K & M Electronics, Inc.

National Labor Relations Board - Board Decisions

Mar 19, 1987

283 N.L.R.B. 279 (N.L.R.B. 1987)

K & M ELECTRONICS 279
K & M Electronics , Inc. and General Teamsters,
Chauffeurs, Warehousemen & Helpers, Building
Materials, Heavy and Highway Construction
Employees, Local Union #404, a/w Internation-
al Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America . Cases 1-
CA-23014 and 1-CA-23030
19 March 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS,
On 18 March 1986 Administrative Law Judge
Joel A. Harmatz issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed cross-exceptions and
a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings,' and
conclusions as modified, and to adopt the recom-
mended Order2 as modified.
We agree with the judge that the Respondent
violated the Act by prohibiting employees Le-
moinc and Csekovsky from soliciting employee sig-
natures on a union-prepared petition dealing with
toxic substances during their breaktime. The Gen-
eral Counsel excepts to the judge's failure to find
that the Respondent also violated the Act by dis-
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolution's unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cit. 1951).
We have carefully examined, the record and find no basis for reversing
the findings.
We find that on the particular facts of this case, the conduct for which
Dorothy Lemoine was disciplined, using threatening and profane lan-
guage to her supervisors, was not protected even assuming arguendo that
she was engaged in concerted activity.
The General Counsel excepted to the judge's failure to find that Twiss'
statement that "you girls would have to pay the consequences for trying
to get the Union in here" violated Sec 8(a)(1) of the Act. We find this
statement to be violative of Sec. 8(a)(1) as a threat of unspecified repris-
als. No additional remedy is necessary
The General Counsel moves to correct two inadvertent errors of the
judge. The motion is granted Thus, at fn. 28 of his decision, the judge
referred to G.C. Exh. "71." The correct exhibit number is "7." Also, in
the sixth paragraph of sec. 4,b,3 of his decision the judge referred to
"Cousmeau's" recent warnings. The correct reference is to "Lemoine's."
The General Counsel seeks a visitatorial clause authorizing the
Board, for compliance purposes, to obtain discovery from the Respond-
ent under the Federal Rules of Civil Procedure subject to the supervision
of the United States court of appeals enforcing this Order Under the cir-
cumstances of;the case, we find it unnecessary to include such a clause.
Accordingly, we deny the General Counsel's request.
We shall modify par. 2(a) of the judge's recommended Order to con-
form his reinstatement language to that customarily used by the Board
criminatorily enforcing its no-solicitation rule. We
find merit in this exception.
The record shows that the Respondent tolerated
a wide variety of solicitation activities without im-
posing discipline on any employee involved in
those activities. Gerald Fouche, the Respondent's
production manager, testified that the employees
operate a weekly numbers pool, with employees
buying a $1 ticket entitling them to a chance to
win the money collected if their number is drawn.
No discipline has been imposed on employees par-
ticipating in the pool and Fouche himself has pur-
chased tickets.
Linda Csekovsky testified without contradiction
that it seemed to her as if there was always some
type of solicitation going on. She specifically men-
tioned, in addition to the weekly numbers pool,
that employees solicited signatures for birthday and
condolence cards, and circulated mail-order cata-
logues for various items. Contributions to charita-
ble causes were also solicited and the employees
held a raffle at Christmas. Csekovsky testified that
many of these activities were conducted during the
employees' working time and that at least one su-
pervisor, Nicole Twiss, not only knew of the solici-
tation activities but also participated in them. We
conclude, by allowing the above-described types of
solicitation to take place while prohibiting employ-
ees Lemoine and - Csekovsky from soliciting signa-
tures on a union-prepared petition, the Respondent
has discriminatorily applied its no-solicitation rule
in violation of Section 8(a)(1) of the Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, K & M Electronics, Inc., Springfield,
Massachusetts, its officers, agents , successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Insert the following as paragraph 1(c) and re-
letter the subsequent paragraphs accordingly.
"(c) Discriminatorily enforcing its no-solicitation
rule."
2. Substitute the following for paragraph 2(a).
"(a) Offer Linda Csekovsky and Dorothy Le-
moine immediate and full reinstatement to their
former jobs or, if those jobs no longer, exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights and privileges
previously enjoyed, and make, them whole for any
loss of earnings and other benefits they may have
suffered as a result of the discrimination against
them, in the manner set forth in the remedy section
of this decision."
283 NLRB No. 43'
280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these
rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT interfere with, coerce, or restrain
you in the exercise of your right to form, join, or
assist General Teamsters, Chauffeurs, Warehouse-
men & Helpers , Building Materials, Heavy and
Highway Construction Employees, Local Union
#404, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, or any other labor organization, by threatening
reprisals, including plant closure, in retaliation for
union activities.
WE WILL NOT preclude you from engaging in
solicitation protected by Section 7 of the Act on
nonworking time.
WE WILL: NoT apply our no-solicitation rule in a
discriminatory manner.
WE WILL NOT discourage you from joining or
assisting the above-named, or any other, labor or-
ganization by discharging you or otherwise dis-
criminating against you with respect to your
wages, hours, or terms, conditions, or tenure of
employment.
WE WILL NOT discourage you from engaging in
concerted protected activity under Section 7 of the
Act by issuing formal warnings, or in any other
manner discriminating with respect to your wages,
hours, or any other terms or conditions or tenure
of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Linda Csekovsky and Dorothy
Lemoine immediate and full reinstatement to their
former positions or, if those positions no' longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or
privileges previously enjoyed, and WE WILL make
them whole for any loss of earnings and other ben-
efits they may have suffered by reason of our dis-
crimination against them, less any net interim earn-
ings, plus interest.
WE WILL notify Linda Csekovsky and Dorothy
Lemoine that we have removed from our files all
reference to both an oral warning issued to them
concerning their circulation of a hazardous materi-
als petition and their discharges, notifying them
specifically that this has been done and that these
unlawful disciplinary actions will in no way be
used against them in the future.
K & M ELECTRONICS, INC.
Avrom Herbster, Esq., for the General Counsel.
Dennis P. Powers, Consultant (Sheridan & Associates, Inc.),
of Holyoke, Massachusetts, and Albert R. Mason, of
West Springfield , Massachusetts, for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This
proceeding was heard in Springfield, Massachusetts, on
18, 19, and 20 November 1985, on an original unfair
labor practice charge filed 28 February 1985, and a con-
solidated complaint issued 4 ' September 1985, alleging
that K & M Electronics, Inc. (Respondent) independent-
ly violated Section 8(a)(1) of the Act by imposition of
unlawful restrictions on union activity and threats of un-
specified reprisals, as well as plant closure. The com-
plaint further alleged that Respondent violated Section
8(a)(3) and (1) of the Act by issuing disciplinary warn-
ings to employees Linda Csekovsky and Dorothy Le-
moine, by suspending and then discharging them, and by
imposing more onerous conditions of work in retaliation
for activity on behalf of the Union. ' In its duly filed
answer Respondent denied that any unfair practices were
committed. At the close of the hearing, briefs were filed
on behalf of the General Counsel and Respondent.
On the entire record in this proceeding; including con-
sideration of the posthearing briefs, and my opportunity
directly to observe the witnesses while testifying and
their demeanor,2 it is found as follows
i At the hearing allegations of discrimination pertaining to Stephen
Miller were deleted from the complaint pursuant to an amicable adjust-
ment
2 Credibility rulings are based on demeanor, context, and probability.
As shall be seen, from time to time objective rationale is offered in sup-
port thereof. This should not be construed, however, as discounting the
firsthand impressions gained from my presence in the courtroom and my
opportunity to observe the witnesses directly. Moreover, it is not my in-
tention to lather, in this decision, each and every testimonial item and,
accordingly, testimony, whether or not contradicted, is to be taken as re-
jected to the extent that it is irreconcilable with expressly credited find-
ings and ultimate conclusions made herein
K & M ELECTRONICS 281
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with a place of business in
West Springfield , Massachusetts, from which it is en-
gaged in the manufacture of high voltage miniature elec-
tronic components and cable interconnect systems.
During the calendar year ending April 1985 , a represent-
ative period , Respondent in the course of its operations
sold and shipped from its facility products , goods, and
materials " valued in excess of $50,000 directly to points
outside the Commonwealth of Massachusetts , and pur-
chased and received at that facility products , goods, and
materials valued in excess of $50,000 directly from points
outside the Commonwealth of Massachusetts . The com-
plaint alleges, the answer admits, and it is found that Re-
spondent is now, and has been at all times material, an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.'
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges , the answer admits, and it is
found that the Charging Party is a labor organization
within the meaning of Section 2 (5) of the Act.
