Astrosystems, Inc.

National Labor Relations Board - Board Decisions

Apr 20, 1973

203 N.L.R.B. 49 (N.L.R.B. 1973)

ASTROSYSTEMS, INC. 1 49
Astrosystems, Inc. and Local 463, International Union
of Electrical, Radio and Machine Workers, AFL-
CIO. Case 29-CA-2653
April 20, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On December 11, 1972, Administrative Law Judge
Herzel H. E. Plaine issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and General Counsel
filed a brief supporting the Decision of the Adminis-
trative Law Judge.
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 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Astrosystems, Inc., Lake
Success, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
DECISION
HERZEL H. E. PLAINE . Administrative Law Judge: The
question presented is whether Respondent violated Section
8(a)(1) and (3) of the National Labor Relations Act (the
Act) by discharge on December 10, 1971, of employee John
Barbarette , who led his fellow employees in union and con-
certed activities ; by changing conditions of employment in
November and December 1971 of three of the employees
(including Barbarette) who engaged in union and concerted
activities , i.e., in denying them overtime work and re-
stricting them to their work area , discnminatorily, it is
charged ; and by allegedly engaging in, and conveying the
impression of, surveillance , including interrogation, of em-
ployees , from June through December 1971, because of
their union and concerted activities . The union and concert-
ed activities related to the Charging Party (the Union),
which campaigned for membership and lost a representa-
tion election in the summer of 1971 among Respondent's
employees , and to an employees ' committee (the Commit-
tee) that formed after the representation election and met
with management on matters concerning employees' pay
and working conditions.
The complaint was issued March 31, 1972, on a charge
filed by the Union, December 17, 1971, amended January
31, 1972.
Respondent admitted the discharge of employee Barbar-
ette, but contended the discharge was for cause unrelated to
union or concerted activities. Respondent also admitted the
failure to assign overtime to the three employees in the
period alleged, but claimed it was part of an overall reduc-
tion in overtime grounded on economic necessity. Respon-
dent contended that the restriction on the movement in the
plant of the three employees was a restriction on employees
generally, requiring supervisory permission to leave their
areas, imposed for business considerations. Lastly, Respon-
dent denied having engaged in surveillance, or in conveying
the impression of surveillance, or in interrogation of its
employees in relation to their union or concerted activities.
The case was tried in Brooklyn, New York, on June
19-23, and 28-30, 1972. General Counsel and Respondent
have filed briefs.
Upon the entire record in the case, including my observa-
tion of the witnesses and consideration of the briefs, I make
the following:
FINDINGS OF FACT
I JURISDICTION
Respondent is a New York corporation, with its principal
place of business at Lake Success, Long Island, New York,
engaged in the manufacture and sale of electronic equip-
ment and related products. As described by the witnesses,
Respondent produces test equipment largely used in Gov-
ernment facilities.
Annually, Respondent ships goods valued in excess of
$50,000 directly to points located outside the State of New
York.
Respondent is engaged, as it admitted, in commerce with-
in the meaning of Section 2(6) and (7) of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act, as the parties admit.
Likewise, the Committee, which comprised elected em-
ployee representatives from Respondent's various depart-
ments and which met monthly with members of
Respondent's management from approximately September
1971 through March 1972, for discussion of matters of pay,
working conditions, and grievances, was a labor organiza-
tion within the meaning of Section 2(5) of the Act, and the
parties have so conceded.
11 THE UNFAIR LABOR PRACTICES
A. Discriminatory Conduct
The union campaign and Respondents countercampaign: In
December 1971, according to Respondent's vice president
for manufacturing, Elliot Bergman, Respondent had about
220 employees in some 15 departments. Employee John
Barbarette, who was hired in June 1968, worked in the
203 NLRB No. 16
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
transformer testing department (also called transformer de-
partment), which had seven employees at the time of his
discharge, December 10, 1971.
Respondent's employees were not organized and, some-
time after Barbarette was hired in 1968 , he served with
several other employees on an employee grievance commit-
tee that met from time to time with Respondent's vice presi-
dent fo' marketing and finance, Gilbert Steinberg, who also
acted as personnel director.
