Motorola, Inc.

National Labor Relations Board - Board Decisions

Mar 14, 1967

163 N.L.R.B. 385 (N.L.R.B. 1967)

MOTOROLA, INC.
Motorola , Inc. and United Automobile,
Aerospace and Agricultural Implement
Workers, AFL-CIO . Case 13-CA-7269.
March 14,1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On September 30, 1966, Trial Examiner Stanley
N. Ohlbaum issued his Decision in the above-
entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and
desist therefrom and take certain affirmative
actions, as set forth in the attached Trial Examiner's
Decision. He also found that the Respondent had not
engaged in certain alleged unfair labor practices and
dismissed these allegations of the complaint.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief,
and the General Counsel filed cross-exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, ' conclusions, and recommendations of the
Trial Examiner with the modification noted below.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that Motorola,
Inc., Chicago, Illinois, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified.
1. Paragraph 1(a) is amended to read:
"(a) Interrogating in violation of the Act any
employee as to his union membership or lawful
organizational or other activity, or threatening
employees with the loss of a profit-sharing plan if
they choose a labor organization to represent them
as their collective-bargaining agent."
2. Add the following indented paragraph after the
second indented paragraph of the Appendix to the
Trial Examiner's Decision:
WE WILL NOT threaten our employees with
the loss of the profit-sharing plan if they choose
385
a labor organization to represent them as their
collective-bargaining agent.
' In agreeing with the Trial Examiner that Respondent through
its supervisor, Ronald Caccamo, engaged in unlawful
interrogation of employees Gerhard Kutzora and James Bastian,
we find it unnecessary to pass upon the Trial Examiner's
comments , expressed in footnote 8 of his Decision, as to
Caccamo's failure to justify the questioning or assure against
reprisal, and the speculation as to subjective effect on the
employees of the coercive interrogation.
We also agree with the Trial Examiner that Respondent's
proscription of, or effort to proscribe, communication between
employees on union and organizational matters, was violative of
Section 8(a)(1) of the Act. In making this finding we rely on the
broad and all encompassing nature of the proscription as to time
and place, and find it unnecessary to decide whether the
proscription was disparately applied.
2 The General Counsel excepted to the failure of the Trial
Examiner to find as a violation of Section 8(a)(1) of the Act
Caccamo's statement to employees Kutzora and Bastian about
the probability of the loss of profit sharing if the Union was
successful. We find merit in this exception Unlike the Trial
Examiner we do not view this as a chance remark or statement of
opinion We note, particularly, that it was made in conjunction
with other illegal interrogation of the employees and under the
circumstances is readily identifiable as a threat rather than a
statement of opinion Nor does the fact that the threat was made
by a relatively minor supervisor to only several employees vitiate
its illegal nature and exonerate the Respondent from
responsibility. Accordingly, we shall amend the Trial Examiner's
findings, Recommended Order, and Notice
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
STANLEY N. OHLBAUM, Trial Examiner: This case was
heard before me in Chicago, Illinois, on May 4-6, 1966, on
complaint of General Counsel of the Board' alleging, and
answer of Respondent denying, violation of Section 8(a)(3),
(1), and (4) of the National Labor Relations Act, as
amended, 29 U.S.C. Sec. 151 et seq. (Act). All parties
appeared and were represented throughout by counsel,
who were afforded full opportunity to present evidence
and contentions, file briefs, and propose findings of fact
and conclusions of law. Subsequent to the hearing, a brief
was received on behalf of General Counsel, which,
together with the entire record, has been carefully
considered.
Upon the entire record2 and my observation of the
witnesses, I make the following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION; RESPONDENT'S BUSINESS; LABOR
ORGANIZATION INVOLVED
At all material times, Respondent, Motorola, Inc.
(Employer), has been and is an Illinois corporation with its
principal office in Franklin Park, Illinois, engaged, in
Chicago, Illinois, and elsewhere, in manufacture of radio,
television, and electronic equipment and related products.
i Issued through the Director of Region 13 on March 11, 1966,
upon charge filed by the above Union on December 9, 1965,
amended on January 19 and further amended on February 1,
1966 The complaint was amended on May 5, 1966 (at the
hearing), so as to allege violation of Section 8(a)(4)
2 Hearing transcript corrected in accordance with order on my
notice dated August 2, 1966
163 NLRB No. 52
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the 12-month representative period immediately
preceding issuance of the complaint, Respondent in the
course and conduct of its said business operations
manufactured at and shipped from its Chicago plants,
directly in interstate commerce to States other than
Illinois, goods and materials worth over $1 million. I find
that at all material times Respondent has been and is an
employer engaged in commerce, with its operations
affecting commerce, within the meaning of Section 2(6)
and (7) of the Act.
I find that at all material times United Automobile,
Aerospace and Agricultural Implement Workers,
AFL-CIO (Union), Charging Party herein, has been and is
a labor organization within the meaning of Section 2(5) of
the Act.
I find that assertion of jurisdiction in this case is proper.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The issues presented are whether Respondent violated
Section 8(a)(1) through interrogation, surveillance,
interdiction of communication among union employees
during working hours, and coercive wage increases to
discourage union and protected concerted activities;
Section 8(a)(3) through discriminatory demotion of an
employee and depriving him of the opportunity for
overtime; and Section 8(a)(4) by denial of employment to
employees for testifying at this hearing.
B. Background
Respondent is a well-known manufacturer of radio,
television, electronic, and related products and
equipment, with factories including several in the
Chicago, Illinois, area . The only one here involved is its
plant at 4545 West Augusta Boulevard, Chicago (Augusta
Boulevard).
According to the testimony of Union International
Representative Chiakulas, he "started organizing"
technical employees (i.e., phasers, analyzers, and testers)
at Augusta Boulevard (Communications Division) "about
the middle of July, 1965."3 These organizational activities
on his part apparently consisted merely of "initial
meetings with one or two individuals in July and during the
month of August,"4 in August giving employee Stach some
50 union authorization cards for distribution,5 "[holding] a
series of meetings early in September," and mailing union
organizational literature to Augusta Boulevard technicians
in three mailings in September. Union clerical employee
Pucinski's credited testimony (corroborated in essence by
that of Chiakulas) establishes that the latter two of these
3 Other categories of personnel there are other professional
employees and production and maintenance employees
, Throughout, unspecified years are 1965
s Although Chiakulas testified he gave Stach the union carts
early in August, Stach testified that-after a preliminary meeting
at Stach's home in the first week of August with President
McGraham of a neighboring plant local union , at which Stach
agreed to attempt to organize Augusta Boulevard-he (Stach) and
several fellow employees (including Pottebaum and Laflie) met
Chiakulas "possibly the 2nd or 3rd week in August" and received
some 50 union authorization cards from him With regird to his
own union authorization card dated August 7, Stach was unable to
recall whether he signed this when he was visited by McGraham
or when he first saw Chiakulas Stach's credited testimony
mailings occurred on September 8 and 16, and the first
mailing probably on September 4. On September 16, the
Union wrote Augusta Boulevard Plant Manager Law that it
was engaged in an organizing campaign at Augusta
Boulevard. This communication was received by Law on
September 17 after lunch.
C. Alleged Violations of Section 8(a)(1)
1. Interrogation
The complaint alleges and Respondent denies that on or
about September 15, Respondent through its Supervisor
Caccamo interrogated an employee about his union
activity.
On or about September 15 or 16, Augusta Boulevard
analyzer Kutzora received a union card from fellow
analyzer Pottebaum. Later,6 according to Kutzora, his
immediate Supervisor Caccamo asked him at his
workplace whether he had received a union card. When
Kutzora replied in the affirmative, Caccamo asked him
where he had obtained it. Kutzora told Caccamo he didn't
care to tell him. Caccamo, however, "kept insisting" that
Kutzora tell him, stating it was "all right" to do so and that
Kutzora "wouldn't have to worry about anything." Finally,
Kutzora told Caccamo that he had received the card from
fellow employee Pottebaum. Caccamo flatly denied this or
any other conversation at any time with Kutzora on the
subject of a union card. There is thus presented a square
issue of credibility between Kutzora and Caccamo.
Kutzora impressed me as an essentially truthful witness
who testified in a straightforward manner. The testimony
of Caccamo, however-as will be detailed below in
another connection-was characterized among other
things by substantial hedging and equivocation. Although
even strictly on credibility comparison I would prefer and
credit the described testimony of Kutzora, the choice is
facilitated through the testimony of analyzer Bastian, who
testified that he overheard the foregoing conversation
between Caccamo and Kutzora. Bastian's version
essentially corroborates that of Kutzora.? Further,
according to Bastian, C iccamo then questioned him
(Bastian ) as to whether he had received and signed a union
card. Bastain said no, although he had in fact signed the
card. Caccamo also flatly denied ever talking to Bastian on
this subject. Bastian impressed me as an honest witness
whose testimony is worthy of credit.
Under the circumstances, crediting the described
testimony of Kutzora and Bastian in preference to that of
Caccamo, I find that on or about September 15, 1965,
Respondent through its Supervisor Ronald Caccamo at its
Augusta Boulevard plant interrogated its employees
establishes that in mid-Augi at he commenced distributing the
union authorization cards among plant employees
6 Kutzora testified that this was on the same day, on overtime
Although Respondent's timecards throw doubt on the accuracy of
the overtime date given by Kutzora (and fellow employee Bastian),
the precise date (and whether or not it occurred on overtime) of
the event to be described does not appear to be of controlling
significance Even so, I have taken this circumstance into account
in evaluating the comparative credibility of Kutzora and Bastian
vis-a-vis Caccamo
7 According to Bastian's recollection, Kutzora, among other
things, while admitting receipt of the union card, denied signing
it, and Caccamo told Kutzora, "Of course, you will realize you will
lose profit sharing if the Union gets in here 9"
MOTOROLA, INC. 387
Gerhard Kutzora and James Bastian concerning their
union membership and activit1es.8 9
2. Surveillance and interdiction of communications
among union employees
The complaint also alleges and Respondent denies that
since September 1 Respondent, through various
supervisors, has "kept under close surveillance employees
who engaged in union activities by preventing said
employees from communicating with other employees
during working hours." The allegation as thus pleaded will
be treated as an allegation of (1) surveillance and of
(2) interdiction of communications among employees
engaged in protected concerted activities.
The evidence10 indicates that various supervisory
employees of Respondent have kept a relatively close
watch on certain Augusta Boulevard technician
employees, notably those active in union matters,
particularly after the inception of union organizational
activity. Since it is not unlawful for an employer to keep
employees under observation to determine whether or how
they are doing their jobs-nor, indeed, even through
observation to ascertain the extent of their worktime union
activities ' '-it is unnecessary to detail the evidence as to
the nature and extent of those observations, which appear
to have been unremarkable and not unreasonable.
Respondent's supervisor, Caccamo, however, went
further. Based presumably upon such observations, he
appears in effect to have issued an unduly broad
interdiction of conversation among employees with regard
to union matters.
