November reductions, some were recalled but dismissed
for cause after the layoffs, and one was on permanent
layoff which is the same as termination. O'Gara also
testified that the list showed that Howard was dismissed for
poor performance. The parties stipulated that in September
there were 522 employees in manufacturing, 80 in the
materials department, and 47 in quality control. O'Gara
testified that there were 47 in quality control before and
after the first layoff as none were laid off in August, that
the number was reduced to 34 before the November layoff
due to "Normal attrition, or transfers or whatever. I don't
have that ... "; and that 8 were laid off, 2 were
transferred, and Howard was terminated in November.
O'Gara testified that a number of those laid off were
recalled, that permanent layoff is the same as discharge,
and that none of those permanently laid off were to be
recalled.
Janssen, quality control manager, testified that he
attended the November 1 staff meeting; those at the
meeting discussed a reduction of about 140 in production
manufacturing; and, while materials and quality control
operations are not part of production, they are affected by
production flow. He also testified that the rule of thumb in
the industry as to the ratio of quality control inspectors to
production personnel can be based "upon about anywhere
Don Janssen was not questioned when he testified about this
discussion or Howard's termination.
from ten to one, twenty to one," that the ratio at the
Respondent's plant is "approximately ten to one," and that
this ratio varies depending upon the degree to which
quality is to be controlled. Janssen testified that Sachs
directed the department managers at the staff meeting to
effect an "immediate reduction in force. .... get rid of the
slobs immediately," and then, if the numbers necessary
were not reached, to proceed by seniority; and that Sachs
defined slobs as, "Those people that would have a history
of reprimands on file, repeated violations of company
policy, high incidents of violation of tardiness and things
like that."
3. Selection of Howard for discharge
O'Gara testified that the first department he met with
concerning the layoffs in November was quality control,
and that the earliest layoffs were in quality control
although he did not have the specific dates. O'Gara also
testified that employees were laid off on the same date they
were notified, that that was the effective date of the layoff,
and that the earliest date for layoff or permanent layoff
was November 5. Howard was terminated on November 2.
O'Gara testified that Howard was discharged for poor
performance and that he had the poorest record by far in
'the quality control department, which is made up of
inspectors and supervisors. He also testified that he
thought there was one other than Howard terminated
rather than laid off in November, and that it was
DeLunger. Shown Respondent's exhibit listing DeLunger
as permanently laid off, O'Gara testified that he could not
recall anyone terminated for poor performance as Howard
was and he would have to look at records that were not at
the hearing to determine this. Shown another Respondent's
exhibit listing DeLunger as laid off, he testified that that
was probably a typing error because, as Neberman
previously testified, all the people in Neberman's depart-
ment were permanently laid off. Shown other Respondent
exhibits, O'Gara testified that there were seven termina-
tions in November, from November 3 to 11, for various
reasons that were not related to the layoff.
Janssen testified that immediately after the staff meeting
he reviewed the employee files with Don Janssen," who
maintained these department files, and found Howard was
the one whose poor performance stood out from all the rest
of the inspectors. He also testified that Howard was the
only one in the department who had a series of reprimands.
Asked what this meant, he explained that, "It is our policy
that on violation of company policy the employee is given a
graduated reprimand. The first one will normally be verbal
reprimand that is signed. The only thing that you sign for
that you acknowledge about the verbal reprimand. The
next violation will be a written reprimand. The third
violation will result in a three day suspension of pay, and a
suspension of work without pay, and further violations will
be termination."
Janssen testified that Howard's performance reviews, all
of which he reviewed, were repeatedly poor. Janssen
himself wrote on a Howard review in February 1975 that
90
HY-GAIN ELECTRONICS
"Bob does have excellent attendance record, never tardy,"
but added, "However, Bob does have extreme poor rapport
with all areas of manufacturing lead and supervisory
personnel. Has been cautioned several times but condition
seems to continue to exist. He gets over involved in product
problems during inspection which actually slows down
inspection rate per hour. Not objective enough in reporting
defects on MRR's and this has been continual complaint
by engineering personnel. Above problems will be pointed
out to Bob at this review. Recommend no increase at this
time and request another review in 3 months to check on
improvement at that time." This review lists Howard's
present job as an Inspector B, Grade 3, since 8-20-74, and
date hired as 8-27-73.
A review dated April 28, 1975, notes that Howard's
attendance was excellent over the long run, comments that
"Overall Bob has been improving particularly in his
attitude and cooperation with fellow employees," but
suggests, "However, Bob should seek to improve himself
further" in particular aspects of his work. This review lists
Howard's present job as Inspector B, Grade 3, since 8-27-
73, and date hired as 8-19-74.
The reviews contain recommendations as to wage
increases. Janssen testified that in a review of May 19,
1976, Howard was recommended for a 2-percent increase,
which was "slightly below average because of poor
performances listed on the form."
