Sencore, Inc.

National Labor Relations Board - Board Decisions

Mar 19, 1976

223 N.L.R.B. 113 (N.L.R.B. 1976)

SENCORE, INC. 113
Sencore, Inc. and International
trical Workers Local Union
Case 18-CA-4444
Brotherhood of Elec- was told that Highstrom was one of the two union
No. 426, AFL-CIO. "ringleaders." About a week before Christmas 1974,
March 19, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On September 11, 1975, Administrative Law Judge
Peter E. Donnelly issued the attached Decision in
this proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge 2 and
to adopt his recommended Order.
Unlike the Chairman, we agree with the Adminis-
trative Law Judge, essentially for the reasons given
by him, that Respondent discharged Highstrom in
violation of Section 8(a)(3) of the Act.
Highstrom was one of the four most active union
adherents in the 1974 preelection campaign. When
renewed organizational activities began in January
1975, James Stalzer, who was then a line foreman
and conceded supervisor, overheard conversations
among line production employees about it. During
the first and second weeks of January 1975 he unlaw-
fully interrogated certain employees in this regard.
Both Stalzer and Roger Swier, chief analyzer and a
conceded supervisor, showed a lively interest in the
renewed organizational effort. Kevin Lucas, another
line foreman , testified that shortly after he was em-
ployed on November 4, 1974, Stalzer and Swier told
him how they had squelched the last union effort. In
a conversation with them in early December, Lucas
' The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 The Administrative Law Judge found that employee Phyllis Swier was
active in the Union's renewed organizational activities in January 1975. We
agree with Respondent's contention that the record fails to support this
finding, as it shows only that Swier was active during the Union's 1974
campaign . This discrepancy, however , does not alter our agreement with the
Administrative Law Judge's finding that Swier 's discharge was motivated by
her protected concerted activities and, therefore , was violative of Sec.
8(axl) of the Act.
Stalzer informed Lucas that there was union activity
on the line and that they should stay on the line and
try to pick up anything they could hear. At this time
Stalzer, in discussing Highstrom's need for surgery,
said that he hoped she would ask for a leave of ab-
sence which would be denied, and that this would
force her to quit without the need to fire her and
cause a ruckus among the employees. Also, in early
January 1975, R. Herbert Bowden, Respondent's
president, Swier, Stalzer, and Lucas were discussing
the Union at which time Bowden stated, in relevant
part, "if we have any troublemakers, let's get rid of
them."
In our opinion, the foregoing effectively contro-
verts the Chairman's assertion that there is no evi-
dence that management suspected Highstrom of
being active in the campaign. Indeed, we completely
agree with the Administrative Law Judge that, based
on the evidence, it is apparent that Respondent was
anxious about the January 1975 organizational
threat; that it intended to rid itself of "troublemak-
ers;" and, that taken in context, the "troublemaker"
reference encompassed union activists, which cer-
tainly included Highstrom.
Nor can we agree with our colleague that there is
no evidence that Respondent retaliated against the
Union's supporters. For, we regard the discharge of
half-two 3 of the four-of the most active union ad-
herents as the severest kind of reprisal.
Finally, with respect to the warnings which High-
strom received, we note that three of the four given
to her involved leaving the line without permission.
According to the credited testimony, the selling of
merchandise on company time and property involv-
ing temporary removal from an employee's work sta-
tion was a common practice among the employees.
In fact, Roger Swier had sold jewelry to supervisors
and production line employees on company time.
The incident which led to Highstrom's discharge was
her leaving the line for a very few minutes to pay an
employee for some eggs the employee had purchased
for Highstrom. The company rule, pursuant to which
Highstrom was allegedly discharged, did not itself
make discharge mandatory. As noted by the Admin-
istrative Law Judge, the infraction, a 2- or 3-minute
departure from the employee's work station, was not
only inconsequential, but apparently rather a com-
mon practice among employees and supervisors.
Our dissenting colleague asserts that employees
who left the line "consistently" did so after request-
ing and receiving permission. To the extent this im-
3 Highstrom and Phyllis Swier who is married to Roger Swier's first cous-
in.
223 NLRB No. 16
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plies that Highstrom was the only employee who de-
parted from the line without permission, we do not
understand the record to support such an assertion.
Moreover, and apart from any disparate applica-
tion of the rule, we agree with the Administrative
Law Judge that the egg purchase incident which led
to Highstrom's discharge was a pretext to conceal the
real and illegal motivation for her termination. Thus,
when viewed in the context of Respondent's anti-
union animus, its discharge of an employee with over
5 years of apparently satisfactory service who was
considered by Respondent to be a most active union
adherent, and Respondent's anxiety to rid itself of
"troublemakers" or union activists such as High-
strom, the Administrative Law Judge's conclusion is
inescapable that Highstrom was discharged not for
any infraction of company rules, but because of her
activity on behalf of the Charging Party.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Sencore, Inc., Sioux
Falls, South Dakota, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, except that the attached notice
is substituted for the Administrative Law Judge's no-
tice.
CHAIRMAN MURPHY, concurring in part and dissent-
ing in part:
I agree with my colleagues' findings that Respon-
dent violated Section 8(a)(1) of the Act by discharg-
ing Phyllis Swier and by engaging in other conduct
which interfered with, restrained, and coerced em-
ployees in the exercise of rights guaranteed them in
Section 7 of the Act. I disagree , however, with their
finding that Respondent violated Section 8(a)(3) of
the Act by discharging Arlene Highstrom.
