Materials Research Corp.

National Labor Relations Board - Board Decisions

Nov 8, 1979

246 N.L.R.B. 398 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Materials Research Corporation and United Electri-
cal, Radio and Machine Workers of America (UE).
Case 2-CA-15689
November 8, 1979
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On August 6, 1979, Administrative Law Judge
Robert W. Leiner issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief. The Charging Party filed an
answering brief and the General Counsel filed a brief
in support of the Administrative Law Judge's Deci-
sion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Materials Research
Corporation, Orangeburg and Pearl River, New
York, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order.
i Respondent has excepted to certain credibility findings made by the Ad-
ministrative 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 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings, except to the extent ex-
pressed herein.
We find merit in Respondent's exception to the Administrative Law
Judge's finding that at the hearing Robert Brown "absolutely denied" having
uttered abusive language to Su?ervisor Russ Fairchild. The record contains
no testimony by Brown as to the contents of his discussion with Fairchild
Accordingly. we do not rely on this finding. However, the record contains
other evidence sufficient to support the finding that Respondent violated Sec.
8(aX3) of the Act by withholding part of Brown's merit increase.
2 The Administrative Law Judge inadvertently misstated the Board's hold-
ing in The Ideal Electric and Manufacturing Company, 134 NLRB 1275
(1961), as permitting consideration of unfair labor practices occurring be-
tween the filing of a representation petition and the execution of a consent
election agreement. In Ideal, we stated that we would permit consideration
of objectionable conduct occurring during that period. Such conduct may or
may not also violate the unfair labor practice section of the Act.
DECISION
STAITEMENI' OF THE CASE
ROBERT W. LEINER, Administrative Law Judge: This
case was heard in New York, New York on June 4 and 5,
1979, pursuant to a charge filed by the above-captioned
United Electrical Workers on June 9, 1978, and served on
Respondent, Materials Research Corporation, on June 12,
1978; on a complaint and notice of hearing issued on Sep-
tember 29, 1978; and on Respondent's timely answer, dated
December 8, 1978.' The complaint alleges and Respondent
denies a violation of Section 8(a)(l) of the Act because its
chief operating officer, Sheldon Weinig, confiscated and de-
stroyed certain union literature.2 The complaint also al-
leges, and Respondent similarly denies, that Respondent, in
violation of Section 8(a)(1) and (3) of the Act, on or about
January 10, 1978, withheld from an employee, Robert
Brown, a portion of a merit increase to which he was other-
wise entitled, because of his activities on behalf of United
Electrical, Radio and Machine Workers of America (UE),
herein called the Union, or the Charging Party. Respondent
also interposed six affirmative defenses.'
Respondent admitted that Respondent's president, Shel-
don Weinig, is an agent of Respondent although it denied
that he is a supervisor within the meaning of Section 2(11)
of the Act. It admitted that Respondent's supervisor,
George Fostel, is a supervisor within the meaning of Sec-
tion 2(11) of the Act, and an agent of Respondent.4
Upon the entire record in this case, and from my obser-
vation of the witnesses, and after due consideration of the
I Respondent's answer admits, by failing to deny, inter alia, the filing and
service of the charge. In a subsequently pleaded affirmative defense, appar-
ently addressed to the adequacy of the charge, Respondent denies service of
"any charge alleging [the unfair labor practices pleaded in the complaint]."
2 At the hearing, without objection, the General Counsel and Respondent,
respectively, amended the complaint and answer in regard to the dates ap-
pearing in paras. 6 and 7 of the complaint wherein the corrected allegations
read that the above acts occurred on or about December 15. 1977, rather
than December 15, 1978.
Prior to the June 4 5, 1979, hearing, Respondent, on January 3, 1979,
filed a motion to dismiss the complaint and for summary judgment on the
ground that all unfair labor practices alleged in the complaint predated the
Regional Director's approval of the February 2, 1978 Stipulation for Certifi-
cation Upon Consent Election. The Board (G.C. Exh. 1(I), (n)) denied the
motion and remanded the matter for hearing (G.C. Exh. I(r)):
. . . being of the opinion that the pleadings and submissions of the
parties raise issues which can best be resolved at an evidentiary hearing
before an Administrative aw Judge.
The substance of said motion is repeated in Respondent's answer, affirmative
defense 4. Assuming, as I do, that the matter, whether by way of the motion
or the pleading, is vital and before me, it is rejected as a defense. See infra.
' With regard to Respondent's president, Sheldon Weinig, Respondent ad-
mitted that he was an agent acting within the scope of his authonty, the chief
operating officer of Respondent who directed subordinate supervisors of Re-
spondent to form a committee to investigate certain pay raises relating to the
issues in the case. Although the issue of Weinig's supervisory status is not an
issue which must be resolved in order to have his acts as agent bind Respon-
dent, contrary to Respondent's denial, on the above evidence alone and
because Weinig is the president of Respondent and admitted chief operating
officer having control over the operations of Respondent's manufacturing
and employment functions, I conclude that he is a supervisor within the
meaning of Sec. 2(11 ) of the Act, notwithstanding that he does not exercise
daily supervision over particular employees. He controls them all at all
times.
246 NLRB No. 64
398
MATERIALS RESEARCH CORPORATION
briefs filed by General Counsel and Respondent' subse-
quent to the close of the case, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent admits, and I find,
that at all material times Respondent, a New York corpora-
tion, maintains principal offices and places of business in
Orangeburg and Pearl River, New York, and is engaged in
the manufacture and sale of component materials and re-
lated products for the electronics and communications in-
dustries. Respondent further admits that on an annual basis
it sells and ships from its Orangeburg and Pearl River
places of business goods and materials valued in excess of
$50,000 directly to points outside the State of New York.