In April or May 1971, employee Barbarette initiated dis-
cussions among some of the employees concerning the de-
sirability of having a union , and, after getting some
encouragement , talked several times with representatives of
the Union (Local 463). In some of these talks, Barbarette
was accompanied by employees John lanno and Michael
Fetiak , also of the transformer testing department. Under
the leadership of Barbarette, a union organization cam-
paign began at the plant in May or June 1971, and employ-
ees Barbarette, Ianno , Fetiak, and several others passed out
union representation cards, buttons , pens, and literature.
This was done at or near the plant in the parking lot, and
some in the plant cafeteria on breaktimes. All of the signed
union representation cards were turned in to Barbarette.
The distribution of union cards and materials was done
openly and was observed by Vice Presidents Bergman and
Steinberg, and Supervisors Al Smith, Al Palasak, Robert
Brown , and Basil Norman , among others ; none of them
directly interfered with the distribution or harassed the dis-
tributors. Some of the Union's supporters, like employee
Fetiak, put up some union posters in the plant.
However, management and the supervisors made known
their opposition to the Union in general meetings with the
employees, by general letters or bulletins posted or distrib-
uted to all employees (e.g., letters from Respondent 's Presi-
dent Barth urging all employees to vote against the Union,
exhibits R-7, R-8, R-14), and in discussions with individual
employees.
Respondent called two general meetings of all employees
prior to the Board election, held July 15, 1971, ostensibly to
answer employee questions . Vice Presidents Bergman and
Steinberg conceded using the occasions to let the employees
know of Respondent's opposition to the Union. According
to employee Ianno, after Vice President Bergman told the
employees that Respondent did not want the Union in the
shop and wanted the employees to deal with management
without interference from a union , Bergman pointed out
that there had never been any layoffs and he didn't want
any, but if the Union got in there would be layoffs.'
At the second of the two meetings , employee lanno spoke
up, suggesting to Vice President Steinberg (then presiding)
that Respondent had been insensitive to the wishes of the
employees by, for example , introducing a new starting time
for work without consultation of the employees. According
to employee Robert Drotos, who was in attendance, Vice
i At trial, lanno testified that this was the meaning he attached to Vice
President Bergman 's speech . Bergman claimed he was trying to make the
point that having the Union would not prevent a layoff, but admitted he did
not tie the point to explaining that there might be a layoff because of
Respondent 's economic position . In any event, the complaint did not charge
that Bergman 's speech had violated the Act.
President Bergman turned to Vice President Norman
Wheatcroft (in charge of sales) and said, "You got to watch
this guy [Ianno], he is dangerous ." Bergman denied this
statement attributed to him , but bearing in mind his admit-
ted hostility to the union organizing , and that employee
Drotos was in the vulnerable position of a current employee
testifying adversely to his employer, Drotos' credibility was
entitled to added support,2 and I credit Drotos.
General Foreman Palasak , and Supervisors Robert
Brown, Thurston Stark , and Basil Norman were among the
supervisors who engaged individual employees in conversa-
tions about the Union , prior to the Board election , indica-
ting to the employees opposition to the Union. Without
recounting the total testimony on this score , Brown, Pala-
sak, and Stark talked to employee Barbarette , warning him
against the "outside" Union , and suggesting that an "in-
side" organization of the employees was preferable. Fore-
man Palasak told Barbarette that after Barbarette lost the
election , Palasak knew people who would help form a com-
mittee or "inside" union . Supervisor Norman advised em-
ployee Fetiak not to overlook the bad things about the
Union. Foremen Palasak and Supervisor Stark questioned
employee Albert Wilhelms on his opinion concerning the
Union and the literature being distributed, and Palasak ac-
cused employee Drotos of "conspiring" with Wilhelms. Su-
pervisor Brown questioned employees Barbarette , Drotos,
and others, on why they were for the Union.
Not all of the employees favored the Union, and some
were visibly active or vocal in opposition. Anne Mulvey,
who was Vice President Steinberg's executive secretary, put
up antiunion posters in the shop , including some on the
bulletin board that urged "vote no" (testimony Wilhelms,
Fetiak , Barbarette). Employee Madeline Locke told Bar-
barette she was against the Union but favored an employee
committee . Employee Paul Cusato , who worked in the
transformer testing department, discussed the Union with
his supervisor, Basil Norman, would not accept the union
materials offered to him , and made it known , he said, that
he was against the Union.