The Administrative Law Judge found, and my col-
leagues agree, that Highstrom was fired on January
20, 1975, because of her union activities, and that
Respondent's assertion that she was fired pursuant to
its written "warning slips" rule was seized upon as a
pretext. To support this conclusion, my colleagues
rely upon Respondent's "antiunion animus" and its
expressed desire to be rid of Highstrom, coupled with
their finding that Respondent's "warning slips" poli-
cy, which provided for a discharge of an employee
upon receiving the third warning for misconduct, was
disparately applied to Highstrom. In addition, they
agree with the Administrative Law Judge's judgment
that Highstrom's unexcused absence from her work
station for 3 or 4 minutes was "not only inconse-
quential, but apparently rather a common practice
among employees and supervisors."
Although Respondent may well have harbored
union animus and even expressed a desire to be rid
of Highstrom, I perceive no basis in the record for
finding that it acted upon that animus and desire in
discharging Highstrom. For there is no evidence that
the "warning slips" policy was disparately applied.
Nor is there evidence that Highstrom was involved in
the renewed union activities in January 1975, or that
Respondent suspected her of being involved in such
activities.
Respondent maintains certain written work rules
governing the employees' conduct. Among these is
the following:
WARNING SLIPS: Should it be necessary to issue
warnings to an employee for basic misconduct,
the first warning will be verbal, (and a note
placed in the personnel file) and the second in
writing and the third warning will also be in
writing but will usually be accompanied by a
dismissal notice.
The record shows, as Highstrom admitted, that
Highstrom had received four warnings, not three, as
found by the Administrative Law Judge. The first
warning was given her on July 8, 1974, for leaving
the line without permission; the second, on August
12, was for the same offense and resulted in a note
being placed in her personnel file which also made
reference to the prior oral warning; her third warn-
ing, in the fall of 1974, was in writing and repri-
manded her for poor workmanship; and, finally, her
fourth warning, also in writing, came on January 20,
1975, when she again left her work station without
permission. This last warning was accompanied by a
dismissal notice.
Contrary to the Administrative Law Judge's find-
ing which my colleagues adopt, there is no evidence
that Respondent disparately applied the "warning
slips" rule to get rid of Highstrom. The fact that em-
ployee Phyllis Swier was discharged without any
warning affords no basis for finding disparate appli-
cation of the rule as to Highstrom. This is so because
Swier was allegedly discharged for violating
Respondent's rule against "disloyalty" or talking
against the Company for which an employee may be
discharged forthwith,4 rather than a work rule as in
Highstrom's case. Nor does Krumback's discharge,
upon receiving her third warning, suggest disparate
4 We have found, in agreement with the Administrative Law Judge, that
Swier's so-called "disloyalty" or talking against the Company constituted
protected concerted activity and that her discharge, therefore, violated Sec.
g(aXI) of the Act.
SENCORE, INC. 115
application of the rule. Indeed, it suggests just the
opposite conclusion. Although Krumback was also
known to Respondent as an active supporter in the
Union's 1974 organizing campaign, her discharge
upon receiving a third warning on January 14, 1975,
was not found unlawful.
In support of his finding that it is "apparently
rather a common practice" for employees and
supervisors to leave their work stations, the Adminis-
trative Law Judge seems to have relied on employee
Phyllis Swier's testimony on redirect examination.
She testified that she had seen Supervisor Roger
Swier sell jewelry "to supervisors and to line work-
ers" during "working hours;" that a metal shop em-
ployee once approached her on the line for payment
of theater tickets she had bought from him; and, that
on the day before the hearing she was handed $3 by
an unidentified person for a plaque she (Swier) had
brought to work that morning. Nothing in the fore-
going testimony suggests that it was "common prac-
tice" for production line workers to leave the line for
personal business . Nor is there any evidence that su-
pervisors were aware of the two commercial trans-
actions in which Swier participated. The fact that Su-
pervisor Roger Swier may have sold jewelry to
employees on the line at most suggests either that
supervisors and employees enjoy different privileges
or that one supervisor may have violated the rule
without Respondent's knowledge absent a showing
of such knowledge. It does not establish that employ-
ees were allowed to move freely from line to line on
personal business during their working times. To the
contrary, General Counsel' s witness , Donna Foster,
testified that whenever she was questioned by a su-
pervisor about leaving her work station to talk with
other employees, she always told the supervisor that
her mission was work related. Thus, Foster's testimo-
ny fails to show that Respondent condoned employ-
ees' leaving the line for personal business.
The Administrative Law Judge and my colleagues
also find that Highstrom's unexcused absence of 3 to
4 minutes to pay another employee for some eggs she
(Highstrom) had bought is "inconsequential." I can-
not agree with that conclusion, particularly since the
incident also interrupted the work of another line
employee. Thus, the work of two employees was in-
terrupted for a total of 6 to 8 minutes . More impor-
tantly, however, by this finding the Board is substi-
tuting its business judgment for that of the Employer
in determining how best to run a plant and to main-
tain production efficiency and employee discipline,
and this the Board may not do. All we are statutorily
empowered to do is determine whether, on the basis
of all the relevant evidence, a discharge was discrimi-
natorily motivated.' In that connection, we may look
to see whether punishment is evenly meted out to all
employees alike, but not whether the punishment is
just or unduly harsh .6
Finally, it is well settled that the mere facts that an
employee is, or has been, a strong union advocate
cannot serve to insulate that employee from disci-
pline for violating the employer's lawful work rules .7
Although Highstrom was known as one of the most
ardent supporters of the Union in its 1974 organizing
campaign, there is not a scintilla of evidence that she
was even involved in the 1975 campaign which began
in January. Nor is there evidence that Respondent
suspected her of being involved in the renewed orga-
nizing efforts, unless it were found that her prior ac-
tivity alone, without more, made her susceptible to
such suspicion. I am unwilling to make such finding.
