Thermo Electric Co., Inc.

National Labor Relations Board - Board Decisions

Jan 16, 1976

222 N.L.R.B. 358 (N.L.R.B. 1976)

358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thermo Electric Co., Inc. and Local 417, United Elec-
trical , Radio and Machine Workers of America.
Cases 22-CA-5897 and 22-CA-6201
January 16, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On September 30, 1975, Administrative Law Judge
Walter H. Maloney, Jr., issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the Acting Gen-
eral Counsel and Charging Party relied on the briefs
they had filed with the Administrative Law Judge to
respond to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its. au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Thermo Electric Co.,
Inc., Saddle Brook and Fair Lawn, New Jersey, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
i 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 Respondent violated Sec
8(a)(1) of the Act by unlawfully enforcing its amended and otherwise lawful
no-solicitation rule. We agree . In reaching this conclusion , however , he par-
tially relied on the fact that Foreman Jack Owens instructed two employees
not to distribute union literature near the timeclock . Since the timeclock was
in a work area we find nothing improper in Owen 's action Accordingly, we
do not rely on this incident in adopting the Administrative Law Judge's
finding.
DECISION
FINDINGS OF FACT
A. Statement of the Case
WALTER H. MALONEY, JR., Administrative Law Judge:
This case came on for hearing before me at Newark, New
Jersey, upon a consolidated complaint,' issued by the Re-
gional Director for Region 22 and amended at the hearing,
which alleges that Respondent Thermo Electric Co., Inc.,2
violated Section 8(a)(1) and (3) of the National Labor Re-
lations Act, as amended. More particularly the consolidat-
ed complaint alleges that the Respondent is guilty of vari-
ous independent violations of Section 8(a)(1), as follows:
four coercive disciplinary warnings issued to discriminatee
Mark Levy; coercive interrogation by Foreman Piana of
employee Burroughs; maintaining an overly broad no-so-
licitation rule and illegally enforcing a revised rule through
statements by Foreman Owen to employees Fleming and
DeMarco and by Foreman Schmitt to employee Dodd;
utterance of a threat relating to union activities by General
Manager Remmert to employee Fleming; restriction on ac-
cess to plant and removal from position of trust held by
employee Santana; illegal surveillance of employees, and
illegal surveillance of and illegal attendance at a union
meeting by Foreman Seaman. The consolidated-complaint
alleges as violations of Section 8(a)(3) of the Act the dis-
criminatory transfer of Levy from the position of in-pro-
cess inspector to a more arduous job of final inspector; the
reduction of cleanup time available to employees on the
second and third shifts and imposition of restrictions on
leaving the building during lunch hour; the denial by Pro-
duction Manager Ulco of a pay increase to Levy; the deni-
al of an increase in pay to employee DeMarco by Sheldon
Green; and the discriminatory discharges of employees
Mark Levy and Edwards Rzegota. Respondent denies the
commission of violations of Section 8(a)(1); asserts that
any offenses committed before August 23, 1974, are barred
from prosecution by its compliance with an approved
i The principal docket entries in this case are as follows Charge filed in
Case 22-CA-5897, by Local 417 United Electrical Radio,' and Machine
Workers of America (herein called Union), on May 13, 1974, complaint
issued in Case 22-CA-5897 on July 18, 1974; Respondent's answer filed in
Case 22-CA-5897 on August 7, 1974; settlement agreement in Case
22-CA-5897 approved by Regional Director on August 23, 1974, charge
filed by Union in Case 22-CA-6201 on January 3, 1975; order withdrawing
approval of settlement agreement in Case 22-CA-5897 issued by Regional
Director on April 14, 1975, order consolidating cases and consolidated
complaint issued on April 14, 1975, Respondent's answer to consolidated
complaint filed on April 24, 1975; hearing held in Newark, New Jersey, on
June 19, 20, and 24, 1975; briefs filed by General Counsel and Respondent
with me on August 11, 1975
2 Respondent admits, and I find, that it is a New Jersey corporation
which maintains its principal place of business in Saddle Brook, New Jersey,
where it is engaged in the manufacture, sale, and distribution 'of thermocou-
ples, themocouple wire, temperature measuring instruments , and related
products. During the preceding 12-month period, a representative period, it
sold and shipped from its Saddle Brook, New Jersey, plant and at its ,Fair
Lawn, New Jersey, plant to points and places outside the State of New
Jersey goods valued in excess of $50,000 Accordingly, it is an employer
within the meaning of Sec. 2(2), (6), and (7) of the Act. Local 417, United
Electrical, Radio, and Machine Workers of America is a labor organization
within the meaning of Section 2(5) of the Act.
222 NLRB No. 56
THERMO ELECTRIC CO., INC. 359
Board settlement agreement; and asserts that Mark Levy
was discharged for low production, and that Edward Rze-
gota was discharged for the same reason.- Upon these con-
tentions the issues herein were drawn.3
B. Outline of the Events in Question
1. Presettlement events
Thermo Electric Co., Inc., operates facilities in Saddle
Brook and Fair Lawn, New Jersey, and in Canada and The
Netherlands. It manufactures different varieties of wire
and cable which are used in electrical and mechanical de-
vices, in airplane and missile construction, and in related
industries. At its Saddle Brook plant Respondent employs
about 325 persons in all classifications; at its nearby Fair
Lawn plant Respondent employs about 25 persons. In
1973, the Union herein began an organizing drive among
the employees at both plants. The drive has moved slowly
and is still in progress. No representation petition has ever
been filed and no demand for recognition has ever been
served 'on the Respondent. The principal effort on behalf
of the Union has been conducted by an in-house organiz-
ing committee composed of employees Mark Levy, Robert
Fleming, William Atkinson, Shirley Stoebe, Carlos Santa-
na, Ed Dodd, Edward Acevedo, Andy Kovalich, William
Burroughs, Robert DeMarco, Edward Rzegota, and a few
others. They were assisted from time to time by UE Inter-
national Representative Ed Block and others who work out
of the Union's Patterson, New Jersey, office.
The organizing effort has taken several forms. Members
of the plant committee have frequently leafletted employ-
ees at the plant gate as they report for work or leave for the
day. Members of the committee have contacted employees
in the plant or at their homes by phone and by personal
visits. From time to time, plant gate meetings have been
organized at which interested employees listened to' union
organizers discuss representation matters during their
lunch-breaks. Depending upon which of the Respondent's
witnesses were testifying, employee Mark' Levy, a final in-
spector in the wire mill, was either "the" key member or
"a" key member of the committee. Levy wrote the text of
many of the union leaflets which were distributed as well
as assisted in the distribution at -the plant gates or in bring-
ing literature into the plant. He contacted approximately
100 employees in order to interest them in the Union,
signed up about 25 on authorization cards, attended most
union meetings (which normally took place at the Patter-
son office on Monday afternoon or evening), attended and
spoke at other mass meetings which were held at the plant
gate and at the VFW Hall in Saddle Brook, and often
spoke up on behalf of employees in the plant whom he felt
were being imposed upon by company foremen. Like many
union adherents, Levy wore a button'in the plant. Manu-
facturing Manager Patrick Remmert once told employees
that Levy was the number one man "on his list." 4
3 Errors in the transcript have been noted and corrected
4 Remmert did not testify, so Robert Flemmg's testimony on this point is
uncontradicted I credit it I also note that Supervisors Mornsey, Schmitt,
Plana, Soltyz, Schneider, and Seaman, all of whom were involved in mci-
Levy started to work in the wire mill in July 1973 as an
in-process inspector, meaning that he inspected wire at var-
ious locations throughout the mill as it was being produced
by various machine operators. His first performance re-
ports from Supervisor William Ulco were highly favorable
and resulted in two hourly rate increases during his first 4
months of employment. Between October 1973 and De-
cember 27, 1974, when Levy was discharged, he received
no pay increases of any kind.
Sheldon Green, a former inventory control manager, tes-
tified credibly that Martin Meerholz, supervisor of the wire
and cable division and Green's immediate supervisor, in-
structed him to the effect that Mark Levy and fellow union
activist Robert DeMarco should be-watched very carefully
and that any deviations from their normal job routine
should be reported to higher management. Specifically,
Green was instructed that deviations by -DeMarco, who
was under Green's immediate supervision and control,
should be made the subject of a reprimand and that any
discussion by Levy with other employees outside his job
function should be reported to Meerholz or to Manufactur-
ing Manager David Schneider, inasmuch as Levy did not
work directly for Green. Meerholz and Schneider told
Green that they were going to give Levy- the "solitude treat-
ment," forbidding Levy to talk with or associate with any-
one on the job other than his immediate supervisor. On
several occasions, they expressed the hope-that, by the soli-
tude treatment and by keeping both Levy, and DeMarco
under surveillance, they could be persuaded to quit the
Company .5 -
In the winter of 1973-74, Levy was transferred from in-
process inspector in the wire mill to, final inspector. In the
latter position he was responsible for testing all wire pro-
duced in the wire mill for proper gauge, for shorts, for the
quality of the wire covering, for conformity to the
customer's order, for proper color coding, and for other
quality control requirements. Levy objected to the transfer,
telling his supervisor, William Ulco, that the new job en-
tailed greater responsibility than his former position since
he would become the last person in the manufacturing pro-
cess and there would be no one else around to catch his
mistakes. He expressed the fear that he had not yet ac-
quired sufficient knowledge and familiarity with the pro-
duction process to fill such a position. His protest was of
no avail. During his 11-month tenure as final inspector,
Levy also filled in at other inspection posts from time to
time.