HI. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Statement
The issues in this case are essentially factual. Respond-
ent's production and maintenance employees have no his-
tory of collective bargaining. An initial organization
campaign was waged among them beginning in late
winter 1985 . Pursuant to a petition filed in Case I-RC-
18384, an election was held on 28 March 1985.3 The
Union was rejected by a narrow margin ; 168 voted for
representation , 170 against , and 2 cast nondeterminative
challenged ballots . No objections were filed.
The allegations of coercion , and discrimination draw
their essence from treatment of employees Linda Cse-
kovsky and Dorothy Lemoine, both prior to and after
the election, during the period February through June
1985 . ]Both were good workers , having enjoyed an em-
ployment record that demonstrated quality output at
high levels of productivity . They also were key support-
ers of the Union . Their discharges, some 3 months after
the election , give rise to the issue of greatest remedial
concern in this proceeding.
B. Concluding Findings .
1. The right-to-know petition
Apparently in early 1985 Respondent's employees re-
ceived training, as required by state law, with respect to
toxic or hazardous substances. The quality of this train-
ing was subsequently questioned by employees. With
support of the Union a petition was prepared through
which employees were to express their objections.4 Sig-
natures were to be obtained by teams of two employees
in each department , who would solicit coworkers.
The alleged discriminatees , Csekovsky and Lemoine,
worked in the prep department . Their supervisor was
Nicole Twiss. Csekovsky and Lemoine were the team re-
sponsible for circulation of the petition in Twiss' depart-
ment. Twiss had been among management representa-
tives who provided the training required by the hazard-
ous substance program . Accordingly, her role therein
was subject to attack by the petition.
In late February Lemoine and Csekovsky , during the
morning break, showed that document to a coworker. As
the coworker read the petition, Twiss intervened stating,
"[T]hat cannot be allowed ." Lemoine argued that 3 min-
utes remained on the break, whereupon Twiss admon-
ished, "[T]his cannot be done in the prep department."
Approximately 10 minutes after returning to their
work stations , Csekovsky and Lemoine were summond
to the office of Twiss, where they were told that the pe-
tition in question could not be distributed on company
time. Twiss produced a copy of the employee handbook,
referring the employees to the following rule that she
had highlighted in yellow:
2. No employee may distribute , post, or circulate
any leaflets, circulars, pamphlets, objects or any
other material during his or her working time or
during the working time of any other employee to
whom the material is directed . Employees may not
distribute literature at any time in any working area
of the Company. &
When the employees again observed that they had not
solicited signatures on company time , but did so on
break, Twiss told them that such activity was barred on
company 'property, unless pursued in the cafeteria.
The General Counsel does not argue that the rule set
forth in Respondent 's handbook is presumptively unlaw-
ful. Rather , it is the General Counsel 's premise that
Twiss implemented an overly broad application by sub-
jecting what clearly appears ' to have been employee "so-
licitation," to the more restrictive rules governing "dis-
tribution."
The factual issues are limited . The account of Twiss
does not contradict the testimony of Csekovsky and Le-
moine that the solicitation occurred during a break.6
Moreover, Respondent does not seriously • contest the
fact that circulation of the petition , challenging safety
and health conditions on the job, was protected by Sec-
tion 7 of the Act. Accordingly , undisputed facts show
that Twiss informed the employees that such conduct
was prohibited in working areas, an expression that con-
veyed clearly that the prohibition remained in force even
when the conduct was pursued - on breaktime. This
amounted to an unlawful intrusion on statutory rights.
As recently stated by the Board in National Semiconduc-
tor Corp., 272 NLRB 973, 974 fn . 6 (1984):`
S Unless otherwise indicated all dates refer to 1985
4 See G .C. Exh 15
5 See R. Exh. 3, p 17.
6 To the extent that Respondent contends otherwise , its position is not
confirmed by my reading of the record
282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
[A], rule prohibiting solicitation on employees' own
time is presumptively invalid.
[C]irculation of the petition constitutes solicitation,
not distribution. We see no difference between seek-
ing signatures on a petition rather than an authori-
zation card, which the Board has long held to con-
stitute solicitation.
Accordingly, by the extension of the no-distribution rule
to limit solicitation during break periods, without evi-
dence that such a broadened limitation was justified by
special circumstances, Respondent violated Section
8(a)(1) of the Act.7 See Republic Aviation Corp. v. NLRB,
324 U.S. 793 (1945); Stoddard-Quirk Mfg. Co., 138 NLRB
615 (1962).
In consequence of this same transaction, the complaint
also alleged that Respondent violated Section 8(a)(3) and
(1) of the Act through issuance `of disciplinary warnings
to Csekovsky and Lemoine. This allegation is subject to
a conflict in testimony. Both Lemoine and Csekovsky
testified that Twiss closed the aforementioned meeting
by informing the employees that she was giving them a
verbal warning, and that the next time they would get a
written warning. Twiss denied issuing any form of disci-
plinary warning on the occasion in question. She admits,
however, to preparing a written account of the events of
26 February that recited as follows: -
Dottie Lemoine . . . and Linda Chekovsky [sic]
... were over by Joyce Robins asking her to sign
a petition at end of break 9.30 in prep area. I told
them both at that time that break was over, to go to
work. I called them in my office a few minutes later
and told them [Linda & Dottie] that they could not
solicit, ask people to sign things pass out anything
on Co. time, or in any company work area. That
this could only be done on their time, in cafeteria,
and a written warning could follow. Told them to
read the K&M employee hand-book. Dottie got
quite verbal and said she could do that meaning she
could have people sign . . . in work-area as long as
she was on her time. I then went & made a copy of
the page [17] in K&M hand book [sic], highlited
[sic] it, and gave them each a copy.
N. Twiss8
7 The General Counsel alternatively contends that even if Twiss had
engaged in a legitimate application of the rule, the rule itself would have
been discriminatorily enforced in view of Respondent' s permissive stance
with respect to other forms of solicitation This view is premised on testi-
mony by, Csekovsky that in the presence of Supervisor Twiss, and with
her knowledge, employees during working time, with impunity, had from
time to time contacted coworkers for the purpose of conducting raffles,
sending condolence or sympathy cards, selling candy for chartable
causes, circulating mail-order catalogues, and soliciting participation in a
gambling pool. The testimony of Csekovsky in this regard fails to con-
vince me that the aberrations described, even if condoned by a low-level
supervisor, were sufficiently widespread and pervasive to require a statu-
tory application that would require management to permit union activity
dung working hours in working areas on pain of violating the Act
should it make any attempt to regulate or curtail such conduct. See, e.g.,
Famous-Barr Co., 174 NLRB 770 (1969), Emerson Electric Co., 187
NLRB 294 fn 2 (1970), Serv-A,r. Inc., 175 NLRB 801 (1969); and Atkins
Pickle Co., 181 NLRB 935 (1970).
8 See G.C. Exh. 13.
According to Twiss, she retained this written record
of the incident in her desk, considered it a personal
memorandum, and not part of the disciplinary record or
file of either Lemoine or Csekovsky.9 In any event, that
document on its face confirms the testimony that the em-
ployees were told "a written warning would follow."
Considering the fact that under Respondent's progressive
system of discipline, a written warning would necessarily
follow a verbal one, at the very least, Csekovsky and Le-
moine could rightfully assume that an oral warning was
intended. Beyond that, however, when their testimony is
weighed in context of Respondent's progressive discipli-
nary system, they are entitled to the benefit of any
doubt. Based on their credited testimony, it is found that
Respondent violated Section 8(a)(3) and (1) by issuing an
oral warning because Csekovsky and Lemoine, during'a
break, had solicited a signature to a safety petition, con-
duct that is protected by Section , of the Act.
2. Threats of reprisal
Supervisor Twiss and Csekovsky often drove to work
together. Prior to the advent of the Union, they were on
friendly terms, having shared trips to the laundromat and
shopped together. According to Csekovsky, after circu-
lation of the hazardous materials petition, Twiss changed
her attitude toward Csekovsky. A week or^ so later, no-
ticing that Twiss had acted coldly toward her, Cse-
kovsky asked Twiss if it would be better if she got a ride
with someone else, Twiss expressed that it would be,
adding that she never thought that Csekovsky would
turn out to be a "back stabber." When, Csekovsky asked
what Twiss meant, the latter explained, ". . . you passed
out that chemical petition knowing damn well that I was
in charge of it, and you made me look like a jack-ass and
I won't forgive you for that." When Csekovsky attempt-
ed to explain that her belief about the lack of adequate
training was not something that she held individually,
but one commonly shared among employees, Twiss
stated, ". . . that is all right . . . I don't forget people
that stab me in the back." Twiss' attention next turned to
the Union. She told Csekovsky that a union had put her
prior employer, TRW, out of business and that-if a union
came in at Respondent, the employees "would have' to
pay the consequence just like the employees at TRW,"
adding that "Mr. Mitchell would shut the plant down
before he would allow a union in there."