Over a period of time, an unidentified person, whom the
employees dubbed "the Phantom," plastered the walls of
the shop with antiunion messages to the employees (see
exhibits GC-8, a, b, c). Employee Barbarette replied to the
first of these by writing a response, which he put up along
side the Phantom 's message . Within approximately 5 min-
utes, Foreman Palasak took down Barbarette 's response
and, only after Barbarette remonstrated with Palasak, did
he remove the Phantom's message . (Foreman Palasak said
he didn't remember which of the two he took down first, but
he was evasive in his testimony on conversations and rela-
tions with the employees concerning the Union, to the point
that I have not credited his denials or disclaimers in these
matters.)
In June 1971 , employee Barbarette attended a conference
at the Board held to resolve some of the matters growing out
of the Union's representation petition. On July 15, 1971,
Barbarette served as observer for the Union at the repre-
sentation election . Barbarette , who over the years of his
2 Georgia Rug Mill, 131 NLRB 1304, 1305, In 2 (1961); Wirtz v. BAC Steel
Co., 312 F 2d 14, 16 (C.A. 4, 1963).
ASTROSYSTEMS, INC.
employment, performed special work for Vice President
Bergman in addition to regular duties, testified that Berg-
man ceased being friendly with him on a personal basis
following the Board conference in June 1971.
At the representation election of July 15, 1971, a majority
of 4he eligible employees rejected the Union.
The Committee: In August 1971, following the July 15
election, on suggestion of employee Hilts of the machine
shop, employee Barbarette agreed to serve with six other
employees who met in late August or early September with
Vice Presidents Steinberg and Bergman to agree on the
formation of a committee of the employees (the Commit-
tee). The conferees established a procedure for forming the
Committee by election of representatives and alternates
from 12 (later 15) departments or in some cases groups of
departments . The departmental elections were held, in the
course of which employee Barbarette was elected unan-
imously to represent the employees of the transformer test-
ing department (made up of men) and of the coil winding
department (comprised of women). Employees lanno and
Fetiak tied for alternate , and in a runoff lanno was chosen
to be the alternate . Supervisor Norman counted the ballots.
Prior to the first meeting of the Committee with manage-
ment, the employee representatives met separately to agree
on an agenda and method of presenting matters, and elected
as their chairman employee Marc Shapiro, of the engineer-
ing department , by an 8-to-7 vote over employee Barbar-
ette.
The first meeting of the Committee with management
was held September 24, 1971 , and thereafter meetings were
hold monthly, until the Committee was disbanded by man-
agement in March 1972 . According to Marc Shapiro, the
employee chairman , and employee Anne Mulvey, Vice
President Steinberg's executive secretary, who represented
the secretarial staff , Steinberg attended all of the meetings
for management , Vice President Bergman attended some,
including the second meeting on November 1, 1971, and
various of the foremen and other supervisors attended from
time to time and participated in matters relating to them or
their colleagues . Vice President Steinberg and employee
Shapiro prepared the minutes of the meetings , and secretary
Mulvey typed them up and distributed copies to all employ-
ees.
Employee Shapiro testified that at the Committee meet-
ings he opened by speaking on items that the employee
representatives had agreed upon beforehand , but that oth-
ers spoke and, next to himself, employee Barbarette did
most of the speaking for the employees . The testimony of
Shapiro and Barbarette indicated that on some matters
management gave "discreet answers" and postponed an-
swering many with a "will look into it " or "will let you
know" answer.
At the first meeting, September 24, employee Barbarette
raised the issue of the need for cost -of-living wage increases
and job classifications . Vice President Steinberg rejected job
classifications as hampering flexibility, and promised fig-
ures on how the Company had met the need for cost-of-
living increases . Barbarette also raised the matters of profit
sharing, and the need for more and closer-in parking fa-
cilities; and , until the latter could be achieved , asked for an
extension of the punch-in time for employees obliged to
51
park at a distance from the plant . Steinberg said he would
let the Committee know.