On December 11, 1973, at or about the same period of
time Levy began to exhibit an interest in the Union's or-
ganizational effort, he received a written warning from
Quality Control Manager Frank Morrisey to the effect that
he was spending an excessive amount of time away from
his work station and had been distracting the operator of a
high speed wire fabricating machine. The reprimand was
dents which were the subject of record testimony, did not testify and their
failure to do so was not explained
5 Schneider did not testify I discredit Meerholz' denial of Green's asser-
tion The time frame in which these remarks by Schneider and Meerholz
were made cannot be definitely ascertained as being either presettlement or
postsettlement. Quite probably such remarks, which were recurring in na-
ture, took place both before and after that occasion
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issued before Levy had been transferred to the post of final
inspector. In a discussion with Morrisey, Levy learned that
the reprimand was directed to an occasion when Levy was
seen at the machine of another union activist, Edward
Acevedo, where he was inspecting an item called twisted
pairs; i.e. wire produced by a machine called a twister. The
wire had been stacked alongside Acevendo's machine and
Levy was testing it for continuity and for shorts. Levy was
in the habit of visiting Acevedo's machine with some fre-
quency. When Morrisey told Levy what the reprimand was
all about and criticized him for being away from his work
station, Levy replied that he felt that the reprimand was a
frame-up and that it had to be prompted by some other
consideration, since he had no regular work station and it
was the regular practice of in-process inspectors to test wire
at or near the machines that were producing it while the
machines were in operation. Personnel Manager Edward
Lenik, who participated in this discussion, responded to
Levy's protest by asking him why he was supporting the
Union. Levy, a voluble and unusually articulate individual,
proceeded to tell him.
In the spring of 1974, Levy received additional repri-
mands 6 About this same period of time, the Respondent,
on April 4, circulated a one-page letter to all plant employ-
ees in which it detailed the benefits of its "recent record of
achievement" for employees. The letter, signed by Lenik,
ended with the message: "We urge to you take a close look
at the union organizing committee. Three of the main per-
sons have been here less than one year, and one lives out of
state . What can you do? Say no to the outsiders." The
out-of-state member of the organizing committee referred
to in the letter was Levy, who resides in Manhattan, about
25 minutes by automobile from Saddle Brook, New Jersey.
On May 2, 1974, Levy engaged in an interlude of horse-
play with William Burroughs, a maintenance man and a
union sympathizer. Burroughs was working on a stepladder
repairing a power pack and was located a few feet from
Levy's final inspection workbench. He tried to attract
Levy's attention a couple of times by making a "p-s-s-t"
sound and calling Levy by his first name. After Levy
looked up from his bench, he came around to where Bur-
roughs was standing, tapped Burroughs on the behind with
a short broom handle, laughed, and walked away. This
interlude was observed by Maintenance Foreman John Pi-
ana and William Ulco, Levy's immediate foreman. Piana
came over to Burroughs' and told him that, if he needed
any tools, he should not ask Levy for them but should get
down off, the ladder and get them himself. Piana also told
Levy that he was away from his work station, to which
Levy replied: "Where is my work station? I have to go
where the wire is and check wire on respoolers." Ulco then
told Levy that he was no longer to go over and check wire
on those machines. Nothing was said at that juncture
about employee safety or about jeopardizing Burroughs'
footing. Meerholz, who had also observed this incident,
6 On March 14, 1974, Levy received a written warning which stated that
he had been late some 21 times between January 1, 1974, and that date. In
fact, Levy had been late to work repeatedly during that period of time, and
reprimands for lateness were given by Respondent to various employees I
do not believe that this reprimand could form the basis of any violations
said nothing to either employee but wrote a memo to Mor-
nsey` about it.
When Burroughs completed his job, Joseph Martinca-
vage, vice president of the Respondent's wire and sensor
division, who had learned of the frivolous encounter, spoke
to Burroughs and told him that, if he needed any help, he
should not ask Levy for it but should request it of his fore-
man, Piana. On the following day, Morrisey gave Levy a
written reprimand in which he said that he would not toler-
ate horseplay by any employee, and accused him in effect
of endangering the safety of his fellow workers. A written
notation was placed in Burroughs' file to the effect that he
had received a written reprimand.
Shortly thereafter, Levy received a fourth written repri-
mand from Mornsey, on this occasion for errors in the
final inspection of Job Orders 69650 and 71345. Job Order
69650 involved a shipment of 3,000 feet of ripcord wire
purchased by the Buck Engineering Company of Brooklyn,
New York. The wire,, which had been inspected by Levy,
had a T-calibration when it should have received a J-cali-
bration. Job Order 71345 involved a shipment of 5,000 feet
of wire from Saddle Brook to Respondent's subsidiary
plant in Canada. When the wire arrived in Canada, a 2-
foot portion of the spool of wire was found to be defective.
The defect was removed at the Canadian plant and the
wire was then respooled. When this information on Job
Order 71345 was reported back to Saddle Brook, the ship-
ment of defective wire to Canada was attributed by Re-
spondent to an error in final inspection at Saddle Brook by
Levy.
Ulco verbally brought the error in the Buck Engi-
neering shipment to Levy's attention. Levy stated that he
must have misread "T" for "J" on the shipment order and
pulled the wrong wire from the storeroom and shipped it.
The error was corrected by shipping the customer the cor-
rect wire. With respect to the other shipment, a bare spot at
some point on the spool of wire was discovered after the
wire arrived in Canada. When Levy was confronted with
this report, he said he did not have a spark-tester, a device
necessary to discover bare or noninsulated spots in the in-
terior of a spool of wire, and noted that there was no tag or
other shipping paper on the shipment stamped by himself
which would indicate that he had either inspected and ap-
proved the defective spool. Levy also said that that he did
not know exactly what the error was, as the information
received from the Canadian plant was sketchy. However,
the defect in shipment was attributed to him and the May
8 reprimand recited this shortcoming as well as the earlier
error.7 The reprimand also went on to reiterate criticism of
Levy's work performance on other scores mentioned
above, and alleged a "deterioriation in (his) attitude to-
ward (his) work which cannot be tolerated." Morrisey
threatened disciplinary action including discharge if Levy's
overall performance did not improve. Respondent admits
that errors in final inspection have occurred from time to
time throughout its quality control program but could
point to no instance other than the above when an inspec-
7 The reprimand stated that, in each instance , the customer had rejected
the incorrect or defective shipment. In the case of Job Order 71345, this
statement was incorrect. The defect was discovered by Respondent's per-
sonnel in Canada, the defective wire removed, and the wire respooled before
further shipment.
THERMO ELECTRIC CO., INC. 361
tor had received a written reprimand for a final inspection
error resulting in a customer return. In fact, during his term
of employment, Levy was the only inspector to have ever
received a written reprimand for a customer return, al-
though the record herein suggests the existence of a large
number of customer returns during this period of time. In
such instances, the normal practice of the Company was
simply to bring an inspection error verbally to the attention
of everyone involved in the inspection process so that the
mistake could serve an instructional purpose in avoiding
the same kind of oversight in the future. From May 1974
until his discharge in December, Levy did not inspect any
additional items which were the subject of customer re-
turns.
During the same general period of time, Maintenance
Foreman John Plana came up to employee Burroughs at
his work desk on Tuesday following a regular Monday
union meeting and asked him how many employees at-
tended. Burroughs told Piana that he did not want to talk
about it. A few days later, Piana again asked Burroughs
how the union meetings were going and Burroughs gave
him the same reply. Piana did not testify, and I credit
Burrough's uncontradicted testimony.
On or about May 13, employee Robert Fleming over-
heard Remmert and Lenik discussing a union meeting
which had taken place the previous day. Both supervisors
were concerned because they had learned that the Union
was going to engage in a leafletting effort at the plant on
the following Wednesday and Thursday. They verbally
agreed between themselves that anyone handing out leaf-
lets on company property would be evicted, that the cars
owned by any leaflet distributors would be towed away,
and that any Thermo Electric employees who were en-
gaged in such activities would be discharged.
On or about August 1, during the evening hours, Levy
and Fleming were handing out union leaflets at the change
of shift. They were standing on company property outside
the building which houses the wire mill. Foreman Frank
Soltyz came out of the mill and told them that they were
not allowed to be in that area at that time. They gave him
a brief argument but removed themselves to the front gate
where they continued to pass out union literature.
In the spring of 1974, employee Carlos Santana was as-
signed the job, formerly held by hospitalized employee
Steve Mahalik, of opening up the plant in the morning. He
would arrive about an hour or an hour and a half before
the day shift was scheduled to begin, open all the doors in
the main building and in the wire building, and turn on all
the lights. While the record does not so reflect, presumably
Santana was earning extra compensation for the extra time
worked. After he began wearing a union button, his fore-
man, John Dimena, told him that he would no longer per-
form these functions because they were being assigned to
another employee, Tony Carooo. A few days thereafter,
Santana asked Dimena the reason for the reassignment of
these early morning chores, to which Dimena replied that
the Company thought that Santana was coming in early in
the morning simply in order to talk with other employees.
A few months thereafter, Dimena gave Santana an unfa-
vorable personnel evaluation review in which he comment-
ed adversely upon Santana's "poor company attitude."
Dimena did not testify, nor did Respondent explain or
deny these events by any other witness.
Respondent printed a section in its employee handbook
which sets forth a no-solicitation rule reading as follows:
Solicitations. Solicitations of employees or customers
upon the premises or in the area of the plant by or on
behalf of any club, organization, religious group, polit-
ical party, or similar association is strictly prohibited.
This prohibition covers soliciting in any form, whether
for membership, for subscription, or for payment of
money.
Respondent concedes that this no-solicitation rule was ov-
erly broad and, as noted hereinafter, revised it following its
entry into the settlement agreement which was approved
by the Regional Director on August 23, 1974, in the origi-
nal complaint case.
2. Events occurring after August 23, 1974 S
Shortly after the settlement agreement was concluded,
Respondent revised its no-solicitation rule to read as fol-
lows:
An employee shall not engage in solicitation of any
sort during working time, nor distribute literature in
working areas at anytime; nor shall anyone make col-
lections or sales or possess items for sale on company
property without permission.