Credited testimony of employee Stach establishes that
he has been accused by his supervisor, Caccamo, as
shown below, of "poisoning [employees'] minds with the
union," and queried by another supervisor, Kucharski, as
to when he would "stop [your] union activity at Motorola,
stop talking to the other workers about a Union"; and that
when Stach pointed out that it was his privilege to do this
on his own time, Kucharski remarked, "[You] speak like
[you are] from Russia."12 As shown below, when Stach,
leader of the union organizational activity at Augusta
Boulevard, was transferred on August 23 to a less
desirable position and asked Supervisor Caccamo why,
"Caccamo stated that I [Stach] had been talking to the
other employees about a union, and that he was demoting
me [from analyzer to] ... tester as a result." Supervisors
Caccamo and Kucharski have accused Stach of creating
job dissatisfaction at the plant and have urged him to stop
his union organizational activities.
Caccamo testified that "during working hours ... right
close to August 23, on the day he [Stach] was moved ... I
told him then to refrain from talking to employees during
working hours, and I might have used the words, `Refrain
from talking to employees during working hours and
poisoning minds toward Motorola.' And if he did not want
to work in Motorola to go out and find one of these better
jobs that he spoke of."
Although Caccamo and Kucharski were interdicting or
attempting to interdict all union talk by employees at the
plant, they were themselves engaged in what appears to
have been extensive antiunion discussions with employees
on company time. For example, in mid-September
Caccamo engaged in an antiunion discussion with analyzer
Pottebaum-overheard by analyzers Kutzora and
Bastian-for about an hour and a half on paid overtime, in
the course of which Caccamo showed Pottebaum (and
Kutzora) an antiunion school theme written by another
employee, which Respondent or one of its supervisors had
apparently reproduced.
Based upon evaluation of comparative testimonial
demeanor, I credit the described aspects of the testimony
of General Counsel's witnesses Stach, Pottebaum,
Kutzora, and Bastian. Thus, Caccamo's (as well as
Kucharski's later) proscription of conversation on union
matters was not only too broad but was disparate. No
necessity was shown for flatly proscribing union talk by
known union leader Stach,13 at least in nonworking areas
on nonworking time (nor even in working areas on
nonworking time) to maintain production or discipline; 14
and the continuing antiunion discussions and
communications of Respondent's supervisors, Caccamo
and Kucharski, with employees on company time and
overtime indicate not only an absence of such necessity
but also that the Company did not regard itself as being
under similar restraint, thereby not only reflecting on the
9 It is to be noted that Caccamo gave no reason in attempted
justification for the described interrogation , nor for his insistence
that Kutzora disclose to him the source of the union card, nor did
Caccamo provide any reassurance to Bastian against reprisal, nor
meaningfully reliable reassurance to Kutzora of no reprisal
against him or the source of the card That the coercive effect of
Caccamo's questioning may be gauged by the fact that Bastian
replied untruthfully to it, see Bourne v N L R.B , 332 F 2d 47, 48
(C A 2), cited with approval in N L R B v Carrico, Inc , 340 F 2d
803, 804 (C A 5), cert. denied 382 U S 926, Cannon Electric
Company, 151 NLRB 1465, 1470
9 On brief for the first time, General Counsel states that also in
issue herein is whether Caccamo told employees they "would lose
their profit - sharing plan" if the Union got in Although this is
nowhere alleged in the complaint , at the hearing employees
Kutzora and Bastian testified that in mid -September Caccamo
told them "that if the Union were to get in , profit sharing would
probably be lost to the employees If not lost, it would be cut down
to the contribution of the company They had control of it, and
they could cut it down to practically nothing " It would not appear
that this possibly chance remark or statement of opinion on one
occasion should, under the circumstances and considering the
size of Respondent 's plant and the number of employees involved,
be considered to be a threat or an otherwise economically
coercive declaration for which Respondent may fairly be held
answerable
10 Testimony of General Counsel's witnesses Stach and
Pottebaum , and of Respondent's witnesses Diggs , Caccamo,
Hinton, and Kucharski
11 There is here no allegation , nor basis for finding, that
Respondent created the impression that its employees' protected
organizational activities were under surveillance Cf, e g ,
N L.R B v. Ruh Equipment Company, 359 F 2d 391 (C A 4).
12 Although Kucharski denied such a conversation or that union
was at any time even mentioned between Stach and him, on
comparative demeanor observations I believe Stach 's testimony
to be more worthy of credit
,i3 Cf. N L R B v Charles Miller & Co , 341 F.2d 870,873-874
(C A 2), N.L.R B. v United Aircraft Corp , 324 F 2d 128 (C A 2),
cert denied 376 U S 951, Whitfield Pickle Company, 151 NLRB
430, Atkins Saw Division, Borg-Warner Corporation, 148 NLRB
949, Hunt Electronics Company, 146 NLRB 1328, Bannon Mills,
Inc., 146 NLRB 611, Texas Aluminum Co, Inc., 131 NLRB 443,
enfd 300 F 2d 315 (C A 5), Star-Brite Industries, Inc., 127 NLRB
1008, Walton Manufacturing Company, 126 NLRB 697, enfd 289
F2d177(CA 5)
14 Cf. Republic Aviation Corporation v N L R B , 324 U S 793,
803, fn 10, 804-805, N L R.B. v. Charles Miller & Co , supra,
In 13, N L.R B. v United Aircraft Corp , supra, fn. 13; Stoddard-
Quirk Manufacturing Co , 138 NLRB 615, Texas Aluminum Co.,
Inc, supra, fn 13, Ward Manufacturing, Inc., 152 NLRB 1270
295-269 0-69-26
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credibility of its avowed policy, but creating a disparity in
its own favor in the execution thereof.' 5
It is accordingly found that although Respondent did not
engage in improper surveillance of its employees at its
Augusta Boulevard plant as alleged, nevertheless
Respondent through its Supervisor Ronald Caccamo in or
about September 1965 (as well as by its Supervisor Victor
Kucharski in or about February 1966) unduly broadly and
disparately proscribe all communication (including
communication on union and lawful organizational
matters ) by its employee Donald Stach, known by
Respondent to be a leader of union organizational activity
at said plant, with other employees.
3. Wage increases to employees
The complaint further alleges that on or about
September 17 (as well as later in September and in
October) Respondent "discriminatorily granted large wage
increases to its technical employees, in particular to its
analyzers, testers, and phasers at its Augusta Boulevard,
Chicago, plant." Respondent admits it raised wages, but
denies it did so discriminatorily, and alleges that the raises
were companywide to all employees at all plants.
It is undisputed that on the afternoon of September 17
Respondent's Augusta Boulevard technicians were
individually called to the office of Plant Product Manager
Burand and told in substance that a review of their work
performance had resulted in the decision to raise their
wage rates. Durand also told the technicians that the
upward pay adjustments reflected competitors' wage
scales.16 The range of these increases was from about 9
cents to 55 cents on previous hourly pay of about
$1.75-$3.75, averaging 22.2 cents per hour or 8.2 percent
for all 619 Augusta Boulevard technicians."
Respondent furnished an explanation for this action
primarily through testimony of Kenneth M. Piper, its vice
president in overall charge of personnel relations for the
entire Motorola organization in all States and plants. As
will be shown, his testimony was corroborated in essential
aspects by documentary proof including contemporaneous
records maintained by Motorola in the regular course of its
business.
Piper testified that Motorola's "critical problem on
attracting and holding of technicians" became so acute in
the summer of 1965 that various measures were taken to
attempt to alleviate it, including an intensified recruiting
campaign not only within but distant from Chicago
(involving relocation emoluments for recruits and $50
awards to employees recruiting new employees). In
September-October, Respondent employed 619 technical
employees at Augusta Boulevard alone.18 Respondent's
technician turnover statistics (Resp. Exh. 2) show a
15 Cf. Revere Camera Co v. N L R B, 304 F 2d 162, 165
(C A 7), N L R.B. v Hill & Hill Truck Line, Inc, 266 F 2d 883,
886 (C A 5), Wigwam Mills , Inc, 149 NLRB 1601, 1608-10, enfd
351 F 2d 591 (C A 7), Ward Manufacturing, Inc., supra, fn 14,
The Wm. H Block Company, 150 NLRB 341, Standard
Manufacturing Company, 147 NLRB 1608, Bannon Mills, Inc,
146 NLRB 611; Burlington Industries, Inc., 144 NLRB 272,
Memphis Publishing Company, 133 NLRB 1435 See also
Republic Aviation Corporation v. N L R.B., supra, fn 14, Peyton
Packing Company, Inc.. 49 NLRB 828, 843-844, enfd 142 F 2d
1009 (C A. 5), cert. denied 323 U S 730
11 Durand 's credited testimony to this effect was corroborated
by General Counsel witness Pottebaum, an employee, who
testified that when told in Durand's office of the pay increase, the
latter said " something about that they were trying to bring us up
steadily rising tempo of technician requisitions at Augusta
Boulevard (as well as at the Franklin Park plant) in 1965,
numbering about 500 (plus about 1,200 at Franklin Park) in
the first 9 months of that year. Calling attention to a
Bureau of Labor Statistics 1965 statement that Chicago
was the most critically labor-short area of any metropolitan
American city, Piper pointed out that he directed a survey
of Motorola technician turnover in the Chicago area,
covering a radius of 40 miles or 1-hour automobile
commuting distance from the heart of Chicago and
involving a number of Motorola plants including Augusta
Boulevard, Franklin Park, Cicero, Elgin, Elk Grove,
Flournoy, and Palatine. Piper found that technicians
"were in short supply, and there was a great deal of
competition among the users of this talent in our industry
and outside for these people ... We had an economic
problem of attracting and holding technical employees in
the various divisions of the business." In June or July,
Piper's staff also made a survey of pay rates for
technicians in the Chicago area. The survey showed that
the pay of Motorola technicians was around 25-30 cents
per hour or 8-9 percent below that of the highest paid
electronics companies.
The upshot of the foregoing was that on August 2 Piper
directed a memorandum, dated that day, to Motorola
Board Chairman Galvin (Resp. Exh. 4) attaching a study
and proposal dated August 2 (Resp. Exhs. 3 and 4), in
effect recommending a $3,980,000 companywide wage rate
increase, and requesting an immediate meeting to "come
toga conclusion on some of our previous exchanges on the
increase" in view of "urgency to meet problems we are
facing in the present tight market to attract and hold some
of the skills we need." The attached supporting staff study
from Godinez to Piper on "1965 Industry Increase
Patterns and Proposals," including a statistical-type
presentation of "Industry Increase Patterns" dated
July 26, compares pay scales of Motorola and its
competitors in the Chicago area, points out wage increases
granted by the competitors, and emphasizes that:
In recent months there is a change in the content of
technician jobs in the production of communications
and consumer goods. With transistorization and the
expansion of color television technicians are required
to assume responsibilities on more complex and more
sophisticated products. In our Chicago area plants we
are encouternig [sic] increasing difficulty in hiring
and retaining people in the technical categories. Our
program is structured upon the achievement of the
necessary increase in the number of these people. We
should make adjustments for these categories and
related jobs with a view to hiring and retaining these
skills we have to have in the Chicago labor market,
and maintaining equitable internal relationships.
to par with the rest of the companies in the area."