At the second meeting , on November 1, Vice President
Steinberg brought in a chart and figures purporting to show
how Respondent had met the cost -of-living rise and offered
what he thought was a favorable comparison to Sperry-
Rand wages . Employee Barbarette challenged Steinberg on
his base salaries figures and his figures on raises versus
cost-of-living rise . Barbarette also suggested that the Sperry
figures represented a poor bargain that the Sperry employ-
ees had to accept in negotiating a contract with their em-
ployer.
At lunch after the meeting broke up that day (November
1), Barbarette told Anne Mulvey , Steinberg's executive sec-
retary, that Steinberg's figure of a 7-percent merit raise over
a 3-year period demonstrated the employees ' need for a
union.
Also at the November 1 meeting, employee Barbarette
raised again the question of extension of the punch-in time
for those employees who parked at a distance . Vice Presi-
dent Steinberg said again that he would look into the mat-
ter.
One of the subjects covered at the November 1 meeting
was the desire of the employees for a change of the vending
machines and vendor that provided the in-plant food and
drink . Vice President Steinberg agreed and left it to the
Committee to find a new vendor, according to employee
Barbarette . Employee Mulvey testified, initially at the call
of the General Counsel , to the same effect, saying that Stein-
berg did not appoint anyone of the Committee in particular,
but that Steinberg said maybe employees Shapiro, Barbar-
ette , and Mulvey might look into getting a new vendor, and
gave permission to select one during working hours. On
examination by Respondent's counsel, Mulvey altered her
initial testimony to say that Steinberg had appointed a sub-
committee of the three named employees and conferred on
them the discretion to make a change.
Following the November 1 meeting, employee Mulvey
telephoned several vendors and three came to the plant. She
and employee Barbarette talked to the vendors, on compa-
ny time, and decided they liked vendor Gluck. Employee
Shapiro was away and missed the November 1 meeting, and
apparently did not participate in the discussions with the
vendors . Significantly , while employees Barbarette and
Mulvey were interviewing one of the vendors in the cafete-
ria, Supervisor Al Smith came over and reprimanded them
for talking on company time. When Mulvey told Smith they
had Vice President Steinberg's permission, Smith walked
away.
On November 3, vendor Gluck telephoned employee
Mulvey to inquire as to the type of vending equipment that
was wanted . She in turn called employee Barbarette who
stated what his preference would be , but said he could not
speak for the whole Committee . Barbarette then proceeded
to attempt a canvass of the other employee representatives
located in various parts of the large room that constituted
the production area of the plant . He was followed and stop-
ped by Foreman Palasak , who conceded at trial that he had
never before followed or questioned Barbarette on his
movements , but wanted to find out what he was doing.
Palasak interrupted Barbarette conversing with the employ-
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ee representative of the machine shop and ordered Barbar-
ette back to his area . Barbarette protested that he was dis-
cussing the type of vending machines desired , but Palasak
accused him of talking union business on company time,
said Barbarette . (Palasak admitted he had previously seen
employees Mulvey and Barbarette talking in the cafeteria
and knew they had permission to talk on working time with
the vendors , which admission , coupled with his action,
would confirm that at the time Palasak did not believe
Barbarette was on the Committee business of getting new
vending machines and said what he thought Barbarette was
up to .) Barbarette went back to his area and then proceeded
to secretary Mulvey's desk (outside Vice President
Steinberg 's office) and complained that Palasak had stop-
ped him from making the canvass, and that the matter of
getting the Committee business done should be straightened
out by Steinberg.
The whole episode , starting with the initial call from the
vendor till Barbarette arrived at secretary Mulvey's desk,
took a few minutes (5 to 10 minutes , said Mulvey). When
Barbarette left and returned to his area , twice in those few
minutes , his supervisor , Basil Norman, was not there, as
Norman and Barbarette agreed in their testimony; and
there was no substitute supervisor , or practice that there be
one, for Norman , as both Norman and Foreman Palasak
testified . Barbarette testified that there had never been in-
structions to him before on needing permission ; and it was
clear that no supervisor was present to give or deny permis-
sion to Barbarette , if it had been asked.
Vice President Steinberg had observed employee Barbar-
ette at secretary Mulvey's desk. Later in the day (November
3), he asked Mulvey what Barbarette wanted and she told
him it was about the vending machines . Steinberg asked if
she had called him to her desk and she said she had not.