Sometime during October 1974, employee Jed Dodd was
walking in the door of the plant building at the beginning
of the late afternoon shift when he was confronted by
Foreman Tom Schmitt. Dodd was carrying union leaflets
in his hand and was wearing a union button. Schmitt ap-
proached him, reached across in front of him, and said to
Dodd, "I don't know what you intend to do with those, but
you can't pass them out in here." Dodd continued into the
plant with the leaflets, and, later in the day, passed some
out. On or about October 31, 1974, DeMarco and Acevedo
had punched out for lunch and were standing by the time-
clock passing out union literature to employees who were
also punching out. Foreman Jack Owens came up to him
and told them that they could not do so. They protested
and appealed his instruction to Personnel Director Lenik.
In an ensuing meeting in Lenik's office, Lenik also told
them that they could not distribute union literature in that
area.
In October, the Union distributed a series of leaflets to
Thermo Electric employees insisting on a cost-of-living
wage increase. On October 21, an ad hoc committee of em-
ployees, including Kovalich, Fleming, Santana, and Levy,
met with Lenik in his office to press Lenik and Joseph
Martmcavage for a cost-of-living wage increase. Lenik
asked for time to make a response to this request. When no
response was forthcoming in a week or two, the employees
sought a second meeting. This request was denied. Shortly
thereafter, all Thermo Electric employees were mailed a
8 As suggested in fn. 5, above, where a continuing course of conduct is
involved in an alleged violation, it is not always possible to separate events
discretely into presettlement and postsettlement compartments.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
letter by Respondent which noted the increase requested
by the ad hoc committee, and, without replying to the re-
quest directly, quoted from newspaper articles about un-
employment in Northern New Jersey and ended with the
comment that a low-paying job was better than no-paying
job.
On October 30, the Union conducted plant gate meet-
ings of Thermo Electric employees during their lunch
hours. At the noon meeting, union representatives dis-
cussed the Thermo Electric profit-sharing program with as-
sembled employees. As employees were returning to the
plant from the meeting, Remmert asked Fleming how the
meeting went outside. Fleming replied that Remmert was
not allowed to ask him that question and returned to his
work area. The Union conducted a second plant gate meet-
ing about 8:30 p.m. on the same day for the late afternoon
shift. Jed Dodd acted as "advance man" for that meeting,
going about the plant on the late afternoon shift to encour-
age second-shift employees to attend. Most of them did. A
security guard named Duchek took it upon himself to
punch out Dodd's timecard for the period of the meeting,
although this action was rescinded later when Dodd pro-
tested to his supervisor. Dodd invited Foreman Michael
Seaman to attend the meeting. Seaman came out of the
plant and stood in the vicinity of the gathering during most
of the Union's presentation.
On October 31, Respondent posted a notice for the sec-
ond- and third-shift employees, which it admits was
prompted by the evening meeting held by the Union the
day before. The notice was, addressed to wire mill foremen
but was brought to the attention of rank-and-file employ-
ees by foremen. The subject of the notice was "Working
hours-2nd and 3rd shifts." It provided, in pertinent part:
The rules and regulations regarding working hours,
etc., for the 2nd shift are as follows:
*
2. LUNCH BREAKS
2nd shift-20 minutes starting at 8:30 or 8:50 (see
4b)
3rd shift-20 minutes starting at 4:30 or 4:50
3. CLEANUP PERIOD
The last 5 minutes before the end of each shift's
working hours
4. GENERAL RULES
a. No employee may leave the building during
working hours without permission of his/her foreman,
and without punching their time card in and out, with
the exception that the foreman may allow one person
to leave the building to purchase refreshments some-
time during the normal work period.
b. Lunch breaks may be staggered through the
lunch period by the foreman as he sees fit in response
to production requirements. All personnel must take
their lunch break between the hours indicated, unless
given permission by the foreman to do otherwise.
5. Anyone who leaves the building without permis-
sion, or without punching in and out is subject to dis-
ciplinary action.
There is substantial credited testimony from both Gener-
al Counsel's and Respondent's witnesses that previous to
this announcement employees were regularly permitted to
eat their lunch in the area surrounding the plant, either in
the parking lot or elsewhere, and that they frequently did
so, especially during the summer months. A controversy
exists as to whether the 5-minute washup time at the end of
the shift constituted a restatement of a preexisting rule, as
contended by the Respondent, or a shortening of a previ-
ous 10-minute washup time to 5 minutes, as contended by
employee witnesses.
During this same period of time, Respondent expressed
its hostility to the organizing drive in a statement by Rem-
mert to Fleming. On one occasion, Remmert told Fleming
that he was No. 2 "on his list" and that "the man in the
wire mill," meaning Levy, was No. 1. Sometime about No-
vember 1974 Remmert told employee Nick Nigro, who was
engaged in some levity with Fleming, that "you can get on
the list," to which Fleming added that "I'm on the list and
so is Mark Levy." Remmert took out a black pad and si-
mulated that'he was writing down an entry.
Respondent's standard personnel practice included an
annual review of all employees for the purpose of de-
termining whether they were entitled to a longevity wage
increase. In 1974, out of the approximately 325 employees
at the Saddle Brook plant, all but about 9 received pay
increases in connection with their annual evaluation. One
who did not was Robert DeMarco. His November 6, 1974,
performance evaluation indicated that he was "going back-
ward" and that he should not receive an increase "at this
time." His initial rating was given to him by Sheldon
Green, who orally informed DeMarco that he was not
working fast enough and that he had a bad attitude. Green
credibly testified at the hearing that, while his name ap-
peared on DeMarco's evaluation report, the written find-
ings therein were in fact dictated by Meerholz, who was
Green's superior in the chain of command, and that Green
was in essence required to go along with them. DeMarco
finally received a raise in April 1975, about 5 months after
the performance evaluation. During this interim, he re-
ceived a written job performance warning, dated Decem-
ber 18, 1974, which again came from Sheldon Green. This
warning recited past "repeated verbal warnings with re-
spect to your attitude toward your job," and recited that
DeMarco's overall attitude and lack of cooperation contin-
ued to be poor. The warning further stated that, on Tues-
day, December 17, DeMarco had withheld pertinent wire
information (a profile report) from a wire expeditor, there-
by preventing the latter from performing his job function.
The warning ended with a statement that, if DeMarco's
overall attitude and job performance did not improve im-
mediately, he would face disciplinary action including dis=
charge. Green testified that he had been directed by Meer-
holz to issue this warning, even before he (Green) had an
opportunity to investigate the complaint which had been
lodged against DeMarco. When he left the Company, un-
der circumstances which were less than cordial, Green
chanced to meet DeMarco in the parking lot, apologized to
him for the harm he had done him, said he had been acting
on orders of his superiors, and warned him to watch his
step.
Carlos Santana, a known union adherent, complained
THERMO ELECTRIC CO., INC.- 363
that on December 13, 1974, he was paged to answer the
telephone- and took the call in the foreman's booth at the
mill. He was permitted to take personal calls in this man-
ner and did so from time to time. On the occasion in ques-
tion, Personnel Manager Lenik came into the area and pro-
ceeded to .listen to Santana's conversation. The phone call
did not relate to union business. After Santana hung up,
Lenik offered the comment that it was the Company's
nickel that was paying for the call.
Levy complained of a standing practice of Respondent
in attempting to isolate him from other employees in the
plant and of keeping his actions under particular surveil-
lance over an extended period of time. Some instances il-
lustrating his contention have been recited above and will
not be repeated. While Levy was an in-process inspector,
the job, as its name would suggest, required him to go from
machine to machine to inspect wire as it was being pro-
duced. When, in February 1974, he was transferred to the
position of final inspector, he was given a desk to which
wire was brought from various machines in the wire mill
for final testing and inspection prior to shipment to the
customer. Levy was never actually told that he was not
permitted to leave from the desk area during his working
time, although he was criticized by management represen-
tatives on more than one occasion for doing so. His duties
required that, on occasion, he track down the source of a
flaw or defect in .finished wire by following production
flow back to the operator who was responsible for a defect
found. In addition, he was required to check wire on the
respooling machines. Among the machines supplied him
for the performance of his duties as final inspector was a
movable tester which was designed to be taken from place
to place for inspection purposes: On occasion, Levy went
to the stockroom or to the building next to the wire mill to
assist in the inspection of cable which was being produced
in that building. However, his principal place of duty was a
desk assigned to him which was located at a spot near the
timeclock.9
Levy testified credibly that foremen frequently followed
him when he went to the men's room. (The men's room is
more than a latrine. The description covers an adjacent
lockerroom and washup facilities which are used at the end
of shifts.) Levy's statement is corroborated by a fellow em-
ployee who, on occasion, noted the same phenomenon. On
one occasion, Meerholz admittedly followed Levy to the
men's room, seizing a quantity of union literature which
had been left there and destroying it. From time to time,
people going to or from the timeclock would exchange
greetings or speak with Levy. On one such occasion, Wire
Mill General Foreman Jack Owens instructed Dodd, who
was speaking to Levy, to stay away from Levy's workbench
and to refrain from talking with him. On another occasion,
Levy was discussing a complaint which Green, a supervi-
sor, was making against DeMarco. At the,time, DeMarco
9In light of these considerations, I attach no significance to Ulco's testi-
mony to the effect that Levy was not required to "float" in the performance
of his duties. While the final inspector does not move about the plant with
the frequency of an in-process inspector, it is clear that the position is not a
wholly stationary one, as indicated in the credited testimony of employee
Robert Stellmgwerf.
was working near Levy's work station. Levy joined in the
discussion and took up the cudgels for DeMarco against
Green's accusation, whereupon Meerholz arrived on the
scene and told Levy that the dispute between DeMarco
and Green was none of Levy's business, Levy had no right
to involve himself in someone else's department, and or-
dered him to stop talking with either DeMarco or Green.