17 Testimony of General Counsel witnesses r ink, Hodge, Ward,
Kozak, Rasko, Nowak, Miller, Slugocki, Pottebaum, Kutzora,
Bastian, and Stach, and Resp. Exh 1 There is considerable
evidence of a fairly frequent smaller (around 5-10 cents per hour)
raise pattern in the preceding few years According to
Respondent's vice president and Personnel Relations Director
Piper, wage raises of this extent were by no means
unprecedented, there having been no less than 7 or 8 during the
preceding 17 years
is The numbers of technical employees at Motorola's other
plants in the Chicago area at this time were: Franklin Park
"Consumers Products Division," 550, Cicero "Military Division,"
125, Flournoy, 70. (Elgin and Elk Grove were not yet operative,
and Palatine was lust commencing.)
MOTOROLA, INC. 389
The study then makes alternative recommendations for
raising wage rates of Motorola employees in all of its
plants, not limited to Augusta Boulevard.
According to Piper, he met with Motorola Board
Chairman Galvin and Company President Wavering on
August 3 on the subject of this report and its
recommendations, which were approved and ordered that
day to be implemented, Piper being "under instructions at
the [August 3] meeting to implement the recommended
[wage] increase" approved by Board Chairman Galvin
and Company President Wavering. The August 2
interoffice memorandum and report (Resp. Exh. 4) itself
shows, in handwritten notations, that it was returned by
Board Chairman Galvin to Piper on August 3, approving
the higher-priced (i.e., $3,980,000) of the alternative wage
increase recommendations, to be "Put in all plants" and to
"Get started on announcements by Labor Day." The
returned study, part of Respondent's records, also shows
the marginal handwritten notation, alongside of the above-
quoted portion regarding technicians' pay rates, "Get Cgo
up to Zenith" (a competitor). It also shows the handwritten
marginal notation at the top of the first page, "Payroll &
Compensation need 2 weeks." Accordingly, Piper's staff
"immediately proceeded after the [August 3] meeting to
work out the details for implementing the increase ... by
the deadline dates agreed upon on August 3, 1965 ... we
agreed that the increases ... [for] technicians ... which
were traditionally made on a merit basis, would be
implemented during the month of September, beginning
effective on September 13. That the balance of the
increases would thereafter be implemented, not later than
the end of the month on October 1."
By around August 10, Piper had "communicated
verbally with the managers of each of the plants indicating
the forthcoming increases. And that the [paper] work [as
to precise amounts of individual increases, with
supporting documentation] should be accomplished on
the preparation of the increases beginning around Labor
Day, a few days before, so that when I came into the
plants, we could conclude the making of these individual
increases." According to Piper, the reason no written
memorandum was issued with regard to this was fear of a
leak through secretarial and similar personnel. Piper's
quoted testimony, which is in accord with the aforequoted
documents prepared and maintained in the regular course
of Respondent's business operations, is further fortified by
credited testimony of Respondent's Chicago Area
Personnel Director Wrenn, who testified that he knew
"early in August" that Augusta Boulevard employees were
to get a wage increase, and that his office began receiving
"change in status" forms reflecting the precise pay
changes about "a week to 10 days" prior to September 17,
the processing of these forms through the various
supervisory channels in the plant itself having actually
started earlier than that, say from September 7 or even
before.19 According to Piper, the paperwork involved in
review of the individual records of the approximately
700-800 employees receiving the September wage
increase at Augusta Boulevard, to determine the precise
amount of increase in each case, began shortly prior to
Labor Day and "was completed on or about the 13th or
14 The paperwork processing approval chain on the
"Change-In-Status" pay increase forms is from supervisor to
products manager to plant production manager to personnel to
wage and salary unit G C Exh 8 and Resp Exh 11 are examples
of Change-In-Status forms, showing supervisory and personnel
approval processing dates from September 6 to 13.
14th of the month [September]80 . I know it was
completed on the 15th of the month. That is the reason I
proceeded over there [Augusta Boulevard] at that time
[September 15]."
A staff memorandum to Piper, prepared in the regular
course of Respondent's business operations, on the
subject "Annual Increase-1965-Instructions," dated
August 27, contains:
the final detailed instructions which we will follow in
implementing the 1965 annual increase. They reflect
the terms approved the early part of this month by
[Board Chairman] Bob Galvin in his discussions with
us and as you have already outlined them to some
division heads.
You will note that the adjustments for our technical
and related employees in our Chicago area plants will
be handled in advance of the announcement of the
increase for the other employees. The adjustments for
technical employees will be made effective
September 13, 1965, the date which we scheduled
earlier this year for the semiannual wage and salary
review.
Changes in status must be prepared for each
employee involved in the above adjustment and
processed by the compensation, records and payroll
people in time for the September 13 payroll. These
adjustments for these employees will reflect normal
performance increases combined with the necessary
equity and labor market adjustments which will
constitute the increase for these people, which we
estimate will approximate somewhere between 8 and
10% for the total group in the Chicago area. The
annual increase and the additional performance
increases can be expected to run about 4 to 6%.
Additionally equity and labor market adjustments
should be about 3 to 5% net for this group.
The normal performance adjustments, with the
scheduled annual increase should maintain adequate
internal and external relationships for technical
employees in the plants outside the Chicago area. For
example, average rates of Phoenix technicians are
higher than Chicago and are competitive to rates paid
technicians in that area. Hence, the average
adjustment in Phoenix would be lower than Chicago
where we have to catch up with our competition.
This adjustment for Chicago area technical and
related employees during the period of
September 13-28 will then give us about a week's net
time to determine and apply the approved increase to
the balance of employees.
The detailed instructions attached to this August 27
staff memorandum show that "Technical and related
employees will receive verbal announcement from
supervision during week of September 13 to 17 ... For
technical and related employees whose increase is
announced during September 13 to 17, effective date is
September 13, appearing in checks dated September 24,"
20 This is consistent with the dates appearing on the
Change-In-Status form of employee Carroll (Resp Exh. 11),
introduced in another connection, as well as with the
Change-In-Status form of employee Stach (G.C Exh 8), also
introduced in another connection September 13 (Monday) was
only 4 weekdays after Labor Day (September 6).
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that "Chicago area technical and related employees
will receive equity adjustments effective September 13,
with all processing to be completed by September 28."
The August 27 staff memorandum to Piper bears
handwritten marginal comments or notations, presumably
his, with regard to the September 13-17 wage raise
announcement date for technicians, "Payroll has enuf
[sic] time? ... Check"; and, with regard to the equity
adjustment for Chicago area technicians, "Get all
Foremen & dept. head ratings before Labor Day, if
possib[le]."21 The beginning of the first page also
contains the notation, "Handling in Cgo personally" (i.e.,
presumably personally by Piper). The August 27
memorandum also points out that:
Annual expense in increased base wages and salaries
for 24,600 hourly-rated and weekly-salaried
employees (including technical employees) is
estimated at about $3,980,000. Added expense for the
last thirteen weeks of 1965 would be $995,000.
A handwritten addition of these amounts, on the
memorandum, shows a total of $4,975,000.
As has been indicated, technicians at Augusta
Boulevard were individually informed of the increase on
September 17. According to Piper, supported to an extent
by the August 27 memorandum, as shown, the decision to
notify technicians verbally of the increase, was made well
in advance of August 27. However, for administrative
reasons-which cannot be regarded as unusual or
inconsistent with reasonable personnel practices-Piper
had given instructions that the subject of the upcoming
wage increases was not to be disclosed prior to its
communication to the individual recipients in accordance
with the "August [27] instructions indicat[ing] that all of
the increases were to be made and communicated during
the week of September 13." When the apparently huge
amount of paperwork was completed in connection with
the precise amounts of the pay raises at Augusta
Boulevard for the 619 technicians22 there, on
September 15, as shown above, Piper proceeded to that
plant to oversee the implementation thereof, in
accordance with his earlier plan to do so personally.23 At
this time (September), the total number of technicians in
Respondent's employ was around 2,500-2,600. All
2,500-2,600 technicians received the September-October
wage increase, in approximately the same amounts and
21 It will be recalled that Augusta Boulevard alone employed
619 technicians The date of this staff memorandum (Resp
Exh 5) to Piper is August 27 (Friday) Labor Day was
September 6 (Monday)
22 With documentary corroboration (Resp Exh 3-4 and 5),
Piper testified that in arriving at the actual amount of increase for
each employee, final determination of the precise number of cents
per hour was made by the foreman or products manager familiar
with the individual employee's performance
23 Resp Exh 1 recapitulates these wage increases for Augusta
Boulevard technicians According to Piper, identical or
comparable increases were given to all technicians in all other
Motorola plants in the Chicago area , all Illinois cities, and
Arizona , at the same time ( i e , September 1965) as at Augusta
Boulevard , in execution of the instructions received by him from
the president and chairman of the board on August 3, described
above
24 As already stated in another connection , credited testimony
of Piper establishes that during the preceding 17 years there had
been at least seven or eight instances of comparable or greater
wage increases at Motorola
25 It will be recalled that this (September 17) was on the third
day of Piper ' s presence at Augusta Boulevard in connection with
implementation there of the described company decision of
upon the same basis and in accordance with the same plan
approved on August 3 by the company president and
chairman of the board, as has already been described
This represented a companywide wage increase of
approximately 9-1/2 percent for all technicians in all
plants. Indeed, the raise was not limited to technicians,
but was given to all Motorola employees, unskilled as well
as skilled, hourly as well as weekly paid -in all, some
25,000 employees-at a total annual cost of $3,980,000.24
Of this $3,980,000, only around 1-2 percent
($39,800-$79,600) was allocable to Augusta Boulevard
technicians.
While Piper was at Augusta Boulevard in connection
with implementation of the wage increase to the large
number of technicians there-he had arrived on
Wednesday, September 15, in accordance with previous
plans to oversee this personally-on Friday,
September 17, when the verbal notifications (also in
accordance with previous plan) had been authorized and
were about ready to be made by subordinate managerial
personnel, in the early afternoon of that day a letter dated
the previous day (September 16) was received by Augusta
Boulevard Production Manager Law from the Union.25
The union letter (G.C Exh. 3) places Respondent on
formal notice of the Union's current organizational
campaign among its technicians and that it is "therefore
formally requesting that you in no manner intimidate,
coerce, or otherwise interfere" with employees' rights
under the Act, and that unfair labor practice charges
would be filed if the Company " implement[s] new
benefits or wage increases during this period ... during
the period of time that they [employees] are engaged in an
organization campaign to establish for themselves
collective bargaining rights."26 When Law showed him
this letter, Piper at once telephoned Company Industrial
Relations Counsel Shroyer in Washington, telling him "we
were in mid-stride on a wage increase which we had been
in the process of preparation for months, and that I had
already released the authority to communicate the wage
increases to the individuals, and I asked him for guidance.
He [Counsel Shroyer] asked me to read the [union] letter
to him, which I did. And I asked him, `what should I do?'