The above was undenied. Based on Csekovsky's cred-
ited account, it is concluded that Respondent, through
Twiss, violated Section 8(a)(1) of the Act by the threat
implicit in her unwillingness to forget "back stabbers" or,
in other words, those who engage in activity protected
by the Act, and by her references to undefined retalia-
tion and plant closure in the event of unionization.
9 Respondent maintains a progressive system of discipline As de-
scribed by Gerald Fouche, Respondent's production manager, dual sys-
tems for culpable or nonculpable offenses exist, with each triggered by a
verbal warning, then a written warning, followed by suspension and dis-
charge
K & M ELECTRONICS 283
3. The imposition of more onerous conditions of
work
The General Counsel contends that about 4 April Re-
spondent, through Supervisor Twiss, imposed more oner-
ous conditions of work as a reprisal for union activity
among employees in her department, and that Respond-
ent thereby violated Section 8(a)(3) and (1) of the Act.
This claim of discrimination stands essentially on the tes-
timony of Csekovsky and Lemoine. Of major import to
the issue is a segment of Respondent's published hand-
book, which states as follows:
4. No employee may leave his or her assigned
work area during working time without the specific
approval of the Supervisor.)
Twiss admitted that on 4 April she discussed the
above rule with employees in her department. This was
only a week after the Union had failed, albeit narrowly,
to achieve majority designation. Employees at the time
were reminded , according to Twiss, that they were to
inform her before leaving their work area.
The General Counsel's contention rests on evidence
that this was a "turn-about" from preelection conditions.
Thus, Csekovsky testified that prior, to the election, the
above rule was not enforced with respect to trips to the
restroom and to the cafeteria to obtain coffee. Most criti-
cal, however, to the assessment of discrimination is Cse-
kovsky's further testimony that on 4 April, when Twiss
came out of her office to discuss the rules, she called the
women in the prep department together, stating, "OK,
you girls didn't like the way things were done before
... now we are going to go by the book." 11 Twiss as-
sertedly added, "nobody was to leave the department
without asking permission, and [employees] could not go
up for coffee any more ...."
Lemoine testified she never had to ask permission to
go to the bathroom previously,12 adding that prior to
the election she would take orders' for coffee and snacks
from other girls in the department and, with another girl,
would repair to the cafeteria, taking 10 to 15 minutes,
each day. Twiss, herself, according to Lemoine, had par-
ticipated in this practice. Lemoine summed up the atmos-
phere created by Twiss on 4 April in the following terms
10 See R. Exh. 3, p. 17
11 Although undemed, the testimony imputing this remark to Twiss
was uncorroborated. Lemome's version of the meetings of 4 April was a
little different from that of Csekovsky. The former averred that Twiss
came out of her office with Terry Fouche, and called the girls together,
stating- "No more going upstairs for coffees. No more going to the bath-
room, and definitely no more using the phone." Cseko 'sky was not an
impeccable) witness. At times she seemed prone toward argumentation
and a desire to present facts beyond her knowledge in a most prejudicial
fashion. In this instance I did not believe her uncorroborated testimony I
think it more likely that the absence of contradiction in this respect was
attributable to oversight, rather than indicative of any implied attestation
to Csekovsky's'veracity.
12 As shall be seen, the next day Ledioine confronted Production Man-
ager Gerald Fouche and Twiss, complaining bitterly about "any" require-
ment that she ask permission to go to'the bathroom. In the process, Le-
moine admittedly was corrected by Fouche who stated, "calm down,
Dottie you don't have to ask to go to the bathroom . just come
out, and ask, could you please leave the department, when you need to
go 11 With this clarification, Lemoine acknowledged that she felt that this
was "no big deal" and left
".:. in other words, you couldn't leave the department
without asking permission."
Twiss testified that on 4 April she went to the separate
work areas of the employees in her department, and
talked to them in groups of three and four. She claims to
have reminded them of the abuse of rules governing
their failure to notify her when going to the bathroom or
using the phones, and their eating at their work, stations.
She denied telling the employees that they had to ask
permission to leave the department and, on the other
hand, claims to have simply informed them that they had
to let her know where they were going; when they left.
Twiss admittedly told employees that the practice de-
scribed by Lemoine, whereby employees would take
orders from coworkers and leave their work area to get
coffee and snacks from the cafeteria, would no longer be
permitted 13 Instead, employees were told that if they
wished to obtain a cup of coffee themselves, on the way
back from the ladies' room, or after letting Twiss know
where they were going, they could do so.
At the same time, Production Manager Gerald Fouche
credibly testified that employee absences from work
areas had been a recurrent problem in the plant. He as-
serted further that difficulties in policing and enforcing
the preestablished rule intensified in March 1985 when a
layoff eliminated group leaders, leaving supervisors, such
as Twiss, to assume full responsibility for monitoring em-
ployees who leave their work area for one reason or an-
other. Consistent therewith, Twiss testified that her
action on 4 April was provoked by abuses that had come
to her attention. Her testimony in this respect was per-
fectly plausible and is credited.14
On balance, the credible evidence merely establishes
an attempt by Twiss on 4 April basically to admonish
employees of their obligation to inform her when leaving
the department. Although Csekovsky and Lemoine sug-
gest that, during the period preceding the election, man-
agement was lax in this respect, it is difficult to imagine
that a work rule of this type was ignored to the point of
falling into abandon. Respondent's written restriction in
this respect had been promulgated by the Company in
advance of any union activity. Neither that rule, nor the
reminders were atypical of demands routinely made on
employees in an industrial setting . As a general proposi-
tion, restrictions on movement by production employees
from their respective work stations are inherently neces-
sary to the maintenance of plant discipline and efficiency.
The effort by Twiss to this extent was perfectly legiti-
mate and inoffensive to Section 7 rights. Twiss did, how-
ever, go beyond the published rules in curtailing the
practice of "order taking," leaving employees to the task
of obtaining coffee and snacks individually. Nonetheless,
13 Twiss admitted that this admonition was not supported by anything
in Respondent's established rules.
14 Moreover, I am convinced that employees merely were told that
they would have to inform Twiss about their whereabouts when leaving
the work area Insofar as Csekovsky and Lemoine testified that employ-
ees were told that they would have to obtain permission before going to
the bathroom, and no longer could obtain coffee from the cafeteria, these
references were considered unreliable, as based on exaggerated interpre-
tation of what was said,'rather than the words actually used by Twiss In
this instance, the testimony of Twiss was preferred.
284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I am unpersuaded by the General Counsel's claim that
this latter innovation, isolated as it was, amounted to a
reprisal for union activity. From the fact that Lemoine
and Csekovsky were known union sympathizers, it does
not follow, logically, that Twiss would incur the wrath
of an entire department after defeat of the Union in a
close election, by taking a step offending all 26 employ-
ees in her department, irrespective of their sentiment on
the issue of representation. In the circumstances, it is
concluded that Twiss' course of action on 4 April was a
legitimate exercise of the supervisory function and not
based on considerations other than a desire to maintain
discipline in her department as dictated by published
rules and her own judgment. The 8( a)(3) and (1) allega-
tions in this respect `will be dismissed.
4. The warnings, suspensions, and discharges
a. The discharge of Csekovsky
Csekovsky was terminated on 21 June 1985. Prior
thereto, she recently had survived deep layoffs, as an
employee of more than 2 years in a department that had
experienced`a high degree of turnover. She was regarded
by management as an` excellent employee, with a good
record in the areas of productivity and quality. 115 She
was a known union supporter. Her involvement in the
organization campaign was manifested by attendance at
union meetings, brandishment of union buttons , and dis-
tribution of union authorization cards. It will be recalled
that she, together with Lemoine, distributed a petition
that originated with the Union and was critical of the
Company's approach to educating employees concerning
hazardous materials, an activity that provoked Twiss, her
supervisor, to refer to her as a "back stabber," an accusa-
tion that Twiss proclaimed would not soon be forgotten.
In late May, Csekovsky sustained an on-the-job injury,
losing 3 weeks' work. She returned on 17 June. Follow-
ing her return, she spent most of her time performing
prep-work on "shot gun" cables. On the third day, 19
June, Csekovsky spent the entire day in this fashion.
Events, that day, according to Respondent's proffer, gave
rise to the cause of her discharge.
Central to the assigned reason for the discharge is the
so-called timesheet prepared by Csekovsky at the end of
that day. Routinely, such a document is completed by
employees at termination of their shift. Each worker ' is
expected to enter the daily units produced. The final
count was often amended by the employee who would
strike the original entry and substitute a new figure.16
1s In his brief, counsel for the Respondent asserts that Csekovsky was
not an "admirable worker," in that "she had to be disciplined for attend-
ance problems . . " It is true that some time back Csekovsky had been
called down in this respect. However, this was the only negative mark on
an otherwise highly positive employment record. According to Fouche,
who allegedly made the decision to discharge Csekovsky, the latter had
made "good progress" in correcting the attendance problem prior to her
discharge Indeed, Fouche related that he considered Csekovsky to be
"an excellent employee."