In sum , while I agree that Respondent harbored
union animus as evidenced by its conduct which we
have found unlawful under Section 8(a)(1) of the
Act, and while I also accept the Administrative Law
Judge's finding that Supervisor Stalzer, in a conver-
sation with Supervisor Lucas, expressed a desire to
be rid of Highstrom, I cannot find on the record be-
fore us that Respondent acted upon that animus and
desire when it fired Highstrom on January 20.8 Ac-
cordingly, I would dismiss the complaint' s allega-
tions with respect to Highstrom's discharge.
5 Star-News Newspapers, Inc., 183 NLRB 1003, 1005 (1970); Banner Bis-
cuit Company v. N.L.R.B., 356 F.2d 765, 770-771 (C.A. 8, 1966).
6 p. G. Berland Paint City, Inc., 199 NLRB 927, 927-928 (1972), enfd. 478
F.2d 1405 (C.A. 7, 1973), cert. denied 414 U.S. 856 (1973); Star-News News-
papers, Inc., supra.
Tennessee Plastics, Inc., 203 NLRB 1 (1973), enfd. 488 F.2d 535 (C.A. 6,
1973);. N. L. R. B. v. Ogle Protection Service, Inc., and James L. Ogle, 375 F.2d
497, 505 and cases cited (C.A. 6, 1967), cert. denied 399 U.S. 843 ( 1967).
s P. G. Berland Paint City, Inc., supra.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge our employees there-
by discriminating in regard to their hire and ten-
ure of employment in order to discourage mem-
bership in International Brotherhood of
Electrical Workers Local Union No. 426, AFL-
CIO, or any other labor organization.
WE WILL NOT discharge our employees thereby
discriminating in regard' to their hire and tenure
of employment to discourage their engaging in
protected concerted activity.
WE WILL NOT interrogate, intimidate, or coerce
our employees in order to discourage member-
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ship in and activities on behalf of International
Brotherhood of Electrical Workers Local Union
No. 426, AFL-CIO, or any other labor organi-
zation.
WE WILL NOT in any other manner interfere
with , restrain , or coerce our employees in the
exercise of their rights guaranteed in Section 7
of the National Labor Relations Act, as amend-
ed.
WE WILL make Phyllis Swier and Arlene High-
strom whole for any loss of pay they may have
suffered as a result of our discrimination prac-
ticed against them , and we will reinstate them to
their former jobs or, if they no longer exist, to
substantially equivalent ones.
All our employees are free to become , remain, or
refrain from becoming or remaining members of the
above-named or any other labor organization.
SENCORE, INC.
DECISION
STATEMENT OF THE CASE
PETER E. DONNEI LY, Administrative Law Judge: The
original charge herein was filed by International Brother-
hood of Electrical Workers Local Union No. 426, AFL-
CIO, herein called Charging Party or Union, on January
22, 1975. A complaint was issued by the General Counsel
of the National Labor Relations Board on March 28, 1975,
and amendments to the complaint were issued on April 11
and 30, 1975, alleging violations of Sections 8(a)(1) and (3)
of the Act by discharging employees Betty Krumback,
Phyllis Swier, and Arlene Highstrom, and engaging in cer-
tain other misconduct in violation of Section 8(axl) of the
Act as detailed herein . Answers thereto were timely filed
by Sencore, Inc., hereinafter called Respondent or Em-
ployer. Pursuant to notice , the hearing was held before the
Administrative Law Judge at Sioux Falls, South Dakota,
on May 22 and 23, 1975. Briefs have been timely filed by
Respondent and General Counsel which have been duly
considered.
FINDINGS OF FACT
1. EMPLOYER'S BUSINESS
Respondent is a Delaware corporation with its principal
office and place of business in Sioux Falls , South Dakota,
where it is engaged in the manufacture of electronic test
equipment. During the past calendar year, Respondent
purchased goods and materials valued in excess of $50,000
which were transported to its South Dakota facility directly
from points located outside the State of South Dakota.
During the same period Respondent sold and shipped
goods valued in excess of $50,000 from its Sioux Falls,
South Dakota , facility, directly to points located outside
the State of South Dakota . The complaint alleges, the an-
swer admits , and I find that the Employer is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11. LABOR ORGANIZATION
The complaint alleges, Respondent in its answer admits,
and I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
Ill. ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Betty Krumback, Phyllis
Swier, and Arlene Highstrom were discharged because of
their union activity. Further, the complaint sets forth spe-
cific allegations of Section 8(aXl) including coercive re-
marks and unlawful interrogation engaged in by superviso-
ry employees of the Respondent.
A. Background
The Union's original organizational effort began in early
January 1974.1 Several union meetings were held and at-
tended by employees of the Respondent, including Swier,
Krumback , and Highstrom . An election petition was filed
on January 18, 1974, and an election was conducted by the
National Labor Relations Board on March 5, 1974. A re-
vised tally of ballots issued April 26, 1974, disclosing that
the Union lost the election. No objections to the election
were filed.
B. Supervisory Issues
Respondent in its answer denied all the supervisory alle-
gations of the complaint . However , at the hearing, certain
stipulations were reached as to the supervisory status of the
following individuals and certain evidence adduced as to
the supervisory status of others.
1. Barry Buddi
The parties stipulated that Buddi has been a supervisor
at all times material to the complaint herein.