He said, `Proceed with the increases."' Piper did so,
permitting Augusta Boulevard subordinate personnel to
proceed with notification of technicians' increases that
afternoon (Friday, September 17);27 and himself
August 3 for companywide wage increases
26 Piper testified that this was his first knowledge as to union
activity at Augusta Boulevard There is no substantial evidence of
such knowledge on the part of Piper or any other official of
Respondent instrumental in the wage increase decision at or near
the time (August 3) when the $3,980,000 companywide wage
increase was decided upon and ordered to be implemented
21 Apparently all technicians at Augusta Boulevard were
notified of the increase on September 17 General Counsel
witness Carroll-a phaser- tester in September in a different
Augusta Boulevard campus building (T Building) than that in
which other technicians worked-testified that he received his
wage increase in early October, but conceded on cross-
examination that (as shown on his Change-In-Status record,
Resp Exh 11) he received the increase as of September 13 and
that he "could be mistaken " as to the October date, and that
"everybody got it at the same time " Carroll also appeared to
regard October as the time-rather than September, as General
Counsel's proof through union witnesses showed-when he
received union literature by mail Under the circumstances, and
accepting Piper' s testimony that T- Budding employees were also
informed of the wage increase on September 17, 1 do not credit
Carroll's contrary testimony , attributing it simply to memory
imprecision as to dates
MOTOROLA, INC. 391
continuing on the ensuing Monday (September 20) to
Respondent 's other Chicago area plants commencing with
Cicero, and ending with Phoenix , Arizona, in accordance
with a "schedule , timed right up to September 28."
Thereafter , also as planned ' 211 the remaining wage raise
decisions of August 3-in particular so far as Motorola
nontechnicians were concerned-were implemented.
As already indicated , Respondent does not deny that it
raised employees' wages appreciably on September 17.
However, it disputes doing so for coercive or other reasons
in violation of Section 8(a)(1) of the Act as charged. The
principal questions to be considered in this connection are
the date, circumstances , and extent of Respondent's
knowledge of union organizational activities ; the date,
circumstances , and extent of Respondent ' s decision to
raise wages; and the date, circumstances , and timing of
Respondent ' s announcement of its decision to raise wages.
It is perhaps appropriate at the outset of consideration
of these matters to evaluate the testimonial quality of
Respondent 's Vice President Piper , upon which resolution
of factual aspects of these issues in significant part
depends. Observing his demeanor with care, I was
favorably impressed with the straightforward , convincing
manner in which he testified . His testimony remained
substantially unshaken on searching , spirited cross-
examination by experienced , able counsel for General
Counsel. Furthermore , chief essentials of his testimony
were corroborated not only by testimony of other credited
witnesses , 29 but by documents30 prepared and maintained
by Respondent in the regular course and conduct of its
business operations . All circumstances considered and
upon the record as a whole, I credit Piper's testimony in its
essential aspects.
With regard to Respondent ' s knowledge of union
organizational activities , Piper testified-as has already
been stated in another connection-that his first
knowledge of union activity at Augusta Boulevard came
when that plant ' s Production Manager Law showed him
the Union 's September 16 notification letter (G.C. Exh. 3)
in the early afternoon of September 17. This is not
incredible considering Piper ' s relative eminence in
Motorola's organizational hierarchy . Respondent's
Augusta Boulevard technicians' foreman, Diggs (superior
of Supervisors Caccamo and Hinton), too, stated he was
unaware of union activity until September 17. However, an
admission was elicited from Respondent ' s low-level
Supervisor Caccamo that he (Caccamo ) was aware that
employee Stach was "talking to employees" about wages
and working conditions in August , and that he (Caccamo)
mentioned this to Diggs.31
Employee Stach-identified in the union's notification
letter to Respondent of September 16 as chairman of the
Union ' s plant organizing committee-testified that he
himself only signed a union authorization card on August 7
(i.e., after Respondent ' s August 3 decision for the
companywide wage rate increase ), and that in the second
week of August he spoke intermittently on nonworking
time to some 30 or 40 employees about the advantages of
unionization , distributing around 40-50 union cards in
August prior to August 23. There is no evidence as to how
many out of this estimated alleged 40-50 signed the cards,
although according to Stach about a dozen including
himself formed the nucleus of union activists. Considering
the large number of technicians at Augusta Boulevard
(619) and the larger number of total employees there
(Stach testified he also distributed union cards to
employees other than in his own department), this would
appear to be less than an impressive showing of
necessarily substantial union activity in the period of over
about a month now claimed by the Union to have been
involved. It will be recalled that Union International
Representative Chiakulas himself merely testified
somewhat vaguely to some alleged "initial meetings" with
"one or two" unidentified "individuals" in July and
August; to giving some 50 union cards to Stach in August;
and that union literature mailings occurred only on
September 8 and 16, as well as probably on September 4
(in any event, none before September). It is undisputed
that the Union's notification letter of September 16 (G.C.
Exh. 3) was its first written communication to Respondent.
Close analysis of Caccamo's testimony (including his
insistent denials of knowledge of the Union prior to around
September 17) and of the remainder of the record
(including Stach's testimony) indicates that although
Caccamo knew as early as August that Stach was "talking
to employees" in disgruntled fashion about the wage and
working situation at Augusta Boulevard, in view of Stach's
own testimony that his distribution of union cards
commenced around the second week in August, Caccamo
could hardly have been aware of union activity on or prior
to August 3 (the date of Respondent's decision to increase
wage rates throughout the Company in September-
October). The same may be said of Respondent's Super-
visor Hinton and Kucharski, who testified they were
unaware of union activity at the plant prior to September
17.
In the existing state of the record, I find that it has not
been established by substantial credible evidence that
Piper or any other of Respondent's officials involved in the
August 3 decision to grant a companywide wage rate
increase in September-Otober, had knowledge on or prior
to August 3 or at any time prior to September 17, of union
activity at Augusta Boulevard; that it has not been
established by substantial credible evidence that any of
Respondent's managerial or supervisory personnel had
such knowledge on or prior to August 3; and that even
assuming arguendo that such knowledge ascribable to
Respondent existed, it was not a controlling or significant
factor in Respondent's August 3 decision to grant and
implement at the time and in the manner that it did, the
described wage rate increase affecting (among all other
Motorola employees) the Augusta Boulevard technicians.
With regard to the date, circumstances, and extent of
Respondent's decisions (1) to raise wages and
(2) regarding the timing of implementation thereof, the
substantial credible evidence, which has already been
reviewed in detail, consisting primarily of credited
testimony of Motorola Vice President Piper corroborated
21 Resp Exh 3-4 and 5, G C Exh 6 and 7 Respondent's staff
recommendation of August 2, approved August 3 by the company
president and chairman of the board, bears the handwritten
notation, "Do equity [i e , Chicago] adjustments first-apply
merit plus adjustment" (Resp. Exh 3-4) Technicians' wage
increases were by August 27 (Resp Exh 5) scheduled by
Respondent for September 13-17 announcement, about 2 weeks
prior to the nontechnicians' increases
29 Wrenn, Durand, and Pottebaum
30 Resp Exh 3,4,5, and 11, G C Exh 8, 6, and 7
31 At one point Caccamo indicated it was in July that he first
learned of this activity by Stach Since this appears to antedate
even Stach's claims of union activity, it may be regarded as yet
another testimonial aberration by Caccamo
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Respondent's contemporaneously prepared business
records, satisfactorily establishes that those decisions
were made on August 3, in advance of and not by reason of
knowledge on Respondent's part of union activity at the
Augusta Boulevard plant; that those decisions were
companywide, affecting not merely the 619 technicians at
that plant, but all 25,000 Motorola employees at all of
Respondent's plants, at an annual cost close to $4 million;
and that final implementation of those decisions at
Augusta Boulevard during the week of September 17, as
planned, was for practical purposes complete for
announcements there (also as planned) on September 17
when the Union's notification letter of Septermber 16 was
received on September 17.32 It seems appropriate to
mention in this connection that the accuracy of
Respondent's counsel's statement at the hearing33 that
Respondent's described corroboratory documentary
records (Resp. Exh. 4 dated August 2-3 and Resp. Exh. 5
dated August 27) as to its August 3 decision to raise wages
companywide and its implementation as shown by the
handwritten comments thereon, was furnished to General
Counsel in February 1966-months in advance of this
hearing-is conceded upon the record. There is no
justifiable basis for doubting the accuracy of these records
maintained by Respondent in the regular course of its
business. Nor am I able to assign controlling significance
to the extent of the wage increases or the verbal manner of
their announcement. As shown, the dollar amount of the
increases was far from unprecedented in Respondent's
history. The decision to make verbal announcement
thereof had been made in August, and the fact that
Respondent chose to make the notifications to the affected
personnel in its offices personally appears to be well
within its personnel management prerogatives,
insufficient in itself to constitute violation of the Act under
32 For example, G C Exh 8, employee Stach's
Change-In-Status personnel record form establishes that his
September 17 wage increase (in implementation of the August 3
decisions) was formally recommended of record on September 6
by Foreman Diggs, approved by Product Manager Durand and by
Production or Plant Manager Law on September 7, and processed
by the personnel unit on September 10 and by the compensation
unit on September 13, all processing being complete on
September 13, the effective date (as planned) of the increase, it
then remaining only to notify him thereof
98 Transcript pp. 487-488
" "What is unlawful under the Act is the employer' s granting
or announcing such benefits for the purpose of causing the
employees to accept or reject a representative for collective
bargaining." Hudson Hosiery Company, 72 NLRB 1434, 1437. See
also N L R B. v. Exchange Parts Company, 375 U S 405, 409
Employer motive in cases of this type is to be assessed from the
total stream of preceding, concurrent , and subsequent related
circumstances. N.L R B v Harbison-Ftscher Manufacturing Co ,
304 F.2d 738, 739-740 (C A 5) I have endeavored to follow these
and other applicable principles in assessment of the effect of the
evidence herein Unlike the situation described in Betts Baking
Company, 155 NLRB 1313, here the substantial credible evidence
overwhelmingly establishes that the Employer had definitely
decided to institute the wage increases, on a nondiscriminatory
companywide basis, well prior to its learning of union activity
(which was shown to have occurred in only a part of one of many
plants), and further, indeed, had actually taken and for practical
purposes completed steps to implement that decision before it
learned of the union activity. Moreover , unlike Betts, the
substantial credible evidence here amply establishes that the
employer's announcement of the plan was not made or timed with
the purpose of dissuading employees from engaging in union
the nondiscriminatory and noncoercive circumstances
shown.