16 There was nothing sinister in the practice of changing output tallys
in this fashion. Blank worksheets are available, affording- employees the
option of discarding a timesheet with any errors, while replacing it with
a clean, new sheet. The practice of correcting, miscounts on the sheet
itself or obtaining anew copy would seem to be a matter of employee
preference and convenience.
Csekovsky, in accounting for her production on 19 June,
twice corrected her entries, thus, recording three differ-
ent counts of her output. These adjustments on her time-
sheet triggered her suspension and discharge on the
ground that they were pursuant to a deliberate attempt
on the part of Csekovsky to falsify the output finally re-
flected on the document.
According to Twiss, the events leading to the termina-
tion of Csekovsky unfolded early in the morning on 20
June. Twiss claims to have reported for work at approxi-
mately 6 a.m. that morning, 1 hour before the scheduled
appearance of employees in her department. In the proc-
ess of an apparently routine review of the 19 June time-
sheets, she, noticed that Csekovsky "scratched off a
couple of times on her count," and hence assumed that
Csekovsky had a problem. For this reason , according to
Twiss, she elected to seek out and physically count the
units produced by Csekovsky the previous day.17
Accordingly to Twiss, she and Robin Gagne, between
6 and 6:20 a.m., made the count. Twiss claims to have
examined the previous day's output that could be located
in the prep department and the crimping department, the
next step in the production process. She claims to have
checked production tickets attached to finished bundles
of shotgun cables, finding cards bearing Csekovsky's pro-
duction number on only 38 pieces. According to Twiss,
rework was also checked, with none bearing evidence
that it had been worked by Csekovsky.
Twiss, who professed to have had other problems with
Csekovsky's performance on 19 June, after the check on
20 June, at approximately 7:15 a. m., met with Csekovsky.
According to Csekovsky in the course of this conversa-
tion she was lectured by Twiss about her behavior the
previous day. When Twiss mentioned that her count was
off, Csekovsky claims to have responded with a denial,
indicating that she was conscientious in making the
count, that she had done so three times and was certain
that the figure 45 was' accurate. When Twiss indicated
that she had come up with 38, Csekovsky denied that
that was possible. Csekovsky, claims 'to, have requested
that she and Twiss go out and again count the cables.
Twiss responded, "No, it is not necessary."18 According
17 Twiss testified that in her experience she would find corrections are
made by an employee on at least one timesheet per day. She conceded
that such revisions would not always trigger an actual count of pieces
produced. She explains that Csekovsky's case was unique in that there
were two crossouts and three entries indicating that Csekovsky was not
sure what she had produced., Significantly, Twiss maintained that Cse-
kovsky's first entry looked like 70, the second 50, compared with the
final entry of 45. This reading of the timesheet by Twiss, later shared by
Production Manager Fouche , struck as so unfair as to stand among nu-
merous questions concerning the genuine nature of the defense For,
having examined the original document, the figure originally entered by
Csekovsky was obliterated beyond recognition; it could have been a
seven, a five, or a four No one could be sure and the suggestion other-
wise reflected an argumentative posture, lacking in objectivity.
18 Respondent's brief states with respect to the above that "Ms. Twiss
denies that such a request was made " (See Respondent's posthearing
brief, p. 17, item 5.) On my reading of the testimony, no such denial ap-
pears I believed Csekovsky in this respect The refusal to permit such a
recount is another factor affecting the bona fide nature of management's
action in her case Obviously, throughout a given workday, product is in
a fluid state and an attempt, the next day, to locate the entirety of an
employee's output, particularly when unassisted by the producer, would
Continued
K & M ELECTRONICS
to uncontroverted testimony by Csekovsky, she then re-
minded Twiss that problems between them had not de-
veloped until her involvement with the Union. Twiss
next reiterated her prior warning, stating: "You girls
would have to pay the consequences for trying to get
the Union in here."19
Twiss next prepared a reprimand 'concerning Cse-
kovsky's alleged behavior on 19 June that stated:
Shotgun cables-wrote 45 pcs. on time sheet-
actual 38 according to tickets-talks too much, ex-
cessive, slows other people down.- Made her move
to another table.- '
Also Shotguns when I checked on . . . 1 [inch]
strip was way off-had to re-measure & glue them.
Signature Twiss[s]
Written warning 6/20/8420
Twiss next attempted to clear the reprimand with
Fouche, who, in turn, submitted it for review by the per-
sonnel department. Both Twiss and Fouche concede that
prior to the submission of the proposed warning to per-
sonnel,2 i neither had considered the possibility that Cse-
kovsky might have deliberately falsified her timesheet,
and hence "discharge" was not considered by them.
Indeed, the reason they gave for the request for repri-
mand was grounded solely on "poor workmanship."
Gail Pike, Respondent's personnel manager, reviewed
the request and recommended, inter alia, that a possible
falsification of company documents be pursued.22 After
Fouche conferred with personnel, he elected to suspend
Csekovsky "pending investigation of falsification of
records." Twiss testified that she learned of his intent
"sometime before 9 o'clock" when Fouche called her
from the personnel office. He at that time made his initial
request to see a copy of the time'sheet and informed
Twiss that "we were going to suspend Linda for falsifi-
cation, pending further investigaton."
Fouche apparently made the decision to discharge the
next day. This discharge was based on an investigation
seem a risky chore. On the other hand, a recount with the aid of the indi-
vidual actually responsible for the production would enable explanation
for any missing units, verification by the affected employee, and a far
more reliable basis for sorting out any discrepancy Tvviss' posture in this
respect was remarkably similar to the disinterest shown by other high
level management officials in taking 'any steps that might lessen the justi-
fication for discharge of both Csekovsky and Lemoine
19 Despite disbelief of Csekovsky, in other areas, in this respect, I be-
lieved her and accept her unrefuted testimony -
2° See G.C. Exh 9. Twiss' proposed warning itself included an impor-
tant inaccuracy, which carelessly overstated the facts underlying her ac-
cusations against Csekovsky, Thus, contrary to the mepio, Twiss conced-
ed that she did not move Csekovsky to another table, but merely threat-
ened to do so. The move was avoided because `Csekovsky "kept her
mouth shut." The inaccurate reference would naturally inflame, falsely,
any problems attributable to Csekovsky, and raises questions about the
dependability of Twiss' reports that day
21 Under Respondent's practice, to assure consistency, requests for dis-
cipline are first cleared by the personnel department
22 Pike admitted at the time that she had no knowledge regarding
whether any falsification within the meaning of Respondent's work rules
had occurred. Insofar as 'appears, her suggestion was founded solely on
the content of the proposed reprimand Listed in the employees' hand-
book as a prohibited action is the following "Falsifying any reports or
records, including personnel, absence, sickness and production records "
(R. Exh 3, p. 46.)
285
assertedly consisting of examination of Csekovsky's pre-
vious records, her' timesheet of 19 June, and Fouche's
further conferring with Twiss and Robin Gagne.23
Fouche failed to direct a double check of the count al-
legedly made by Gagne and Twiss, nor was there any
other effort to verify the accuracy of that count. Cse-
kovsky's coworkers were not interviewed and it does not
appear that a single item of additional evidence was de-
veloped. The conclusion that Csekovsky had deliberately
falsified rested on no more than what appeared in Twiss'
original memo . Yet, interestingly enough, neither Twiss
nor Fouche viewed those facts as suggesting deliberate
falsification at the time the request for reprimand was
forwarded to personnel.
In the case of Csekovsky, the General Counsel has
successfully carried the initial burden under Wright
Line.24 Csekovsky was one of the more active propo-
nents of the Union. Her support was openly manifested
and known to both Twiss and Fouche. Her discharge
came 3' months after a close election in which the Union
narrowly missed designation , and followed unlawful
warnings issued by Supervisor Twiss in response to Cse-
kovsky's attempt to engage in activity protected by the
Act as well as a reminder as late as 20 June that those
responsible for union organization would have to face
the consequences. In these circumstances, the evidence
convincingly establishes that protected conduct was at
least "a" motivating factor in the Employer's decision to
eliminate this union protagonist.
Under established precedent the inference arising from
the General Counsel's prima facie case is subject to re-
buttal only by evidence that persuades "by a preponder-
ance . that the same action would ' have taken place
even in the absence of union activity." See Roure Ber-
trand Dupont, Inc., 271 NLRB 443 (1984); Centre Proper-
ty Management, 274 NLRB 190 (1985). Respondent has
failed to meet this burden. Instead, the defense from
corner to corner convincingly demonstrates that "the as-
serted justification is a sham in that the ... circum-
stance advance by the employer did not exist." 251
NLRB at 1084; NLRB v. Charles Batchelder Co., 646
F.2d 33, 39 (2d Cir. 1981); Pearcy Co. v., NLRB, 648 F.2d
460, 462 (7th Cir. 1981).