2. James Stalzer and Roger Swier
The parties stipulated that Production Foreman James
Stalzer has been a supervisor since January 17, 1975, and
that Roger Swier, chief analyzer, has been a supervisor
since August 5, 1974. General Counsel sought to establish
their supervisory status prior to those dates . Stalzer testi-
fied that prior to becoming production foreman on Janu-
ary 17, 1975, he had been a line foreman for almost 2 years.
He states that his duties included responsibility for the
quality and efficiency of a production line. The production
lines operated with anywhere from 20 to 50 employees.
1 As noted above , the original charge herein was filed on January 22,
1975. Pursuant to Sec . 10(b) of the Act, no findings of unfair labor practices
are based on employer misconduct occurring more than 6 months prior to
January 22, 1975.
SENCORE, INC. 117
Stalzer had the authority to make and change the job as-
signments of employees on the line. Stalzer could also issue
verbal warnings to employees with written notations there-
of placed in their personnel folders . He also evaluated, re-
viewed, and rated, in writing, the work performance of pro-
duction employees. Stalzer also had keys to the plant and
had the authority to open it in the morning. In these cir-
cumstances I conclude that Stalzer is a supervisor within
the meaning of Section 2(11) of the Act.
With respect to Swier, the parties stipulated that he has
been a supervisor since August 5, 1974. Swier testified that
he became head technician in or about January 1974, until
he became production manager on August 5, 1974. As
head technician it was his responsibility to assist line fore-
men in the supervision of production lines . He issued disci-
plinary warning notices to employees and, like the line
foremen , graded their work performances . In addition,
Swier had the authority to make work assignments to em-
ployees. I conclude that Swier exercised sufficient indicia
of supervisory authority to establish statutory supervisory
status since January 1974.
3. Paul Wollmuth
The parties stipulated that Wollmuth was a supervisor at
all times material to the complaint until his departure from
the employ of the Respondent in April 1974.
4. R. Herbert Bowden and James Ahrendt 2
Bowden is president and Ahrendt is office manager and
treasurer of the Respondent . The parties stipulated that
both were supervisors at all times relevant to the com-
plaint.
5. Esther Bowden
The parties stipulated that she is a stockholder, officer,
and director of the Employer. The evidence shows, and
Respondent in its brief concedes, that her approval was
essential to a job applicant's employment and thus she ef-
fectively controlled hiring at the plant. In these circum-
stances , I conclude that Bowden was at all times material
herein a supervisor within the meaning of Section 2(11) of
the Act.
6. Kevin Lucas
Lucas was hired on March 4, 1974, as a line foreman.
His responsibility included periodic written job perfor-
mance evaluations of production employees, the authority
to make job assignments and to change job assignments.
He was promoted to head production foreman on January
4, 1975, and discharged on January 17, 1975. On these facts
I conclude that Lucas was a supervisor within the meaning
of Section 2(11) of the Act during his entire employment
with the Respondent.
C. Section 8(a)(1) Allegations 3
In late November 1974, Mary Thesenvitz, one of the
original and principal union adherents, quit her employ-
ment with the Respondent. During the exit interview, ac-
cording to Thesenvitz, she inquired about the possibility of
being rehired, whereupon Swier:
... laughed a little bit and he said, "Well, Mary, as
far as I'm concerned your record is good, I have no
objections, I'd hire you back but you know what it's
like up front." I asked him `What do you mean,' and
he said, "Well, you know after all this union activity
and stuff I don't think that I would advise asking for
your job back."
Swier conceded that he called Thesenvitz in for an exit
interview and that she asked if she could be rehired. How-
ever, Swier denies making any reference to her union activ-
ity, telling her that she had a good work record and that he
would recommend her being rehired. In view of the fact
that Thesenvitz was among the initiators of the union ef-
fort, a fact known to Swier since he attended union meet-
ings himself, such a response is not improbable. On bal-
ance, and in view of the general credibility factors noted
earlier, I am persuaded that Thesenvitz' version is the more
credible and that by discouraging Thesenvitz from reap-
plying for employment with the Respondent because of her
prior union activity, Respondent violated Section 8(a)(1) of
the Act.
Donna Foster, an employee in the packer classification,
testified that on Friday, either January 10 or 17, 1975, Bud-
di approached her while she was working on a production
line and asked her if there had been a union meeting the
prior night. Foster denied this saying, ". . . I said no, not
that I know of and if there had been I hadn't been invited."
Buddi asked her if she was sure of this and Foster replied
that she was. On the following Monday morning, again
while she was working on the production line, Buddi ap-
proached her again. Foster states:
I was still working on the line, he came up and he
asked me if I remembered what we were talking about
on Friday and I said "No", and then he said, under his
breath, "Union," and I said , "Oh, yes." Then he said,
"Are you sure that there wasn't a meeting," and I said,
"Yes", and I asked him where he was getting his infor-
mation, up front, and he said, no, that it came from
the line. Then I said, that if there was any union activi-
ty again I would have nothing to do with it. He said,
"I hope not "
Buddi concedes some interrogation. He testified, "I asked
Donna Foster, I told her that I had heard the Union had a
3 There is conflicting testimony regarding many allegations of the com-
plaint . In resolving these conflicts, I have credited all the relevant testimony
of some witnesses and parts of relevant testimony of others and in so doing
I have taken into consideration, where appropriate , the apparent interests of
the witnesses ; the inherent probabilities; the probabilities in light of other
events; corroboration or lack of it ; the consistencies or inconsistencies with-
in the testimony of each witness and between the testimony of each and that
of other witnesses with similar apparent interests. Testimony in contradic-
tion to that upon which my factual findings are based has been carefully
2 Ahrendt's name appears as corrected by amendment at the hearing . considered but discredited.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting and an effort to get cards signed . She informed me
that she hadn 't heard anything about it, and I mentioned
to her that the only reason I wanted to know was to pre-
pare a defense for the company if it was happening again,
and that was the extent of that conversation. I asked Bon-
nie Mundhenke the same thing and the conversation was
the same." Despite Buddi's denial of any interrogation as
to their own individual participation in union activity, I
conclude that such interrogation of individual employees
conducted in this fashion is coercive.