The wage rate raise aspect of this case involves alleged
violation only of Section 8(a)(1), and not Section 8(a)(5), of
the Act, i.e., there is here no allegation of violation by
Respondent of any duty to bargain. It is not a violation of
Section 8(a)(1) for an employer to carry out a wage raise
plan already decided upon, without advancing its effective
date. Champion Pneumatic Machinery Co., 152 NLRB
300; Dan Howard Mfg. Co. et at., 158 NLRB 805; Divco-
Wayne Industries, Inc., 154 NLRB 974; T. L. Lay Packing
Company, 152 NLRB 342; True Temper Corporation, 127
NLRB 839, 842-844; Derby Coal & Oil Co., Inc., 139
NLRB 1485, 1486 34
In sum, the principal considerations which appear to
compel the conclusion that the wage rate increase here in
question was nondiscriminatory and noncoercive are:
credited testimony of Respondent's Vice President Piper
that the decision to raise wages, for eminently valid and
established economic reasons, was made on August 3 and
at the same time its implementation timed to begin in
September, with initial implementation for technicians
and Chicago personnel; the documentary corroboration of
Piper's testimony by contemporaneous records prepared
and maintained in the regular course of Respondent's
business , furnished by Respondent to General Counsel
sufficiently in advance of the hearing to permit
investigation and verification; the undisputed fact that the
wage rate increase was companywide (over 25,000
employees), not limited to Augusta Boulevard technicians
(619); the substantial cost of the companywide wage
increase ($3,980,000 annually), the miniscule proportion
(about 1-2 percent) allocable to Augusta Boulevard
technicians, and the improbability that such an expense
would be undertaken by Respondent merely by reason of
activities , even though it cannot be said with certainty that it was
completely devoid of that effect However, upon the record
presented , including the apparent small degree of union
adherents , this would be speculative Moreover , Respondent's
Vice President Piper offered a wholly credible, reasonable
explanation for its failure or inability to announce the raise prior
to the time it did , as well as a credible explanation for its
announcement at the time and under the circumstances utilized
under its personnel policy The mere incidental result, as
distinguished from motivating cause , of detraction from union
support, in consequence of the carrying out of an employer's
previous plan to raise wages , does not constitute a violation of
Section 8(a)(1). Dan Howard Mfg. Co et al , 158 NLRB 805 Under
the circumstances here established , a conclusion that the timing
of the raise, although not the raise itself, was violative of the Act
would in effect have required the employer to withhold or alter its
decision , made well prior to knowledge of union activity and
apparently prior to plant union activity itself, to institute a general
companywide wage increase for demonstrated essential business
reasons The record here does not, in my opinion , warrant such a
conclusion nor the findings of fact necessary as supportive
underpinning therefor
On brief, for the first time, General Counsel calls attention to
another proceeding-some 15 years ago-involving actions by
Respondent said to be comparable to those herein (Cf Motorola,
Inc , 94 NLRB 1163, enfd 199 F 2d 82 (C A 9), cert. denied 344
U S 913 ) In that case, however , it does not appear that , as here,
the decision to raise wage rates had actually been made and
phased prior to the Union's recognition demand or the employer's
knowledge of union activity No evidence of patterned behavior
was presented herein I am unable to judge Respondent's present
conduct upon the basis of its alleged past derelictions.
MOTOROLA, INC.
the relatively slight union organizational activity among
Augusta Boulevard technicians ; 35 and the credited
testimony of Respondent ' s witnesses , notably its Vice
President Piper, that the August 3 wage rate increase
decisions ' implementation at Augusta Boulevard had in
effect been fully processed for announcement at the time
the union notification letter of September 16 was received
on September 17.
Still another aspect of the question of the effect of
Respondent ' s wage rate increase merits mention . This is
that under the circumstances of this case , Respondent
having long since decided to institute the general pay
increase and being in actual process of implementing that
decision , if Respondent upon being apprised of the union
activity had withheld that pay increase , such forbearance
might well have been regarded as an unlawful attempt to
bring pressure upon the employees to reject the Union,
constituting an unfair labor practice . See Federation of
Union Representatives v. N.L.R.B., 339 F.2d 126 , 129-130
(C.A. 2); Dixie Broadcasting Company, 150 NLRB 1054,
1073-76; cf. N.L.R.B. v. Crosby Chemicals , Inc., 274 F.2d
72 (C.A. 5).36 Implementation or postponement under
noncoercive circumstances of a unilateral wage increase
decision noncoercively arrived at is not rendered unlawful
merely because occurring during organizational efforts.
Standard Coil Products, Inc., 99 NLRB 899, 903.
Upon the record as a whole, I find that it has not been
established by substantial credible evidence that
Respondent ' s September 17 (nor, as also alleged,
October), 1965, wage increases to its technical employees,
including its technical employees at its Augusta
Boulevard , Chicago, plant , were discriminatory or
coercive or so motivated , or otherwise violative of Section
8(a)(1) of the Act.
D. Alleged Violations of Section 8(a)(3)
The complaint further alleges that on or about
August 23 Respondent demoted employee Stach from
31 To be sure, it could be conjectured that if Respondent
supposed that possible eventual unionization of its Augusta
Boulevard technicians would be a spreading contagion to its
technicians at its other Chicago plants and elsewhere , it may have
felt itself impelled to expend around $4,000,000 per year
throughout its entire organization because it saw the handwntting
on the wall This, however, would be purely speculative surmise
It could also be conjectured , on the other hand, that the union
notification and warning letter of September 16 to Respondent
was the result of a "leak" of Respondent's supposedly well-
guarded intention to implement its August 3 wage rate raise
decision by around September 17. Indulging in neither type of
speculation , findings herein are based upon adherence to the
record as made
36 Perhaps particularly in view of this aspect of the case, it
would seem that Respondent's Counsel Shroyer was sound in his
September 17 advice that his client should proceed with
completion of implementation of its August 3 wage rate decision,
Cf., e g., monetary payment provision of Board Order in Dixie
Broadcasting Company, 150 NLRB 1054, 1081
31 The mere fact than an employee 's transfer involves no
reduction in pay does not mean it is not violative of the Act Des
Moines Foods, Inc , 129 NLRB 890, enfd 296 F 2d 285 (C.A 8)
11 The tester merely superficially tests products for
performance , routinely rejecting those which do not work, for
sophisticated troubleshooting analysis by the analyzer to
determine the flaw or flaws It is apparent that the tester job is
essentially a large quantity "production" type or rotework,
whereas the analyzer job is a skilled or semiskilled "quality" job
requiring expertise and not directly tied to a quantitative
"production" yield
393
analyzer to tester and has since then kept him in that
position and deprived him of overtime opportunity,
because of his union or other activity protected under the
Act.
Stach entered Respondent's employ as an analyzer in
June or July 1962. On August 23, 1965, he was transferred
from the position of analyzer to that of tester. Although
this involved no reduction in wage rate,37 the position of
tester is more onerous or otherwise less desirable than that
of analyzer, since the tester job (requiring less skill)38 is
less interesting , essentially dull, requires constantly
sustained standing, and affords less opportunity for
overtime.39 The transfer was thus demotional. Inasmuch
as Respondent concedes that its action transferring Stach
from analyzing to testing was a disciplinary measure, there
is no need to dwell further on this aspect of the matter. It
remains, however, to determine whether or not this change
in status was discriminatory or coercive in violation of the
Act, Respondent contending it was merely disciplinary.
Resolution of the issue of the true motivating factor for the
change in Stach's status requires close scrutiny of the
surrounding factual agglomerate from which Respondent's
personnel action takes its character' 40 since it is not
violative of the Act to discipline, demote, or discharge an
employee for nondiscriminatory or noncoercive reason or
even for no reason.41
In the course of his initial period of 3 years (June
1962-June 1965) of apparently essentially satisfactory
employment tenure as an analyzer, Stach had received a
number of routine or regular small raises or wage
adjustments. According to his testimony, prior to
August 23, 1965, he had received no written or oral
reprimand or adverse criticism, but on the contrary had
been "complimented," on his work. His initial contact
with the Union was in the first week of August, when, in
the course of a discussion at his (Stach's) home with a
visiting president of a neighboring plant local, Stach
agreed to attempt to organize at Augusta Boulevard. Stach
3' Credited testimony of Stach establishes that take-home pay
of testers is almost invariably less than that of analyzers , since "it
is the policy of Motorola that an analyzer . works a lot more
overtime than testers Testers work very little overtime
compared to an analyzer " According to Stach, as an analyzer (for
approximately 3 years) he worked at time -and-a-half overtime pay
"from 2 to 15 hours a week" or "approximately 8 hours a week,"
while as a tester for almost a year since his August 23 disciplinary
transfer he has had no overtime although other testers on his shift
as well as analyzers have worked overtime At the hearing,
Respondent stipulated that since Stach's disciplinary transfer of
August 23 he has also been "deprived of overtime as a
disciplinary measure " Stach testified credibly that it has been
the practice at Augusta Boulevard for supervisors to assign
employees to overtime without waiting to be requested for it, and
that he knows of no other instance of disciplinary deprivation of
overtime Corroborating the foregoing in part, tester Hodge, a
relatively new employee, testified credibly that since his hire in
mid-September he has been asked to work overtime about once a
week, and analyzer Nowak credibly testified that in September
overtime was "fairly frequent ... almost every day" on the day
shift . Respondent 's Supervisor Caccamo testified that testing is a
standing whereas analyzing is a sitting job, and conceded that
analyzers have opportunity for "a great deal more overtime."
40 See, e g ., Wigwam Mills, Inc., 149 NLRB 1601, enfd 351
F 2d 591 (C A 7), Dixie Broadcasting Company, 150 NLRB 1054,
Des Moines Foods, Inc, 129 NLRB 890, enfd. 296 F 2d 285
(C A 8) "We have determined that the 'real motive' of the
employer in an alleged §8 (a)(3) violation is decisive .. "N L R B
v Brown, 380 U S 278, 287
4 i N.L.R B v McGahey, 233 F 2d 406,413 (C A 5)
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(with several fellow employees, including Pottebaum)
accordingly met Union Organizer Chiakulas in "possibly
the 2nd or 3rd week in August,"42 receiving from him
some 40 or 50 union cards for collective-bargaining
authorization purposes. He accordingly then commenced
to speak to fellow employees (estimated by him at 30-40)
about the Union and its potential advantages, in the plant
cafeteria during nonworking time as well as outside of the
plant, distributing union cards at the same time There is
no question that Stach was the sparkplug of the union
activity at Augusta Boulevard; in its September 16 letter
to Respondent notifying it of organizational activity at the
plant, the Union characterized Stach as "chairman of our
[i.e., the Union's] UAW Organizing Committee made up
of your employees."
Stach testified that with his advent into union
organizational activity in mid- or late August, his
supervisors at Augusta Boulevard "were no longer
congenial. They were harsh, constantly watching me. I
have been watched ever since I started the Union
campaign, constantly ... Ronald Caccamo, and Robert
Diggs would watch me." At this time (late August) his
immediate supervisor was Caccamo (or, in his absence,
Hinton) and Caccamo's supervisor was Foreman Diggs
On August 23, Hinton (in the absence of Caccamo) told
Stach, without previous notice, to "pack up [your]
personal belongings and move to a test position." Later
that day, Stach asked Caccamo why he had been
transferred. According to Stach, "Caccamo stated that I
had been talking to the other employees about a union, and
that he was demoting me as a tester as a result," and that
he (Stach) was "poisoning the minds of the other
employees against him and the company about starting a
union. " Further according to Stach, at his work station
around September 10 Caccamo accosted him with, "Why
are you still working here? Why don't you quit? Why
aren't you looking ... weren't you looking for a different
job previously? Couldn't you find any? Why do you keep
poisoning the minds of the other employees?" When Stach
answered, "I like working at Motorola. If you want me to
leave, why don't you fire me," Caccamo replied, "I can't."
Also according to Stach, about a week later, around
September 16, again at his work station, Caccamo
engaged him in an hour -and-a-half discussion, accusing
him of creating job dissatisfaction among employees and
"poisoning their minds with the union," and importuning
him to cease his union organizing.43 As credibly described
by Stach, Caccamo spoke harshly, "became quite
heated," and jabbed his finger into Stach's chest for
emphasis. However, far from desisting from his union
activities, after Respondent's described September 17
wage rate increase, Stach (as well as other employees)
commenced wearing a union emblem and actively
continued organizing
Respondent's evidence to justify its transfer of Stach to
the less desirable position as tester on August 23, was
provided largely through testimony of his immediate
supervisor, Caccamo, supplemented to a degree by others.