Vice President Steinberg then talked to Foreman Palasak
and Supervisor Norman , Steinberg said. Palasak testified
that Steinberg said he was going to give employee Barbar-
ette a warning for being at Mulvey's desk , and he (Palasak)
agreed and told of his experience immediately prior in or-
dering Barbarette out of the machine shop. Palasak had
earlier asked Supervisor Norman if Barbarette had permis-
sion to be in the machine shop and Norman said no, but
omitted to state he had not been in his area at the time to
give permission ; and Norman so testified . Steinberg asked
Supervisor Norman if he had given Barbarette permission
to go to the office , and Norman again said no, and again
omitted to say he had not been present in his area at the time
to give permission; and Norman so testified ? Like Palasak,
Norman also knew from Steinberg that some of the employ-
ees, including Barbarette , had Steinberg's permission to
deal with the vendor on working time.
Without any discussion with employee Barbarette, Vice
President Steinberg directed secretary Mulvey to type up a
"Final Warning" to Barbarette , and both Foreman Palasak
and Supervisor Norman handed it to him. It was signed by
Steinberg, Palasak, and Norman. The final warning, dated
J Vice President Steinberg claimed Norman had told him he had not been
there to give permission, but in view of the admission by Norman and
Palasak's corroboration of the admission, I do not credit Steinberg's claim.
Moreover, there were other problems with Steinberg's credibility, infra
November 3, 1971 (exhibit GC-3), told Barbarette that he
had been repeatedly warned about unauthorized absences
from his working area , that he had been found today in the
machine shop and in the executive office area during nor-
mal working hours without supervisory permission , and that
this was a final warning on the above violations-further
repetition would result in discharge.
The "final" warning of November 3 was also the first
warning . As discussed infra, in order to create the appear-
ance of at least one preceding warning, Respondent caused
to be put in employee Barbarette 's file on the same day a
paper (exhibit R-18) purporting to be a record of a prior
"Verbal Warning." The paper was dated November 3,197 1,
signed by Vice President Steinberg and Supervisor Norman,
stating that on November 1 Norman had given Barbarette
a verbal warning for continual and excessive use of the pay
phone during working hours without permission , and that
repetition would lead to serious disciplinary action. A copy
of this document was never given or shown to Barbarette.
Vice President Steinberg claimed that on November 1,
Supervisor Norman had come to him asking that employee
Barbarette be fired because he had been using the telephone
during working hours . Steinberg testified that Norman
didn't say who saw Barbarette using the phone , but that he
(Norman) had given him a verbal warning for having used
the phone and wanted him fired . The two of them discussed
the matter and because , said Steinberg, he didn 't believe it
merited a discharge , or was even serious enough for a writ-
ten warning to Barbarette , Norman asked if Steinberg
would have a written record made of the verbal warning.
Steinberg said he agreed , dictated the memo, and he and
Norman signed it 2 days later on November 3. At another
point in his testimony , Steinberg said he could not remem-
ber if Norman had given or was going to give the verbal
warning when they talked on November 1. It is also note-
worthy that Steinberg's account did not coincide with the
claim put down on the paper that the verbal warning was
for "continual and excessive " use of the pay phone.
Supervisor Norman 's testimony did not support Stein-
berg, was intrinsically self-contradictory , and was contra-
dicted by other facts. Norman initially said that on the
morning of November 1, the morning the employee-man-
agement Committee met, he gave employee Barbarette an
oral warning for making a telephone call (on working time)
at 10 a .m. Norman further said he told Steinberg about it,
said he wanted to give it in writing, Steinberg approved,
secretary Mulvey typed it, and Norman signed it, all on
November 1, but did not give employee Barbarette a copy
(the exhibit is R-18 , dated November 3). Norman gave no
testimony of having asked , as Steinberg said , that Barbar-
ette be fired.
The testimony of all of the witnesses concerned with the
November 1 Committee meeting, including Vice President
Steinberg and Foreman Palasak , established that the meet-
ing started at approximately 9 a.m. and no later than 9:10
a.m., that it met without a break until lunchtime, approxi-
mately 12:30 or 1 p.m., and that employee Barbarette was
in continuous attendance . He could not have made the
alleged phone call and been reprimanded for it at 10 a.m.
November 1 (and he denied having been given any such
reprimand or having used the phone that day except once
ASTROSYSTEMS, INC.
on his afternoon breaktime).
