Offner Electronics, Inc.

National Labor Relations Board - Board Decisions

Dec 7, 1961

134 N.L.R.B. 1064 (N.L.R.B. 1961)

1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Re-
lations Act , as amended , we hereby notify you that :
WE WILL NOT coercively poll or interrogate our employees con-
cerning their membership or sympathies or activities in behalf of
the Bartenders and Hotel and Restaurant Employees and Bar-
tenders International Union , AFL-CIO, nor will we interrogate
our employees in any manner concerning their membership in or
other activities on behalf of that or any other labor organization.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
All our employees are free to become or remain , or to refrain from
becoming or remaining , members of any labor organization.
SPINE ARMS HOTEL. CORPORATION,
d/b/a CONTINENTAL HOTEL,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced , or covered by any other material.
Offner Electronics , Inc. and Local 1031 , International Brother-
hood of Electrical Workers, AFL-CIO. Cases Nos. 13-CA-
3464, 13-CA-3464-2, and 13-CA-3464-3. December 7, 1961
DECISION AND ORDER
On December 13, 1960, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and is engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices, and also rec-
ommended that Gertrude Bojan, who he found had been discrimina-
torily discharged, should nevertheless not be reinstated. Thereafter,
the Respondent, the General Counsel, and the Charging Party filed
exceptions to the Intermediate Report and supporting briefs.
134 NLRB No. 89.
OFFNER ELECTRONICS, INC. 1065
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Leedom].
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 Inter-
mediate Report, the exceptions and briefs, and the entire 'record in
the case, and hereby adopts the findings, conclusion, and recommenda-
tions of the Trial Examiner, except as modified herein.
The Trial Examiner found that the secret poll taken by the Respond-
ent of its employees' union sentiments violated Section 8 (a) (1) because
it occurred in the context of the other coercive conduct which he
found, namely, the.promise of improvements in its group insurance
plan if the employees would reject the Union in the forthcoming elec-
tion. We agree with him that both the poll and the promise of benefits
were coercive. Member Leedom finds the poll unlawful in the context
of the other coercive conduct and consequently deems it unnecessary
to consider whether the poll would have been unlawful in the absence
of such other conduct. Chairman McCulloch, on the other hand,
believes that the poll was coercive under the circumstances in which
it took place, without regard to the existence of the other violation.
Thus, on September 15, 1959, the Respondent and Union entered into
a stipulation for a consent election to be held October 23. On Sep-
tember 29, Dr. Offner, the president of Respondent, spoke to the as-
sembled employees and expressed his opinion that the Company's poli-
cies had worked to the benefit of all the employees and stated that it
was their choice whether they wanted to place their best interests in
the trust of the Union or the Company. To that end, he asked the
employees to express their feelings in a secret ballot as to the need
for union representation and as to the type of union they might want,
so that the Company would have some guide as to its actions either
with the Petitioning Union or in some other way. Ballots were dis-
tributed to the employees in their pay envelopes. The employees were
to check whether they preferred to continue their present employee
relationship without a union or to be represented by a union. In the
latter case, they were to check whether they preferred the Petitioner
(misnamed as United Electrical Workers, AFL-CIO), a union com-
posed exclusively of Offner employees, or some other union. Of the
95 employees. eligible to vote, a substantial majority cast ballots ex-
pressing their preference to continue without a union. The results
of the balloting were not revealed to the employees.' -
'The election conducted by the Board on October 23 was eventually set aside on the
basis of the Union's objections . The Board ( Member Rodgers dissenting ) held that secret
balloting or polling of the employees after the parties agreed to a Board -conducted elec-
tion is an intrusion upon the Board 's responsibility and interference with the Board's
processes . 0$ner Electronics, Inc., 127 NLRB 991.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
An employer may lawfully poll his employees concerning their
wishes regarding representation if its purpose is to determine whether
a union demanding recognition actually represents a majority of the
employees, so as to permit the employer to recognize the union volun-
tarily. It is clear that Respondent had no such intention here. It
had already agreed to the holding of a Board-conducted election in a
matter of weeks, which would have settled impartially and unequiv-
ocally whether the employees wished to be represented by the Peti-
tioner. Respondent, however, chose this particular time to intrude by
raising new issues and new solutions, such as whether the employees
might prefer to be represented by an independent union or by any
union other than the Petitioner. Obviously, none of this related to
the voluntary recognition of the Petitioning Union by the Respondent.
The polling was therefore neither legitimate nor harmless, but was
rather an unwarranted inquiry into the state of its employees' desire
for union representation which was reasonably calculated to intimi-
date and coerce them.2
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Offner Elec-
tronics, Inc., Schiller Park, Illinois, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in and activities on behalf of Local
1031, International Brotherhood of Electrical Workers, AFL-CIO, or
in any other labor organization of its employees, by discriminating in
regard to the hire and tenure of their employment or any term or con-
dition of employment.
(b) Promising its employees economic benefits to influence their
voting against the Union, polling or interrogating its employees in
an unlawful manner regarding their preferences for or against repre-
sentation by a union, or in any other manner interfering with,
restraining, or coercing its employees in the exercise of the right of
self-organization, to form labor organizations, to join or assist the
above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in any
other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any and all such
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a con-
dition of employment, as authorized in Section 8 (a) (3) of the Act, as
8 Crystal Laundry and Dry Cleaning Company, 132 NLRB 222; cf. Burke Golf Equip-
ment Corporation, 127 NLRB 241, 244.