On another occasion, Levy espoused the cause of fellow
employee Rahsm Anya, a foreign national who had recent-
ly arrived in the United States, and who Levy felt should
be given additional training on a single machine in order to
be able to do his job. In Levy's view, Anya was being
shunted from job to job without being given a chance to
learn the operation of any machine and therefore was per-
forming poorly. Levy took up the matter with Owens, who
refused to discuss the matter with Levy. Levy persisted but
to no avail. At his performance review in October 1974,
Ulco complained to Levy that he was acting like a shop
steward even though there was no union.- Ulco admitted
making reports to higher management about Levy several
times a week.
In September 1974, Schmitt was promoted from lead-
man to foreman and Ulco was promoted from foreman to
quality control manager. At this time, Ulco moved
Schmitt's desk to a point where it sat about 15-20 feet from
Levy's work station. The desk had previously been located
at a spot in the wire mill where a foreman's cubicle had
been dismantled and a laboratory and supervisory space
was then' under construction. Ulco explained that he
moved Schmitt's desk from its former location because "I
was moving it to a finished portion of the new building
under construction or cased in area out there, because the
area the desks were when I was there as supervisor no lon-
ger existed. It was taken over by the manufacturing area
and when I became manager I had Tom (Schmitt) move to
that desk and in the new portion of the mill." Ulco further
explained that he moved Schmitt's desk to be near Levy's
because "I thought he (Schmitt) needed to be more where
problems would arise, where he would be required to be
supervisor over inspection." Shortly after Levy was dis-
charged, Schmitt was relocated elsewhere and the area
where his desk formerly stood was-occupied by other uses.
In July, Levy asked for a personnel evaluation and an
increase, noting that, the anniversary of his employment
had occurred. He was informed that such raises did not
occur on the anniversary of employment but rather on the
anniversary of the last increase. He was also put off on the
basis that certain reprimands in his file were then the sub-
ject of a Board case (22-CA-5897) which was being litigat-
ed. In October, Ulco and Schmitt gave Levy an evaluation.
In the prepared sections of a printed grid which constitutes
a portion of the report form, Levy was checked off as being
a deliberate worker with mediocre volume; generally neat
with occasional errors; usually follows rules and proce-
dures; commendable job knowledge; limited initiative and
not always conscientious; usually cooperative; and indif-
ferent attitude. In specially noted remarks, Ulco and
Schmitt wrote that "Mark appears to deliberately pace
himself at a slower speed that what is required to keep
work up to schedule. Mark has several serious inspection
errors during this evaluation period." They also noted that
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Mark usually carries out written and oral instructions, but
at his pace which doesn't always allow keeping up with the
work at hand. Mark still has a tendency to wander from
assigned work areas. (He) had made some progress in the
last two months in improving on the above traits. However,
he (has) not made sufficient progress to date to warrant a
salary increase." The report recommended a review of his
progress in future months. In oral discussion, Ulco or
Schmitt complained to Levy that he did not boost the
Company, that he acted like a shop steward, and that he
paced his work. They also objected that his personal com-
plaints against the Company usually found their way into
the text of union leaflets. The net effect of the review was
that Levy, like DeMarco, did not receive a pay increase.
Edward Rzegota was hired in September 1974 and was
assigned to the ceramo department to work under the su-
pervision of William Pisciotto. Rzegota's specific job was
that of a checkout man who cut requisitions of wire to the
desired length required by the order and checked it for
shorts and continuity. He worked directly with two other
employees who performed essentially the same tasks,
namely Liberato Calabrese and Robert Schuman . Rzegota
became an active member of the in-plant organizing com-
mittee. Before reporting to work on the first day of his
employment, he ran into an old friend, DeMarco, who was
passing out leaflets at the plant gate before the commence-
ment of the day shift and he spent 20 minutes or so assist-
ing him in this activity. In the plant, he solicited union
designation cards from other employees, including Schu-
man, and, during his relatively brief span of employment,
engaged in plant gate leafletting between six and nine
times. On one occasion he handed a leaflet to Pisciotto, his
immediate supervisor, as Pisciotto was coming to work.
In the middle of October Pisciotto became dissatisfied
with Rzegota's job performance and gave him a written
reprimand. He instructed Rzegota to improve the quantity
and quality of his work within the ensuing week, or further
disciplinary action would be taken. On November 11, Pis-
ciotto called him over and told him that he had to fire him
for not putting out enough work. He told Rzegota to punch
out, get any personal belongings, and leave the plant. With
this notice Rzegota was terminated. On the same day, Pis-
ciotto gave Calabrese a written warning relating to exces-
sive talking, poor work habits, and poor attitude. He
warned Calabrese that disciplinary action would be forth-
coming unless the quantity of his work increased and his
attitude and initiative also improved.
On December 27, Levy was terminated at the end of the
day shift. Schmitt called him to the foreman's office in the
wire mill where Ulco was waiting. Ulco handed Levy a slip
which read "Discharged for unsatisfactory work perfor-
mance. Your work output continues to decline since last
performance evaluation." It was signed by Ulco and Lenik.
When Levy read the note, he said to Ulco: "This is not true
at all. Do you want to discuss this now?" Ulco declined,
saying that "I am sure we will have another chance to meet
to discuss this." Levy told him he could bet on it. Levy
gathered up his belongings and left the plant, escorted by
Ulco and Schmitt.
During the following 3 to 4 weeks, Levy's job was han-
dled by two or three individuals who filled in on an occa-
sional or part-time basis. Respondent explained that this
make-shift arrangement was temporarily necessitated be-
cause the Company was shorthanded at the time. On Janu-
ary 24, 1975, Wire Mill Foreman J. R. Owens gave em-
ployee Ted Misterowicz a written warning for
unsatisfactory performance, which alluded to his lack of
interest in his job as an operator of the twisting machine,
his unauthorized absenteeism which was causing his demo-
tion from salaried status to hourly rated status, and his
total disregard of a responsibility to perform assigned du-
ties. Shortly after this demotion, Misterowicz was assigned
to Levy's old job on a permanent basis.
C. Analysis and Conclusions
1. Independent violations of Section 8(a)(1) of the Act
a. The Respondent issued a disciplinary warning to
Levy on December 11, 1973, for talking with employee
Acevedo, a union sympathizer, and distracting him from
his work while Levy was performing an in-process inspec-
tion at Acevedo's machine. Like other warnings, the De-
cember 11 incident should be viewed in light of the illumi-
nating and credited testimony of former Supervisor Green
which told of a continuing desire on the part of Meerholz
and Schneider to isolate Levy and to harass him into quit-
ting because of his leadership in the union effort. As noted
from the credited testimony of veteran wire inspector Rob-
ert Stellingwerf and from other evidence, one of the duties
of in-process inspector was to trace back errors which they
found and, if possible, to correct errors and defects on the
spot so they would not be repeated. Of necessity this in-
volved speaking with the operators of machines which were
producing the wire under inspection. Such conversation
was a commonplace occurrence in the wire mill, and there
is no evidence that what Levy was doing on the occasion of
this reprimand was in any way out of line. However, when
Levy protested the reprimand, the immediate response by
Personnel Director Lenik was to launch into a discussion
with him relating to Levy's union activities. From these
circumstances, it was clear that the purpose of the repri-
mand was not to chastise Levy for any work-related short-
coming or to correct any error in his job performance, be-
cause he had committed no infraction. Rather, the purpose
of the warning was to lean on Levy because of his union
activities, which were then beginning to surface. Accord-
ingly, the warning constituted' an interference with Levy's
Section 7 rights and is a violation of Section 8(a)(1) of the
Act.
b. The only criticism of Levy, which occurred early in
April 1974, is found in the leaflet which Lenik sent to em-
ployees. In this letter Lenik refers to Levy by indirection
rather than by name. The text of the leaflets shows that
Levy's activities were uppermost in Respondent's con-
sciousness , but there is nothing in the text which consti-
tutes either a promise of benefit or a threat of reprisal. It is
simply a routine piece of antiunion literature which falls
well within the limits of permissible propaganda authorized
by Section 8(c) of the Act. Accordingly, any independent
violation of Section 8(a)(1) of the Act premised upon the
circulation of this letter is hereby dismissed.
c. The incident of May 2 presents a horse of a different
THERMO ELECTRIC CO., INC.
color. On this occasion, Levy was seen by supervisors play-
fully poking union sympathizer Burroughs in the rear end.
Burroughs was standing near Levy's work station on a lad-
der and was attempting to attract Levy's attention. It is
clear that various incidents of horseplay have occurred
from time to time at the wire mill and that even foremen
have engaged in them on occasion in order to relieve the
tedium of the industrial process. Such innocent and trivial
amusements have never previously been the subject of
company discipline. Respondent attempts to avoid the
conclusion that disparate treatment was applied on this oc-
casion to a key union leader by the written disciplinary
warning of May 3, by the contention that industrial safety,
not merely production efficiency, was at stake in this inci-
dent. This contention is just an afterthought. Foreman Pia-
na, who interrupted the incident, made no mention to
either Burroughs or Levy about any danger to their person-
al safety. Piana, who had presumably gotten the same word
from Meerholz and Schneider concerning the silent treat-
ment for Levy that Green had received, told Burroughs not
to ask Levy for any tools but to see him if he needed assis-
tance. Meerholz, who also viewed the incident, did not
bother to speak at all to either participant in the incident.
Instead, he merely wrote a memo to Morrisey about it.