Respondent admits and I find that at all material times it
has been and is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
United Electrical, Radio and Machine Workers of Amer-
ica (UE), herein called the Union, as Respondent admits
and I find, has been at all material times a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On January 6, 1978, the Union filed a petition in Case 2-
RC-17856 for certification as collective-bargaining repre-
sentative of all of Respondent's production and mainte-
nance employees in Respondent's Orangeburg and Pearl
River facilities. On February 1, 1978, the parties entered
into a Stipulation for Certification Upon Consent Election,
further refining the employees to be covered in the pro-
posed collective-bargaining unit as including production
and maintenance employees in the above facilities, but ex-
cluding, inter alia, laboratory employees and employees in
the quality control department. Robert Brown, a chemical
technician employed in Respondent's analytical laboratory,
was an employee excluded under the terms of the stipula-
tion.6 Pursuant to the above stipulation, a Board-conducted
election was held on March 8, 1978, wherein the tally of
ballots showed that of the 152 eligible voters' in the above
unit, 61 votes had been cast for the Charging Party and 81
votes against. On or about March 16, 1978, the Regional
'Counsel for the Union submitted a post-heanng letter relating to her
representation at the hearing that certain documents, subpenaed by Respon-
dent, did not exist. The letter suggests that the documents had been de-
stroyed before Respondent subpenaed them and that the destruction had
been innocent. Respondent's brief (p. 13) implied otherwise. The letter, dated
July 12. 1979, was apparently served on all parties and is included in the
official record as C.P. Exh. 4.
6 By the time of the hearing and Brown's testimony. he had quit his job
with Respondent and was employed as an organizer by the Charging Party,
the Union herein. His resignation of April 18, 1978, thus followed the elec-
tion of March 8. 1978, which the Union lost.
'There were approximately 85 employees employed in the Pearl River
plant and 60 in Orangeburg at the time of the hearing.
Director for Region 2 issued a certification of results dem-
onstrating that a majority of the valid ballots had not been
cast for the Union. No objections were filed.
The evidence shows that Brown was the initiator of ac-
tivities on behalf of the Union among Respondent's em-
ployees commencing in or about March 1977. and was
known to Respondent as "the leader of this union move-
ment" earlier than September 1977.
By mid-April 1977, Brown had secured the aid of several
other employees in seeking to organize Respondent's em-
ployees and by September 1977, in the presence of other
employees, he remonstrated with Respondent's Supervisor
Gary Lutz against Respondent's using lie detector tests re-
lating to allegedly missing precious metals. Brown told Lutz
that the only reason for the tests was to interfere with the
organizational activities of the employees. Thereafter (on
September 19) he had conversations with other Respondent
supervisors (Walter Schnabel and Mike Ray) relating to the
lie detector tests. In a morning meeting of all employees in
Respondent's Orangeburg cafeteria. Brown confronted Dr.
Sheldon Weinig, Respondent's president, after Weinig told
the employees that the lie detector tests had been stopped,
that Respondent's business prospects were good, and that
he heard that there was a union attempting to organize the
employees but saw no reason for it. At this time, Brown
told Weinig that two management officials had said that the
lie detector tests were going to be resumed and that Brown
and other employees had visited the local police who told
Brown that there was no police investigation going on at
that time. Weinig said that he knew nothing of the reinstitu-
tion of the lie detector tests. Brown asked Weinig to have
the two high management officials (Vice President Schultz
and Plant Manager Dr. Martin) come forward and deny
that the lie detector tests were going to be given. Weinig
refused. Two to 3 days thereafter, Brown's immediate su-
pervisor, George Fostel, told Brown that he would no
longer be allowed to go into the production area to get
samples, which visits were a routine part of Brown's job.
Brown credibly testified that 15 percent of his time was
ordinarily devoted to visits to the production area to get
samples which he thereafter tested in the laboratory.
Brown, without response, told Fostel that the reason for
this physical restriction on his activities was a result of
Brown's standing up to Weinig on the lie detector issue in
the cafeteria, several days before. When, about a week lat-
er. Brown went into the production area itself to seek out
supervisor Fostel for permission to leave early to get a hair-
cut. Fostel gave him permission but told him not to come
into the production area and to consider Fostel's statement
to constitute a "verbal warning."'
Some time, at the beginning of October, while Brown was
in the analytical lab in the afternoon, in the presence of an
employee and Supervisor Fostel's superior, Vice President
Dr. Walter Class, Brown jokingly told the employee (Fred
Ceresnak) that certain materials on which a test was being
conducted related to a shipment that was already so late
I Respondent maintained a handbook relating to employee conduct and
misconduct. Among the gradations of the mechanics of Employer discipline.
there appear in the testimony herein references to "verbal warnings" and
"written warnings." Five verbal warnings or two wntten warnings within a
3-month period for different infractions of the Rules of Conduct may result
in dismissal (G.C. Exh. 5(A)).
399
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the employee would have to fly to Germany with the
test sample in order to deliver the shipment on time. Vice
President Class told him not to joke about the matter. The
next day, Supervisor Fostel told Brown that Vice President
Class had directed Fostel to give Brown a verbal warning,
the basis of which was that Brown had engaged in a non-
business conversation during business hours. Brown an-
swered Fostel by saying that he thought that the verbal
warning resulted from two sources: (a) Brown's "standing
up" to Weinig in the cafeteria; and (b) Brown's meetings
with employees regarding problems of health and safety in
Respondent's plants. Fostel answered by saying that he
wished he could say something to Brown but, because of his
supervisory position, he could not.
Brown's testimony is undenied that from time to time he
had conversations relating to nonbusiness matters with Vice
President Class, Supervisor Fostel, and others, all during
worktime.
On the morning of Saturday, October 29, 1977, in the
analytical laboratory in Orangeburg, Brown had a conver-
sation with fellow employee Joe Nicolesi, who was transfer-
ring from the Orangeburg plant to Respondent's Pearl
River facility. While Brown was speaking to Nicolesi, Pres-
ident Weinig entered the room and asked what Nicolesi's
business was. Brown told him that he was just saying good-
bye to Nicolesi, who was leaving. Weinig told Brown that
he had been previously warned about having nonbusiness
discussions on worktime and asked where Brown's supervi-
sor was. When Brown told him that Fostel was in the main
production area, Weinig left. When Fostel next spoke to
Brown that afternoon, Fostel told Brown that it was
"ironic" that Brown should be warned by Weinig for non-
business conversations during working hours when it was
Fostel, himself, who had told Nicolesi to go to the analyt-
ical laboratory to say "hello" to Brown.