Janssen also testified that, while he wrote on a review of
Howard in early February 1975 that "Bob does have
excellent attendance record, never tardy, ... " and a
review in late April 1975 stated "Attendance is Excellent
over long run," Howard nevertheless on August 8, 1975,
was given a reprimand for attendance because Howard
"obviously missed some hours" but he did not know how
many; and that a notice of verbal reprimand for absentee-
ism signed by Grundmayer on September 8, 1975, states
that Howard "missed 32 hours since 1/27/75." The earlier
handbook provides that employees with 100 or more hours
of time off "will be terminated for excessive absenteeism."
The revised handbook provides that, "As a guideline the
company will use an average of one day per month as a
basis for disciplinary action or termination due to excessive
absenteeism." Both handbooks provide that absence "for
three consecutive days without notifying the Company will
be considered as a voluntary quit." Neither handbook says
anything about a reprimand after 32 hours of absence in 8
months.
Janssen explained, as to reprimands for absenteeism, that
"you take it in graduated steps.... They may receive a
notice after 50 hours, and get on up toward 100 hours, you
would receive another notice"; that absences preceding a
12-month period are not accrued so an employee with a
number of absences may in the 13th month have the
number greatly reduced; that an employee may be listed
for disciplinary action for absences of "anywhere from 25
to 100 hours," or "after about 25 hours, 50 hours, 80
hours"; that Howard had reached the first step at 32 hours
as he "could get reprimanded at 25 hours, just from
memory now, something like 50 hours, 80 hours," and a
12 One other employee, designated as a "permanent lay-off 11/5/76,"
had this same item listed. Another "permanent lay-off' is marked "rehire"
and one is listed as having been rehired.
man who is reprimanded may get credits reducing the
number; that these standards are used by the supervisors
plantwide and were written down somewhere; and that
"We terminate them when they reach 100 hours, that's
policy." Janssen also testified that the supervisor's record
of absences shows the reasons therefor, that medical leaves
of absence are not counted, that an employee disciplined
for absenteeism could get a very good rating if there were
extenuating circumstances as in the case of one employee
who had a terminally ill mother, but that that was an
isolated instance and absences generally are counted
whatever the reason.
Respondent's exhibit showing the reduction in quality
control personnel notes there were seven layoffs, one
discharge, two transfers, and "[an asterisk] designates lay-
off for discharge." There is an asterisk at Howard's name.
It also shows Howard with 10.5 absences, fewer than all
but one other employee. It lists as to Howard, in a column
headed disciplinary actions:
10/20/76 Reaading literature at work
station during working hra. 12/
10/13/75 careless performance
10/31/75 Poor inspection procedure.
3-day suspension
9/8/75 attendance
1/9/75 warning mneo of general performance
It also lists under performance review and other:
5/19/76
12/22/75
10/27/75
4/25/75
2.0:
2.12
review
deferred
5.02
- poor performance
-- poor performance-Discharge
- poor performnece
- improving good attendance
Janssen testified that, after the personnel reduction in
November, about 23 or 24 were left in quality control
inspection. He also testified that he considered a layoff
temporary and subject to recall, but a permanent layoff
was the same as a discharge and meant no intention to
recall. Janssen admitted, however, that one employee listed
as a permanent layoff was reemployed a month later, and
explained that it was because an inspector was needed on a
new program and, in reviewing the records of those
permanently laid off, that employee's "job knowledge and
background related to what we were looking for." He
testified that Howard's position had not been filled and
there were no plans to fill it, but that one position
terminated in November has been filled. He did not
indicate what the difference was in Howard's position and
the one that was filled.
Janssen testified that, if it were not for the directive to
reduce personnel in November, Howard "would not have
been terminated at that time, probably not"; that, when he
reviewed the records, "It came to light that he did have a
very bad work record, that, in fact, I was late in carrying
out termination." Janssen admitted that he knew at the
time of the termination that Howard was involved in the
91
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union campaign. As set forth above, Powers had comment-
ed in Janssen's office, at the time of the IBEW campaign,
that, "The office had been upset with Bob since they heard
he's been attending union meetings," and Janssen had
unlawfully criticized Howard for distributing union litera-
ture and curtailed his engaging in such distribution in the
future. The Union filed a charge on October 15, later
withdrawn, alleging this conduct of Janssen vis-a-vis
Howard to be violative of the Act. Howard was terminated
on November 2. About an hour after he began work on
that date, he was called to Janssen's office, where Don
Janssen gave him a note headed "For the Record," dated
November 2, signed by Janssen, stating that Howard "was
terminated this date after a review of his work history. A
recap of his work history is attached." He was also given
this one-page recap, listing reviews and reprimands, and
showing his hourly rate increases from $2.40 to $3.88. Don
Janssen told Howard that many employees were to be laid
off. Howard then asked when he might be called back, but
Don Janssen said he was terminated, not laid off, and
would not be recalled. Howard was the senior inspector on
the second shift and the only one discharged.