This was a most peculiar reaction for a supervisor who felt
he was witnessing the possible electrocution of an employ-
ee, but a most logical reaction for a supervisor who was
attempting to build a case on paper against an employee in
a personnel file. The speculation at the hearing by Martin-
cavage was chilling when he recited what could have oc-
curred to Burroughs, if Burroughs had slipped while repair-
ing a power pack, but these same thoughts apparently did
not occur to Martincavage nor cause him to react so em-
phatically on the occasion in question when he caught sight
of Levy and Burroughs laughing and talking together at the
ladder. His admonition to Burroughs was the same as
Piana's. The lack of any clear factual support for the con-
tention that Levy's actions threatened Burroughs with inju-
ry (something not borne out by their own laughter at this
event); the reactions of supervisors who witnessed the
scene; and Green's basic insight into the continuing policy
of Respondent concerning union activist Levy, make it
clear that the May 3 written warning to Levy relating to the
horseplay incident had no bearing on industrial safety,
amounted to disparate treatment by Respondent in discip-
lining incidents of innocent horseplay, and was directed
instead at harassing Levy in order to interfere with rights
guaranteed to him by Section 7 of the Act. Accordingly,
the warning constituted a violation of Section 8(a)(1) of the
Act.
d. There is no doubt that Levy "goofed" when he ap-
proved the shipment of Job Order 69650 to the Buck Engi-
neering Company in Brooklyn. The error verbally was
called to his attention by a supervisor when the customer
returned the T-calibrated wire and insisted upon the origi-
nal order of J-calibrated wire. Such verbal information was
the conventional way in which final inspection errors re-
sulting in customer returns were handled. Respondent's
normal procedure in such instances was instructional, not
disciplinary, and this initially was its reaction to Levy's
error. As for Job Order 71345, there is considerable doubt
365
as to Levy's responsibility for the shipment of some bare
wire which was discovered when a spool shipped from Sad-
dle Brook arrived at Thermo Electric's Canadian plant.
However, defects found on this job order as well as the
earlier one were made the subject of yet another written
warning. Respondent admits that, despite many customer
returns, Levy was the only final inspector during his tenure
of employment who ever received a written warning for a
customer return. There was nothing in the gravity of these
errors to mark them as being separate and apart from the
mme-run of customer returns. However, these errors were
seized upon to provide Respondent with a basis for giving
Levy another written lecture berating his conduct and job
performance and for making a permanent record of short-
comings which would be available in the future for ready
reference. The disparate treatment involved in this warning
makes it clear that it was prompted by Respondent's desire
to needle a known union activist, not by any consider-
ations relating to plant efficiency. Accordingly, the May 8
warning for unsatisfactory work performance constitutes a
violation of Section 8(a)(1) of the Act.
e. During the early months of 1974, the Union was in
the practice of holding meetings, on Monday afternoon or
evening. The evidence is uncontradicted that, after one
such Monday meeting, Foreman Piana repeatedly asked
Burroughs questions about the meetings. The inquiries
were not casual or isolated. In light of other expressions of
animus on the part of this Respondent found in this record,
it cannot be successfully argued that the interrogations
were not coercive. The fact that Burroughs refused to an-
swer the questions is hardly indicative of the nature of the
questions, which were designed to probe into the union
activity of all employees at the plant. Accordingly, I find
that Piana's interrogations of Burroughs constitute a viola-
tion of Section 8(a)(1) of the Act.
f. Prior to August 23, 1974, settlement agreement, Re-
spondent maintained a no-solicitation rule which unlawful-
ly interfered with the Section 7 rights of its employees be-
cause the rule forbade employees from discussing union
matters or engaging in union activity within the plant at
any tune.10 Respondent admits that its earlier rule was ov-
erly broad, but insists that its action in amending the rule
to allow for union activity and discussions during lunch
and break times should spare it from any finding of a vio-
lation based on the earlier rule and should obviate the ne-
cessity of a remedial order. It is well settled that the discon-
tinuance of an unfair labor practice is not a defense to a
remedial order, especially in circumstances where' other
conduct of the respondent indicates that the coercive effect
of the earlier violation has not been dissipated."' The rec-
ord in the present case presents ample evidence that Re-
spondent did not restrain its unlawful conduct by entering
into the settlement agreement and amending the text of its
10 RepubhcAviation Corporation v. N.L R B, 324 U S. 793(1945),N.LR.B
v. The Babcock and Wilcox Company, 351 U.S. 105 (1965); N.L R B v. Unit-
ed Steelworkers of America, CIO (NuTone), 357 U.S. 357 (1958).
Ii
N.LR.B v Mexia Textile Mills, Inc. 339 U.S. 563 (1950); Lexington
Metal Products Company, Ferro Manufacturing Corporation, 166 NLRB 878
(1967); Kinter Brothers, Inc., 167 NLRB 57 (1967), N.L.R.B. v. United States
Rubber Company, 384 F.2d 660 (C.A 5, 1967); N.L R.B v P. R. Mallory &
Co, Inc., 389 F.2d 704 (C.A 7, 1967).
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no-solicitation rule. Indeed, Respondent's conduct follow-
ing the settlement agreement was more reprehensible than
before the agreement, so it cannot rely on considerations
relating to the general course of events at Saddle Brook to
absolve it from a cease and desist order.
More particularly, Respondent's actions directly relating
to solicitation and distribution on company premises which
took place contemporaneously with or immediately follow-
ing the implementation of the new rule indicates that facial
conformity of the new rule to Board law did not result in
the enlargement of permission to company employees to
engage in union activities on company premises to the ex-
tent that Section 7 requires. On or about August 1, just
before the conclusion of the settlement agreement, Levy
and Fleming were standing on company premises outside
the plant building and were handing leaflets to incoming
and departing employees. They were ordered to stop what
they were doing and leave, despite the fact that they were
in a nonworking area and were distributing literature to
employees who were not working. In October, Wire Mill
Foreman Schmitt told Dodd as he was coming to work that
he could not distribute the union literature he was carrying
in his hand anywhere inside the plant building, and made a
physical gesture to prevent him from bringing such litera-
ture into the building. Dodd kept right on walking. A few
days later, Foreman Jack Owens told DeMarco and Acev-
edo, who were passing out literature to employees at the
timeclock as they were punching out for lunch, that they
could not distribute literature in that area. Owens gave
them no indication as to where they might properly pass
out literature. When they appealed his order to Personnel
Director Lenik, Lenik backed Owens' determination.
Hence, Respondent's application of the amended and fa-
cially permissible restriction has served to forbid distribu-
tion of union literature in nonworking areas .during non-
working time, and thus to leave employees pretty much in
the same position as they were before. Such restrictions on
the application of the rule violate the settlement agreement,
exceed the written limitations of the amended rule, and
violate the law. Accordingly, I conclude that the original
no-solicitation rule promulgated by Respondent violated
Section 8(a)(1) of the Act, and that the enforcement of the
amended rule does likewise.
g. In the spring of 1974, Santana was assigned to come
to work early and to open the plant doors and turn on the
lights. He was given a key to permit him to carry out the
assignment. A few weeks- later, this job was taken away
from him and given to another employee. Without more,
this reassignment of functions would hardly rise to the lev-
el of a violation of the Act. However, in subsequent con-
versation with Foreman Dimena, Santana was told that the
reason for the reassignment was the belief on the part of
Respondent that Santana, a known union activist, was
talking with other employees during the preshift hours. As
the transfer of job duties was motivated by a desire to
thwart union activities rather than by some business rea-
son, it constitutes an interference with the Section 7 rights
of Santana in violation of Section 8(a)(1) of the Act, and a
discrimination in Santana's hire and tenure in violation of
Section 8(a)(3) of the Act. I so find and conclude.
h. Levy complains that his transfer from in-process in-
spector to final inspector was, in effect, an harassment
aimed especially at him rather than a routine reassignment
of an employee to another position. In Levy's mind, the job
of final inspector is a more demanding one because it has
no back-up inspector to catch errors. Therefore, he argues
that it was a more arduous position than the one he for-
merly held. This is a very thin argument and there is little
objective evidence to support it. There is no substantial
evidence that, as a final inspector, Levy was given more
work to do. While it is true, and I have found, that Respon-
dent was attempting to "keep an eye" on Levy, the mere
transfer from one position to another does not necessarily
constitute a fulfillment of that policy or desire, rather than
a desire on the part of Respondent simply to fill a vacancy
in the plant with an available and qualified employee who
happens to be working elsewhere. The transfer certainly
did not hamper Levy in carrying out his function as a key
union organizer, a role which he filled for 11 months there-
after and until his discharge. As the General Counsel has
failed to sustain his burden of establishing that this transfer
was illegally motivated or that it served to interfere with
Levy's Section 7 rights, so much of the consolidated com-
plaint which is addressed to the transfer is dismissed.
i. Santana complains that, late in December 1974, Len-
ik came into the foreman's cubicle where he was taking a
personal telephone call and listened to the conversation.