OFFNER ELECTRONICS, INC. 1067
modified by the Labor-Management Reporting and Disclosure Act
of 1959.
2. - Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant in Schiller Park, Illinois, copies of the notice
attached hereto marked "Appendix." 3 Copies of said notice, to be
furnished by the Regional Director for the Thirteenth Region, shall,
after having been duly signed by Respondent's representative, be
posted by the Respondent immediately upon receipt thereof, and be
maintained by it for,a period of 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to its employees are
customarily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or covered by other
material.
(b) Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
MEMBER RODGERS dissenting :
For the reasons stated in my dissenting opinion in O finer Elec-
tronics, Inc., 127 NLRB 991, at 992, in which the Board ruled upon
the objections to the election among Respondent's employees, I would
dismiss the allegation of the complaint that Respondent violated
Section 8 (a) (1).
I would find that Gertrude Bojan was discharged lawfully for
having circulated among the employees an anonymous note contain-
ing untrue gossip and innuendoes concerning fellow employees and
one of Respondent's supervisors. My colleagues are adopting the
finding of Trial Examiner that Bojan was discharged for engaging
in union activities,, but neither the Intermediate Report nor the De-
cision herein allude to any evidence that the union activities in which
she is supposed to have engaged were known to Respondent. Of
course Respondent was aware that Bojan was one of the Union's
observers at the election, but this does not immunize her from dis-
charge for cause. The other employee who was a union election ob-
server was not discriminated against, but has in fact been promoted.
' In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in or activities on behalf
of Local 1031, International Brotherhood of Electrical Workers,
AFL-CIO, or any other labor organization, by discharging em-
ployees or in any other manner discriminating against our em-
ployees in regard to their hire or tenure of employment, or any
term or condition of employment.
WE WILL NOT promise our employees economic benefits to in-
fluence their voting against Local 1031, International Brother-
hood of Electrical Workers, AFL-CIO, or any other union.
WE WILL NOT poll our employees or interrogate them in an
unlawful manner regarding their preference for or against rep-
resentation by any union.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist Local
1031, International Brotherhood of Electrical Workers, AFL-
CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
any other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any
and all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
All our employees are free to become or remain or refrain from
becoming or remaining members of the above-named Union, or any
other labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8(a) (3) of the
amended Act.
OFFNER ELECTRONICS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
.INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the National Labor Relations
Act, as amended (61 Stat. 136), herein called the Act, was heard at Chicago,
Illinois, on various dates between April 19 and May 5, 1960, pursuant to due
notice, will all parties represented by counsel . The complaint issued by the
General Counsel for the National Labor Relations Board (herein called the General
Counsel and the Board ), on December 15, 1959, and based on charges duly filed
and served , alleged in substance that Respondent had engaged in unfair labor prac-
tices in violation of Section 8(a)(1) and (3) of the Act by discriminating against
OFFNER ELECTRONICS, INC. 1069
its employee, Gertrude Bojan, because of her union and other concerted activities
and by engaging in various specified acts of interference, restraint, and coercion
against its employees in connection with their union activities.
In its duly filed answer Respondent denied the commission of any unfair labor
practices.
In its brief Respondent renewed various motions for dismissal of the complaint
or portions thereof denied by me at the hearing. I see no reason to change the
rulings I made on these matters at the hearing and reaffirm those rulings.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is and at all times material herein has been a corporation duly
organized and existing by virtue of the laws of the State of Illinois , engaged in
the manufacture of electronic equipment at a plant located in Schiller Park, Illinois.
During the calendar year 1958, Respondent's gross volume of business was in excess
of $100,000. During the same period Respondent shipped finished products valued
in excess of $50,000 to customers located outside the State of Illinois. I find that
Respondent is, and at all times material herein has been, engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
Local 1031, International Brotherhood of Electrical Workers, AFL-CIO, is,
and at all times material herein has been, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Background and Issues
Although this case took an inordinately long time to try considering the issues
presented, I believe that the disposition of them is fairly simple and clear. There
are five issues raised by the evidence and the briefs submitted by all the parties.
These are (1) whether the Respondent told its employees or implied to them that
their union activities were under the surveillance of Respondent, thus violating Section
8(a)(1) of the Act; (2) whether a poll or secret ballot conducted by Respondent
as to its employees' desires regarding being represented by a union violated Section
8 (a) (1) of the Act; (3) whether Respondent offered its employees or promised its
employees benefits if they would vote against the Union; (4) whether the discharge
of Gertrude Bojan violated Section 8(a)(3) of the Act; and (5) whether Gertrude
Bojan's conduct in the plant immediately after discharge was such as would bar
her reinstatement even if her discharge was discriminatory as alleged in the com-
plaint. These are the sole issues in the case.