Caccai o at first stoutly insisted that he had no knowledge
of orgai izational activity by Stach prior to September 17,
when he first learned of it on being told that Plant Manager
Law had received a letter from the Union to that effect.
Shortly after so testifying, however, he conceded that he
knew in August that Stach had been talking to employees
about poor wages and working conditions but did not know
"the exact words he was using in talking to employees."44
Also after first denying that he ever spoke to Assistant
Foreman Hinton and to Foreman Diggs (his supervisor)
prior to September 17 regarding Stach's organizing,
Caccamo later conceded he spoke to Hinton and Diggs in
August regarding Stach's talking to Motorola employees
about wages and working conditions.
Caccamo testified that when Stach came to see him on
the morning of August 23 after Assistant or Acting
Supervisor Hinton had told Stach about his transfer from
analyzer to tester , to find out why, Caccamo told him the
"reasons for his transfer, and things in general about the
ways he could possibly gain his position back as analyzer,
things along that nature." Caccamo testified he told Stach
about "his so-called goofing off, reading newspapers,
sleeping on the job . . . disappearing for forty-five
minutes at a time from his station ... one occasion,
winding fishing lures on the job ... that he would have to
stop these things [if he wanted his job as analyzer back]."
Giving Stach "no definite date" when he could have his
analyzer job back, Caccamo warned him that "he would
certainly have to change his ways." Caccamo denied
telling Stach he had been demoted for talking to
employees about a union, or that the word union was even
mentioned. However, questioning elicited from Caccamo
the concession that he did tell Stach to "refrain from
talking to employees during working hours, and I might
have used the words, `Refrain from talking to employees
during working hours and poisoning minds toward
Motorola.' And if he did not want to work in Motorola to go
out and find one of these better jobs that he spoke of."
Caccamo explained that by "poisoning the minds of
employees" he meant that Stach "had been telling
[employees] about wages that other companies might be
offering, and how much janitors were making and so
forth."
Caccamo testified that in June or July he had seen Stach
"sleeping on the job" and "reading the newspaper once."
Asked to describe his actual observation, Caccamo
explained that Stach was "not in the prone position, but
his eyes were closed and his head was down or dozing ....
Dozing or sleeping, I really don't know." However, when
he addressed Stach, Stach apparently responded im-
mediately. Also according to Caccamo, some of Stach's
fellow employees, including Pottebaum and Kutzora,
had complained in June or July about Stach's "failure
to carry his portion of the load," although Stach, who
was present, disagreed.
Supplementing the foregoing, newly elevated Assistant
Supervisor Hinton testified that around August 11, during
Caccamo's vacation, Stach was away from his position for
30-45 minutes during overtime; "I assume he was
wandering. I wasn't sure. He wasn't at his work station."
And Foreman Diggs, who testified that it was he who made
the decision to transfer Stach, stated that around June he
had seen Stach reading a newspaper during working hours
and that in the previous November (1964) Stach had been
"continually talking" to a tester in the booth with him.
4' Stach testified that although he signed his own union his union organizational activities were limited to the plant
authorization card on August 7 , he is unable to recall whether he cafeteria during nonworking time, or offplant
did this when neighboring local President McGraham visited him 44 At one point, Caccamo conceded he had heard even in July
at his home or when he (Stash) first saw Chiakulas that Stach "had been talking to the employees about wages
4' Stach testified credibly, without essential contradiction, that
MOTOROLA, INC. 395
Stach denied that he had been guilty of any of the listed
infractions or shortcomings, or that the indicated
accusations had been leveled against him as now claimed.
He pointed out that the position required by the close work
of analyzing might result in the erroneous impression that
the analyzer is asleep. He denied being absent from his
work station for the period now claimed. He denied any
complaint to him about his work prior to August 23.
Stach's fellow employee Miller, an analyzer for over 5
years, working close to Stach, credibly testified he never
observed Stach reading a newspaper during worktime.
Employee Kutzora, also working in close proximity to
Stach, credibly testified that during the period from May
to July he at no time observed Stach reading newspapers,
sleeping, or working on fishing equipment on worktime.
With regard to Diggs' testimony concerning complaints by
Kutzora and Pottebaum about Stach's work or work
habits, Kutzora credibly testified that he at no time made
such a complaint nor heard Pottebaum make one. Kutzora
recalled a complaint by Caccamo or Diggs concerning a
work holdup by the analyzer unit consisting of himself
(Kutzora), Pottebaum, and Stach, in the early summer of
1965, but no statement that Stach was at fault; instead,
Pottebaum ascribed it to poor (production) work, with
which Kutzora agreed. Pottebaum also recalled such an
episode, was unable to recall ascribing fault to Stach, but
did recollect that they all indicated to Diggs that the basic
problem was the large number of articles rejected because
of faulty workmanship. Pottebaum further ascribed the
1965 complaints by management about slowness in
analyzing to the fact that employees in other units were
making many wiring mistakes because of unfamiliarity
with the relatively new "solid state" electronics products
being produced; and that analyzing consequently took
longer.
Although the testimony of Respondent's Vice President
Piper establishes that a system of written "Incident
Reports" was in effect at the time of these alleged
infractions-some of them (e.g., sleeping on the job)
clearly of serious nature-with supervisors required to
execute them in case of any significant infraction or
shortcoming, it is conceded by Respondent that the first
incident report on Stach is dated October 20, 1965 (i.e., 2
months after his demotional transfer), and that Stach's file
contains nothing of a derogatory nature prior to his
August 23 transfer . 45 It is further conceded that Stach was
given a substantial (31 cents per hour) merit wage increase
on September 17. Respondent's own Change-In-Status
personnel action form (G.C. Exh. 8) shows this to have
been a "promotion" for "performance," upon the
recommendation of Diggs on September 6, 2 weeks after
the demotional transfer.46
It has already been indicated that I was favorably
impressed with the testimonial demeanor of Stach. The
same was not true, however, of Caccamo, a hostile and
evasive witness who repeatedly changed or qualified his
answers, hedged, equivocated, and conveyed the
impression of being at times deliberately unresponsive. On
balance, comparing testimonial demeanor of the various
witnesses in terms of analysis of the record, I have no
hesitancy in preferring and crediting the testimony of
Stach in its essential aspects. I am convinced that,
notwithstanding Caccamo's equivocations and his (and
Hinton's and Diggs') denials of knowledge of Stach' s union
organizational activities at any time prior to September 17,
Caccamo (as well as Hinton and Diggs) was well aware of it
(through Stach's distribution of numerous union cards and
otherwise) at the time of Stach's demotional transfer on
August 23. I have difficulty in believing that Respondent
would tolerate in its employ an individual who actually
slept on the job and was otherwise as inattentive to his
work as Stach is now pictured as having been; or that
Respondent would give such an employee a substantial
merit pay raise, as Respondent concededly did on
September 17; or that Stach (an old employee with an
unblemished record), upon becoming in a sense a "marked
man" because of his introduction of the Union into the
plant in August would thereupon provide a hostile
employer with readily avoidable ammunition for
discharge. And I am wholly unpersuaded that Stach's
advent into open union organizational activity in mid-
August and his demotional transfer on August 23 were
merely coincidental; rather, I believe and accordingly find
that Stach's August 23 demotional transfer was the
proximate result of his introduction of the Union into the
plant and his leadership of union organizational activity
there.
In addition to the asserted circumstances underlying
Stach's demotional transfer on August 23, Respondent has
invoked a number of alleged incidents since then in
justification of its maintenance of Stach in his reduced
position. Since all of these are said to have occurred
subsequent to August 23, it is obvious that none of them
played a role in the August 23 transfer. However, and
without resolving the question of whether there can be
justification for maintaining an employee in a position into
which he has been unlawfully reduced, by reason of
incidents occurring in the reduced position which might
not have occurred if not so reduced, since the alleged
incidents said to form the basis for maintaining Stach in
his reduced position could arguably be regarded as
independently justifying such action, they will for that
reason here be considered.
As has been indicated, prior to his transfer from
analyzer to tester on August 23, Stach had received no
reprimands. Under Respondent's system of written
reprimands or "Incident Reports," three such reports are
said to result in (or justify) termination. Commencing with
October 20, 1965, and thereafter in February and March
1966 Stach collected three such report S.47
The first of these incident reports involved an
October 20 episode wherein (as described by Stach) Stach,
while returning from a coffeebreak, was accosted by one
Newman, described or regarded by Stach as a supervisor
46 I do not credit and cannot accept the attempted explanation
of Respondent ' s Manufacturing or Product Manager Durand that
incident reports were not being made out in the spring and
summer of 1965 because of a labor shortage To begin with, not all
of Stach' s currently catalogued infractions were during this
period , secondly , no reason appears why such reports could not
have been handwritten , third , no effort was made to establish
through substantial credible evidence any labor shortage of the
variety claimed
96 Respondent 's Vice President Piper 's testimony establishes
that determination of the amount of such an increase is by the
foreman or product manager familiar with the individual's
performance.
41 He has nevertheless , at any rate as of the date of this hearing,
been continued in Respondent 's employ
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and acting with apparent authority as such,48 who turned
around and started to walk alongside of him, employing
obscenities and accusing him of union organizing, and
challenging him to a fight which Stach declined.
According to Stach, after he told Newman he would report
him if he did not desist and Newman nevertheless
persisted, Stach reported him to Newman's Supervisor
Dalusky (Galusky), as well as Personnel Manager Locke
and Personnel Director Brennan, who indicated they
would look into it. The next day, October 21, Stach further
requested Personnel Manager Locke to remove washroom
slogans about Stach and the Union, which was done. On
the following day (October 22), however, Stach was called
to the office, where Personnel Director Brennan
introduced him to Chicago Area Personnel Director
Wrenn, who proceeded to read off to Stach an incident
report to the effect that Stach had falsely accused
Newman of threatening and swearing at him. When Stach
was asked to sign this, he refused to do so; and when he
inquired whether the only witness present, one McCurdy,
had been questioned, he was told to return to work. As to
this particular episode, perhaps the most noteworthy
aspect of it is that neither Newman nor McCurdy-appar-
ently the only other direct participant and witness to the
episode-nor Dalusky nor Locke nor Brennan was called
by Respondent to testify nor was Respondent's failure to
do so in any way explained. Under the circumstances, it
cannot justifiably be assumed that had they or any of them
testified, their testimony would have contradicted that of
Stach, who impressed me as a straightforward and
essentially credible witness, whose described testimony in
regard to this episode I credit.
The second incident report collected by Stach after his
advent into protected concerted activity at Augusta
Boulevard involved an episode in February 1966. While at
work then (as described by him) one Kucharski, a
supervisor, approached him and inquired when he would
"stop [your] union activity at Motorola, stop talking to the
other workers about a Union?" When Stach reminded
Kaucharski that it was his privilege to do so on his own
time, Kucharski told him, "[You] speak like [you are]
from Russia." Later or the next day Kucharski asked
Stach to sign an incident report charging insubordination.