The conversation did not relate to union matters. Lenik
was understandably concerned about the taking or receiv-
ing of personal phone calls by employees during working
hours and the use of the foreman's cubicle for purposes
other than those for which it was designed. He had a right
to discourage such practices. He did not listen surrepti-
tiously but stood in Santana's immediate presence during
the duration of the call. While Santana was a known union
activist, it cannot be said that every adverse action or unfa-
vorable remark which came his way from Respondent's
management was in some way prompted by union consid-
erations or had the effect of interfering with union activi-
ties. Accordingly, I would dismiss the portion of the com-
plaint relating to Lenik's action in listening to Santana's
call.
j. Remmert told Fleming and Nigro sometime in No-
vember that Fleming was number two "on his list," that he
could get on the list, and then simulated the writing of a list
on a pad which he was carrying. Mention was also made
by him of Levy as being number one on the list. In light of
what was then happening to Levy and what eventually
would become of him, it can hardly be said that Remmert's
remarks were either a joke or an innocuous statement
merely suggesting that he did not appreciate union activity
among his' employees. There was a veiled threat to the ef-
fect that he not only knew who the principal union leaders
were but that he would bear these facts in mind for future
reference. Therefore, I conclude that by these remarks,
which were uncontradicted in the record, Respondent
threatened employees in violation of Section 8(a)(1) of the
Act.
k. On October 30, the Union conducted a plant gate
meeting for employees on the second shift. They left the
plant and assembled at this point on their lunch hour to
listen to a talk by a union representative. In the course of
THERMO ELECTRIC CO., INC. 367
encouraging employee attendance at this meeting, Dodd
spoke to Supervisor Seaman and suggested to Seaman that
he attend. Seaman did so. He did not stand together with
the employees but he was close enough to hear the speaker
and to know who was in attendance. Under normal cir-
cumstances, this action on Seaman's part would be suffi-
cient to constitute illegal surveillance. However, under the
facts of this case, Dodd, the in-house promoter of the meet-
ing, actually invited Seaman to attend. Accordingly, the
Union could hardly object when Seaman accepted the invi-
tation, and it did not in fact object to his presence in the
general vicinity during the course of the meeting. In light
of these considerations, I would dismiss the portion of the
consolidated complaint relating to Seaman's surveillance
of a union meeting. The Cheese Barn, Inc., d/b/a Hickory
Farms, 209 NLRB 502 (1974).
1. Other instances of employer surveillance lapsed over
into a continued program of harassment and cannot be so
easily dismissed. Green's revealing testimony brings into
focus a series of minor events and activities which might
otherwise be regarded simply as a hypersensitivity on
Levy's part to employer actions bearing upon his on-the-
job activities. Both Levy and a fellow employee noted the
frequency with which foremen entered the men's room im-
mediately after Levy did. Foreman Schmitt's work station
was placed within 15-20 feet of Levy during the latter's
final months of employment and was then removed to an-
other location shortly after Levy's discharge. This course of
conduct suggests that the decision to move Schmitt about
in this manner had nothing to do with the needs of wire
production or inspection. Other statements made to em-
ployees who were seen talking to Levy on the job, as well
as reprimands -directed to Levy for communicating with
them, bear out Green's testimony that he and other super-
visors were instructed to keep an eye on Levy and report
any deviations from what they felt to be normal job activi-
ty on his part. Ulco admitted making about three reports a
week to higher management relating to Levy. Such surveil-
lance of a key union leader over a period of time is a seri-
ous infringement of Levy's Section 7 rights and violates
Section 8(a)(1) of the Act. I so find and conclude.
2. Violations of Section 8(a)(3) of the Act
a. Changes in working conditions
Respondent admits that, following the Union's plant
gate meeting on October 30 on the second shift, it posted
an instruction to second- and third-shift foremen stating
that washup time would be limited to 5 minutes at the end
of each shift. Respondent also threatened disciplinary ac-
tion against any employee who left the building during a
shift without permission or without punching in and out.
However, Respondent maintains that these and other rules
set forth in its October 31 memorandum to wire mill fore-
men did not constitute a change in previous working con-
ditions but were merely a reaffirmation of previous re-
quirements necessitated by the lunchtime exodus of
second-shift employees to the plant gate on the preceding
day in violation of company discipline.
With regard to permission of the foreman to leave the
building during the shift, there is testimony from both
General Counsel and Respondent witnesses to the effect
that it was commonplace for employees to take their lunch
hour outside the building, either in the parking lot or else-
where on company premises, and that this practice was
particularly widespread during warm weather. In so doing,
employees on the second and third shifts never punched in
or out or sought special permission. The employee hand-
book, containing a large number of "do's" and "don'ts" for
Thermo Electric employees, states that first-shift employ-
ees are required to punch in and out at lunchtime, but lays
no such requirements on night shift employees, who are
relatively few in number. Moreover, when security guard
Duchek punched Dodd's timecard on the evening in ques-
tion, Dodd obtained a reversal of this decision by appeal-
mg to his foreman and citing the past practice on that shift
respecting timecards on the evening lunch hour. I find that
any requirement on these shifts for punching timecards at
lunch hours is a new requirement. I further find that there
was no requirement before October 31 upon employees on
any shift-to obtain advance permission from their supervi-
sors to leave the plant building, as distinguished from com-
pany premises, during their- lunch hours.12 This require-
ment found in the October 31 notice is a new requirement.
Hence, any restriction on second- and third-shift employ-
ees which forbade them from leaving the building and
going as far as the plant gate during their lunch hour, or
requiring that they punch in and out to leave the building
at lunchtime, was a newly imposed restriction which was
prompted by the plant gate meeting of October 30. As
such, it amounts to a discrimination in a condition of em-
ployment designed to discourage union membership in vio-
lation of Section 8(a)(3) of the Act.
The notice sets forth two alternative times for taking
lunch breaks on the second and third shifts, but goes on to
say that the foreman on those shifts can stagger lunch peri-
ods within the stated time frames in response to production
requirements. Such a modification renders the strictness of
the rule somewhat less imposing. The practice of the sec-
ond- and third-shift employees was to take a 20-minute
lunch break at or about these times, but largely at their
own discretion, depending on when a run was completed
on a particular machine. To the extent that employees have
been limited in their discretion to take, lunch breaks on
those shifts when their machines were inoperative, the an-
nouncement constitutes a change in working conditions
prompted by a plant gate union meeting and therefore a
violation.
On all shifts there is a 10-minute overlap between the
reporting hour of the incoming shift and the termination of
the outgoing shift. I credit the testimony of employees that
it was the practice of the outgoing shift to utilize this 10-
minute period of time for washing up. The employee hand-
book is silent as to how this period of time is to be utilized,
and there is no other written rule or regulation governing
12 The company handbook states that "If you leave the plant during
working hours, you must first obtain permission from your supervisor."
However, the above-noted practice respecting lunching in the parking lot
indicates a longstanding interpretation of this rule which construes "plant"
to mean company premises rather than plant building.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the question. Respondent contends that the purpose of the
overlapping period of time is to permit departing employ-
ees during the first 5 minutes of the overlap to leave in-
structions and exchange information with their incoming
counterparts on the ensuing shift, and that only the last 5
minutes was authorized for purposes of washing up. Re-
spondent is silent as to how employees were supposed to
occupy the first 5 minutes of this period when exchanges of
information did not require 5 minutes of conversation with
a relief man, or when the position they occupied did not
have a relief man on the following shift. The question of
the length of washup tunes had no bearings on the alleged
breach of company discipline which occurred by virtue of
the Union's lunch meeting for the October 30 night shift,
so there is no plausible explanation, other than reprisal or
an attempt to thwart unionization, which could explain
Respondent's action of incorporating this feature of its al-
leged standard operating procedure into the October 31
bulletin. I find that the Company's practice prior to Octo-
ber 31 was to permit employees to utilize the final 10 min-
utes of their shift for purposes of washing up, and when,
following the plant gate meeting on the second shift, it
published a regulation restricting this period of 5 minutes
for second-and third-shift employees (though not for first-
shift employees), Respondent discriminated against sec-
ond-and third-shift employees in order to discourage their
membership in a labor organization, in violation of Section
8(a)(3) of the Act.
b. Denial of wage increases to Levy and DeMarco
DeMarco and Levy were both given personnel evalua-
tions in the fall of 1974. At that time both were denied the
pay increases which normally follow, such reviews. In light
of the fact that less than 3 percent of Respondent's work
force were denied raises following reviews in 1974, the ac-
tions of Respondent relative to Levy and DeMarco were
extraordinary and can be justified only by extraordinary
considerations. None were forthcoming. Green credibly
testified that Levy and DeMarco were two union activists
whom Schneider and Meerholz hoped would quit without
being fired, and who were placed under continuing surveil-
lance for this purpose. Green, whose mandated evaluation
played a part in DeMarco's unfavorable review, later apol-
ogized to DeMarco for the harm he had done him when he
met DeMarco on the occasion of Green's departure from
the Company. During Levy's oral performance review, he
was criticized in part for acting like a shop steward and
because his complaints against the Company usually found
their way into organizational leaflets. It is clear that the
denial of pay increases following these unfavorable reviews
was prompted by union considerations rather than job per-
formance, and, as such, were violations of Section 8(a)(3)
of the Act.
c. The discharge of Mark Levy
On December 27, 1974, Respondent discharged final in-
spector Mark Levy ostensibly for lack of productivity. In
support of its contention, Respondent introduced into evi-
dence a chart, prepared by Martincavage with the assis-
tance of Ulco, which assertedly bears out the fact that Levy
was not measuring up either to an objective standard set
for his job by Respondent or to the actual accomplish-
ments of those who took his place. The chart depicts vari-
ous ups and downs in productivity of the inspection rate of
the final inspection in the wire mill viewed on a week-by-
week basis. According to Martincavage, what bothered
him and ultimately convinced him to terminate Levy was
the belief that, over the long haul, Levy's output was on a
steady downhill slant, reading from the time of Levy's un-
favorable performance review in October until the time of
his discharge. Thus Levy's presence was no longer tolera-
ble, despite the fact that Respondent had no one with
whom to replace him, either in December or in the weeks
immediately thereafter.