As background leading up to these matters it appears that on August 26, 1959,
the Union filed a petition for an election involving Respondent's employees. A
stipulation for a consent election was entered into, the election to be held on
October 23, 1959. On September 9, 1959, some 30 employees, including Gertrude
Bojan, attended a union meeting. On September 29, 1959, Dr. Franklin Offner,
president of Respondent, made a speech to the employees regarding the organiza-
tional campaign. Immediately thereafter a secret ballot poll was taken of the em-
ployees as to their union desires. This poll lasted about a week. On October 2, 1959,
another union meeting was held but this time only six employees, one of whom was
Bojan, attended. On October 15 Respondent circularized its employees. On Octo-
ber 20 Offner again addressed the employees. On October 23 the election was
held with the majority of votes being cast against representation by the Union.'
Bojan acted as an observer at the election on behalf of the Union. Immediately
after the election a "victory speech" was made by Offner in which some reference
was made to an improved grievance procedure for the employees.
Apparently as a result of these comments, on October 28 Bojan asked to see
Offner. She was told by Offner's secretary that she would "have to go through the
appropriate channels." She replied that she did not know there were channels
but that if they meant seeing Vice President and Plant Superintendent Hoffman,
she had talked to him on previous occasions. This information was conveyed to
Offner who then saw Bojan. In this interview, as accurately set forth in the General
'Timely objections to the conduct affecting the election results were filed by the Union.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel's brief, "she stated as her grievance that she had not gotten a raise in
more than 2 years. A discussion followed in which Offner indicated that he doubted
she was entitled to a raise but promised to take the matter up with the official
more immediately concerned with such matters, Irving Hoffman, vice president.
On November 3, 1959, Mrs. Bojan was called into Hoffman 's office. There was
a discussion dealing with her request for a raise and related matters which cul-
minated in Hoffman's suggestion that, since she was not happy with her work,
she should look for another job. Mrs. Bojan denied that she was unhappy with
her work and refused to quit." On November 6, 1959, Bojan was discharged by
Respondent for circulating a paper critical of Respondent's pay practices. Such in
broad outlines is the posture of the unfair labor practice allegations.
Interference, Restraint, and Coercion
The Alleged Promise of Benefit
,In Offner's speech to the employees on September 29, he assured them that neither
the Company nor he was "antiunion" and that he recognized "that unions serve an
essential place in our economy , and in fact have resulted in great benefits to many
workers; and, for that matter, to many industries as well." He pointed out that
since all the electronics companies are in such a close "competitive situation," none
can "pay substantially less than the average" to obtain workers. Thus, he reasoned,
the main function of unions is to serve "as protection to the workers ." In his
analysis, he divided employers into three groups: (1) the "bitterly antiunion" em-
ployers who exploit their workers, paying as little as possible and laying them off
when not needed; (2) the unionized companies "where management need not worry
too much about employee welfare: the employees have paid their union representa-
tives to look out for these questions. Some do a good job, some the contrary ...";
and (3 ) those companies "which consider their employees ' welfare as an essential
resource of the Company" where the employee is treated as an equal partner with
management and where "the worker is no more laid-off when work is slack than
is the president of the Company."
Offner placed his Company in the last group, pointing out the many things the
Company had "done in the direction of employee protection." Among these (with
numerous illustrations) were (1) trying "to provide as near guaranteed employment
as possible"; (2) the establishment of a retirement plan; (3) a hospitalization plan;
(4) coffee breaks (coffee included); (5) a liberal vacation policy; and (6) a well-
working grievance procedure. These things he compared to what he understood the
Union was offering, based on what he had learned from the union literature "as
well as what some employees who have attended their meetings have reported to
us." He told the employees that it was management's opinion that its policies had
"worked to the benefit of all at Offner Electronics, and should be continued," and
that it was the employees' choice whether they wanted to place their "best inter-
ests" in the trust of the Union or the Company.
After finishing the speech, Offner asked the employees if there were any ques-
tions. Several questions were asked. One girl wanted to know how to become
an inspector. Another asked how people were selected for advancement. Some
asked about being paid weekly instead of biweekly . Someone raised a question
regarding improvements in the medical insurance carried for the employees, namely,
Blue Cross-Blue Shield. Offner told the employees that he thought they were the
lowest-cost plans for their purposes but that due to some minor irritation he had
experienced with them, he indicated that he "was going to call in a representative
to discuss some of these questions.. ... One employee asked if there was any
possibility of getting group life insurance. Offner said that he "thought that was a
worth-while suggestion" and promised to investigate it. In a letter or handbill to
the employees dated October 15, 1959, Offner said:
At our recent meeting , considerable interest was expressed in group insurance.
Accordingly, we have asked for proposals on group plans covering:
Hospital and Medical supplementing Blue Cross and Blue Shield
The same, replacing Blue Cross and Blue Shield
Life Insurance
When we have figures on these plans, they will be presented to all employees.
We have requested comparative figures from three different companies, and
will proceed further only with that offering the greatest value consistent with
safety.
About a month after the election , Respondent announced a group life insurance
plan in which it pays 80 percent of the cost and the employees pay 20 percent.