Falsification is a serious allegation That not only is a
dischargable offense, but one that carries a career-damag-
ing connotation of criminal behavior. Even the above-av-
erage employee's future employment opportunities would
be narrowed by such a blemish. Fouche himself would
decline to, hire such an individual.' Yet, Csekovsky, who
was not reputed to be untrustworthy or dishonest, was
terminated on this ground even though evidence of any
intent on her part to mislead or to falsify was totally
23 Insofar as can be ascertained, Fouche spoke with Gagne to confirm
Twiss' report that the shotgun cables had been counted three tunes and
that another department had been examined for tickets bearing Cse-
kovsky's clock number Gagne, herself, did not testify . There is no expla-
nation of her presence at the plant between 6 and 6:20 a .m on 19 June,
well in advance of the start of the shift On Twiss ' own account it does
not appear that the attempt to inventory Csekovsky's output of the previ-
ous day took an excessive amount of time
' 24 Wright Line, 251 NLRB 1083, 1089 (1980) NLRB v. Transportation
Management Corp, 462 U S. 393 ( 1983).
286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
absent . At best, from all that Respondent knew an inno-
cent error in tabulation had occurred. Moreover, Cse-
kovsky's acknowledged record for high productivity, the
absence of an incentive system, and the fact that the job
she performed on 19 June was unrated were known to
Fouche at the time of discharge, obscuring any assump-
tion that she had something to gain.25 Fouche, whose
testimony in this area seemed defensive and of a shifting
nature, himself related that there would be no need for a
productive employee to conceal faulty production be-
cause faulty production occurs throughout the plant, is
subject to certain tolerances, and hence only notorious
offenders risk discipline on this basis.
The motive underlying the baseless accusation against
Csekovsky was complemented by Fouche's so-called in-
vestigation. For, it represented too conspicuous an at-
tempt to avoid delving into exculpatory, areas that might
detract prom the serious charge leveled at Csekovsky.
Gagne was the only employee he claimed to have inter-
viewed. Although Csekovsky, by Respondent's own esti-
mate, was an excellent worker, she was neither ques-
tioned nor offerred an opportunity to explain her actions
or entries on the timesheet. In this regard Fouche depart-
ed from his own formula for conducting investigations.
For by admission, he . would talk to the employee in-
volved "if there is something I don't understand or is not
clear." As he put it:
If it was not clear to me, based on the facts that
were presented, whether an employee had done
something or not, I would probably question the
employee myself.
The accuracy of the severe cause under consideration in
the case of Csekovsky could not have been clear to
Fouche. For he admitted that there was no direct evi-
dence of deliberate falsification. His own explication for
his deduction that this, nevertheless, was the case, as set
forth in the following colloquy with the General Coun-
sel, firmly portrays the dubious foundation for his
charges against Csekovsky:
GENERAL COUNSEL: When you got General
Counsel's Exhibit 11 [Csekovsky's 19 June time-
sheet] did you make a determination that there had
been a falsification of records? -
MR. FOUCHE: I was of the opinion that there cer-
tainly was a strong possibility of it when I saw that.
Yes.
Q. And it was something on the sheet that made
you believe that there was a falsification of records?
right?
A. It was a combination of that timesheet and my
knowledge of Linda as a worker.
Q. What was your knowledge of Linda as a
worker?
25 A "nonrated" job, under plant policy, would not have been factored
into the efficiency data kept by Respondent and would in no sense influ-
ence Csekovsky's record Production on such a job would not influence
earnings. Finally, conjecture that she had something to gain is obscured
further by the fact that Csekovsky's overall production record was so
good that Twiss herself would have been surprised if Csekovsky had
been concerned as to a short fall in output on 1 day.
A. I had found Linda to be a very capable
person. In fact, on some _of her employee evalua-
tions you can see where I praised her very highly.
If you understand the cable that we're talking
about, its uniqueness and it's totally different
method of bundling, as opposed to other cables that
we produce. It's very unlikely, in my opinion, that
Linda could make a mistake unknowingly like this.
There's nothing else it could be than deliberate.
On this specious reasoning, a prounion employee with a
good work record was terminated. At the time, Fouche
must have known that the discrepancies on the timesheet
might have been attributable to a miscount on the part of
Csekovsky, or Twiss, a number of factors that could
have defeated the accuracy in Twiss' day-late, after-the-
fact inventory.26 Moreover, it is difficult to imagine how
Fouche, in good faith, could have reasoned that the
crossouts, the nature of the product, or the ability of the
employee supported anything other than a possible inno-
cent error.
On the basis of the totality of the credible evidence,
the conclusion is inescapable that Fouche's assignment of
an unfounded, yet gravely serious, cause for discharge
might be explained only in terms of a crude, but trans-
parent, attempt to overreach and contrive a passable
ground for eliminating a known union supporter, and to
give meaning to the Twiss warning of 20 June that union
supporters "would have to face the consequences." Ac-
cordingly, in terminating Linda Csekovsky on 21 ' June
1985, Respondent has failed to show that this would
have occurred absent Csekovsky's involvement in pro-
tected activity, and it is concluded that Respondent
thereby violated Section 8(a)(3) and (1) of the Act.
b. The alleged discrimination against Dorothy
Lemoine
(1) Preliminary statement
Dorothy Lemoine was terminated on 27 June, a week
after the discharge of Csekovsky. Like Csekovsky, she
26 In furtherance of the defense, Fouche claims to have recalled that
he had discharged another employee, Carlena Nicolas, on this very
ground. Her case was plainly distinct from that of Csekovsky Although
Fouche insisted that he "equated the two cases," he later conceded that
in the case of Csekovsky there was no direct evidence of intent to falsify,
while in the case of Nicolas there was an eyewitness Thus, Nicolas was
observed by a coworker falsifying a production ticket by replacing the
identifying number of the employee who actually produced the product
with her own, thereby enhancing her own productivity profile at the ex-
pense of the actual producer Unlike -the timesheet, under no circum-
stances would an employee have a right to make an entry on someone
else's production ticket and, indeed, it is difficult to conceive of circum-
stances whereby an employee would have any business even possessing a
production ticket attached to another worker's output. In contrast with
Csekovsky who was reputed to be an excellent employee with a high
level of productivity, Nicolas had been under suspicion for some time by
her supervisor because of a disparity between her recorded output and
her work habits. She clearly had something to gain by overstating her
production. On my evaluation, the incident involving Nicolas is more
beneficial to the case-in-chief than the defense. For it evidences that
Fouche should have been mindful of a form of chicanery by a coworker
that could have caused a short fall'in the actual count allegedly made by
Twiss and Gagne on 20 June, namely, the substitution of a different clock
number on the production tickets of Csekovsky.
K & M ELECTRONICS 287
was an excellent worker, and a key-,protagonist -of the
Union, having distributed union literature, passed out au-
thorization cards, and worn T-shirts and other insignia
demonstrating her desire for union representation. At the
election held on 28 March, she officiated as an election
observer on behalf of the Union. Lemoine, who served
in the same department as Csekovsky, in late February
was confronted by Supervisor Twiss and with Cse-
kovsky, was unlawfully warned in consequence of her
role in the employee protestation critical of the Compa-
ny's hazardous material educational program. Prior to
the events in issue here, management , admittedly, was
fully mindful of Lemoine's prounion leanings.
Until the election, Lemoine's work record appeared-to
have been unblemished for a period of 18 months. Fur-
thermore, the difficulties that prompted her discharge
had nothing to do with her value as a productive and ef-
ficient worker who produced at levels of high quality.27
Thus, the discipline under interdict of the instant com-
plaint, including warnings and the discharge, all dealt
with abusive behavior affecting her relations with others,
a contradiction of Twiss' comment in Lemoine's most
recent evaluation to the effect that: "she gets along well
with everyone."28
(2) The warnings
As will be recalled , Supervisor Twiss spoke to em-
ployees on 4 April concerning restrictions on their right
to leave their work area . Lemoine understood , albeit mis-
takenly, that these restrictions required the employees to
obtain permission before going to the restroom. Le-
moine, who impressed me as a rambunctious and ener-
getic sort, was disturbed . That same day , when she ob-
served Fouche in the office of Twiss, she elected to con-
front them concerning what she perceived as a ridiculous
change in policy. According to Fouche , Lemoine angrily
entered the office, pointed her finger at Twiss, stating to
the effect, "You son-of-a-bitch, now we have to get per-
mission to go to the bathroom."29
Twiss was not examined regarding the specifics' of
what transpired . Though previously having heard Le-
moine , utter profanities , never before had she heard Le-
moine swear at someone. Twiss did testify , however,
that the warning issued to Lemoine in consequence of
the incident was "because she was directing abusive lan-
guage, at me , in anger."