The chart in question was prepared, both before and
after Levy's termination, from weekly reports of the wire
mill final inspector . It measures productivity in terms of
spools of wire per hour inspected during each week. The
gross figure of spools inspected per week by the final in-
spector does not appear. For the months beginning with
Levy's assumption of the job in February until his dis-
charge in late December, the Respondent determined the
number of hours which Levy worked each week from
Levy's timecard, making allowance in the weekly computa-
tion for the number of hours Levy was absent from the
plant as indicated by the card and for a 10-minute-per-day
period representing duty performed by Levy away from the
inspection desk. Respondent then divided this figure of
hours worked in a week into the number of spools inspect-
ed during the week. The resulting quotient was then placed
on the graph and is represented to be Levy's productivity
in terms of spools inspected per hour worked. During the
period following Levy's discharge, it was not possible to
compute the divisor in this formula in the same manner
because several employees pitched in at his job station dur-
ing the month of January. When Misterowicz was finally
given the job on a permanent basis, he was assigned other
functions as well, so, in the "after" discharge period, Re-
spondent required each inspector at this station to note on
his weekly report the number of hours spent at the final
inspection actually performing final inspection tasks. It
was this figure rather than a number of overall hours spent
in the plant and reflected from his timecard which was
used as the divisor to produce the quotient entered on the
1975 portion of the graph as a spools-per-hour figure. The
aggregate number of spools or feet of wire which Levy's
successors inspected each week is not in evidence.
Respondent admits that the graph was prepared in part
for purposes of litigation because it anticipated, even be-
fore Levy's discharge, that someday it would be called
upon to document statistically the basis for its claim that
Levy was a poor producer. While this fact alone makes the
graph suspect, if not inadmissible, the further admission by
Respondent that the graph compares "apples with or-
anges" renders the document even more questionable. I
credit the testimony of Levy and others to the effect that
Levy performed chores other than final inspection. He was
required to go to the storeroom from time to time, he as-
sisted with in-process inspection, and he performed inspec-
tion of cable in the new facility next door to the wire mill.
THERMO ELECTRIC CO., INC. 369
None of these absences from the final inspection desk on
company business was cranked into the graphic determina-
tion of the number of spools per hour he inspected at the
final inspection station, although the statistical method em-
ployed on the 1975 portion of the graph, relating to other
inspectors, compensates for such absences.
The graph also contains a median line of 12 spools per
hour, indicating the inspection rate which the occupant of
the final inspection station was expected to attain. Levy's
post was and is the only one out of 13 inspection stations
for which any stated production quota has ever been estab-
lished. The figure 12 is what Martincavage called an "engi-
neered estimate," but there is no explanation of how it was
engineered. The figure does not reflect what Levy aver-
aged, when measured by one statistical formula, nor what
his successors averaged, when measured by a different for-
mula. The quota was established arbitrarily when the graph
was under preparation in December 1974. It was applied
retroactively, and its existence was never disclosed to Levy.
It follows that the probative value of such a figure, as rep-
resenting a reasonable standard of employee performance,
is nil.
I credit the testimony of Levy and others that, during the
fall months of 1974, the wire mill suffered a slump in pro-
duction and that some of its wire inspection work was si-
phoned off and given to the new facility opened next door.
No company records brought forth by Respondent in
any way challenge this assertion, and I discredit
Martincavage's testimony to the contrary. Hence, the for-
mula used by the graph makers to measure Levy's rate
took no account of "down time" which Levy credibly testi-
fied he experienced from time to time, although the formu-
la applied to 1975 inspectors makes such an allowance.
Indeed, Levy was instructed at one time by a supervisor to
make sure that he looked,busy and was given a verbal list
of "busy work" tasks to perform when inspection activities
were slow. Levy admits slowing his inspection rate when
work was light so that he would not spend time standing
around and "looking stupid." Also of note in reviewing the
graph is the fact that it does not contain any entries relat-
ing to Levy's productivity in the 3 weeks immediately pre-
ceding his discharge, despite Martincavage's testimony that
it was the trend of Levy's work and not occasional ups and
downs which was determinative of his fate. Respondent
claimed that the weekly reports for this critical period of
time were missing, so no computations or entries could be
made on the graph relative to this point in time. Like the
gap of 18,-1/2 minutes on a celebrated tape recording, the
missing 3 weeks on Respondent's graph during this crucial
period lends an aura of deception and pretext to the entire
document. Accordingly, I count it for nothing as support-
ing a defense to ,a charge of discriminatory firing.
Levy was "No. 1" on the list of a respondent who repeat-
edly gave expression to union animus unrestrained by the
terms of a settlement agreement. Levy was the subject of
repeated illegal surveillance and harassment which failed
in its avowed purpose of goading him into quitting. It fol-
lows that the December 27 discharge was simply the next
logical step in a game plan which had so far failed to pro-
duce desired results. Accordingly, it violated Section
8(a)(3), of the Act.
d. The discharge of Edward Rzegota
The discharge of Edward Rzegota on November 11 pre-
sents a somewhat closer question than Levy's case. Rzegota
was a union committee member and an active one. I find
that Respondent had knowledge of his activities on behalf
of the UE. However, Rzegota was only one of several com-
mittee members, most of whom were well known to Re-
spondent and who still remain on its payroll. His casual
and lackadaisical demeanor on the stand leads me to con-
clude that he behaved in an equally indifferent manner to
his employer while working at Thermo Electric. His total
tenure of employment was something less than 3 months.
During that time, he had been warned that he had to im-
prove his job performance or be fired.
However, as detailed above, his discharge was accom-
plished by an employer who succeeded in violating Section
8(a)(1) and (3) of the Act in many and varied ways over an
extended period of time, including a clearly discriminatory
discharge of a union adherent. Thus, any reason it advanc-
es for the removal of a known union activist must be exam-
ined quite closely. Like Levy, Rzegota was discharged for
poor productivity. As in Levy' s case , Respondent could
produce no reliable statistical records to demonstrate that
its subjective evaluation and its accusations had any basis
in objective fact. Rzegota worked closely with two other
employees, Schuman and Calabrese, who were assigned to
perform the same tasks. On the day Rzegota was dis-
charged . Calabrese received a written warning for essen-
tially the same deficiencies in performance and was also
reprimanded for excessive absenteeism. Schuman had a
physical handicap which hampered him in the perfor-
mance of his duties in that he was barely able to hold in his
hands the equipment he was required to use to test wire for
continuity and shorts. Two months after Rzegota's dis-
charge, Schuman was given a written reprimand for poor
production, but neither he nor Calabrese was ever dis-
charged. Rzegota testified that his production exceeded
that of Schuman at the time of his discharge, while Fore-
man Pisciotto denied this assertion.
The function performed by each of these employees,
called check-out men, was to test or check out wire before
it was sent to the Annealing department. After they com-
pleted their function, one of the three would initial a
"move order," which was the authorization to move the
wire to the next phase in the production process. From
time to time, more than one of these three employees
would work on a single order, so that a "move order"
might reflect not only his job performance but also the
efforts of another employee whose initials did not appear.
Foreman Pisciotto admits that, under the normal practice
in the ceramo department, the initials of a check-out man
on the "move order" meant that he worked on that order,
either alone or with someone else, though it did not invari-
ably indicate this fact. The "move orders" constitute the
only written evidence of productivity which would objec-
tively indicate the productivity of check-out men . A compi-
lation of a large number of such orders issued by check-out
men in September, October„ and November 1974 indicates
that Rzegota's initials appeared on 29, Calabrese's ap-
peared on 48, and Schuman's appeared on 10, thus sup-
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
porting Rzegota's assertion that he was more productive
than a deficient employee who was retained.
It appears that Respondent tolerated marginal perfor-
mance-among its check-out men in the ceramo department,
at least to the extent that it did not discharge Calabrese
and Schuman who also had basically poor records. It also
appears that Rzegota had ,a markedly superior record of
productivity to Schuman, so that there was no objective
basis for Respondent to assert that Rzegota was the worst
of the check-out men . The burden of proof is, of course,
upon the General Counsel to establish- a violation of the
Act and not upon Respondent to establish a defense.
Where, as here, the General Counsel has established the
discharge of a known union adherent by a respondent who
evidences strong union animus and whose explanation of a
discharge shows disparate treatment and lacks objective
substance and support, I am drawn to the conclusions that
the General Counsel has met his burden of establishing a
violation, and so find that Edward Rzegota was discharged
on November 11 for discriminatory reasons in violation of
Section 8(a)(3).
e. The settlement agreement as a defense to presettlement
violations
Respondent argues strongly that the General Counsel
should not be allowed to prosecute violations of the Act
which occurred before August 23, 1974, because, in its
view, such violations were merged into the settlement
agreement and are thus barred from subsequent litigation.
Long ago the Supreme Court recognized that, because of
the flexibility of administrative practice and the desirability
of encouraging settlements to accomplish the purposes of
the Act, such common law concepts as merger and estop-
pel by settlement were inapplicable to Board settlements,
so the Court permitted the Board to litigate to final order
matters which were the subject of an agreement which was
set aside because of postsettlement violations. Wallace Cor-
poration v. NL.R.B., 323 U.S. 248 (1944). Following this
precedent, the Board has consistently and recently held
that the commission of postsettlement unfair labor practic-
es authorizes the Regional Director to set aside the earlier
agreement and seek a remedial order directed both to pre-
settlement and to postsettlement midsconduct. Aurora and
East Denver Trash Disposal, 218 NLRB No. 4 (1975); Dy-
nacor Plastics and Textiles Division of Medlin Industries,
Inc., 218 NLRB No. 216 (1975). In the agreement ap-
proved by the Regional Director in this case, Respondent
herein undertook to refrain from surveillance of employ-
ees' union activities and to rescind an overly broad no-
solicitation rule. It also promised that it would not "in any
like or related manner restrain or coerce our employees, or
discriminate against any of our employees, in the exercise
of their rights guaranteed under the National Labor Rela-
tions Act " The conduct of Respondent outlined above and
found herein, which occurred after it undertook the above-
quoted engagement , violated not only the Act but also its
own undertaking as well. Accordingly, the Regional Direc-
tor was amply justified in setting aside the agreement here-
in and in proceeding as if it had never been approved.
Upon the foregoing findings of fact, and upon the entire
record herein considered as a whole, I make the following:
CONCLUSIONS OF LAW
1. Respondent Thermo Electric Co., Inc., is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Local 417, United Electrical, Radio, and Machine
Workers Union of America, is a'labor organization within
the meaning of Section 2(5) of the Act.