Showing it to fellow employee Costello, Stach said it was
untrue and refused to sign it. Kucharski's version of this
episode is at total variance with that of Stach. Kucharski, a
supervisor who described his job to be to make sure that
employees are working, functioning under Caccamo and
Diggs, sharply disputed the incident as described by
Stach, and flatly denies ever so much as mentioning the
word "union" to Stach or Stach to him, although
conceding that he (Kucharski) was aware of Stach 's union
interest and activity. According to Kucharski, his
insubordination report grew out of his asking Stach "if I
could help him with anything-'Seems like you have a
problem?"' when he observed Stach "sitting on his
chair,"and Stach told him he did not and added, "Don't
bug me, man ; bug someone else." Denying that he
48 Although Newman's personnel record indicates that on
October 20 he was classified as a production technician,
Respondent's Chicago Area Personnel Director Wrenn testified
that it was not company practice to show on an employee's
personnel record an acting or temporary supervisory status
Particularly in view of a seemingly comparable type of status for a
time in the case of Hinton (concededly of supervisory character as
early as April but not given that title until September 13) and on
the basis of Stach's credited testimony it would appear that the
accused Stach of talking "like ... from Russia,"
Kucharski testified that after this incident report Stach
told him (Kucharski) to return to Russia where
he (Kucharski) belonged, also accusing him of being
a draft dodger without citizenship papers and implying
that he could not even spell; but that he (Kucharski) made
no incident report about this because he "didn't consider
this as an incident report." Disputing Kucharski's version,
Stach pointed out that as a tester he does not sit but stands
at work,49 and that since at the time of the incident he was
working with a set plugged in, the only place he could have
sat (as claimed by Kucharski) would have been on the
workbench, which is 5 feet from the ground and that he
was not seated there or elsewhere. Kucharski conceded
that Stach refused to sign the incident report because he
claimed "It is all lies and it is not true." As already
indicated, I observed Stach to present a straightforward
and convincing demeanor. I cannot say the same for
Kucharski, whose insistence that the word "union" on no
occasion was ever so much as uttered between him and
Stach is difficult to believe in the context of the record
presented. Kucharski's demeanor impressed me as that of
an individual bent on pleasing his employer through
testifying in its favor in an emotional manner and through
demonstrating his strong hostility to union activity and
therefore to Stach as its prime cxponent. Balancing
comparative demeanor observations, I am unable to
accept Kucharski's version of this February 1966 incident
and I credit that of Stach.
The third (and last) incident report against Stach is one
on March 21, 1966, also by Kucharski. According to Stach,
while he was at work in March 1966, Kucharski
approached and told him to stop his union activities, that
he was wasting his time, that most people there didn't
want a union, and that Stach "would ruin everything" for
Kucharski. Later that day, Kucharski called him to their
personnel office, where, when an incident report was read
to him charging insubordination to and swearing at
Kucharski, he stated it was untrue and was told to leave.
As with the incident report of February 1966, Kucharski's
version is sharply at variance with that of Stach. It has
already been pointed out that Kucharski absolutely denies
ever mentioning the word "union" to Stach or that Stach
ever mentioned it to him. According to Kucharski, as he
passed Stach on March 17, 1966, Stach muttered or called
him by an obscene name, which he (Kurcharski) "didn't
even consider ... as an incident .... That was the end of
it"; and that on or about March 21, 1966, while passing by
Stach's workplace, in indicating to him that his cable was
broken Stach attracted his attention by a vulgar or unduly
familiar salutation with which Kucharski was acquainted
and had heard in the plant but "not to a supervisor." After
the cable was repaired, Stach allegedly again indulged in
this vulgar familiarity current in the plant but, according to
Kucharski, not by an "employee talking to a supervisor."
In support of Kucharski's version, recently elevated
Assistant Foreman Hinton testified that around March 21,
1966, he heard Stach call Kucharski by the described
status of Newman (who was unexplamedly not produced by
Respondent to testify) was of supervisory nature or on behalf of
and in the interest of Respondent with its acquiescence, although
not materially in issue here
49 It will be recalled that even Respondent's and Kucharski's
Supervisor Caccamo described tester work as a standing job
However, Kucharski testified that there have been unauthorized
chairs in Stach's area where employees could have sat before the
chairs were removed
MOTOROLA, INC.
designation, which Hinton agreed was in use (including by
himself) in the plant, but which he had not heard between
supervised and supervisor. This was Hinton's first
knowledge of an employee reported for this; subsequent to
the described incident report of March 21, 1966, such
language has continued to be in currency in the plant; and
Hinton has at no time reported any employee for it. Stach
disputes Kucharski's version of the March 1966
occurrance, the incident report of which apparently itself
indicates that Stach stated the charges were "untrue and
biased and none of his fellow workers were witnesses."
On straight demeanor comparisons I find myself in a
state of unpersuaded uncertainty as to whether Stach
made the colorful remark(s) attributed to him by
Kucharski, and accordingly am unable to resolve
credibility in Kucharski's favor under circumstances
where he or his side would appear to carry the burden of
persuasion. However, assuming arguendo that Stach
muttered or uttered in earthy fashion as claimed, it should
be observed that although the incident report refers to
obscenity both on March 17 and on March 21, Kucharski
himself testified that the March 17 incident he "didn't
even consider ... as an incident .. That was the end of
it"; and Hinton confirmed only the March 21 episode. It is
further apparent from the testimony of Supervisor Hinton
as well as that of Kucharski himself, that the particular
earthy expression or virile verbalism attributed to Stach
was neither novel nor, apparently, in disfavor in this
particular plant, even though good taste or sense would
perhaps have dictated restraint in its use among
nonequals-even vis-a-vis a low-grade supervisor-in the
organizational hierarchy. There is no claim, however, that
out-of-channels plain talk in the factory had ever other
than in Stach's case resulted in formal censure. The
testimony of Supervisor Hinton that he has never reported
anybody for such a verbalism suggests, against a
background of some apparent animosity by Kucharski
toward Stach, that Kucharski's action may have been the
product of personal pique, atypical severity of supervisory
viewpoint, or desire to impress his employer or "make a
record" against one already in heavy disfavor. Moreover,
considering fellow Supervisor Hinton's apparently greater
tolerance of such vulgarity, it would seem not amiss in
fairness to apply Supervisor Hinton's perhaps lower
standards than Supervisor Kucharski's as to employees'
linguistic requirements in this particular factory milieu, as
a yardstick of the permissible and impermissible, in view
of the apparent absence of a published rule or other
adequate notice.50
Furthermore, understandably irked, and perhaps even
endangered, as Stach indicated himself to be at the
constant onerous surveillance being exercised over him51
and Kucharski's resentment-evoking provocative hostility
sn The Board is not unaware that linguistic style among factory
hands may at times differ from that elsewhere ideally in use See,
e.g., Nebraska Bag Processing Company, 122 NLRB 654,668-669
51 Stach characterized this as nerve - racking and dangerous to
him in view of the high - voltage electrical equipment with which he
works . It is a matter of common knowledge that many men do not
do their best work under tight surveillance . Indeed, some men are
unable or unwilling to work under such conditions Surveillance,
although not necessarily illegal, thus may become a burdensome
and coercive psychological instrumentality to render an otherwise
good job unpalatable and finally intolerable (This is not to say
that under certain circumstances intolerable surveillance may not
itself be violative of the Act, such as when coercively or
discriminatorily intended There is insufficient evidentiary basis
397
toward him for merely doing what the Act allowed him to
do, this aspect of the case may thus at worst suggest a
person maintained in pillory unlawful in its inception,
because of an indelicate or unfortunate remark occasioned
by resentment at being continued in unlawful pillory. So
viewed, the policies of the Act would not appear to be
advanced by sanctioning fresh disciplinary measures by
an employer because of the foreseeable reaction of an
employee to a continuing earlier unlawful disciplinary
action against him. By perhaps poor analogy, a tormenter
is hardly in a position to complain about a tormented
outcry, particularly when not made so loudly as to attract
the attention of others.
Where, through substantial credible evidence, General
Counsel has (as here) prima facie established a basis for
finding that an employer's discharge or other discriplinary
action against an employee is coercive, discriminatory, or
otherwise unlawful under the Act, and the employer
undertakes to establish a different basis for his action, the
burden of proceeding with evidence shifts to the employer
to establish, through substantial credible evidence, his
asserted basis for his action. If the employer does not
assume or satisfy that burden, the basis remains for a
finding adverse to him by reason of General Counsel's
prima facie showing. Such is the situation here, General
Counsel having established a prima facie case of unlawful
disciplinary action by Respondent against Stach, and
Respondent having failed through substantial credible
evidence to establish its asserted basis for its action. Thus,
Stach, a satisfactory employee of over 3 years' standing,
without reprimand or other adverse personnel action or
blemish on his employment record prior to August 1965, in
that month commenced to engage in-indeed, he was the
employee who initiated-union organizational activity in
Respondent's plant; promptly thereupon, on August 23, he
was summarily transferred to a concededly less desireable
position; soon thereafter, he began to collect a series of
formal reprimands, for reasons here found incredible, not
established, or pretextuous; and since August 23-al-
though given a substantial wage increase on September 17
for good work performance-he has for the same pretex-
tuous "reasons" been maintained in that less desirable
position, involving among other things total disciplinary
deprivation of overtime.52 I find these actions of Respond-
ent, including its original August 23 demotional transfer
action of Stach and its actions thereafter in maintenance
of that transfer, to have been and to continue to be dis-
criminatory against Stach and coercive against him as
well as other employees by reason of his initiation and
leadership of Union and other organizational activities
among technical employees in Respondent's Augusta
Boulevard, Chicago, plant, substantially as alleged in
the complaint.53 54
for such a finding here.) A degree of "sounding off" by the
employee subjected to such treatment may under such
circumstances , however , be understandable
Sz That discriminatory withholding of work is violative of
Section 8(a)(3) of the Act, see Decker Truck Lines, 128 NLRB 858.
sa Cf N L R B v Elias Brothers Big Boy, Inc., 325 F.2d 360,
366 (C A. 6), N L.R B v Tru -Line Metal Products Co , 324 F.2d
614 (C A. 6), cert denied 377 U.S 906, N L.R B v. Montgomery
Ward & Co., Inc , 242 F 2d 497,502 (C A 2), cert. denied 355 U.S
829, E Anthony & Sons, Inc. v. N L.R.B, 163 F 2d 22 (C A D C ),
cert denied 332 US 773.
54 These findings are made notwithstanding the Union's
omission in its September 16 letter to Respondent to mention
Stach's August 23 transfer.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Alleged Violation of Section 8(a)(4)
On the first day of the hearing in this case,
Respondent's Augusta Boulevard employees James
Bastian and Joseph Kozak testified under subpena as
General Counsel's witnesses. The hearing adjourned at
approximately 4:50 p.m. These two employees work on
Respondent's second (night) shift, commencing at
4:30 p.m. Reporting for work between 5:30 and 6 (travel
time from the hearing site to the plant is about 45 minutes),
they found their timecards removed from the rack. When
they sought out Supervisor Kucharski to ascertain the
reason, he (who had removed their cards when they did not
report on time) told them to go home for the night. A day-
shift tester was observed to be working overtime.
This incident resulted in an amendment of the
complaint by General Counsel the following morning,
without objection by Respondent, so as to allege violation
of Section 8(a)(4) of the Act through coercive retaliation by
Respondent against the two employees for testifying in
this case.