In contrast, Lemoine denied directing the profanity
toward Twiss. She claims that on entering the office, she
stated, "Nicole, you know this is a son-of-a-bitch. I have
to ask to go to the bathroom , I am not a child. I am not
a kidnergarden [sic] kid . I am not going to ask to go to
the god-dam [sic] bathroom.",30
27 See G C. Exh 7.
28 See G .C. Exh. 71.
29 A segment of the daily calendar maintained by Fouche is in evi-
dence . It shows an entry on the date in question to the effect that Le-
moine did use the terms "You son-of-a-bitch " The notation also imputes
to Lemome a statement threatening to bring the Union back in a year if
Fouche continued to apply the rules, regulations, and policies contained
in K & M's employee handbook (See G C Exh. 5.)
30 Although basically Lemome was ' regarded as the more truthful, in
this instance I am willing to give Fouche and Twiss the benefit of the
, On .5 April, Lemoine was called to the office of Twiss.
Shewas at that time given a written memorial of an oral
reprimand based on her outburst of 4 April, which recit-
ed:31
I am giving you this Verbal Reprimand as a result
of your improper personal conduct on April 4, 1985
wherein , in the presence of the cable division man-
ager, you directed profane and abusive language
toward me, your supervisor , in direct violation of
company rules regarding personal conduct,.
Lemoine admits that she reacted , getting a little "up-
tight" and "very upset " First she accused Twiss of issu-
ing the warning in consequence of Lemoine's union ac-
tivity. Referring to the warning , she proclaimed to Twiss
"this is a fucking big deal ," and went on to inform Twiss
that, "you people are trying to get rid of me one way or
the other, and . . . the only way you can do it-[is]
through my swearing." Lemoine admitted that as she
was leaving the office she slammed the door , stating to
Twiss , "you will get yours baby."
Prior to the end of the shift, Twiss told Lemoine that
Fouche ' wanted to see her in his office. A counseling ses-
sion ensued in which Fouche eventually asked Lemoine
whether she knew why she was there . The latter re-
sponded as follows:
It is something to do with . . . swearing in front of
... Nicole Twiss . . . . I didn't swear at her. I
swore at her, but always-when I swear , I always-
I just swear. I don't swear directly at a person. It is
in my conversation.
According to Lemoine she then indicated to Twiss that
if she was upset, she would apologize.
On 9 April Twiss summoned ' Lemoine to her office,
where she handed Lemoine a written warning, which in
material part provided as follows:
On Friday, April 5 , 1985 , you were issued a
Verbal Reprimand for your "abusive language" and
improper conduct on Thursday , April 4, 1985.
When I , your Supervisor, Nicole Twiss, present-
ed you with your verbal reprimand you stated to
me:
1. That you didn't direct the abusive language at
me.
2. That I was "playing fucking games."
3. That "you'll 'get yours baby."
4. You then left my office and slammed the door
behind you.
After reading the warning, Lemoine reacted by stating
"O[h], hey, that is great . . . . Thank you very much
Nicky." She then left.32
doubt . I believe that Lemome during the incident was "oul, of control,"
and likely would have difficulty recalling her actions accurately.
31 See G C. Exh. 6.
32 See R Exh. 1 Lemome claims that on entering the office of Twiss,
she was suspicious, because she observed Fouche as well as an antiunion
employee, Nellie Paine, standing nearby . Even if they were present and
Continued
288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The citations issued Lemoine on 5 and 9 April each
carried the admonition that failure to correct the conduct
in question and to meet all duties and responsibilities in
the future would subject Lemoine "to further discipli-
nary action up to and including discharge."
The General Counsel's claim of discrimination with re-
spect to the warnings centers on the argument that Re-
spondent issued warnings to punish a strong union adher-
ent "for conduct which Respondent had tolerated since
Lemoine's employment began." Consistent therewith, the
issuance of warnings to a staunchly prounion employee,
who had acted as a union observer in a hotly contested
election conducted only a few days earlier, desires close
scrutiny. In this instance, however, the credible evidence
substantiates actionable misconduct on the part- of the
employee and discipline tailored appropriately to the of-
fense. Contrary to the General Counsel's insinuation, the
warnings were not addressed merely to Lemoine's off-
beat vocabulary, nor was their thrust to prevent her
from cursing or to rid the plant of curse words. It is one
thing for employees to curse playfully and in good
humor with a coworker and, indeed, even a supervisor.
Lemoine, however, a habitual exponent of the use of foul
language, went too far when such language was em-
ployed in an attack on a management representative.
There is no evidence that any supervisor had ever before
condoned such an act. Nor does it appear that Lemoine
in the past had been guilty of such disrespect. In short,
the evidence does not disclose that Lemoine, or any
other employee, had ever escaped discipline after a hos-
tile assault on a supervisor, with or without the use of
profanity. Respondent has demonstrated persuasively
that the oral warning of 4 April and the written warning
of 9 April would have been issued even if Lemoine had
not engaged in activity, protected by the Act. According-
ly, the allegation that Respondent violated Section
8(a)(3) and (1) of the Act in these particulars shall be dis-
missed. 33
(3) The discharge
Lemoine, during the period preceding her termination,
does not appear to have digressed from a work record
that prompted Fouche's exhortation, prior to the advent
of the Union, "Good job!! Keep it up."34 Moreover, the
discharge occurred , shortly after Supervisor Twiss threat-
ened that union supporters would have to bear "the con-
sequences," and only a week after Lemoine 's collabora-
tor in the assertion of organizational rights , Csekovsky,
was unlawfully discharged on pretextual grounds.. In
light of the predilections disclosed through that dis-
charge, a powerful prima facia case of proscribed dis-
crimination has been substantiated . In these circum-
stances, Respondent's explanation warrants close exami-
nation.
Respondent claims that Lemoine was discharged on
the basis of alleged misconduct on her day off, while she
was away from company premises on an excursion to the
Bronx Zoo in New York City. The trip took place on 22
June . It was organized by employee Jeanne Briere, a co-
chairman of the Employer's social committee. Briere
made the arrangements and collected the money for the
trip, which was paid for fully by those attending . Con.--
pany support for the trip was not forthcoming at the
outset, and Briere could not even obtain permission to
post a notice on plant premises. Hence, all publicity was
handled by word of mouth . About 2 weeks before the
scheduled trip , the Company informed employees that
access to the K&M parking lot would be provided, ena-
bling participants to meet the bus at the location, rather
than at a local mall. 35
Glenda Comeau of the quality control department was
the only supervisor on the trip . On Monday, 24 June,
Comeau informed Fouche that during the bus trip "Le-
moine . . . was very, loud and vulgar , and - she was
swearing in front of a bunch of little children and a
couple of parents had voiced their opinion about it."
Similar to his reaction in Csekovsky's case, Fouche ini-
tially was inert . His account of what transpired and his
reaction is evident from the following colloquy with the
General Counsel:
MR. HERBSTER: How did you find out that .. .
[Lemoine] . . . was allegedly involved in some con-
duct on that trip?
MR. FoucliE: In a routine walk through the
plant, which I do very regularly. A QC superin-
tendent stopped me and asked me if I had heard
about the show that Dorothy had put on on the bus
trip to the Bronx Zoo on Saturday.
even if Twiss departed from her usual practice of closing the door, the
scenario depicted by Lemome is not viewed as having any relevant bear-
ing on the issue of motivation.
33 There is no merit in the General Counsel's alternate contention that
Lemome's protestations concerning the change in work practices in-
volved protected concerted activity, and therefore the Thor Power doc-
trine, 148 NLRB 1379 (1969), would insulate her from discipline for this
outburst of "animal exuberance " Twiss' 4 April reminder to the employ-
ees concerning their responsibility on leaving their work area was sup-
ported by Respondent's published rules, and involved a legitimate exer-
cise of supervisory discretion Lemoie's protestations thereof were not
shown to have been pursuant to authority conferred by coworkers, or
part and parcel of any attempt to induce group action She was neither a
designated spokesperson, nor representative of any other employee. See
NLRB Y. City Disposal System Co, 462 U.S 822 (1984), Schreiber Materi-
als & Cartage Co, 268 NLRB 1457 (1984) Thus, under present Board
standards, Lemome's reaction to the change was individually pursued and
lacked the essential element of "concertedness " See Meyers Industries,
268 NLRB 493 (1984)
94 See G.C Exh 7
Q. And who was the QC supervisor you spoke
to?
A. Glenda Comeau.
Q. What did you say?
A. I said I had not.
Q. What did she say?
A. She said that it was something to the effect of
being quite a show, that she was rowdy and obnox-
ious and really upsetting people.
S5 The Company claims that it "sponsored" the trip, a characterization
that is somewhat debatable. Whatever the nature of its involvement, it is
clear that access to its premises was provided, a gesture that would seem-
ingly afford liability protection under the Company's insurance policies.