Concluding Findings
I found Howard a straightforward and believable
witness. The testimony of the Respondent's witnesses, on
the other hand, as well as many of the documents prepared
by the Respondent for the hearing herein, contains
numerous gaps, contradictions, and inconsistencies. Nei-
ther Powers nor Grundmayer was called to testify and Don
Janssen, the quality control supervisor, was not questioned
about Howard's selection for termination. I found Janssen,
quality control manager, a vague and unconvincing
witness, and his testimony contains many evasions and
improbabilities. I therefore credit Howard's testimony
where it is in conflict with that presented by the Respon-
dent's witnesses.
The record shows that Howard worked for over a year
under the supervision of Powers and during that time
received favorable reviews, raises, and a promotion and a
review after his work of a year found he was "doing good
job in seven areas he is covering. Progress in printed circuit
and welding area very good." After Powers was replaced
by Grundmayer, however, who knew, as did Janssen, of
Howard's attempts to organize the employees, Howard
received from Grundmayer and' Janssen a series of
unfavorable reviews and reprimands, including some that
were apparently not based on company rules, policies, or
standard procedures, and one for absenteeism of 32 hours
in 8 months although his overall attendance record was
admittedly excellent.' 3 I find, on the record as a whole, that
Grundmayer and Janssen prepared these reviews and
reprimands in an attempt to show that Howard's work and
attitude had deteriorated after a year of good work 14 and
to establish an "ostensibly legitimate basis" 15 for getting
rid of Howard, because of Howard's repeated attempts to
organize a union.
1:1 Gerald F Hinkle d/b/a Akron Noveltv Manufacturing Company, 224
NLRB 998 (1976): Curtin Matlheson Scientifir. Inc., 228 NLRB 996 (1977).
14 See Ajax Magnethermic Corporation. 227 NLRB 477 (1976).
No quality control employees were laid off in August.
The charge alleging unlawful action with regard to Howard
was filed in October. The department managers were
directed at the staff meeting on November I to effect a
further reduction in personnel. The earliest layoffs, limited
for the most part to the third shift, took place on November
5, and other layoffs thereafter. Howard, however, was
terminated by Janssen on November 2. The Respondent's
witnesses stated that quality control personnel were
employed, and would be laid off, in some ratio, variously
defined, to manufacturing personnel. Howard was termi-
nated before any manufacturing personnel were laid off.
Some employees were transferred to other jobs at the time
of the layoffs. The Respondent decided not to discharge
any of the 40 production employees, selected by supervi-
sors because of records showing disciplinary actions or
absenteeism, on the ground that most had corrected their
problems and the others did not appear to be "so different
from other people in that department."
There is no evidence that any consideration was given to
transferring Howard.' 6 There is likewise no indication that
Janssen, after examining Howard's record, gave any
consideration to the fact that Howard had been employed
over 3 years and received favorable reviews for over a year,
to the comments about improvement in his unfavorable
reviews, to his admittedly excellent attendance record, or
to the nature of some of the criticisms of Howard such as
the one for absences of 32 hours in 8 months. Instead of
considering such factors in Howard's favor, as was done in
regard to other employees, Janssen precipitately terminat-
ed Howard, a senior inspector, about an hour after he
began work on a Tuesday, the day after Sachs had directed
a reduction in force. I do not credit Janssen's testimony
that he suddenly discovered, on reviewing Howard's file,
that Howard's work performance, very good for over a
year, had deteriorated to the point that Janssen was
compelled to terminate Howard, a senior inspector,
summarily, and not in accord with the Respondent's usual
policies or practices.
The Respondent asserts repeatedly in its brief that
"Howard was discharged incident to an economically
justified reduction in force." Howard, however, although
the senior inspector on the second shift, was the only one
terminated, and the only plant employee terminated at this
time. Many of those laid off were later recalled, including
some who were laid off permanently, which the Respon-
dent's witnesses maintained was the same as discharge.
Howard, however, as a terminated employee, was ineligible
for recall. Howard's discharge followed shortly after
Janssen, as found above, had discriminatorily criticized
him for distributing union literature at the employee
entrance and curtailed his future distribution activities, and
after a charge was filed with the Board alleging this
conduct of Janssen to be violative of the Act.