OFFNER ELECTRONICS, INC. 1071
It is true that Offner in his speeches and circularization of the employees re-
garding the union campaign did not say in so many words, "If you will vote against
the Union I will put into effect a group, life insurance plan for you." Nevertheless,
I find that the import of what he did tell them in his September 29 speech and his
handbill of October 15 was essentially that. Thus we find him giving the em-
ployees examples of what the Company has in the past "done in the direction of
employee protection" and welfare. Then, to impress upon them that their "best
interests" will continue to be served by the Company rather than the Union, he
promises to investigate the possibility of getting group life insurance for them and
later reports that the investigation is under way and that as soon as he has the
"figures" from three competing companies he will in effect choose the one "offering
the greatest value consistent with safety." This, it seems to me, was an effective
offer of a benefit to wean votes away from the Union. I deem it immaterial that
it originated as a suggestion from an employee. I also reject Respondent's con-
tentions that it did not involve anything "new" or that since there was no indication
Respondent would share in the expense it could not be considered a benefit to the
employees. On its face, regardless whether it would involve an "economic detri-
ment" to the Respondent or be paid for by the employees, it obviously was a benefit
to the employees which they could enjoy only as an employee of Respondent.
Nor do I accept Respondent's contention that in any event the matter is de minimis.
The Poll
At the time of his September 29 speech, Offner asked the employees "if they
would express (their union desires) by a secret ballot which (he) had made up
in order to give them multiple choices of which could guide (the Company) in
(its) action-both with the petitioning union, and possible if they preferred in
some other way." He indicated to the employees that they were under no obligation
to express their opinion. He "particularly cautioned them not to tell either (him),
anyone in management, or any fellow employee how they voted, or to let them see
them mark their ballot." The ballots, which misnamed Local 1031 as "The United
Electrical Workers, AFL-CIO," asked the employees to check whether they pre-
ferred to continue their present employee relationship without a union, or whether
they preferred to be represented by a union and to check whether, in the event a
union came in the plant, they would prefer the union in question, an independent
union composed exclusively of Offner employees, or some other union. The ballot
box which was sealed was placed in the work area near the employee entrance and
was kept there for about a week. Each night Offner removed the ballots cast
during that day and kept a running tally on them. Approximately 70 employees
cast ballots out of a possible 95. Of these, 54 preferred to continue with a union;
10 preferred the Union designated on the ballot; 7 preferred an independent union;
and there were 7 unmarked ballots. A few of the ballots contained written or
printed messages and at least one of them was signed by the individual casting the
ballot. The employees were not given the results of the ballot, this information
being solely in possession of Offner, his sister, and Hoffman. Nor were the results
of the poll used in the campaign.
The question of the poll was considered by the Board in passing upon the Union's
objections to the election. In its decision,2 the Board held that even assuming
that the poll was "secret and uncoerced" (a matter upon which the Board voiced
no opinion), the election should be set aside. This it held for the reason that once
the parties agree to a consent election the responsibility for conducting a secret
ballot "rests solely with the Board" and any polling done by the parties is an intru-
sion on and interference with the responsibility of the Board and is grounds
for setting the election aside. Despite the General Counsel's attempt to attack
the secrecy of the poll, I find that it was secret. But I further find, nonetheless, that
it was coercive within the meaning of the Act and thus violative of Section 8(a)(1)
thereof.
Notwithstanding that the Respondent tried to show that it was its customary
practice to take polls on various questions regarding its employees,3 it gave no
convincing explanation why it conducted the one in question . Besides claiming that
the Board's decision on the objections shows that it did not consider the poll coercive
(with which contention I disagree, as indicated above), the Board took no position
on the matter. Respondent points out that just because the poll was grounds for
setting aside the election is no reason that the poll was an unfair labor practice.
2127 NLRB 991.
3In this connection it adverted to several taken in the past but only one of which was
secret and which had occurred some 10 years previously.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I agree. But I do not find the poll coercive because of the Board's action nor on
any per se basis. I find that because the poll occurred in the context of other co-
ercive conduct, namely, the promise of benefit involved in the group insurance mat-
ter, it, too, violates the Act. Brown and Root Canbe, Inc., 123 NLRB 1817, 1818;
California Compress Company, Inc., 121 NLRB 1388.
Surveillance
As already indicated, in his September 29 speech to the employees Offner said,
"I will touch' briefly on what the Electrical Workers union proposes in seeking
members, at least so far as I have learned from their literature as well as what
some employees who have attended their meetings have reported to us." Regarding
this comment the Union, in a handbill dated October 6, made the following state-
ment: "Not only does the'Company insult your intelligence, they even admit having
company spies attending union meetings, . it's apparent that your Company has
violated Federal Laws through their own admission." As a result of this statement
by the Union, the Company filed a libel suit against the Union and the Offner
Organizing Committee. On October 20, Offner again addressed the employees.
By this time the libel suit had been filed and Offner made some mention of it
saying that the Union had accused him of sending spies to union meetings and of
thus breaking Federal laws. Apparently in the course of denying such accusations
by the Umon,4 Offner said, "But, we have good and faithful employees who did
come back and report . . . what happened at these meetings."
The foregoing is the sole evidence upon which the General Counsel bases his
allegation that Respondent sought to give its employees the impression that their
union meetings were under Respondent's surveillance. While it is possible to inter-
pret Offner's comments here as meaning to give the impression that the Company
was deliberately engaging in the surveillance of its employees' union meetings, such
an interpretation on the evidence here and in the light of the record as a whole is
too strained to be justified. So far as the record shows, Offner was stating a sim-
ple fact. There is not an iota of evidence to show that Respondent in any way
instigated or sought out such reports as it got about the union meetings. Nor
is there any evidence to support that implication to the employees of such action
on its part.