Nevertheless, on the following Monday, October 31,
1977, in the morning, Supervisor Fostel presented a written
warning notice (G.C. Exh. 4) to Brown for having violated
the company rule. This notice is headed "warning notice"
and dated October 31, 1977. It is characterized as the "first"
written warning. The next of these typewritten warning
notes that Brown violated a company rule in that:
On Tuesday, 10/18/77, you were given a verbal warn-
ing not to leave your work area and not to engage in
non-business conversations with employees and others
during working hours. In spite of that, on Saturday,
10/29/77, at about II a.m. you were engaged in a non-
business conversation with an employee from another
plant. This constitutes direct disobedience of a reason-
able verbal order given by your supervisor. This writ-
ten warning is to advise you that further repetition of
infraction of company rules will result in further and
appropriate disciplinary action.
The warning was signed by George Fostel, as Brown's
supervisor. When it was presented to Brown, according to
Respondent's practice of inviting a discussion of the warn-
ing between the employee and the supervisor, Brown, with
Fostel's permission, wrote thereon (punctuation added):
1, having no authority to say who can or cannot enter
the analytical lab, feel that I am guilty of no underlin-
ing appears in original infraction of company rules. I
furthermore feel that because of my position of being
pro-union in the present organizing drive at M.R.C. I
am being discriminated against and harassed.
Brown signed his statement on October 31, 1977.
After he served the above warning notice, Fostel told
Brown that it was also ironic that Brown had come to the
lab to work as a favor to Fostel and that Brown ended up
getting a warning notice. Brown normally does not work on
Saturdays.
Commencing early in November 1977, at the plant en-
trance, lunch areas, an other places, Brown distributed
union membership authorization cards and thereafter col-
lected them from employees.
The Fairchild Incident
On Friday, November 18, 1977, Brown, in the company
of other employees, met with Respondent's general man-
ager, Dr. Martin, to give him the results of a health and
safety survey Brown undertook in order to correct depart-
mental health and safety problems which Brown had alleg-
edly found. Two days after giving the survey to Dr. Martin,
Brown posted the survey on the cafeteria bulletin board.
The bulletin board regularly contains various employee-
drafted notices concerning personal vehicles, items for sale,
and other items of private employee business. In the after-
noon, following the morning posting, the Respondent's
shipping and receiving supervisor, Russell Fairchild, re-
moved the survey from the bulletin board and Brown said
he saw him take it to the personnel office. Brown and four
employees went to Fairchild's office an hour or two there-
after and had a conversation with him. The tone of the
conversation regarding Fairchild's action is disputed. Four
employees who accompanied Brown to Fairchild's office,
according to their written statements (C.P. Exh. 2), which
documents were received by Respondent and apparently
considered by it, assert that Brown did not use foul or abu-
sive language directed to, or in his conversation with, Su-
pervisor Fairchild in Fairchild's office.
As a result of this visit to Fairchild's office, however,
Respondent served on Brown a second written "Warning
Notice" (G.C. Exh. 5(A)):
On Friday, November 18, 1977, at about 4:05 p.m.
in company with four other employees you entered the
office of supervisor Russ Fairchild and used abusive
language against him for removing a certain document
from the bulletin board. Your remarks were to the ef-
fect that of all the supervisors you're the "prick"-at
least 10 supervisors read this and left it on the board-
you read it, took it down and had to run to personnel
with it.
This action and your remarks violate the absolute
minimum standards of conduct and speech that per-
sons working together in a company must abide by in
order for groups of people to work together in har-
mony.
Rule 12 of the Employee Handbook states:
The use of abusive language to a supervisor or an-
other employee will result in a written warning or dis-
missal depending upon the nature of the offense.
400
MATERIALS RESEARCH CORPORATION
There are more orderly and conventional procedures
that you could have followed to protest Fairchild's ac-
tion, such as going to your supervisor or to the Person-
nel Dept. Instead, you chose a course of action that
puts your future employment with this company in
jeopardy.
You are reminded of Rule 15 in the Employee
Handbook which states:
Any employee who accumulates five verbal warn-
ings and/or two written warnings within a period of
three months for different infractions of the Rules of
Conduct shall be subject to dismissal.
The warning notice was signed by Donald M. Stuart.
personnel manager.
Thereafter. Brown stated in response thereon:
The charge that I used abusive language when
speaking to Russ Fairchild is a complete fabrication.
Myself and five other (maybe four others) employees
entered Fairchild's office and three of us spoke some-
times together about Fairchild's constantly removing
employee statements from the bulletin board. Once
again I repeat that no abusive language was used by
me towards Fairchild. I have four other employees to
verify this. Once again this is a case of harassment and
discrimination against me because of my pro-union ac-
tivity. It is now to the point of fabrication. 11-22-77.
Robert Brown.
The above November 22, 1977, second warning notice to
Brown was appealed on November 26, 1977, to higher
management (to Dr. Class and/or Dr. Martin). Brown's
written appeal (G.C. Exh. 5(B)) repeats the assertion that
the warning notice was a complete fabrication and that
Brown had four witnesses who would testify to the truth of
the incident. Brown asked for an opportunity to state his
case and have his witnesses present. On December 5, 1977,
General Manager G. L. Martin noted on Brown's appeal
memorandum:
The circumstances leading to the warning given to Mr.
Brown on 11/22/77 have been completely reviewed
through examination of all written statements and dis-
cussion with all individuals who had any knowledge of
the incident. I have concluded that the issuance of the
warning was proper and that it should not be re-
scinded.
At no time in the hearing, it should be noted, did Plant
Manager Martin, Supervisor Fostel, Supervisor Fairchild,
President Sheldon Weinig, or Dr. Class testify. Further.
none of the four employees alleged to have been present in
Fairchild's office with Brown testified, notwithstanding that
I received their written statements in evidence because Re-
spondent had reviewed them, and Respondent's witness tes-
tified as to their authenticity and their being used in Re-
spondent's evaluation of Brown's appeal.