I am convinced from the evidence in its entirety and find
that Howard was discharged because of his active role in
successive organizational campaigns by the IBEW and the
Union and because of the charge pertaining to Howard
15 Calcite Corporation, 228 NLRB 1048 (1977).
16 See Federal Yeast Corporation, 226 NLRB 1046 (1976).
92
HY-GAIN ELECTRONICS
filed with the Board, and that the Respondent's assertions
that the discharge was incident to the November reduction
in force or was based upon the Grundmayer-Janssen
reviews and reprimands are pretextual. In conclusion,
therefore, I find that the Respondent discharged Howard
because of his union activities and because he filed a
charge with the Board, in order to discourage activities on
behalf of the Union, and thereby discriminated against its
employees in regard to their hire or tenure of employment
in violation of Section 8(aX 1), (3), and (4) of the Act. 7 The
Respondent's motions to dismiss the complaint, made at
the hearing and in its brief, are accordingly hereby denied.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section 1, 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.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section 8(a)(l),
(3), and (4) of the Act, I find that it is necessary that the
Respondent be ordered to cease and desist from the unfair
labor practices found and from in any other manner
infringing upon its employees' Section 7 rights,' 8 and to
take certain affirmative action designed to effectuate the
policies of the Act.
As I have found that the Respondent discharged Howard
on November 2, 1976, and thereafter failed and refused to
reinstate him, because of his union activities and because
he filed a charge with the Board, in order to discourage
activities on behalf of the Union, in violation of Section
8(a)(l), (3), and (4) of the Act, the Respondent will be
ordered to offer Howard immediate and full reinstatement
to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and to make
Howard whole for any loss of pay he may have suffered as
a result of the discrimination against him, with backpay
computed on a quarterly basis, plus interest at 6 percent
per annum, as prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
" Eubank Tire Sales, Inc., 226 NLRB 1103 (1976): Hambre Hombre
Enterprises, Inc., d/ba Panchito's, 228 NLRB 136 (1977); Calcie Corpora-
tion, supra; Head Division, AMF, Inc., 228 NLRB 1406(1977).
Is N.L.R B v. Express Publishing Co.. 312 U.S. 426. 437 (1941); N L. R.B.
v. En twistle Manufacturing Compan,. 120F. 2d 532, 536 (C.A. 4, 1941).
19 In the event no exceptions are filed as provided by Sec. 102.46 of the
CONCLUSIONS OF LAW
I. The Respondent, Hy-Gain Electronics, is an employ-
er engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Union, Allied Industrial Workers of
America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Howard on November 2, 1976, and
thereafter failing and refusing to reinstate him, because of
his union activities and because he filed a charge with the
Board, in order to discourage activities on behalf of the
Union, the Respondent discriminated against employees in
regard to their hire or tenure of employment, and has
thereby engaged in unfair labor practices within the
meaning of Section 8(aX 1), (3), and (4) of the Act.
4. By promulgating and disparately enforcing an
unlawful solicitation-distribution rule, by imposing unlaw-
ful restrictions on distribution of union literature, and by
unlawfully assisting an antiunion employee committee, the
Respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, in violation of Section 8(a)(1) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
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:
ORDER ' 9
The Respondent, Hy-Gain Electronics, Lincoln, Nebras-
ka, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging, failing and refusing to reinstate, or
otherwise discriminating against any employees in regard
to their hire or tenure of employment, because of their
union activities or because they have filed charges with the
Board, in order to discourage activities on behalf of
International Union, Allied Industrial Workers of Ameri-
ca, AFL-CIO, or any other labor organization.
(b) Promulgating or disparately enforcing an unlawful
solicitation-distribution rules, imposing unlawful restric-
tions on distribution of union literature, unlawfully
assisting an antiunion employee committee, or in any other
manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to Howard immediate and full reinstatement to
his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges.
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
93
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make Howard whole for any loss of pay he may have
suffered as a result of the Respondent's discrimination
against him, in the manner 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 amounts of backpay due under the
terms of this recommended Order.
(d) Post at its premises in Lincoln, Nebraska, copies of
the attached notice marked "Appendix." 20 Copies of said
notice, on forms provided by the Regional Director for
Region 17, after being duly signed by the Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order what
steps the Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of Section 8(a)(1)
of the Act other than specifically found herein.
20 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National .abor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge, fail and refuse to reinstate,
or otherwise discriminate against any employees in
regard to their hire or tenure of employment, because
of their union activities or because they file charges
with the Board, in order to discourage activities on
behalf of International Union, Allied Industrial Work-
ers of America, AFL-CIO, or any other labor organiza-
tion.
WE WILL NOT promulgate or disparately enforce an
unlawful solicitation-distribution rule, impose unlawful
restrictions on distribution of union literature, unlaw-
fully assist an antiunion employee committee, or in any
other manner interfere with, restrain, or coerce employ-
ees in the exercise of the rights guaranteed in Section 7
of the National Labor Relations Act, as amended.
WE WILL offer Robert Howard immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
and WE WILL make him whole for any loss of pay he
may have suffered as a result of the discrimination
against him.
HY-GAIN ELECTRONICS
94