This was not a comment made to the employees to show an analysis of the
number and identity of the employees who attended the union meetings and the
circumstances thereof as in Miller Electric Manufacturing Co., Inc., 120 NLRB 298,
315; Carolina Mirror Corporation, 123 NLRB 1712, 1786; Roscoe Wagner d/b/a
Wagner Transportation Company, 110 NLRB 1179, 1176, nor indications of
knowledge of union activities or meetings coupled with threats of discharge because
of them as in News Printing Co., Inc., 110 NLRB 1265, 1288-1289; nor a disclosure
of knowledge of who had been attending union meetings coupled with a refusal to
tell where such information was obtained as in Hoffman-Taff, Inc., 123 NLRB 1462,
1463. Furthermore, here the comments regarding the reports about the union meet-
ing involved only the Union's program and were mentioned only by way of
comparison with the program of the Company. Certainly, there is nothing in the
Act which makes it unlawful for employees to voluntarily report to an employer
on the union activities of their fellow employees. Armstrong Tire & Rubber Co.,
Tire Test Fleet Branch, 111 NLRB 708; Tri-State Casualty Insurance Company,
83 NLRB 828; Burnette Castings Company, 79 NLRB 398. I find that the General
Counsel has failed to prove this allegation of the complaint by a preponderance
of the evidence.
Discrimination
Gertrude Bojan had worked for Respondent about 21 years at the time she was
discharged. Except for a brief attempt to use her on quality control inspection
which she was unable to handle, her duties involved inspection of incoming parts
and components. These were mostly transistors which she tested for various pur-
poses, making records of the test data both in numerical and graphic form. During
her entire period of employment with Respondent she had received only one 5-cent
wage increase In a previous job she had been a member of Local 1031 and it was
through her efforts that the Union became interested in organizing Respondent's
employees. Her attendance at the two union meetings and her acting as a union
4 These findings regarding Offner's comments in the October 20 speech are based upon
Bojan 's testimony.
OFFNER ELECTRONICS, INC. 1073
observer at the election have already been noted. Also noted was her grievance
interview with Offner a few days after his "victory speech" to the employees.
According to Respondent's evidence, Bolan was a thoroughly unreliable and in-
competent employee. Summarizing this evidence in its brief Respondent points out
that "during Bojan's entire term of employment she proved to be an unsatisfactory
employee both in quality of work pertormance and attitude. . . . Time and again
Bojan proved unreliable and incompetent in the performance of her work. The
tests she made, when verified, often proved incorrect; ... simple visual inspection
duties were improperly carried out." On one occasion, according to her super-
visor's testimony, 27 out of 87 pieces visually inspected by Bojan were found im-
proper upon reinspection. Although her principal duty in over 21/2 years was to
test transistors, she could not perform the simple process of making the setup
for the work which merely involved adjusting some controls to a proper reading.
Besides all these deficiencies, "Bojan had the worst work attitude of any employee
in the department. (She) continually refused instruction, claiming she knew how
to do the job. However, when the job allegedly was completed, it turned out to
be that it was done improperly." Added to all this, Bolan was discourteous to
her supervisors and to Offner himself. On one occasion when Offner, according
to his testimony, spoke to Bojan regarding "some improper inspection tests that she
had made," she answered him in a very "snippy" and discourteous way. When
Offner questioned Bojan's supervisor about her attitude he was told that the super-
visor had "had trouble with her all along."
During the lunch hour of November 6, according to Bojan 's undenied and credited
testimony, she found a paper at her place when she returned to it, upon which
was typed the following:
I was just told that, that black haired Helen Drew was going around and
flashing her check about a 100 raise . She said she got it because Ross liked
her. She also said Ross was trying to get a special ticket for her to go to the
show with. FAVORITISM! This was told to me to, give to the Union. It
is going to be-to think a new girl can get a 100 raise in less than 2 months
and an old girl doing an intelligent job can't get a nickel raise in 3 years.
DON'T GAS ABOUT IT RIGHT AWAY-IN THE DEPARTMENT.
It is understood that the old girls got a 200 raise but one thing they don't
understand is-(1) 200 an hour does not make up for the money they have
lost over a period of years (2) will not make up for the money they will lose
by not receiving another raise for the same length of time or longer.
When she had read the paper Bojan said to a group of employees near her,5
"Look what was left over here by my place. . . People getting raises. -How
long is this girl working here? She is getting a raise , how come?" Grace spoke
up, "This is real old stuff. This happened about a week ago.. . Bojan also
showed the paper to another group of employees at that time. A girl identified as
Jeanie said, "Let me see, Gert" and told Bojan that another girl, Nancy, got a
5-cent raise , a 10-cent raise , and another 5-cent raise.
Olga Blala, called as a witness by Respondent, testified credibly that when Bojan
showed her the paper she told Bojan the information was not true When Bojan
insisted that Drew and Nancy Peters had said it was true, Blala threw the paper
to Bojan's side of the table and went to look for Nancy. Nancy Peters testified
credibly that she had never talked to Bojan and that she had not received a raise
at the time in question, having then only worked for Respondent about a month.