The Destruction of Union Literature by President Weinig
on December 15, 1977
The following uncontradicted testimony of Robert
Brown, which I credit, corroborated by employee John
Thomashefski, shows that Respondent established at its Or-
angeburg facility a 15-minute break period from 9:15 a.m.
to 9:30 a.m. On December 15, 1977, immediately at 9:15,
Robert Brown stood at the timeclock with 40 union leaflets
(G.C. Exh. 6), approximately 30 in one hand and 10 in the
other. His intent was to distribute these union leaflets to
production and maintenance employees who were momen-
tarily expected to come through the doors from the produc-
tion area, pass Brown at the timeclock, and, within a few
steps, proceed into Respondent's cafeteria to spend the
breaktime there. Brown had given similar leaflets to other
employees, including Charles Wilkinson, for further distri-
bution.
While it is unclear on this record whether employees
from the production area were present at the time of this
event. it is undenied that Dr. Sheldon Weinig approached
Brown at the timeclock' and asked him whether it was
breaktime. When Brown said it was, Weinig went directly
into the cafeteria. While Brown was distributing leaflets to
employees. Weinig returned and told Brown and other dis-
tributors to stop distributing the leaflets immediately. With
that, he grabbed leaflets from one of Brown's hands and
crumpled them up. Brown told him that he was violating
the employees' National Labor Relations Act rights and
asked Weinig if Weinig was giving him a direct order, and
Weinig told Brown to read the company handbook. Brown
again told Weinig that he had violated employees' National
Labor Relations Act rights, and Weinig walked away. The
handbooks rule is not in evidence.
Brown then walked into the cafeteria carrying the 30 re-
maining leaflets and placed a copy of each leaflet on six or
seven of the eight tables in the cafeteria. At this time, ap-
proximately 30 employees were in the cafeteria, seated at
the six or seven tables. Brown placed a leaflet on each table
or put it in front of one of the seated employees, saying that
"this" was the Union's message. Immediately after he had
distributed the leaflets to each of the tables, as above,
Brown placed the balance of the union leaflets on top of a
nearby magazine rack. At this moment, Dr. Weinig entered
the cafeteria, went to the rack, picked up the leaflets and
asked Brown if he had put them on the rack. When Brown
failed to answer, he asked each of the employees, sitting at
a table near where Brown was standing, who put the leaflets
on the magazine rack. When no one answered this question,
Weinig addressed the same question generally to everyone
in the cafeteria: whether anyone had seen who put the leaf-
lets there. Brown told Weinig that the employees had a
right to distribute the leaflets and that Weinig was violating
that right. At this point, Weinig took the leaflets off the
magazine rack, crumpled them up, and threw them into the
trash bin. Brown told Weinig that "we will seek legal coun-
sel through the Union" and Weinig answered: "You can
seek whoever you want."
About an hour later, the four employees, including
Brown, who distributed the leaflets were called into the of-
' The evidence shows that the timeclock area was devoted to employees
punching in and out, However, Thomashefski testified that there was no
punching in or out during breaktime and that it was not a "bottleneck" area.
Thomashefski also testified that visitors sometimes enter Respondent's prem-
ises through the entrance near the timeclock, and these visitors include
truckdrivers and a vendor. There is no evidence that such persons were
expected or present at this time.
401
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fice of Personnel Manager Donald Stuart. Stuart told the
four employees, individually, that they were free to distrib-
ute union literature on nonwork time in nonwork places,
including the cafeteria.
Brown told Stuart that he had made this same statement
to Weinig but that Weinig paid no attention to him, that
Weinig's actions in the cafeteria were in front of 30 employ-
ees, and that Weinig's actions required that Respondent put
the statement regarding the freedom to distribute union lit-
erature in writing on the bulletin board. Brown told Stuart
that it was "Okay" that Stuart was telling this to Brown
personally, but "How about them [the 30 employees in the
cafeteria]." Stuart answered that it was okay to distribute
the literature but there would be no apology and no retrac-
tion.
The complaint alleges'0 that on or about December 15,
1977, Respondent, by Sheldon Weinig "confiscated and de-
stroyed the union literature being distributed .... " Respon-
dent, in its answer, denied the allegations of the complaint
but averred that Weinig "picked up some throw aways left
on a table in the cafeteria of the Orangeburg plant at which
no one was seated, and, after ascertaining that no one in the
immediate facility claimed them, picked them up and threw
them away.
The long settled rule is that employees are permitted at
all times to possess, Chrvsler Corporation (Missouri Truck
Plant), 242 NLRB 577 (1979), and also to distribute union
literature on nonwork time in nonwork areas regardless of
any employer rule to the contrary (no work rule is in evi-
dence which prohibits such distribution) in the absence of
special circumstances which require the maintenance of
production, safety, or discipline in the plant as a means
proscribing such otherwise lawful possession and distribu-
tion. Stoddard-Quirk Manufacturing Co., 138 NLRB 615
(1962); American Cast Iron Pipe Co. v. N.L.R.B., 600 F.2d
132 (8th Cir. 1979).
It should be first noted that no Respondent witness, or
any other witness, testified in support of the above defense
in Respondent's answer. The testimony of neither of the
General Counsel's witnesses (Brown, Thomashefski) dem-
onstrates any inherent weakness and it is credited, espe-
cially here, in the absence of the one witness who could
have presented an issue of fact and credibility. There was
no explanation here why President Weinig did not testify to
controvert the facts elicited from General Counsel's wit-
nesses. Especially in his unexplained absence." I credit the
testimony of Brown and Thomashefski. Laredo Coca Cola
Bottling Company, 241 NLRB 167 (1979); Zapex Corpora-
tion, 235 NLRB 1236 (1978).
Possession as well as distribution of union literature is
protected under the Act. Chrysler Corporation (Missouri
Truck Plant), 242 NLRB 577 (1979); Stoddard-Quirk
Manufacturing Co., 138 NLRB 615 (1962). There is no
question here but that Brown, in possessing and distributing
'O At the hearing, the General Counsel specified that the complaint ad-
dresses Weinig's conduct within the cafeteria and not at the timeclock.
&" In support of a motion to change return date of subpena, dated May 25.
1979, withdrawn at the hearing on June 4, 1979, Respondent submitted a
letter incorrectly dated April 16, 1979, from President Weinig, noting, inter
alia, that he had arranged to attend a 2-day seminar commencing June 4,
1979, which coincided with the opening of the Board hearing. Counsel's
motion nevertheless noted that Dr. Weinig was available to testify on June 5.