3. By discharging Mark Levy and Edward Rzegota and
by denying to Mark Levy and to Robert DeMarco increas-
es in pay because of their membership in or activities on
behalf of Local 417, United Electrical, Radio, and Ma-
chine Workers of America; by reducing-washup time, lim-
iting the right of second- and third-shift employees to leave
the plant building during lunch breaks' and restricting sec-
ond- and third-shift employees in taking lunch breaks; and
by transferring employee Carlos Santana from a position
in which he opened the plant building and turned on the
lights therein preparatory to the commencement of the first
shift, because of the interest of these employees in, or their
activities on behalf of, the above-designated labor organi-
zation, Respondent herein has violated Section 8(a)(3) of
the Act.
4. By the acts and conduct set forth above in Conclu-
sions of Law 3; by threatening employees with reprisal for
supporting the Union; by giving employees reprimands for
various work deficiencies which were in fact prompted by a
desire to harass them in the exercise of their Section 7
rights; by keeping the union activities of employees under
surveillance and by attempting to isolate employees as a
reprisal for engaging in union activities; by establishing a
no-solicitation rule which prohibited employees from en-
gaging in union activities on company property at any time
and by enforcing the substance such a rule as a matter of
practice; and by coercively interrogating employees con-
cerning their union activities, Respondent violated Section
8(a)(1) of the Act.
5. The unfair labor practices recited above in Conclu-
sions of Law 3 and 4 have a close, intimate, and substantial
affect on the free flow of commerce within the meaning of
Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has committed certain
unfair labor practices, I will recommend that it be ordered
to cease and desist therefrom and to take other actions
designed to effectuate the purposes and policies of the Act.
With respect to the violations of Section 8(a)(1) of the Act
which have been established in this case, it clearly appears
that they have been repeated and pervasive and that
Respondent's proclivity to commit them has not been
curbed by its entry into an informal settlement agreement.
Since the violations include discharges for discriminatory
reasons, the actions of Respondent go to the very heart of
the Act. Accordingly, I will recommend the issuance of a
so-called broad 8(a)(1) order designed to suppress any and
all violations of Section 8(a)(1). J. C. Penney Co., Inc., 172
NLRB 1279, fn. 1 (1968); Adam & Eve Cosmetics, Inc., 218
THERMO ELECTRIC CO., INC.
NLRB No. 201 (1975). With respect to the violations of
Section 8(a)(3), I will recommend that Mark Levy and Ed-
ward Rzegota be reinstated and that they be made whole
for any loss of pay which they have suffered by reason of
the discrimination practiced against them, to be computed
in accordance with the Woolworth formula 13, with interest
thereon at 6 percent per annum. To remedy Respondent's
discriminatory denial of a wage increase to Robert De-
Marco, I will recommend that it be required to pay De-
Marco for the period running from November 6, 1974, the
date of an unfavorable personnel evaluation, to the date of
April 1975 when he received a wage increase, an amount of
money equal to the difference between what he earned dur-
ing this period and what he would have earned if his rate of
pay during said period had been computed at the increased
rate he ultimately received in April, with interest on said
difference computed at 6 percent per annum. To remedy
Respondent's discriminatory denial of a wage increase to
Mark Levy, I will recommend that it be required to pay to
Levy for the period of time between September 30, 1975,
the date of an unfavorable personnel evaluation, and the
date of his discharge on December 27, 1975, an amount of
money equal to the difference between what he earned dur-
mg this period and what he would have earned if his rate of
pay had been-increased on September 30, pursuant to a
favorable personnel evaluation, with interest on said differ-
ence computed at 6 percent per annum. The amount of
backpay due and owing to Levy by reason of his discharge
should be computed on the basis of the same increased
hourly rate. I will recommend that Carlos Santana be made
whole for any loss of pay he suffered by reason of his
discriminatory transfer by Respondent, together with inter-
est thereon computed at 6 percent per annum. I will also
recommend that Respondent be required to remove from
its records all disciplinary warnings and personnel evalua-
tions which have been found herein to be illegal, to rescind
its unlawful changes in working conditions promulgated on
October 31, 1974, and to post the usual notice informing
employees of their. rights and of the remedy of this case.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended:
ORDER 14
The Respondent Thermo Electric Co., Inc., Saddle
Brook and Fair Lawn, New Jersey, its officers, agents, su-
pervisors, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union sentiments and activities and the union activities of
other employees.
(b) Threatening employees with reprisal for engaging in
union activities or concerted, protected activities.
13 F W Woolworth Company, 90 NLRB 289 (1950)
14 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 the 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
371
(c) Maintaining, giving effect to, or enforcing a rule
found in its employee handbook prior to August 23, 1974,
which forbids employees from engaging in any union activ-
ity at any time on company property, and maintaining or
enforcing any rule or practice which prohibits union solici-
tation or the distribution of union literature on company
premises during nonworking time and in nonworking ar-
eas.
(d) Engaging in surveillance of the union activities or
the concerted, protected activities of employees or harass-
ing or isolating employees from other employees to inhibit
them from engaging in union activities or concerted, pro-
tected activities.
(e) Giving employees reprimands in order to goad them
into quitting in reprisal for their union activities or their
concerted, protected activities.
(f) Discouraging membership in, or activities on behalf
of, Local 417, United Electrical, Radio, and Machine
Workers of America, or any other labor organization, by
discharging employees, refusing to grant periodic wage in-
creases, or changing working conditions.
(g) By any means or in any manner interfering with,
coercing, or restraining employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act:
(a) Offer to Mark Levy and Edward Rzegota full and
immediate reinstatement to their former positions or, in the
event that their former positions no longer exist, to sub-
stantially equivalent employment, without prejudice to
their seniority or to other rights which they formerly en-
joyed.
(b) Make whole Mark Levy, Edward Rzegota, Robert
DeMarco, and Carlos Santana for any loss of pay they
have suffered by reason of the discriminations found here,
in the manner described above in the section entitled
"Remedy."
(c) Remove from company records the reprimands is-
sued to Mark Levy on December 11, 1973, May 3, 1974,
and May 8, 1974, the written notice of verbal reprimand to
William Burroughs, dated on or about May 3, 1974; and
the personnel evaluations of Mark Levy, dated September
30, 1974, and of Robert DeMarco, dated November 6,
1974.
(d) Rescind and cease giving effect to the provisions of
paragraphs two, three, four, and five of the memorandum
from D. Schneider to wire mill foremen on the subject of
Working ^-Iours, 2nd and 3rd Shifts, dated October 31,
1974.
(e) Post at its Saddle Brook and Fair Lawn, New Jersey,
plants copies of the attached notice marked "Appendix." 11
Copies of said notice, on forms provided by the Regional
Director for Region 22, after being duly signed by a repre-
sentative of Respondent, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
15 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 "
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken to insure
that such notices are not altered, defaced, or covered by
any other material.
(f) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll and other records necessary to analyze the amount of
backpay due under the terms of this recommended Order.
(g) Notify the Regional Director for Region 22, in writ-
ing, within 20 days from the date of this Order, what steps
it has taken to comply herewith.
Insofar as the consolidated complaint, as amended, al-
leges matters not found herein to be violative of the Act,
the said complaint is hereby dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Goverment
WE WILL NOT interrogate employees concerning their
union activities and the union activities of other em-
ployees.
WE WILL NOT threaten to take reprisals against em-
ployees because of their union activities.
WE WILL NOT engage in surveillance of the union ac-
tivities or the concerted, protected activities of our em-
ployees.
WE WILL NOT maintain or enforce the rule against
solicitations as it appeared in the handbook "You and
Thermo Electric" prior to August 23, 1974, and WE
WILL NOT maintain or enforce any rule against union
solicitations or distribution of union literature on
company property which forbids employees from
doing so on nonworking time and in nonworking ar-
eas.
WE WILL NOT give employees reprimands or engage
in the surveillance of their activities or attempt to iso-
late them from other employees in order to goad them
mto quitting or to inhibit them from engaging in union
activities as a reprisal for engaging m union activities.
WE WILL NOT, by discharge, by transfer, by refusing
to give periodic wage increases, or in any other man-
ner, discriminate against employees in order to dis-
courage their membership in Local 417, United Elec-
trical, Radio, and Machine Workers of America, or
any other labor organization. All of our employees are
free to become or to remain members of that Union or
any other union.
WE WILL NOT, by any means or in any manner, inter-
fere with, restrain, or coerce employees in the exercise
of rights guaranteed to them by Section 7 of the Na-
tional Labor Relations Act. These rights include the
right to form, join , or assist labor organizations, to
bargain collectively through representatives of their
own choosing, and to engage in other concerted activi-
ties for their mutual aid and protection.
WE WILL offer full and immediate reinstatement to
Mark Levy and Edward Rzegota to their former or
substantially equivalent positions, and WE WILL make
whole Mark Levy, Edward Rzegota, Robert DeMar-
co, and Carlos Santana for any loss of pay which they
have suffered by reason of illegal discriminations
practiced against them, with interest thereon comput-
ed at 6 percent per annum.
WE WILL remove from the personnel records of
Mark Levy reprimands dated December 11, 1973,
May 3, 1974, and May 8, 1974, and a personnel evalu-
ation dated September 30, 1974, and WE WILL remove
from the personnel records of Robert DeMarco a per-
sonnel evaluation dated November 6, 1974.
WE WILL rescind and cease giving effect to rules set
forth in paragraphs Two, Three, Four, and Five of a
memorandum from D. Schneider to wire mill fore-
men, dated October 31, 1974, relating to washup time
at the end of shifts, lunch breaks, and leaving the plant
building on second and third shifts.
THERMO ELECTRIC CO., INC.