Within 5 or 10 minutes after work resumed that noon, Bojan was called into
the office. There she was questioned by Offner, Hoffman, and Helene Offner about
the paper she had been showing the employees during the lunch hour. This in-
terview was tape recorded, which fact was made known to Bojan at the outset.
According to the transcript of the recording, which was received in evidence with-
out objection and was testified to by both Bojan and Offner as accurately reflecting
what was said, when Bojan was asked if the statements contained in the paper
were true, she replied, "From what I hear they are. They were told to me . .
When asked why she showed the paper she answered , ". . because an awful dot of
people have been complaining here about not getting increases in (wages) lu:7t as
I have come to you and wondering why, I can't get a raise working here 3 years
and no increase ." When she reiterated her belief in the truth of the statements about
the wage increases on the basis of information from "another girl," she was told
5 She identified them only as Ethel, Olga, Kay, Bernice, Grace, and Eileen, explaining
that she did not know their last names
630849-62-vol. 134-69
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Hoffman , "... for your information , it's a lie, you see ." As for whether she
believed the "statement in there about Ross favoring somebody because he liked
that particular person ," she replied, "I don't believe anything-it has to be proven
to me." She maintained that she had shown the paper to people who she "knew
were complaining." She was told that she had shown it "for the purpose of agitat-
ing those people" to which she replied, "You have 40 people here who are agitators-
the ones who signed for the Union ," and added , "You cannot put me on the
spot alone." One last question (to.which no answer appears) was directed to Bolan
before Offner informed her that she was discharged. That was, "Why did you
distribute that particular document when you weren't sure whether it was the
truth?"
The evidence shows that except for Drew's having received a 10-cent increase
about 2 weeks previously , the information contained in the paper was not true. It
is also clear that Bojan was discharged because she circulated the paper in question.
Contentions and Conclusions
Respondent contends that the paper Bojan circulated was a "deliberately false
and malicious accusation by her that Respondent had committed unfair labor
practices ." and that accordingly her discharge for that reason was permissible
under N.L.R.B. v. Atlantic Towing Company, 180 F. 2d 726 (C.A. 5). In my opinion
what the paper said at the time it was circulated did not attribute conduct to the Re-
spondent which could be interpreted as unfair labor practices .6 Atlantic Towing
Company therefore is inapposite.
Citing El Mundo Broadcasting Corporation, 108 NLRB 1270, Respondent fur-
ther contends that "even if Bojan had been engaging in some otherwise protected
concerted activity when she published these statements . her discharge would
(still) not be violative of the Act. The deliberate and intentional publication of
malicious lies by an employee harboring ill-will or hostility toward her employer,
with a desire to injure the employer, are justifiable grounds for discharge notwith-
standing any otherwise `protected activity.' " In Respondent's view Bojan's state-
ments were clearly "deliberate ," "malicious ," "gross fabrications ," and had "no
basis in fact " In my opinion , Respondent 's analysis is in error in several respects.
The most obvious is that one of the two most specific allegations of the paper was
true-i.e., that Drew had received a 10-cent increase. As for the untruths of the
other statements, I would not characterize them as having been deliberately or
maliciously made. The record shows that Bojan believed most if not all of the
accusations 7 Furthermore, in view of her and other employees' complaints 8 about
Respondent's pay practices, it is obvious that Bojan's purpose was not so much
to hurt Respondent as to help herself and other employees And this fact, among
others,9 nullifies Respondent's additional contention that Bojan's discharge was not
protected by the Act since "she acted alone (and) not in concert with any other
employee."
On the basis of the foregoing , I find that Bojan was discharged for engaging in
an activity protected by the Act. American Shuffleboard, 92 NLRB 1272; El Mundo
Broadcasting Corporation , supra. In the circumstances here it is not necessary to
consider Bojan 's value as an employee or Respondent 's motive in discharging her.
However, if these things were pertinent to the disposition of the case, I believe the
facts are such as to justify an inference that Bojan 's union activity was the ultimate
cause of her termination and that the circulation of the paper in question was a mere
pretext . In this connection I would point to (among other things ) ( 1) the relatively
long period of acceptance of and reliance on Bojan 's work , 1e (2) her union activity
e The paper was circulated on November 6 The election took place on October 23
There is nothing to indicate or to imply that the raises mentioned in the paper were
granted before the election Thus there can be no inference that the alleged increases
were given to influence the election.
7 The record further shows that Respondent , at the time of Bopan's discharge , did not
attribute a deliverate misrepresentation to her-she was asked why she had shown the
paper when she was not sure whether it was the truth.
s Bojan testified credibly to that effect.
"The reference in the paper and in her recorded interview regarding the Union clearly
shows its purpose as campaign propaganda . It is immaterial that the election had already
taken place
10 That she could not make the grade in quality control inspection does not , prove her
incompetence in the work she was retained at . Indeed, that Respondent thought well
OFFNER ELECTRONICS, INC. 1075
-including her intrepid excursion to top management with her wage grievance and its
close timing with her discharge, and (3) the scope and intensity of Respondent's
contention as to her undesirability as an employee. If she was half as bad as Re-
spondent claims, particularly considering the type of Respondent's business, it would
be incredible to have continued her employment as long as it did. And this incredi-
bility is heightened by Respondent's self-professed high ethical standards. Why
would Respondent retain such incompetence and thereby jeopardize not only its own
reputation for scientific perfection but also so gratuitously endanger the successful
operation of some of the governmental defense projects relying on Respondent's
preeminent services?