He did not appear.
union literature in the cafeteria on December 15 was en-
gaged in a concerted activity, protected by Sections 7 and
8(a)(1) of the Act against interference by Respondent.
Weinig's acts of interrogation in the cafeteria of Brown, the
employees seated at the nearby table, and then all other 30
employees in the room, to discover who had left the leaflets
at the magazine rack, in conjunction with the leaflets being
exposed on the tables and his confiscation and destruction
of the leaflets on the rack in a nonwork area on nonwork
time constitute a violation of Section 8(a)(l) of the Act.
F. W. Woolworth Co., 216 NLRB 945, 949 (1975); Larand
Leisurelies v. N.L.R.B., 523 F.2d 814 (6th Cir. 1975). Wein-
ig's gratuitous, hostile interrogation of the employees and
his destruction of the union leaflets on top of the magazine
rack (others were in front of employees on the tables) were
designed to intimidate Brown and the other employees to
whom he addressed questions in order to obstruct the em-
ployees' right of self-organization. by showing his opposi-
tion to the existence of these union leaflets in Respondent's
cafeteria. Any defense regarding "special circumstances" is
thus sacrificed. Stoddard-Quirk Manufacturing Co. at 621.
The facts herein do not demonstrate that Dr. Weinig. for
instance, was in any way playing a practical joke on em-
ployees, Federal-Mogul Corporation v. N.L.R.B., 566 F.2d
1245 (5th Cir. 1978); and Personnel Manager Stuart's later
advice to Brown and the other union literature distributors
that they were free to distribute in the cafeteria and else-
where falls far short of a Respondent repudiation of Wein-
ig's action, for Stuart admitted no wrongdoing and refused
to post a notice of repudiation to, or otherwise contact, the
30 employees in the cafeteria who witnessed Weinig's con-
duct, as well as other employees who heard about it. Passa-
vuant Memorial Area Hospital, 237 NLRB 138 (1978), and
cases cited therein.
In short, in the absence of contrary testimony, or special
circumstances, it is clear that President Weinig's conduct on
December 15 in interrogating the employees and in confis-
cating and destroying the union leaflets in the cafeteria, a
nonwork place, on nonwork time, violated Section 8(a)(l)
of the Act.
Respondent's Withholding of a Portion of Brown's Merit
Increase on January 10, 1978
Brown was hired on January 11, 1977, and, pursuant to
Respondent's policy, received two performance reviews at
3-month intervals in April 1977 and July 1977, and there-
after 6 months later, in January 1978. The initial reviewing
authority at all times, and the supervisor making the recom-
mendations, was George Fostel, Brown's immediate super-
visor. The evidence shows that Brown started work at $4 an
hour and, early in his employment and continuously there-
after, reminded Respondent that he thought he was being
underpaid.
Fostel's April 1977 evaluation of Brown contains Fostel's
notations that Brown's work performance in terms of qual-
ity and quantity of work met acceptable standards; that his
attitude was very good; that he was a self-starter and had
good work habits. Fostel's overall rating was a "check" and
a "plus" appearing next to the entry "satisfactory," where
the choice was to indicate that, in the overall rating,
Brown's performance was "unsatisfactory," "satisfactory,"
402
MATERIALS RESEARCH CORPORATION
or "outstanding." As a result of this April evaluation,
Brown received a 25-cent-per-hour raise which, according
to Brown's conversation with Fostel as recorded on the
hourly performance review (G.C. Exh. 7). Brown regarded
as being insubstantial. He did state, however, that he ac-
cepted the 25-cent-per-hour raise.
Fostel again reviewed Brown in July 1977 and again
measured Brown's overall rating as "check-plus" in the sat-
isfactory column. Brown received another 25-cent per hour
raise effective July 11, 1977. In both reviews, Fostel's rec-
ommendations were countersigned individually by the de-
partment head and the personnel manager (G.C. Exh. 8).
On January 10, 1978, in the morning, Fostel again re-
viewed Brown's performance, but this time for a 6-month
performance. Whereas in the two prior evaluations, before
Brown engaged in union activities, Fostel had described
Brown's "attitude evaluation" as "good" and "very good."
by January 1978, Fostel found Brown's attitude to be "ex-
cellent" (G.C. Exh. 9). Further, by January 1978. Fostel
measured Brown's approach to his job. in terms of intelli-
gence and effectiveness, as "outstanding" rather than satis-
factory. He further found that his ability and willingness to
work with others had grown from good or very good to
"outstanding." the ultimate category on Respondent's form.
His "overall" appraisal of Brown's performance was no
longer checked in the satisfactory box, as theretofore, but
was measured by the word "outstanding."
It should be noted that, in July, when Brown told Fostel
that the 25-cent-per-hour raise he received was not substan-
tial, Fostel told him that if his work remained good, he
would receive a 50-cent raise on his anniversary date: i.e.,
in January 1978. In this performance review on January 10,
1978, Fostel told Brown that Brown's work was as good or
better than in the previous evaluation, and that Vice Pres-
ident Dr. Class had told Fostel not to do anything with
regard to Brown's recommended wage increase until the
matter was cleared by Fostel with Class. Thus Fostel told
Brown that the wage increase column in the form would be
left vacant.
In the afternoon of January 10, 1978, Fostel returned to
the lab and had the review paper with him. He said that
Vice President Class and Plant Manager Martin had recom-
mended a 4-percent increase for Brown, which amounted to
18 cents per hour. The document (G.C. Exh. 9) now had
printed on its face, on the second page, under Fostel's over-
all appraisal of Brown as "outstanding," the following:
Employee has demonstrated initiative and technical
ability. However, this must be balanced by certain ac-
tions that have not been in the corporations best inter-
est and disciplinary action has been required.
The 18-cent raise was initialed as of January 10, 1978, in
the heading requiring the initials of the personnel manager.