James Stalzer testified that sometime during the first or
second week in January 1975 he did speak to some employ-
ees concerning the Union's organizational effort. He testi-
fied "I did talk to a couple of employees , asking them if
they were aware that there was a union organizing attempt
on the way, whether they were signing cards or holding
meetings , that would have been the extent of my question-
ing." It appears that these inquiries were motivated by con-
versations Stalzer had overheard among production em-
ployees which led him to believe that another
organizational effort was underway. The evidence discloses
no sufficient legal justification for such employee interro-
gations and I conclude that Respondent thereby violated
Section 8(axl) of the Act.
With respect to the allegations of discrimination to pre-
hire interviews , Lucas testified that after having been
screened and examined by Esther Bowden, job applicants
were referred to him for further interview . This was after
Lucas had been promoted to head production foreman on
January 4, 1975, and prior to his own termination on Janu-
ary 17, 1975. Lucas testified that in some three instances
that he could recall, he was asked by Bowden to check out
the job applicants to determine the union sentiments of the
applicant and the applicant's spouse . Lucas states, "I was
interviewing these people and through the course of the
interview I would try and touch upon, if I was asked to,
their union or nonunion affiliations and from this discus-
sion with them I would determine whether or not they were
affiliated with the union ." He concedes he made no deter-
mination that any of the three applicants had prounion
sentiments.
Esther Bowden denies ever having interrogated job ap-
plicants concerning either their union sentiments or the
union sentiments of their husbands . She also denies ever
having instructed Lucas to make such inquiries . Esther
Bowden states that no job applicant was ever rejected be-
cause of the union sentiments of either themselves or their
spouses. It is conceded that all the job applicants referred
to him for interview by Bowden were in fact hired. Betty
Strum, one of the three applicants in issue, testified that
she cannot recall Lucas asking her any more about her
husband than where he worked . She states that she was not
questioned about the union sentiments of either her hus-
band or herself. In these circumstances , it is my conclusion
that the allegations of misconduct during preemployment
interviews have not been established . The facts do not es-
tablish and in fact contradict the allegation of the com-
plaint that Respondent refused to hire applicants whose
interviews disclosed information about union sympathies
or connections since it is undisputed that all the applicants
interviewed by Lucas were hired . Moreover, Lucas, while
conducting these interviews , may have secretly harbored
some motivation proscribed by the Act, the evidence does
not establish that such coercive interrogation during the
interviews themselves actually took place . Accordingly, I
cannot conclude that either Bowden or Lucas interrogated
job applicants during the prehire interviews in violation of
the Act.
1. Letter and Memorandum dated March 31, 1975
After Swier's discharge on January 15, 1975, Respondent
offered to reemploy her. This offer was made in a letter
dated March 31, 1975, from R. Herbert Bowden to Swier.
The letter reads:
We are, by this letter, offering you reinstatement to
your former position without loss of benefits of any
kind because of the termination of your employment
on January 15, 1975. We are taking this action, not
because your discharge was not legally justified for
reasons I will mention later , but because in reviewing
your work record, we feel that you should be given
another chance to demonstrate that you can be a loyal
employee.
So long as the employees on our line do their work, I
have no objection to what they talk about, with one
exception. They can talk "union," they can talk "fam-
ily," they can talk about anything else they want, but
they cannot talk against the company, because that
constitutes disloyalty. We do not, and will not, tolerate
disloyalty among our employees. As far as we are con-
cerned , it is now and will always be a legitimate
grounds for discharge.
If you are dissatisfied with the way the company oper-
ates , we are perfectly willing to listen to you at any
time . If your complaint is legitimate , we will try to do
something about it. However, we are not going to tol-
erate a situation whereby you continually criticize
and "knock" the company's programs , employment
practices, etc. to other employees. We will not tolerate
you doing it publicly where it might affect our custom-
er relations.
I'm not trying to infer that you are required to praise
us nor am I trying to infer that you have to be happy.
I am stating, specifically, that you can't be critical of
us in front of other employees, which you did continu-
ously in the past, nor in any public place where it
might create an adverse reaction among our custom-
ers. This is the only prohibition covering your speech
insofar as your relationship with the company is con-
cerned.
I will expect you to report for work on or before April
7, 1975. If, for some legitimate reason you cannot get
back before that time, you should call me, personally,
and explain what the reason is.
As noted below in connection with the matter of Swier's
discharge, it is my conclusion that Swier was discharged
for engaging in protected concerted activities . The import
of the above letter is to the effect that while she is being
SENCORE, INC. 119
given another chance , it is conditioned upon her demon-
stration that she can be a "loyal employee." Such a precon-
dition is unlawfully coercive inasmuch as the activity
which the Respondent characterizes in the letter as "disloy-
alty" has been found to be protected concerted activity.
Accordingly, I conclude that such restrictions on 'Swier's
activities , as outlined in the letter, constitute , in essence, a
threat of discharge for engaging in protected concerted ac-
tivity under the Act.