On a further round of questioning, Supervisor Norman
suggested that the final warning to Barbarette (exhibit
GC-3 of November 3) for having been out of his area was
a result of the two incidents happening on the same day, in
the same morning, i.e., the alleged in-hours phone call by
Barbarette and his absence from the working area both
occurred on the morning of November 3 (not November 1),
said Norman, and that he, Norman, signed both the record
of the verbal warning (exhibit R-18) and the final warning
(exhibit GC-3) in the afternoon of November 3.
On still further questioning, Supervisor Norman reverted
to asserting that the alleged phone call and verbal warning
for it occurred on the morning of November 1, and that he
signed the record of the verbal warning in the afternoon of
November 3, but could not explain why Vice President
Steinberg gave his approval 2 days after the verbal warning
to Barbarette or why he, Norman, signed the record of the
verbal warning 2 days later.
It was admitted by Vice President Steinberg and Supervi-
sor Norman that a copy of the record of verbal warning was
not given to employee Barbarette. It was also admitted by
them that while a written warning to an employee was not
unusual, this record of a verbal warning to an employee was
the only one of its kind in Respondent' s files.
In my view of the evidence, the record of the verbal
warning was a fabrication by Respondent to provide the
color of a prior warning before the "final" warning of No-
vember 3, which was actually a first as well as final warning
and a first step in laying the base for a discriminatory dis-
charge that was to be camouflaged in disciplinary reasons.
Employee Barbarette testified, and Foreman Palasak and
Supervisor Norman agreed, that Barbarette had had no
previous written warnings on any subject.
Following service of the "final" warning on him on No-
vember 3, employee Barbarette was forbidden by Supervi-
sor Norman to take any material out of the department for
other departments for any reason and was ordered to turn
over his material to Norman for delivery. At that point, the
rule applied only to him, Barbarette, said Norman. Shortly
thereafter the rule was extended to employees lanno and
Fetiak, and in general forbade the three employees from
leaving their area for any reason without permission.
Supervisor Norman admitted this was a change in prac-
tice, that hitherto Barbarette and other employees had gone
to other departments to deliver work or obtain materials.
Norman claimed that permission was required, but conced-
ed that the employees went without permission. Employees
of his department-Cusato, lanno, Fetiak, Barbarette-and
employees of other departments-Drotos, Wilhelms-testi-
fied that they had always moved about the plant freely
without any requirement of seeking permission.
In the transformer testing department, the restriction in
November and December 1971 was laid upon Barbarette,
lanno , and Fetiak, according to fellow employee Paul Cusa-
to, whereas he (and some of his fellows, such as employee
Cabrera) moved about as he pleased and underwent no
change in practice. Cusato, by his own testimony, was open-
ly antiunion. On the other hand, Barbarette, lanno, and
Fetiak had been openly prounion, and at this period of time
(commencing earlier, in October, extending into November)
53
had begun attending union leadership training classes once
a week. The fact was known in the shop, and on one occa-
sion Supervisor Norman asked employee Fetiak how the
classes were going.
The testimony indicated that employees Barbarette, Ian-
no, and Fetiak complied with the restriction on them and
requested permission on the occasions they had to leave
their area . Nevertheless, they made a symbolic protest of the
confinement by each wearing a chain draped over his shoul-
der and chest for a few minutes on one or two days. The
testimony was that this did not interfere with their work,
and that no supervisor spoke to them about it.
In late December 1971, shortly after employee Barbarette
was fired, the restriction on movement about the shop with-
out permission was lifted, according to testimony by lanno,
Fetiak, and others, and the situation remained unchanged
at the time of the trial, according to employee Wilhelms.
Indignant at being mousetrapped, as he saw it, by ambig-
uous instructions or no instructions, into an alleged viola-
tion of newly asserted plant rules in his Committee work on
the vending machines, and feeling that he was being picked
on by management in this and other respects, employee
Barbarette resigned from the Committee in late November
1971. He said he felt he could not be an effective Committee
member in the circumstances, and posted a notice to that
effect. Employee Ianno, as alternate, took his place on the
Committee.