When Fostel asked for Brown's comments, Brown stated
thereon (G.C. Exh. 9, page 2) that this was the lowest pay
increase he had ever received and that the "actions" re-
ferred to by Fostel on the document referred to Brown's
engaging in actions relating to "our legal rights to collective
bargaining and union representation." He stated that the
discipline received from Respondent for his actions was
nothing more than "harassment and discrimination because
of [his] participation in concerted activity to improve my
work place."
There is no dispute that the disciplinary action referred
to by Respondent was the two written warning notices of
October 31, 1977, and November 22, 1977. Again, the first
written warning notice (G.C. Exh. 4) related to Class' prior
verbal warning against Brown's entering the production
area, which theretofore had been part of the routine of his
job, occupying 15 percent of his time, wherein he sought to
obtain samples for testing in his lab: and to Brown's con-
versation on Saturday, October 29. with the departing em-
ployee John Nicolesi. The second written warning notice
(G.C. Exh. 5(A)) relates to the Fairchild incident, supra.
With regard to the first warning notice of October 31,
1977. the evidence is uncontradicted that Supervisor Fos-
tell2 directed employee John Nicolesi to the laboratory in
which Brown was working to afford Nicolesi an opportuni-
ty to say hello, and goodbye, to Brown before Nicolesi
transferred out of the Orangeburg plant. While there is no
evidence on this record that Fostel, knowing that Vice Pres-
ident Dr. Class had already given a verbal reprimand to
Brown fbr straying into the production area, had "set up"
Brown by having Nicolesi enter the laboratory during
working hours, it is clear that the first reprimand was deliv-
ered and issued because of the conduct of Supervisor Fostel
rather than the employee encouraging Nicolesi to visit him
during working hours. Even though the warning notice was
issued, on this record, because of the innocent wrongdoing
of Supervisor Fostel in encouraging Nicolesi to enter the
laboratory during working hours, and even in the absence
of bad motivation, I regard the warning notice issued to
Brown on this occasion to be technical. at best. Brown
played no substantial part in Nicolesi's presence. I conclude
that Respondent confined Brown to the lab and initiated
the warning against his entering the production area be-
cause he was known as the union organizer and because of
Respondent's hostility to the Union, and that Fostel's fail-
ure to intervene on Brown's behalf was due to his knowl-
edge of Respondent's motivation. The implementation of
the rule having been discriminatorily motivated, Respon-
dent cannot argue that its action was to prevent Brown
from interfering in the production activities of its produc-
tion employees. The restriction placed on Brown, on the
record, did not flow from such interference; he normally
spent 15 percent of his time in the production area; and
Respondent's discriminatory action was not in terms of
worktime, but absolute. I further conclude that this first
written warning was unwarranted. Its pretextual nature ap-
pears from Respondent's failure to in any way deny
Brown's testimony that he and Dr. Class, in particular, of-
ten had nonbusiness conversations on worktime. Dr. Class
did not testify.
With regard to the second warning notice (G.C. Exh.
5(A)), Brown has at all times denied using abusive language
to Supervisor Fairchild. Respondent produced no witness
with regard to the event: neither Fairchild himself to deny
Brown's testimony and to aver, in the face of Brown's con-
trary testimony, that Brown did utter abusive language to
him, nor G. L. Martin, the general manager, who allegedly
12 Fostel did not testify.
403
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(G.C. Exh. 5(B)) reviewed and examined all written state-
ments and discussed with all individuals the Fairchild inci-
dent. On the other hand, the General Counsel failed to pro-
duce the four corroborating witnesses who were with
Brown when Brown used the allegedly abusive and obscene
language to Fairchild. Here, as in the incident with Pres-
ident Weinig in the confiscation of union literature, above,
the only live witness that was produced by either side with
regard to the Fairchild event was the alleged discriminatee
himself, Robert Brown. He absolutely denied the utterance
of the obscene language. Respondent failed to produce any
witness to the matter but introduced its records thereof.
In spite of the fact that Brown, at the time of the hearing,
was a paid employee of the Charging Party, in view of Re-
spondent's failure to produce either or both Fairchild or
Martin, or any other witness to the events herein, or to
explain their actions, I credit Brown's denial that he used
obscene language to Fairchild. I am not suggesting, in mak-
ing this credibility resolution, that Respondent may not rely
on the version of an event supplied by its supervisors and
have an honest belief that Brown used obscene language to
Fairchild. I conclude that Respondent in the absence of
evidence of pretext may reasonably have relied on Fair-
child's version as opposed to Brown's (and the alleged sup-
porting witnesses) in its issuance of the written warning no-
tice of November 22. 1977, with regard to the Fairchild
incident. National Aluminum, Division of National Steel Cor-
poration. 242 NLRB 294 (1979). However, in resolving the
question, not of "honest belief' on the part of Respondent
in its crediting of its own supervisor (Fairchild), but in re-
solving the ultimate issue of whether, in fact, Robert Brown
did utter the obscenity to Fairchild, I am faced with the
General Counsel's producing a live witness (in addition to
four statements, in evidence, corroborating Brown) on the
one hand, and on the other hand, Respondent, without ex-
cuse or even explanation, producing only papers and no
live witness to confront Brown's testimonial denial of hav-
ing used obscene language.
Under these circumstances I credit his denial and find
that he did not utter obscene language to Fairchild. I fur-
ther find therefore, on this record, that Respondent ad-
duced insufficient evidence to support its conclusion that, in
fact, the basis for "disciplinary action" referred to in its
hourly performance review (G.C. Exh. 9), in which it gave
Brown an 18-cent-per-hour increase rather than a greater
increase, was established. I further conclude, from the en-
tire record herein, including the union animus directed at
Brown by Weinig, Respondent's admitted recognition of
Brown as the most prominent union activist among its em-
ployees, and, at best, the pretextual nature of its prior disci-
1 In view of record evidence (G.C. Exh. 5(B)) that Dr. Martin discussed
the Fairchild incident with "all individuals who had any knowledge of the
incident," I conclude that Respondent met the General Counsel's evidence
(G.C. Exh. 2) of the four employees who said that Brown used no obscene
language. But when General Counsel adduced Brown's testimony, Respon-
dent could no longer rely on the weak evidence of Dr. Martin's report but
was under an obligation to confront Brown with Fairchild's testimonial de-
nial, obviously stronger evidence. It failed without explanation to do so, and
its action supports the negative inference, which I draw, that Fairchild's
contrary testimony would not stand up to confrontation. International Union,
United Automobile, Aerospace, and Agricultural Implement Workers of Amer-
ica (UA W) [Gyrodyne Co. of America] v. N.LR.B., 459 F.2d 1329 (D.C. Cir.