2. Memorandum of March 31, 1975
The text of paragraph 2 of this memorandum to produc-
tion employees from Herbert Bowden reads:
2. Some of you have gotten the word about three la-
dies that were dismissed because we considered them
in open defiance of our company policy and our direc-
tion . We were ruled against by the National Labor
Relations Board . We have no gripes because the La-
bor Board has ruled in our favor most every time in
the past . But, we do not consider this justice and are
appealing the findings . We have told one of the ladies
that exhibited dissatisfaction with Sencore that we
would take her back if she could tell us that she was
happy here . We don't understand why she should
want to come back if it is so bad. If we have to pay her
back wages, I can only say that both you and I pay for
this as it comes out of company profits and profit
sharing. I don't know when we are going to learn that
you and I sink or swim together and that dissention
only serves outsiders and subtracts from your piece of
the action and mine.
As noted above, the instant unfair labor practice com-
plaint issued on March 28, 1975. This represented a finding
by the National Labor Relations Board that Respondent
had violated Section 8(a)(1) and (3) of the Act. Respon-
dent , by this letter, is representing to its employees that if it
is required to reimburse Swier because of its discrimination
against her, the employees will suffer financial loss to the
extent that profits and the employee profit-sharing plan
would be reduced to some extent by such reimbursement.
The General Counsel contends that notice represents an
attempt by the Respondent to induce its employees to
make the working conditions of the discriminatees un-
pleasant should they continue to press for their remedies of
reinstatement and backpay. I do not agree. In my opinion,
such a representation is not unlawful . It is accurate, even
though it may be a somewhat unfortunate reality, that
moneys expended to reimburse discriminatees may affect
company profits . While this may be an unpleasant prospect
for the employees , it is an accurate evaluation , and the
expression thereof to employees is not unlawful.
General Counsel also alleges the memorandum was tan-
tamount to informing its employees that an employee
would be rehired if said employee would forsake engaging
in concerted protected activities for and on behalf of the
Union. In these circumstances , where ( 1) an unfair labor
practice complaint has issued , and (2) Respondent , by let-
ter to the alleged discriminatee 3 days later has set out
illegal conditions for her reemployment, a message tanta-
mount to advising employees that the alleged
discriminatee 's reemployment would be contingent upon
giving up a lawful right to engage in protected concerted
activity is coercive . Such a communication to employees I
conclude violates Section 8 (a)(1) of the Act.
a. Phyllis Swier 4
As noted earlier , the most recent organizational effort by
the Respondent began in January 1975, some 1 year after
the prior organizational drive. Swier was a part of the more
recent effort , both in contacting the Union and communi-
cating with employees . She attended all the union meetings
and as a member of the in-plant committee spoke to other
employees trying to induce them to attend union meetings.
In January 1975 the Respondent granted a wage in-
crease . The employees, through a committee , were to make
suggestions concerning the amount of the increase. On
January 10, 1975 , Swier made certain computations of her
own in determining what she felt the amount of the raise
would be. Her calculations resulted in a greater amount
than the actual amount of the wage increase . During the
day on January 10, 1975, Swier showed and explained her
computations to several of the employees , notably at lunch
time . Toward the end of the day, Roger Swier came upon
Phyllis Swier talking to other employees about the raise
and her computations . Roger Swier testified that he asked
her to explain what she was saying . He testified , "I didn't
fully understand what she was saying other than that they
should have gotten a forty cent an hour raise " and that the
explanation she was giving was more of a complaint than
an explanation . Roger Swier was concerned as he states,
"Because they were all new employees we didn't feel that
they should be more or less brainwashed by any of the
older employees as.a downgrading of the company."
On the following day Roger Swier brought the matter to
the attention of Buddi . Buddi in turn advised Esther Bow-
den and on January 15 , Bowden called Phyllis Swier into
her office . Bowden asked her what her concern was about
the raise . While Esther Bowden did not fully understand
the explanation , Swier indicated to Bowden that the Re-
spondent was possibly not giving the raise they should
have given . Swier also expressed some dissatisfaction with
the profit-sharing plan. The conversation terminated with
Bowden stating ". . . , I told her that I would talk to Barry
[Buddi ] since he had brought this up and again my concern
about new girls being put on and being faced with this and
I told her at that time that I would talk with Barry and
make a recommendation and, then , either he or I would get
back to her ." After consulting Buddi , Bowden fired Swier
in a telephone conversation that same evening. Bowden
testified that Swier was discharged because of her dissatis-
faction and comments to other people about her dissatis-
faction , particularly the effect it might have on new em-
ployees.
On March 31, 1975, Respondent by letter from R. Her-
bert Bowden offered to reemploy Swier , and pursuant to
this offer Swier was reemployed and was so employed by
4 Phyllis Swier is married to Roger Swier's first cousin.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent at the time of the instant hearing.