Postdischarge Conduct
After she was discharged Bojan returned to her work place, gathered her belong-
ings-a carton of cigarettes, some old shoes, an apron-and wrapped them in a news-
paper together with what she described in her testimony as "some records, duplicate
copies of records that (she) had over there. " As she started to walk away her
supervisor, Wachtel said, "I want to see that." She told Wachtel, "You know
what I have wrapped in the package? It is my work shoes and an old newspaper."
Wachtel took the package from her and opened it. Bojan asked, "You are searching
me?" Wachtel replied, "No, I am not. I am just looking at the package" and she
removed from it a folder containing the records in question. Bojan told her, "Viola,
those are my records. Those are all duplicate copies." 11
At this point Hoffman and Offner, who had followed Bojan out of the office and
had been called over by Wachtel, converged on the scene. All three 'began looking
of the material found in Bojan's package. According to Hoffman's credited testimony,
he "thumbed through the file and saw various of (the) company documents .. .
specifications, curve sheets, test data, circuit diagrams, lot plots, and inspection rec-
ords." According to Bojan's testimony, either Hoffman or Offner said, `Well, there
are blueprints here. They are Company records. These are not-" Bojan said,
"Well, I am sorry. I didn't know that they were here in the papers. As soon as I
would have gotten home and looked through these things, I would have mailed them
back to you, because I have no use for them at all." She also testified that she
knew the blueprints were not her property and that she was wrong in taking them.
Offner said, "Well, how much more of my stuff have you got in your home?" In
further explanation of the matter, Bojan testified that there was a pile of papers at
her place and she "picked it all up," that she did not know what it was. As a
reason for taking the papers Bojan testified that she had the impression that she
would never get a recommendation from the Company so she "took them as a refer-
ence so that (she) would have something to fall back on in looking for a job. That
is all (she) wanted to know, was the particulars of the tests of the transistors; that is
all."
As indicated, Bojan's job was the inspection of incoming materials, mostly transis-
tors, which inspection was translated into numerical or "inspection reports" and
graphs or "lot plots." It appears from Bojan's testimony that after her inspection
records had been approved by her supervisor, she kept a duplicate copy thereof in a
folder at her workplace. This she did at the instruction of her supervisor, Siderits.
As she explained, '
Mr. Siderits told me to keep these records because there were so many times
when records and these lot plots were lost, and they would look for them, . . .
I would have these records and sometimes the readings would not jibe , . .
We would get a subsequent shipment of, say, the same transistor, . and
I would take the lot plots out, and a lot of times, as I say, these lot plots
were lost, and the engineers would come to me and say, "Gert you got your
records? I would pull them out of the files and they would look at the back
of them and say, "well, are we checking even with the lot plots?" A lot of
times they are running according to the ones they ran before, and rather than
look through the files for all of these things, we would check right over there,
because, as you will see, on everyone of these,. practically on all of these, I have
the same thing on all of them.
enough of her record to try and use her in quality control speaks well for that record.
Furthermore, that she had only one 5-cent raise in 21/2 years may be explained in some
part by evidence that she had been hired at the highest or, one of the highest rates paid
to any of the women employees at the time.
11 The evidence as to what took place between Bojan and Wachtel on this occasion is
from the testimony of both, none of the material part of which was denied by either one
or is inconsistent one with the other.
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bojan testified that she considered these papers her personal records. She also testi-
fied that the inspection reports in question were duplicates or copies of those retained
by the Company in its files.
In its brief Respondent contends that even if it be found that Bojan's discharge was
discriminatory under the Act, "Bojan must nevertheless be denied backpay and rein-
statement because of her serious acts of misconduct moments after her discharge"
when 'she "was caught 'attempting to steal certain important confidential documents
belonging to Respondent. ." TlW "documents" in question were comprised of
approximately 214 sheets of paper which were divided in 8 categories as follows: (1)
several blank pieces of paper, (2) about 61 inspection reports on transistors, (3)
about 33 transistor lot plots, (4) about 24 miscellaneous inspection sheets (work-
sheets), (5) about 7 inspection records of various items such as capacitors, rectifiers,
and toroidal transformers, (6) about 29 sheets of engineering instructions for the
testing of transistors, (7) one sheet, specifications of a vibrator, a critical part of a
dynograph assembly, and (8) circuit diagram of a transistor tester. These eight
categories were divided into two classifications of importance, according to the Re-
spondent, classification one involving the importance of maintaining company records
and classification two involving the confidential nature of the Respondent's "art of
manufacture."