1972). Even Dr. Martin was not produced to testify concerning his investiga-
tion of the matter after Brown's emphatic denial and direct appeal to him.
plinary action against Brown, that the failure to give him
more than an 18-cent-per-hour-wage increase, as alleged,
was based upon unlawful discriminatory considerations
rather than upon objective disciplinary actions and thus
violated Section 8(a)(3) and (1) of the Act. It should be
noted that all the disciplinary actions commenced on and
after the time that Brown, found by his supervisor to be an
"outstanding" employee, became an active union sup-
porter. Dr. Class' restriction of his movements, his confron-
tations with Respondent's supervisors regarding his investi-
gation of health and safety problems in the plant, the
destruction of the union leaflets, and the alleged disciplin-
ary action because of "certain actions that have not been in
the Corporation's best interest" relate, in this case, to
Brown's union activities rather than to his deficiencies as an
employee.
I do not find what pay increase Brown would have re-
ceived absent this discrimination, bearing in mind that
some of his peers received 25 cents per hour. The resolution
of that issue should await a backpay proceeding, if neces-
sary.
Moreover, in view of the fact that Brown and the four
employees who entered Fairchild's office were concertedly
protesting removal of a report regarding occupational haz-
ards in Respondent's plant, they were clearly engaged in a
"protected" concerted activity. Alleluia Cushion Co., Inc.,
221 NLRB 999 (1975). Assuming, arguendo, that Brown
used an obscene word to describe Fairchild's action in re-
moving the safety report from the bulletin board, Respon-
dent may not discriminate against him by retaliation for
this derogatory epithet addressed to its supervisor under
these circumstances. United States Postal Service, 241
NLRB 389 (1979), and case cited therein.
Respondent's Affirmative Defenses
Respondent alleged six affirmative defenses. The first was
that the complaint was issued in violation of Section 10(b)
of the Act in that it does not "state the charges in that
respect" within the meaning of Section 10(b); i.e., the unfair
labor practices alleged by the complaint were not charged
by the Union. As a matter of fact, the charge in this case
alleges unlawful employer harassment, discrimination with
regard to wage increases, and "disparate enforcement of
company rules," and alleges violation of Section 8(a)(1) and
(3) of the Act. It is thus sufficiently broad to form a proper
nexus with the complaint which alleges violation of Section
8(a)(1) and (3) in the Brown wage increase and 8(a)(I) in
the confiscation and destruction of the leaflets. N.L.R.B. v.
Fant Milling Company, 360 U.S. 301 (1959). In any event,
courts of appeal have uniformly rejected attempts to restrict
the Roard's complaints to the precise violations alleged in
the charges where the matters are reasonably related.
N.L.R.B. v. Pecheur Lozenge Co., 209 F.2d 393 (2d Cir.
1953); N.L.R.B. v. Kohler Company, 220 F.2d 3, 7 (7th Cir.
1955). Respondent's brief (p. 3), insofar as it asserts that the
charge "cannot be fairly be read to specify or relate . . ." to
the acts alleged in the complaint, refers to no Board or
court authority in support thereof.
Respondent's second affirmative defense alleges a viola-
tion of the Board's Statement of Procedures, Section 101.4,
in that the Regional Director did not serve upon Respon-
404
MATERIALS RESEARCH CORPORATION
dent the copy of any charge alleging the unfair labor prac-
tices found in the complaint and never asked Respondent to
submit a statement of its position in respect to said unfair
labor practices. The third affirmative defense asserts that, in
violation of Section 101.7 of the Board's Statement of Pro-
cedures, the Regional Director never afforded Respondent
an opportunity to settle."
With regard to the first part of the second affirmative
defense, the above-cited cases dispose of that assertion.
With regard to the second part, the failure of the Regional
Director to have Respondent submit a statement of its posi-
tion with regard to the unfair labor practices, and the third
affirmative defense, the Board has held that compliance
with these elements in an unfair labor practice case is not
jurisdictional, especially where, as here, Respondent was
given an opportunity to settle at the hearing. Dairylee, Inc.,
149 NLRB 829, 830 (1964). Thus, Respondent's second and
third affirmative defenses are rejected.
Respondent's fourth affirmative defense,' as I under-
stand it, is that the Regional Director's approval of a con-
sent election an agreement between the Charging Party and
Respondent on February 2, 1978, followed by the Regional
Director's certification of results (the Charging Party lost
the election) on March 16, 1978, operates to preclude issu-
ance of a complaint alleging as unfair labor practices acts
prior to the Regional Director's approval. Hence, since the
unfair labor practices alleged herein (December 15, 1977,
and January 10, 1978) predate the Regional Director's ap-
proval of the consent election agreement, Respondent urges
dismissal of the complaint.
Respondent relies on language in Hope Webbing Com-
pany, 14 NLRB 55 (1939), and The Wallace Corporation, 50
NLRB 138, 152 (1943), enfd. 323 U.S. 248, rehearing de-
nied 324 U.S. 885 (1945), wherein the Board, in the absence
of postsettlement violations, prohibits prosecution of preset-
tlement unfair labor practices. Cf. Northern California Dis-
trict Council of Hodcarriers and Common Laborers of A mer-
ica, AFL-CIO; Construction and General Laborers Union
Local No. 185, AFL-CIO, 154 NLRB 1384 (1965), enfd.
sub. nom. N.L.R.B. v. Joseph Mohamed Sr., an Individual
d/b/a Joseph's Landscaping Service, 389 F.2d 721 (9th Cir.
1968).
This fourth affirmative defense is similarly without merit.