In the next meeting of the Committee on December 1,
1971, employee lanno requested management to reconsider
and rescind the November 3 final warning to Barbarette, on
the ground that it was too stringent in light of the unclear
and contradictory instructions by management. According
to lanno, Vice President Steinberg at first refused, saying
Barbarette was a troublemaker.4 Then Steinberg suggested
that lanno take up the matter with President Barth, but
withdrew that suggestion, and a discussion of the warning
followed, including calling in employee Barbarette to hear
his version. According to Marc Shapiro, the employee chair-
man of the Committee, there appeared to be a disagreement
on what had happened, and management refused to rescind
or change the warning notice. Shapiro testified that he had
not heard before this December 1 meeting, when Vice Presi-
dent Steinberg asserted it, that Committee business would
not be done on company time .5 Shapiro's understanding
coincided with Barbarette's, who testified he had not been
made aware of any prohibition against, or need for, permis-
sion for doing the Committee business concerning the vend-
ing machines on company time. Significantly, at trial but
not in the December 1 meeting, Vice President Steinberg
stated that he had issued the final warning of November 3
to Barbarette because, he said, he didn't believe that Bar-
barette was checking with other Committee members, as
Barbarette told Foreman Palasak, on their choice of vend-
4 Vice President Steinberg denied calling employee Barbarette a trouble-
maker, but in view of his participation in the manufacture of disparaging
evidence against Barbarette, supra, I do not credit Stetnberg's denial.
s By way of differentiation , all of the witnesses agreed , and apparently it
was understood from the beginning , that premeeting meetings of the employ-
ees alone , to establish their agenda for the meetings with management, were
not treated as Committee business and were to be held outside of working
hours Steinberg had declared this at the start.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing equipment desired . Steinberg conceded that no one had
told him that Barbarette had talked to the employees about
anything but the vending machines , however he believed
differently, he said , because Barbarette , Shapiro, and Mul-
vey had authority to get whatever deal they wanted on the
vending machines without consulting other Committee
members . This latter assertion was not at all clear from the
testimony of Barbarette and Mulvey discussed supra. Nev-
ertheless, the admission of disbelief by Steinberg suggests
that affirmatively he believed or was willing to believe, as
Foreman Palasak openly expressed , that Barbarette was
engaged in some form of union business in talking to his
fellow committeeman in the machine shop .6
Special treatment of union advocatessurveillance,
overtime: Employees Ianno and Fetiak testified that in the
period following the November 3 warning to Barbarette,
supervisors who normally paid little attention to the trans-
former testing department began giving it special attention
and watching , individually and in groups . In particular, the
supervisors said to be so engaged , were Al Smith , the manu-
facturing manager , Al Palasak, the general foreman, and
Bobby Brown , who supervised the coil winding room and
soldering . For the first time in their experience , employees
Ianno and Fetiak were the recipients of rough comments on
alleged sloppy work , whereas hitherto any criticisms or sug-
gestions had been given in friendly fashion, they said.
The supervisors (other than Smith , who did not testify)
testified that no special watching was involved , that the
factory is one large room with only partial separations be-
tween departments that do not block out visibility, that
movement of supervisors about the plant is routine , and that
any group assemblages of supervisors were usual consulta-
tions.
Normally, such a response might be dispositive of the
matter ; but in this case the special restrictions imposed on
the movements of employees Barbarette , lanno, and Fetiak
of the transformer testing department (discussed supra), and
the denial of overtime to them (infra), all in the same period,
lends credence to their testimony that they were under spe-
cial surveillance because of their espousal of the Union and
their concerted activities through the Committee to achieve
employee gains in pay and working conditions.
Prior to November 1971, overtime in the transformer test-
ing department was shared by employees Fetiak, Barbar-
ette, Cusato, Ianno, and Cabrera . Early in November there
was a general stop of all overtime for I week , and then it
resumed , but not for Fetiak, Barbarette , or Ianno.
Vice President Bergman explained that in late 1971 there
was a general cut in overtime because of a decline in new
business and a desire to decelerate an envisaged layoff, that
actually occurred in early January 1972; hence the I week's
total stoppage in early November and elimination of all
Saturday overtime . However, overtime on weekdays re-
6 Following the December 1, 1971, meeting , the Committee held three
more monthly meetings with management in January , February, and March
1972, and then was dissolved by Respondent . At the last meeting, manage-
ment was represented by Vice President Bergman , who announced that there
would be no further meetings , that management was going to rely for em-
ployee views on a questionnaire of employees , being conducted by a psycho-
logical testing company, that had commenced March 1 , 1972 (testimony of
employees Shapiro, Fetiak , and Mulvey)
sumed and , as the testimony and records show , in the trans-
former department , employees Paul Cusato and Benito
Cabrera got it all in November and December.