The General Counsel did an excellent job in cross-examining Offner on the matters
in question nand in analyzing the evidence and Respondent's contentions about the im-
portance of these papers under the standards set by Respondent. I am in agreement
with the General Counsel's conclusion that "in the final analysis, . . . none of the
papers in any of the categories measures up to the standards of importance ascribed
to them by Respondent." Indeed some of the contentions of Respondent in this
connection impress me as being extremely tenuous to say the least. On the other
hand, despite the General Counsel's superb effort, there remain certain fundamental
aspects of the matter that support Respondent's contention that Bojan's conduct here
precludes her from reinstatement.
The evidence shows that any confidential classification attributed to the material
in question by Respondent was not required by the Government or any of Re-
spondent's other customers. And the General Counsel makes some pertinent ob-
servations on Respondent's lack of security measures regarding the preservation of
supposedly "invaluable trade secrets." Nevertheless, for the most part these were
official recordss and data of the Respondent and I am sure it is no more the Board's
function to tell Respondent what it should consider confidential than it otherwise is
to tell a Respondent how to run its business. In any event, dpart from the sub-
stance of Respondent's position on this matter, let us turn to Bojan's.
Bojan claims that she considered these papers to be her personal records 12 and
that all she wanted was the particulars of the tests of the transistors. She further
claims that her only purpose in taking them was to serve as a reference in seeking
another job. I believe her-as far as these statements go. However, I believe her
actions also indicate some further unstated concepts that were in her mind at the
time . The fact that she at first misrepresented and attempted to conceal from
Wachtel what she had in her package would indicate to me that she knew that re-
gardless what her position on the matter was, Respondent did not and would not
agree with her that the material in question was her personal property. Moreover,
that she took everything in sight rather than pick out only what she wanted would
(particularly in view of the above misrepresentation and concealment) indicate a
hurried attempt to avoid detection.13
With these implications of guilt on her, it seems reasonable to infer that while
her basic desire was to have only the particulars of the transistor tests, she appar-
ently thought that at her leisure she might find something else of use to her in the
other material and for that reason decided to take it all.14 In sum, my impression
12 There is no doubt in my mind that this claim is limited to material upon which she
worked Indeed, she admitted that the blueprints were not hers-and further that she
was wrong in having taken them.
18 The General Counsel points to the blank papers in this material as proof that Bojan
had no intent to misappropriate any of Respondent's records Like so many arguments in
these cases, this one cuts both ways. I believe the implication I have put on it is the
more logical.
1 This inference is further supported by Bojan 's statement in the office that "as soon as
(she) would have gotten home and looked through these things," she would have returned
the blueprints.
OFFNER ELECTRONICS, INC. 1077
of the evidence is that Bojan was taking something she knew she had no right to
take.
In this light it does not help her that she took the material only for the purpose
she claims (which I believe she did); nor does it help her that she may have felt
that she was not taking anything of value or anything that was needed or useful to
Respondent. Although I agree with the General Counsel that none of the material
is anywhere nearly as important as Respondent claims, I cannot say that it is so
unimportant and useless to Respondent as to render her conduct innocuous and
Respondent's position on it untenable.15 Accordingly I am constrained to conclude
that Bojan has forfeited her right to reinstatement. That she acted as she did at a
time when she undoubtedly was upset and distraught is certainly grounds for sym-
pathy and moral exoneration but is hardly grounds for requiring Respondent to
waive its objections to her reinstatement if it insists upon them. In reaching this
result, I am well aware ,that the denial of the normal remedy here has the effect of
leaving Respondent's violation of Section 8(a)(3) of the Act without any effective
remedy. Respondent is thus the beneficiary of a windfall.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The conduct of Respondent set forth in section III, above, occurring in connec-
tion with the operations described in section I, above, has a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in certain un-
fair labor practices, it will be recommended that it cease and desist therefrom and
take affirmative action designated to effectuate the policies of the Act.
I have found that Gertrude Bojan was discriminatorily discharged by Respondent
in violation of Section 8(a)(3) of the Act. But having also found that she had
engaged in conduct which precluded her reinstatement, I shall not here recommend
the customary remedy of reinstatement and backpay.
Since I have found that the Respondent, by various acts, interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in the Act, and
particularly because the discriminatory discharge found herein goes "to the very
heart of the Act" (N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A. 4),
and indicates a purpose to defeat the self-organization of its employees, I am con-
vinced that the unfair labor practices committed are related to other unfair labor
practices proscribed and that the danger of their commission in the future is to be
anticipated from Respondent's conduct in the past. Accordingly, in order to make
effective the interdependent guarantees of Section 7 and thus effectuate the policies
of the Act, I will recommend that the Respondent cease and desist from in any
manner infringing upon the rights of employees guaranteed by the Act. May Depart-
ment Stores d/bla Famous-Barr Company v. N.L.R.B., 326 U.S. 376, 386-392.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the Union is a labor organiza-
tion all within the meaning of the Act.
2. By discriminating with respect to the hire and tenure of employment of Ger-
trude Bojan, thereby discouraging the free exercise of the rights guaranteed by
Section 7 of the Act and discouraging membership in and activities for the above-
named labor organization , the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a) (3) (1) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and t(7) of the Act.
[Recommendations omitted from publication.]
15 Actually, it would appear that even though the records she took may have been
duplicates (a matter I feel it unnecessary to decide ), they had been kept by her for use
by the engineers at her supervisor 's direction and their absence would of course prevent
the fulfillment of that purpose.