The cases cited by Respondent, as the General Counsel has
already urged before the Board opposing Respondent's mo-
tion to dismiss, are distinguishable since they relate to con-
sent elections resolving representation (i.e., violations of
Section 8(aX2)) issues between contesting labor organiza-
tions. The agreed-upon, voluntary resolution of the repre-
sentation issue in a consent election was held in those cases
to put a quietus on the preelection allegations of unfair
labor practices predicated on representation issues. In the
instant case, the alleged unfair labor practices, unlike those
in Hope Webbing, are not derived from, nor can they be
resolved through, the election machinery. They exist wholly
apart from any statutory representation of rights of the
" Respondent was given an opportunity to settle at the opening of the
hearing.
1" This defense was also urged in Respondent's Motion for Summary Judg-
ment (G.C. Exh. I(I)), dated January 3. 1979, which the Board, on General
Counsel's opposition (G.C. Exh. (p) denied (G C. Exh. (r)) on March 19.
1979, refemng the entire matter to a plenary hearing.
Charging Party. To thus mechanically apply, as Respon-
dent urges, a rule designed for cases involving presettlement
violation of Section 8(a)2)-and the Board has other spe-
cialized rules regarding the disposition of 8(a)(2) cases in
election situations, Carlson Furniture Industries, Inc.. 157
NLRB 851, 853 (1966)-to a case involving only 8(a)(3)
and (I) violations is to misconstrue the foundation and
function of these cases cited by Respondent. In short, Wal-
lace Corporation, and Hope Webbing Co.. supra, are distin-
guishable.
Furthermore, to permit such a result would sub silentio
undermine the rule in The Ideal Electric and Manufacturing
Company, 134 NLRB 1275 (1961), which permits consider-
ation of unfair labor practices occurring before execution of
a consent election agreement but after filing of the petition,
in order to set aside the election. If execution of a consent
election agreement precluded a party's right to assert such
preconsent unfair labor practices, few consents would ever
be obtained and the Board's election machinery impaired
by countless needless hearings. This fourth affirmative de-
fense is rejected.
Respondent's fifth and sixth affirmative defenses are that
the amount of backpay which it might owe Brown. together
with Respondent's destruction and confiscation of union lit-
erature, at best, are "technical . . . contraventions of the
statute" (br. p. 33) requiring dismissal as de mininimis. Re-
spondent cites American Federation of Musicians, Local 76.
AFL-CIO (Jimmy Wakely Show). 202 NLRB 620 (1973).
The case is distinguishable on its facts. The de milimis de-
fense is inapplicable to Respondent's unlawful demonstra-
tions of discrimination and hostility which contravene two
separate basic statutory rights.
CONCI.USIONS OF LAWr
1. Respondent, Materials Research Corporation. is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. United Electrical, Radio and Machine Workers of
America (UE), herein called the Union, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By confiscating and destroying union leaflets in a non-
work place on nonwork time in the presence of employees
to whom similar leaflets had been distributed, first demand-
ing to know from the employees who distributed the leaf-
lets, all of which occurred on or about December 15, 1977.
Respondent interfered with, restrained, and coerced its em-
ployees in activities protected by Section 7 of the Act,
thereby violating Section 8(a)(1) of the Act.
4. By failing and refusing to grant Robert Brown, on or
about January 10, 1978, a full merit increase because of his
activities on behalf of the Union. Respondent unlawfully
discriminated against employees, thereby discouraging
membership in the Union in violation of Section 8(a)(3) of
the Act.
5. Respondent's unfair labor practices affect 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 within the meaning of Section 8(a)( I)
405
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and (3) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action to effec-
tuate the policies of the Act. Accordingly, having found
that Respondent, in violation of Section 8(a)(3) of the Act,
unlawfully refused to grant Robert Brown a full merit in-
crease, I shall recommend that Respondent be ordered to
make him whole for any loss of pay resulting from the dis-
crimination against him which resulted from paying him an
18-cent per hour merit increase, by payment to him of a
sum of money equal to the amount he would have earned
as wages had he been given a full merit increase commenc-
ing January 10, 1978, and ending with the date he ceased
employment with the Company (April 18, 1978). Should
the parties be unable to agree on the figure, the matter
should be the subject of a backpay proceeding. Backpay
shall be computed on a quarterly basis in the manner pre-
scribed in F. W. Woolworth Company, 90 NLRB 289 (1950),
and Florida Steel Corporation, 231 NLRB 651 (1977).'6
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record in this proceeding, and pursuant
to Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER'7
The Respondent, Materials Research Corporation, Or-
angeburg and Pearl River, New York, its officers, agents.
successors, and assigns, shall:
I. Cease and desist from:
(a) Failing to grant full merit increases to or otherwise
discriminating against any of its employees because they
engage in activities on behalf of United Electrical, Radio
and Machine Workers (UE), herein called the Union, or
any other labor organization, thereby discouraging mem-
bership therein.
(b) Confiscating or destroying literature of the Union or
any other labor organization that has been or is being dis-
tributed to employees in nonwork areas and on nonwork
time, or otherwise interfering with the distribution of such
literature to discourage membership in the Union.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Make whole Robert Brown for any loss of earnings
he may have suffered as a result of the discriminatory re-
"6See, generally, Isis Plumbing & Healing Co., 138 NLRB 716 (1962).
l" In the event no exceptions are filed as provided by Sec. 102.46 of the
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.
fusal on January 10, 1978, to grant him a full merit in-
crease, in the manner set forth above in the section entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(c) Post at its facilities in Orangeburg and Pearl River,
New York, copies of the attached notice marked "Appen-
dix."'8 Copies of said notice, on forms provided by the Re-
gional Director for Region 2, after being duly posted by
Respondent's representative, shall be posted by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
t" In the event that this Order is enforced by a Judgment of the 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor 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 fail to grant full merit increases to or
otherwise discriminate against any of our employees
because they engage in activities on behalf of United
Electrical, Radio, and Machine Workers (UE), herein
called the Union, or any other labor organization.
WE WILL NOI confiscate or destroy union literature
or literature of any other labor organization that has
been or is being distributed to employees in nonwork
areas and on nonwork time.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights guaranteed in Section 7 of the Act.
WE WILL make whole Robert Brown for any loss of
earnings he may have suffered as a result of our dis-
criminatory refusal, on January 10, 1978, to grant him
a full merit increase.
MATERIALS RESEARCII CORPORATION
406