It is the Respondent's contention that Swier was dis-
charged because she was disloyal, disloyalty taking the
form of criticizing Respondent 's wage policies in conversa-
tion with other employees and that such disloyal conduct is
justification for her discharge . In examining the facts, it
appears that Swier had computed what she conceived to be
the proper amount of a wage increase . This was an amount
more than the actual wage raise . She communicated to
other employees her computations and feelings about the
raise and in a conversation with Esther Bowden was crit-
ical of both the amount of the raise and further expressed
certain reservations about the Company's profit-sharing
plan. Based on these events and because of her fear that
Swier would voice these sentiments to other employees, es-
pecially to newer employees, Swier was discharged. On
these facts, I conclude that Swier 's activity in connection
with the wage increase was a privileged expression consti-
tuting protected concerted activity, and hence was privi-
leged under the strictures of Section 8(a)(l) of the Act. In
these circumstances I conclude that her discharge violated
Section 8(axl) of the Act 5
b. Arlene Highstrom
Arlene Highstrom, an inspector, was employed by Re-
spondent in 1969 and had been employed as an inspector
for about the last 4 years of her employment. She was a
part of the original organizational effort in January 1974,
attending all four or. five union meetings . These meetings
were also attended by James Stalzer and Roger Swier. She
acted as a union observer for the Union at the representa-
tion election on March 5, 1974. Stalzer testified that based
on his observations at these meetings, Highstrom was
among the four most active on behalf of the Union. Stalzer
and Swier were both line foremen at the time of these
meetings in 1974.
In January 1975, it came to Stalzer's attention from con-
versations he overheard among line production employees
that another organizational effort might be underway.
During the first and second weeks of January 1975 he
questioned certain employees in this regard , which I have
above concluded constituted 8(axl) violations. Both Stal-
zer and Swier showed a lively interest in the renewed orga-
nizational effort . Lucas testified that within 2 to 4 weeks of
the time that he was employed on November 4, 1974, Stal-
zer and Swier told him how they had squelched the last
union effort . In a conversation with Stalzer and Swier in
early December, Lucas was advised that Highstrom was
one of the two union "ringleaders." At one time, about a
week before Christmas 1974, Stalzer advised Lucas that
there was union activity on the line and that they should
stay on the line and try to pick up anything they could
hear . It was at this time that Stalzer, in discussing
Highstrom 's need for surgery, stated that he hoped she
would ask for a leave of absence for the surgery, which
they could disapprove, presumably forcing her to quit her
5 Because of this finding I find it unnecessary to pass on the issue of
whether or not Swier's discharge may also have violated Sec . 8(a)(3) of the
Act.
employment , without the necessity of Respondent firing
her and causing a ruckus among the employees.6 Lucas
also testified that in early January 1975, R. Herbert Bow-
den, Swier , Stalzer, and himself were discussing the Union,
at which time Bowden stated , "that in this day and age
with the economy the way it is and companies falling by
the wayside left and right, we are staying ahead of the
game and we [don't] have to let anybody slow us down if
we have any troublemakers, let's get rid of them."
On August 12, 1974, Stalzer had orally warned High-
strom for leaving her work position without permission and
a written account thereof was placed in her personnel file.
In the fall of 1974, Highstrom was given a second warning.
This was a written warning for poor workmanship and not
catching production errors in certain work units.
The third incident occurred on January 20, 1975, the day
of her discharge. On this date, Highstrom had requested to
leave work early. Shortly before she was scheduled to leave
she recalled that she owed another employee for some eggs
that she had previously purchased. Thereupon she left her
line for some 3 or 4 minutes, paid the employee, and re-
turned to her line. When she returned she was called by
Stalzer into his office. Stalzer states that after conferring
with Buddi, he advised her that since she was off her line
on a matter not related to valid company business, that he
would have to issue her a warning . Further , that since it
was her third warning she was being terminated.
With respect to employees leaving their positions on the
production line, Phyllis Swier testified that the selling of
merchandise on company time and property involving
temporary removal from an employee's work station was a
common practice among the employees and that Roger
Swier had sold jewelry to supervisors and production line
employees on company time.
Respondent takes the position that Highstrom was dis-
charged pursuant to one of the company's written rules
which provides:
WARNING SLIPS: Should it be necessary to issue warnings
to an employee for basic misconduct, the first warning
will be verbal , (and a note placed in the personnel file)
and the second in writing and the third warning will
also be in writing but will usually be accompanied by
a dismissal notice.
However, it appears that this rule was not applied univer-
sally since when Swier was discharged she had not received
any prior warnings at all and Krumback's personnel file,
on the other hand, contained four notations of work-relat-
ed difficulties. Neither does the rule itself make discharge
mandatory.
However, and apart from any disparate application of
the rule, it is my opinion that the egg purchase incident
which lead to her discharge was a pretext to conceal the
real and illegal motivation for her discharge. In this con-
nection, I note that the infraction, a 2- or 3-minute depar-
6 Respondent contends that since Stalzer was in Custer , South Dakota,
some 400 miles distant, from Sunday, December 1, 1974, until Friday, De-
cember 20, 1974, that Lucas' testimony about conversations with Stalzer
during this period should not be credited. However, since Lucas did not
testify with precision about the dates, only approximating them, I find no
sufficient basis to warrant discrediting Lucas on those grounds, and I credit
him concerning his conversations with Stalzer and Swier.
SENCORE, INC. 121
ture from the employee's work station, was not only incon-
sequential , but apparently rather a common practice
among employees and supervisors . Discharge of an em-
ployee with over 5 years of apparently satisfactory service
for such a trivial matter strains credulity, even considering
her two prior warnings.
Additionally, there is direct evidence that Highstrom's
discharge was illegally motivated. In this regard, I con-
clude that Highstrom was a most active union adherent
and that the Company was aware of this. Moreover, based
upon the evidence noted above, it is apparent that Respon-
dent was anxious about the January 1975 organizational
threat and intended to rid itself of "troublemakers." Taken
in context, I conclude that the "troublemaker" reference
included union activists, which certainly included High-
strom. In summary, the record herein is sufficient to sup-
port the conclusion that Highstrom was discharged not for
any infraction of company rules, but because of her activi-
ty on behalf of the Charging Party.
c. Betty Krumback
Betty Krumback was employed by the Respondent as
head riveter.? As part of her job she was required to make
job assignments to other riveters . Leona Sallie was one of
these riveters . It is uncontested that bad personal relations
had developed over the past year between Krumback and
Sallie which the General Counsel attributes to the fact that
Sallie did not favor the Union. In any event, the animosity
manifested itself in what appears to be Krumback's unfair
treatment of Sallie. These problems are outlined in four
memoranda contained in Krumback's personnel file (Resp.