K & M ELECTRONICS 289
Q. Had you heard about anything like this before,
that Dorothy Lemoine had engaged in this behav-
ior?
A. No.
Q. And what did you reply to Miss Comeau?
A. Only that I had not heard anything about it.
She then asked me if there was anything I could do
about it, because they were upset. I said at that time
that I didn 't think there was anything I could do
about it, but if there was activity that went on that
was that upsetting to them that I thought it prudent
for her to at least report it to the personnel depart-
ment, register a complaint . And then on second
thought : "The social committee is really the party
that was involved . And perhaps the complaint
would better register with them."
Q. At this time did Comeau tell you what lan-
guage was used and what behavior?
A. She mentioned-she quoted one statement
that was made.
Q. She said it was the language that was used?
That's what was objectionable? Correct?
A. She stated that her language and behavior was
objectionable.
Q. What about her behavior did Miss Comeau
say was objectionable?
A. She gave me one example of Dorothy giving
an obscene gesture to another employee.
Q. And you said you didn 't think there was any-
thing you could do about it? Correct?
A. At that time that's correct.
Q. This is the incident that ultimately got Doro-
thy Lemoine discharged? Correct?
A. That's correct.
According to Comeau , on 24 June, she also conversed
with two others who were on the trip , Carole Cousineau
and Grace Desnoyers , both of whom worked as clerks in
the personnel department . In consequence , Comeau and
Desnoyers prepared a letter dated 25 June for submission
to the social committee . It set forth as follows:36
Employee Dorothy Lemoine # 963 fellow passen-
ger on the K & M bus trip to the Bronx Zoo, N.Y.
on June 22, 1985 used foul and abusive language to
a point where children on the bus were offended.
Children on the bus ranged from 2 1/2 to over 16
years of age.
Complaints were made to several of the parents
by the older children causing the parents to be very
uncomfortable . This complaint is enlarged because
we, the undersigned as concerned parents feel our
children should not be subjected to this kind of at-
mosphere.
We feel the social committee is not responsible
for any persons action during K & M social activi-
ties. But should make people aware that rules
should be followed on bus trips and other K & M
functions, whether at K & M or any other location.
Please note " attached copy of page 46 of the Em-
ployee 's Handbook.
[s] Carolyn Cousineau
[s] Grace Desnoyers
[s] Richard Pike (Guest)
[s] Glenda Comeau
Attached to the above memorandum was an excerpt
from Respondent 's employee handbook , page 46, which
in material part listed as among "prohibited action," the
following:,
Unlawful or improper conduct off the premises or
during non-working hours which affects the em-
ployee's relationship to his job, to his fellow em-
ployees, to his Supervisors , or lo the Employer's
services, property, reputation or goodwill in the
community.
Before taking the letter to the social committee , Comeau
delivered a copy to Personnel Director Gail Pike.
Fouche also was updated by Comeau concerning the
action that had been taken .37 The former claimed that
previously he was unaware that the above accusations
fell within company rules and regulations.
After his conversation with Lemoine, Fouche on 26
June sought out Briere , the cochairman of the social
committee , and the individual Fouche knew to be re-
sponsible for organizing the bus trip. He inquired about
whether she had seen the above letter . She had not.
Under questioning by Fouche , she failed to corroborate
the accusations , advising Fouche that she "knew nothing
about her [Lemoine ] swearing." Fouche acknowledged
that after speaking with Briere a "conflict " existed and
that the facts "at that point" were not clear.
Fouche then went to see Vice President Darrell
Mitchell , who at that juncture had heard nothing of the
incident . After providing him the letter of complaint,
Fouche reminded Mitchell of Cousineau 's recent warn-
ings for similar offenses , as well as her role as a union
observer, a factor which, according to Fouche, had to be
taken into consideration . Finally, Fouche suggested that
Lemoine be suspended pending an investigation. With
this information , Mitchell claims to have contacted the
Company's counsel, whereupon he was instructed "to
perform an investigation and get the employee's side of
the story" while suspending Lemoine pending comple-
tion of the investigation.
At 9:30 a .m. on 27 June, Lemoine was called to the
office of Twiss, where Fouche gave her an opportunity
to read the letter of complaint . Lemoine denied using
profanity or engaging in any wrongful behavior on the
bus trip . In response , Fouche informed that she would be
suspended until the Company "could determine ' the
facts." Lemoine then argued that the Company wanted
to get rid of her because of union activity . According to
as Comeau's testimony varies from that of Fouche, in that according
to her , although he suggested that they make a complaint , he did not sug-
gest that it be addressed to the social committee.
37 There is no primary evidence that this document was ever delivered
to the social committee Briere never saw it Desnoyers did not testify.
Comeau related that Desnoyers told her she was going to give the docu-
ment to Briere's cochairman , Joann Cadieux The latter did not testify.
290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the credited testimony of Lemoine, Fouche reacted by
peering at Lemoine and stating , "Why don't you quit?"
Parenthetically, it is noted that Lemoine, having been
alerted earlier by Briere that complaints had been regis-
tered, attempted to see Mitchell early in the morning on
27 July. She was told by his secretary that he was un-
available but that Lemoine would be contacted in the
event of a'change.
During the above conversation with Fouche, Lemoine
informed her that she had attempted to make an appoint-
ment with Mitchell. According to the credited, uncontra-
dicted testimony of Lemoine, Fouche assured that
Mitchell would call her at home. On leaving the prem-
ises, Lemoine went to the front office where she again,
without success, attempted to speak with Mitchell. The
latter's- secretary again told Lemoine that Mitchell was
busy with meetings, was leaving town, and that she
would call Lemoine if he could meet with her.
Thereafter, Lemoine received in the mail a letter dated
27 June, confirming her indefinite suspension pending in-
vestigation of charges that she had engaged in "improper
personal conduct during a Company sponsored social
committee event ...."3S The indefinite suspension
would have a term of but 1 day.
After suspending Lemoine, Fouche did not participate
in the investigation. This assertedly was handled, by
Mitchell, who made the ultimate decision to effect the
termination. Mitchell admitted that in his 11 years with
the Company, he knew of no one else who had been dis-
charged for conduct during nonduty hours and away
from the plant. As in the case of Csekovsky, the investi-
gation in Lemoine's case did not extend beyond the
original complaint. Thus, at Mitchell's direction, Person-
nel Director Pike obtained written, unsworn statements
from Comeau, Cousineau, and Desnoyers. 39 Insofar as
Mitchell knew, they were the only employees who made
the trip that had raised any question about Lemoine's
conduct.
Although advised by his counsel to "get the employ-
ee's side of the story," Mitchell did not do so. He alleg-
edly left this to Fouche, who in turn, reported Lemoine's
denial of wrongdoing. Moreover, of those giving state-
ments, Comeau, a supervisor mindful of Lemoine's role
as a union activist, was the only witness directly inter-
viewed by Mitchell who claims to have observed the
conduct in question.40
Mitchell was told by Fouche that Briere denied having
observed any of the conduct in question. Yet, he did not
speak to or inquire further of her. He also was aware of
Lemoine's denial, and knew that prior to the suspension
Lemoine had been attempting to see him. He not only
as See G.C Exh 3.
as See R. Exhs '11(a), (b), and (c).
'40 Mitchell did not talk with Desnoyers. He did indicate that Carolyn
Cousineau had "come m" to discuss her statement . However, as indicated
on the face of her statement Carolyn Cousineau "did not hear the offen-
sive language used by [Lemoine] . ." See R. Exh. 11(b). In the course
of Mitchell 's interview with Comeau, he did not inquire concerning
whether Comeau requested Lemoine to stop, or complained to the bus-
driver, or whether Lemoine approached Briere to stop Lemoine. Comeau
admits that, while on the trip, she made no attempt to curtail the alleged
improprieties.
refused to see her,41 but apparently felt it unnecessary to
throw light on the conflicting reports,. by interrogating
or obtaining a single statement from among the numer-
ous other employees who were on the bus trip.
At the hearing , several witnesses, employees as well as
nonemployees, were presented by the General Counsel
to support Lemoine's continuing denial of the accusa-
tions against her. Comeau, as the sole eyewitness offered
by Respondent, stuck by her account. As I see it, this
conflict need not be resolved. The issue is one of motive.
Management must frequently invoke discipline on the
basis of information derived from secondary sources.
The fact that that information may be false, and thereby
produce an injustice, would not alone prove this element
of wrongful discrimination.4 z On the other hand, it
would seem that when information is gleaned from sec-
ondary sources, the trier of fact must be assured reason-
ably that the remedial objectives of the Act are not un-
dermined by cursory action, not aimed at developing
fact, but in quest of a facially palatable excuse for elimi-
nation of a union adherent.