Respondent's explanation for this incident, through its
Manufacturing Manager Durand, is that, realizing that a
large proportion of his departmental employees would be
at this hearing and not knowing what time they would
return, in order to avoid production loss he directed that
positions be manned overtime if necessary to maintain
production. Since the positions of Bastian and Kozak were
already manned by overtime personnel when they
reported late, and it was not feasible to remove the
overtime workers already at work, Bastian and Kozak
were for that reason instructed to go home for the night.
Respondent undertook to compensate both men in full
under the circumstances. There is no contention that this
undertaking has been unfulfilled.
Crediting Respondent's explanation, which appears to
be reasonable under the circumstances, upon the record
presented I do not believe that it has been established that
Respondent's action was in retaliation or reprisal against
the employees for testifying; on the contrary, not knowing
whether or when the two employees would report for work,
Respondent merely made reasonable provision through
overtime use of day help to avoid interruption of its normal
production schedules. There has been no financial or other
prejudice to the two employees who testified and reported
an hour or more after the beginning of their shift.
I find that it has not been established by substantial
credible evidence that Respondent's action in not
permitting its employees James Bastian and Joseph Kozak
to work on May 4, 1966, was because they gave testimony
and engaged in protected activities under the Act.ss
Upon the foregoing findings and the entire record, I
state the following:
CONCLUSIONS OF LAW
1. Motorola, Inc., Respondent herein, is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. United Automobile, Aerospace and Agricultural
ss This finding is made notwithstanding the testimony of
Bastian and Kozak that Kucharski told them "to go home because
there was not enough work for us that night" (Bastian) or "You
are not working today There is not enough work Come back
tomorrow" (Kozak) Despite the possible poor choice of words by
Kucharski (who I noted speaks poor English), in view of the fact
Implement Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Assertion of jurisdiction herein is proper.
4. On or about September 15, 1965, Respondent
through its Supervisor Ronald Caccamo at its Augusta
Boulevard, Chicago, plant interrogated its employees
Gerhard Kutzora and James Bastian concerning their
union membership and unlawful organizational activities,
in violation of Section 8(a)(1) of the Act.
5. It has not been established by a fair preponderance
of substantial credible evidence that on and since
September 1, 1965, Respondent has improperly kept its
employees or any of them at its Augusta Boulevard,
Chicago, plant under surveillance in violation of Section
8(a)(1) of the Act.
6. In or about September 1965 through its Supervisor
Ronald Caccamo, and in or about February 1966 through
its Supervisor Victor Kucharski, Respondent unduly
broadly and disparately proscribed or attempted to
proscribe all communication by its employee Donald Stach
with other employees by reason of Stach's union and
lawful organizational activities, in violation of Section
8(a)(1) of the Act.
7. It has not been established by a fair preponderance
of substantial credible evidence that on or about
September 17, 1965, or at any other time in September or
October 1965, Respondent granted wage increases to its
technical employees, including technicians at its Augusta
Boulevard, Chicago, plant, for discriminatory or coercive
reasons or otherwise in violation of Section 8(a)(1) of the
Act.
8. On August 23, 1965, Respondent demotionally
transferred its employee Donald Stach from the position of
analyzer to the position of tester at its Augusta Boulevard,
Chicago, plant, among other things depriving said Stach of
all opportunity for overtime, and Respondent has at all
times since then maintained and continues to maintain
Stach in said demotionally transferred status without
overtime, by reason of his union and lawful organizational
activities; such actions and each of them by Respondent
being in violation of Section 8(a)(3) and (1) of the Act.
9. It has not been established by a fair preponderance
of substantial credible evidence that on or about May 4
Respondent denied employment to its employees James
Bastian and Jospeh Kozak (Kozak) or either or them
because said employees gave testimony or engaged in
union or other lawful activity under the Act.
10. Each of the violations set forth in paragraphs 4, 6,
and 8 hereof, is an unfair labor practice affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be required to
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily demoted
and has maintained in demoted status an employee, I shall
that both Bastian and Kozak observed a day-shift employee
working overtime, Kucharski's expression is consistent with the
possibility of insufficient work for these two employees by reason
of the use of replacement overtime personnel who could not very
well be released after having started and already being at work
MOTOROLA, INC.
recommend that Respondent be required to offer the
employee thus discriminated against immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and to make him whole for any loss of
earnings (including overtime) he may have suffered by
reason thereof, by payment to him of a sum of money equal
to that which he normally would have earned as wages
(including overtime) from the date of said unlawful
discrimination to the date of Respondent's offer to
reinstate him, together with interest thereon, less his net
earnings if any during such period. I shall further
recommend that the three discriminatory and improper
incident reports placed into the discriminatorily demoted
employee's personnel file subsequent to his discriminatory
demotion be removed and expunged from his personnel
records.56 Appropriate provision shall be made in the
Recommended Order and posted notice to employees, for
notification to the discriminatorily demoted employee if he
is now in the Armed Forces of the United States, of his
right to full reinstatement to his former position upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended.
Backpay and interest should be computed in the manner
prescribed by the Board in F. W. Woolworth Co., 90
NLRB 289, and Isis Plumbing & Heating Co., Inc., 138
NLRB 716. Respondent should also be required to make
available necessary records for computation of backpay
(including overtime).
Because of the nature and extent of the unlawful labor
practices here found-particularly Respondent's coercive
singling out for discriminatory demotion of the introducer
and leader of lawful union activity at the plant and its
attempted proscription of all communications by him with
other employees, and its persistence in maintaining him
for over a year in that reduced position for coercive
reasons-which appear to be indicative of an attitude of
intolerant opposition toward the exercise by employees of
rights guaranteed to them by Congress under the Act, I
consider it appropriate to recommend that Respondent be
required to cease and desist from infringing in any manner
upon rights of employees guaranteed in Section 7 of the
Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record, and
pursuant to Section 10(c) of the Act, I hereby make the
following:
RECOMMENDED ORDER
Motorola, Inc., its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interrogating in violation of the Act any employee as
to his union membership or lawful organizational or other
activity.
(b) Announcing , promulgating , placing or continuing in
effect, or enforcing any rule or requirement proscribing
communication between employees , discriminatorily or
otherwise for the purpose of preventing , interfering with,
56 Cf Graber Manufacturing Company, Inc, 158 NLRB 244,
enfd 382 F 2d 990 (C A 7)
51 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
399
or impeding lawful union or organizational activity, or so as
to interfere with, coerce, or intimidate employees in the
exercise of rights guaranteed under the Act.
(c) Discouraging membership in and lawful activities on
behalf of United Automobile, Aerospace and Agricultural
Implement Workers, AFL-CIO, or other labor
organization of its employees, by demotionally transferring
or taking other adverse personnel action against, or by
maintaining in such demotional status, any employee, in
violation of the Act, or by otherwise discriminating or
threatening to discriminate against any employee in regard
to hire, tenure, or any term or condition of employment, or
for exercise or attempted exercise of any right under the
Act.
(d) Interfering in any manner with, restraining, or
coercing any employee in the exercise of his right to self-
organization; to form, join, or assist any labor organization;
to bargain collectively through representatives of his own
choosing; to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or
protection; or to refrain from any and all such activities,
except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization
as authorized in Section 8(a)(3) of the Act as modified by
the Labor-Management Reporting and Disclosure Act of
1959.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Donald Stach immediate, full reinstatement
to his former or substantially equivalent position of
analyzer, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay
(including overtime), in the manner set forth in "The
Remedy" section of this Decision. In the event Stach is
presently serving in the Armed Forces of the United
States, notify him of his right to such full reinstatement
upon application after discharge from the Armed Forces,
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended.
(b) Remove and expunge from the personnel records of
Donald Stach the incident reports referred to in this
Decision, dated on or about October 20, 1965, and Feb-
ruary 2 and March 21, 1966.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, overtime records, social security payment
records, timecards, personnel records and reports, and all
other records necessary to analyze the amount of backpay
(including overtime) due under the terms of this Decision.
(d) Post in its factory at Augusta Boulevard, Chicago,
Illinois, copies of the attached notice marked
"Appendix."57 Copies of said notice, to be furnished by
the Regional Director for Region 13, after being duly
signed by Respondent's authorized representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained' by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
notice In the furiher event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify said Regional Director, in writing, within 20
days from receipt of this Decision and Recommended
Order, what steps have been taken to comply therewith.58
I FURTHER RECOMMEND that the complaint be and it is
hereby dismissed as to all alleged violations not herein
found.
18 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL offer reinstatement to Donald Stach to his
former position as analyzer (or substantially
equivalent position), without prejudice to his seniority
or other rights and privileges, with compensation plus
interest for any overtime or other pay lost by him as a
result of our action in discriminatorily demotionally
transferring him to the position of tester on August 23,
1965, and since then maintaining him in that position.
We will also remove and expunge from Donald
Stach's personnel records the incident reports against
him dated October 20, 1965, and February 2 and
March 21, 1966.
WE WILL NOT interrogate any employee in violation
of the Act regarding his or any other employee's union
membership, activities, or other lawful actions or
attempted actions under the Act.
WE HEREBY RESCIND and will not again announce,
promulgate, place or continue in effect, or enforce,
any rule or requirement unlawfully or discriminatorily
forbidding employees to communicate with each
other regarding union or organizational activities at
proper time and in proper ways.
WE WILL NOT discourage membership in and lawful
activities on behalf of United Autombile, Aerospace
and Agricultural Implement Workers, AFL-CIO, or
other labor organizations of our employees, by
coercively or otherwise unlawfully interrogating
employees as to their or other employees' union
membership or activities; or by announcing,
promulgating, placing or continuing in effect, or
enforcing any rule or requirement unlawfully or
discriminatorily forbidding employees to discuss
union or organizational matters with each other; or by
discriminatorily demoting. transferring, or maintain-
ing in demotional status, or by taking or threatening
to take-other adverse personnel action against any
employee because of union membership or activity or
exercise or attempted exercise of any right under the
Act.
WE WILL NOT in any manner interfere with,
restrain, or coerce employees in the exercise of their
rights guaranteed to them by Congress, to self-
organization, to form labor organizations, to join or
assist any labor organization, to bargain collectively
through representatives of their own choosing, to
engage in concerted activities for the purposes of
collective bargaining or other mutual aid or
protection or to refrain from engaging in any or all
such activities , except to the extent that such rights
may be affected by a union - shop agreement as
authorized in the State of Illinois by virtue of Section
8(a)(3) of the Act as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
All employees are free to join or refrain from joining any
Union.
MOTOROLA, INC.
(Employer)
Dated By
(Representative) (Title)
Note: We will notify the above employee if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South
Dearborn Street, Chicago, Illinois 60604, Telephone
353-7597.
Local 513, International Union of Operating
Engineers , AFL-CIO (Zeni -McKinney-
Williams Corporation ) and Kiewit-
Centennial Cominco American,
Incorporated , Local 318 , United
Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry
of the United States and Canada , AFL-CIO
(Zeni-McKinney-Williams Corporation)
Local562 , United Association of
Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the
United States and Canada , AFL-CIO (Zeni-
McKinney-Williams Corporation) and
Cominco American Incorporated. Cases
14-CC-371, 14-CC-375, 14-CC-380, and
14-CC-381.
March 15,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On September 7, 1966, Trial Examiner Horace A.
Ruckel issued his Decision in the above -entitled
case , finding that the Respondents had engaged in
certain unfair labor practices and recommending
that they cease and desist therefrom and take
163 NLRB No. 38