Exhs. 1, 2, 3, and 4). The incident which triggered
Krumback's discharge occurred on January 14, 1975.
On this day, Lucas spoke to Leona Sallie , who com-
plained to him that she was being given all of the bad jobs
and machines because Krumback did not like her. Lucas
called in Krumback who denied the allegations. They dis-
cussed Sallie's particular grievance which was essentially
that Krumback had that day failed to properly adjust
Sallie's riveting machine, with the result that she could not
make the rates. Krumback denied this. Lucas' testimony
confirmed his affidavit stating, "After I talked to both girls
I decided that Leona's story was more logical." Lucas con-
ferred with Buddi, who agreed that she should be dismissed
since this was her third warning and thereupon Lucas dis-
charged her.
General Counsel concedes the longstanding feud be-
tween Sallie and Krumback but contends that it was will-
fully perpetrated by the Respondent who seized upon it as
a pretext to discharge Krumback when the union activity
recommenced in January 1975. I do not agree.
The animosity between Krumback and Sallie was one of
longstanding and the history of it, according to the credible
record and documentary evidence favors the conclusion
that Krumback was in fact treating Sallie unfairly. Lucas
after hearing both sides reached the same conclusion on
7 While the job title would seem to suggest that Krumback was a supervi-
sor, the parties stipulated that neither Krumback, Highstrom , or Swier were
supervisors within the meaning of Section 2(11) of the Act.
January 14, 1975, in determining that Sallie's version was
more "logical." I credit Lucas. It is corroborated by other
testimony and documentary evidence, notably the memo-
randa contained in Krumback's personnel file. Further, it
was Lucas who decided to discharge her and the basis of
this decision was his conviction that a proper disposition of
the conflict would be the termination of Krumback. In
crediting Lucas, a concededly "bitter" exemployee, I note
that he was called as a witness by the General Counsel and
had no apparent reason to fabricate as to the basis of his
decision to discharge Krumback. Accordingly, I conclude
that Respondent did not violate Section 8(a)(3) of the Act
in discharging Krumback and I shall recommend the dis-
missal of that portion of the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent as set forth in section
III, above,, occurring in connection with the Respondent's
operation described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices, I shall recom-
mend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
I have found that Respondent discharged Phyllis Swier
and Arlene Highstrom for reasons which offended the pro-
visions of Section 8(a)(1) and (3) of the Act. I shall there-
fore recommend that Respondent make them whole for
any loss of pay which they may have suffered as a result of
the discrimination practiced against them. The backpay
provided for herein shall be computed in accordance with
the Board's formula set forth in F. W. Woolworth Compa-
ny, 90 NLRB 289 (1950), with interest thereon at the rate of
6 percent per annum, computed as described in Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact and con-
clusions, and upon the entire record in this case, I hereby
make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing employ-
ees in the exercise of the rights guaranteed in Section 7 of
the Act, Respondent has engaged in and is engaging in
unfair labor practices proscribed by Section 8(a)(1) of the
Act.
4. By discharging Phyllis Swier and Arlene Highstrom,
thereby discriminating in regard to their hire and tenure of
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment, in order to discourage membership in the
Union, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 2(6)
and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
National Labor Relations Act, as amended , I hereby issue
the following recommended:
ORDER'
Respondent, Sencore , Inc., its officers , agents , succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating , intimidating, or coercing employees in
order to discourage membership in and activities on behalf
of International Brotherhood of Electrical Workers Local
Union No. 426, AFL-CIO, or any other labor organiza-
tion.
(b) Discharging employees, thereby discriminating in re-
gard to their hire and tenure of employment, in order to
discourage membership in International Brotherhood of
Electrical Workers Local Union No. 426, AFL-CIO, or
any other labor organization.
(c) Discharging employees, thereby discriminating in re-
gard to their hire and tenure of employment to discourage
engaging in protected concerted activity under Section
8(axl) of the Act.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
e In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
2. Take the following affirmative action which I find is
necessary to effectuate the policies of the Act:
(a) Offer to Phyllis Swier and Arlene Highstrom imme-
diate and full reinstatement to their former jobs 9 or, if they
no longer exist, to substantially equivalent jobs and make
them whole for any loss of pay which they may have suf-
fered as a result of the discrimination practiced against
them, in the manner set forth in the section of this Decision
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security records and reports, and all
other records necessary to analyze the amounts of backpay
due herein.
(c) Post at its facility in Sioux Falls, South Dakota, cop-
ies of the attached notice marked "Appendix." 10 Copies of
the notice on forms to be provided by the Regional Direc-
tor for Region 18, after being duly signed by Respondent's
authorized representative, shall be posted by it immedi-
ately upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken to ensure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 18, in writ-
ing, within 20 days from the date of this Order what steps
have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be dis-
missed insofar as it alleges violations of Section 8(a)(3) of
the Act with respect to Krumback and of Section 8(a)(1) of
the Act other than as specifically found herein.
9 The order herein is obviously inapplicable to Swier to the extent that
compliance as to reinstatement may already have been achieved by her
reemployment in April 1975.
10 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."