In Lemoine's case, like that of Csekovsky, the defense
fails to persuade. The General Counsel's prima facie
showing of discrimination is robust. In the face'of Twiss'
specific threat of retaliation, two known union sympa-
thizers, who were relatively long-terns, efficient employ-
ees from a department having a high turnover, were ter-
minated on a halfhearted, pro" forma investigation within
a week of each other.
On Respondent's behalf there can be no debating that
Comeau's accusations against Lemoine raised the spectre
of serious misconduct 4s Profanity is probably not un-
common at this plant. Nonetheless, its acceptability, as
heretofore indicated, depends on context. Just as profani-
ty, no matter how characteristic of plant discourse, may
not be addressed with hostility to a, representative of
management, there is no excuse for use of such language
in the presence of young children.
However, the question confronting management on
and after 24 June was not only whether such allegations
would support discharge, but also whether the conduct
actually took place. Mitchell showed little regard for the
latter. He conducted a cursory investigation not designed
to develop the facts as they occurred on a balanced
basis, but to confirm accusations that could be relied on
41 The only explanation afforded was that Mitchell was about to leave
on a 10-day trip This raises the question about why the discharge could
not be deferred until his return Because Lemaine's suspension was of
"indefinite" duration, the haste with which Mitchell acted is difficult to
understand
42 C£ NLRB v Burnup'& Sims, 379 U S. 21 (1964), dealing with a
good-faith, but mistaken , belief that an employee, in the course of Sec. 7
protected activity, engaged in a dischargeable offense.
42 I reject the General Counsel's argument that Fouche's initial reac-
tion to the complaint by Comeau demonstrates that "a serious breach of
Respondent's rules" was not involved. Contrary to the General Counsel,
this was not necessarily indicative of condonement. Representatives of
management often differ about whether conduct may or may not be suit-
able for discipline. Fouche, who admittedly was responsible for enforce-
ment of the rules, claims that his position initially was based on his being
unaware of the rule pertaining to off-premises behavior. Moreover, he
did respond the next day, on receipt of complaint in written form There
is no indication that his change of mind was triggered by intervening
events of a protected nature.
K & M ELECTRONICS
as an acceptable ground for termination. All avenues that
might complicate that objective were avoided. Thus,
having sought guidance from outside counsel, Mitchell,
by his own account, was told to get "[Lemoine's] side of
the story," and "to investigate, get statements from the
employees, get statements . . . from the employee in-
volved." Mitchell was instructed that if the accusations
turn out to be "true" a discharge would be in order.44
Yet, this advice was not heeded. Other than those who
supported the initial complaint, Mitchell made no effort
to obtain a single statement from "employees" who were
on the trip and who might well have either supported
Lemoine, or failed to corroborate the accusation, as had
Briere. Though aware of Lemoine's denial and her at-
tempts to see him, Mitchell declined to afford her an
airing, thus flouting the instruction that he get "the em-
ployee's side of the story." His effort did not even in-
clude a meeting with all the complainants, and it does
not appear that there was any examination concerning
the possible exaggeration or bias on the part of. the ac-
cusers, nor did Mitchell attempt to explore the possibility
of extenuating circumstances. In sum, his one-sided ap-
proach in the case of this highly productive, valuable
employee reinforces, rather than dispels, the inference
arising from the General Counsel's impressive case of
discrimination.45
In the total circumstances, while the accusations them-
selves were sufficiently serious to warrant an investiga-
tion and perhaps even suspension, in light of the nature
thereof, acceptable proof of a convincing nature has not
been offered to demonstrate that Lemoine would have
been victimized by a discharge in such circumstances if
she had not engaged in activity protected by the Act.
Accordingly, the convincing prima facie case has not
been overridden, and Respondent is deemed to have vio-
lated Section 8(a)(3) and (1) by discharging Lemoine.
CONCLUSIONS OP LAW
1. The Employer is engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent independently violated Section 8(a)(1)
of the Act by threatening reprisals,, including plant clo-
sure, because employees engaged in union activity, and
by informing employees that they could not engage in
protected forms of solicitation on company property.
4. Respondent violated Section 8(a)(3) and (I) of the
Act by issuing oral warnings to Linda Csekovsky and
Dorothy Lemoine because they engaged in solicitation of
a nature protected by Section 7 of the Act, during break-
time and further by terminating Csekovsky on 21 June
44 Only after receiving these instructions did Mitchell, according to his
testimony, convey that a union observer was involved. According to
Mitchell he was told by counsel that this would make no difference.
45 The failure to conduct a meaningful investigation or to give, the em-
ployee an opportunity to explain has been regarded as an important mdi-
cia of discriminatory intent See Florida Medical Center, 227 NLRB 1412,
1412 (1977); Greensboro News Co, 272 NLRB 135 and cases cited at fn.
23 (19x84). Cf. Westinghouse Electric Corp., 277 NLRB 136 (1985), when
the Board on materially distinct facts reversed my findings and dismissed
an 8(a)(3) allegation, concluding that the investigation involved there was
neither "biased, negligent or cursory "
291
1985, and by terminating Lemoine on 28 June 1985, in
reprisal for their union and/or protected activity.
5. The above unfair labor practices have an effect on
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent has engaged[ in certain
unfair labor practices, it shall be recommended that it be
ordered to cease and desist therefrom, and to take certain
affirmative action deemed necessary to effectuate the
policies of the Act.
Having found that Respondent unlawfully discharged
Linda Csekovsky and Dorothy Lemoine, it shall be rec-
ommended that Respondent make them whole for any
loss of earnings they may have suffered by reason of the
discrimination against them by payment of a sum of
money equal to that which they normally would have
earned from the date of discharge to the date of a bona
fide offer of reinstatement to their former positions or, if
not available, to a substantially equivalent position. The
backpay shall be reduced by net interim earnings and is
to be computed in the manner prescribed in F W Wool-
worth Co., 90 NLRB 289 (1950), with interest as specified
in Florida Steel Corp., 231 NLRB 651 (1977).4s
The General Counsel requests that the remedial order
include a visitatorial clause, "authorizing the Board to
engage in discovery under the Federal rules of civil pro-
cedures . . . so it will be able to monitor compliance
with the Board order." This request, first mentioned in
the posthearing brief, does not appear to address any spe-
cial issue generated by the instant procedure, but is
founded on the notion that such provision be adopted as
part of the Board's general remedial formula and be in-
corporated routinely in its orders. Hence, the issue is one
of policy, to be resolved at the highest level on the basis
of a fair airing by all interested parties, a condition that
could not be achieved at this time on the instant record
without substantial delay in - achieving vindication of a
remedy. Considering the advantages of visitatorial provi-
sions against the delay, the issue is best left to ultimate
resolution down the line through the administrative
process. In passing, it is noted that the only reported
case in which the Board has considered the issue resulted
in denial. See O. L. Willis Co., 278 NLRB 29 (1986). Al-
though the Board has yet to articulate standards for de-
termining the appropriateness, if any, of such a remedy,
the holding in that case makes it clear that the visitator-
ial clause will not be engrafted as a standard segment of
remedial orders. Thus, the Board declined such relief,
reasoning that "under the circumstances of this case, it is
unnecessary to include such a clause."
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed47
46 See generally Isis Plumbing Co., 138 NLRB 716 (1962),
47 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, K & M Electronics, Inc., Springfield,
Massachusetts, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Threatening employees with reprisals, including
plant closure, to discourage them from engaging in union
activity.
(b) Barring employees from engaging in solicitation of
protected nature on company property.
(c) Discouraging -employees from engaging in activity
in behalf of a labor organization by discharging or in any
other manner discriminating against them with respect to
their wages, hours, or other conditions of employment.
(d) Discouraging employees from engaging in concert-
ed activity protected by Section 7 of the Act, by issuing
oral warnings, or in any other manner discriminating
against them with respect to their wages, hours, or other
conditions of employment.
(e) In any like or related ,manner interfering with, co-
ercing, or restraining employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate, the policies of the Act.
(a) Offer Linda Csekovsky and Dorothy Lemoine im-
mediate reinstatement to their former positions or, if not
available, to substantially equivalent positions without
prejudice to their seniority and other rights and privi-
leges, and make them whole for any loss of earnings by
reason of the discrimination against them in the manner
set forth in the remedy section of -this decision.
(b) Remove from its files, delete and remove, any ref-
erences to the unlawful discharge of Linda Csekovsky
and Dorothy Lemoine as well as the oral warnings
issued them on 4 April 1985, notifying them in writing
that this has been done, and that neither the warnings,
nor the discharges will be used against them in the
future.
(c) Post at its place of business in Springfield , Massa-
chusetts, copies ofthe- attached notice marked "Appen-
dix."48 Copies, of the notice, on forms provided by the
Regional Director for Region 1, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt-and
maintained for 60 consecutive days in conspicuous places
including all places where notices to-employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
48 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."