Employee Cusato testified that he and employee Cabrera
were getting all the overtime in November and December
and that Supervisor Norman told him that that was the way
it was going to be because Cusato and Cabrera were doing
important jobs and the others didn 't want it when asked.
Supervisor Norman backed off from the latter position at
trial, conceding , for example , that Barbarette was not asked
to work overtime in November though he was qualified to
do the work in hand . Indeed , the total testimony indicated
that Barbarette was the most qualified of the employees,
that Fetiak (who had gotten more overtime than others,
prior to November) was equally qualified with Cusato and
better qualified than Cabrera , and that Ianno had more
experience than Cabrera , who was the least senior of all of
the five employees . Norman conceded that all of the
overtime was not rush work , and Cusato testified that some
of the overtime was on jobs he had not worked on during
the regular day, and that there were jobs requiring overtime
work lying about undone . The combined testimony of the
witnesses , including Cusato, indicated that, although em-
ployees often carried over into overtime on work being done
in regular hours, it was quite common for an employee to
start on other work in overtime.
The three employees who were denied the November-
December overtime-Barbarette, lanno, and Fetiak-were
the leading union activists among the employees . In con-
trast, the two who were given the overtime-Cusato and
Cabrera-were not supporters of the Union , indeed, Cusato
was openly antiunion.
Following the discharge of employee Barbarette in De-
cember and the layoff of employee Ianno in early January
1972 (which layoff had not ended for him at the time of
trial), overtime has continued to be assigned , and employee
Fetiak (a nephew of Foreman Palasak), who survived the
layoff, has since been included in the overtime work.
B. Discharge of Employee Barbarette
His record as an employee : Employee Barbarette was a
graduate of Bronx Community College, where he obtained
a degree as an associate in electronic technology in June
1968, before came to work for Respondent. He went to work
in the laboratory department, which later became the trans-
former or transformer testing department.
Barbarette was bright, apt, and enterprising in his work.
Both his fellow employees and his supervisors and manage-
ment recognized it and made use of his talent . He typically
worked on five or six different transformer jobs at a time.
He ran special tests for Vice President (of Manufacturing)
Bergman and Engineer Spett, experimenting , as Bergman
said, with transformers for unusual applications, and in
addition checked out units and wiring of switches. The spe-
cial work and experiments were frequently spot jobs that
interrupted Barbarette 's normal work , and often he would
go into overtime to complete the special or regular work.
Additionally, he took on the extra task of calibrating
Respondent's instruments and test equipment until approxi-
mately May 1970, when he asked to be relieved of the work.
ASTROSYSTEMS, INC.
Employee Fetiak, who, along with employees Barbarette
and Cusato, did the most complicated work of their depart-
ment, testified that Barbarette usually pioneered with the
engineers the jobs on which the department worked, and
prepared his own charts and schematics in addition to those
that normally accompanied the jobs from the engineering
department . Barbarette kept these charts available at his
workbench and all of the employees of the department,
including Supervisor Norman, who was a fellow employee
before he became supervisor, made use of them both as a
fellow employee and as supervisor. Employees Fetiak, Cu-
sato, and lanno testified that Barbarette 's charts simplified
their work and made doing their jobs a little easier and
faster; and each of the employees testified that in the ab-
sence of their supervisor they would consult Barbarette on
questions that arose concerning their work. Supervisor Nor-
man testified that , as an employee, he was among those who
asked for Barbarette's advice and that he, Norman, never
made an error because of any suggestions Barbarette made,
and that, as a supervisor, he still asked for Barbarette's help
or opinion on occasion.
At the time of his discharge, employee Barbarette had
prepared six pages of a handbook for workers of the trans-
former department (exhibit GC-6). He had shown a copy
to Supervisor Norman, who thought it was good.
In April 1970, when then Supervisor Cabanos of the
transformer department left, the choice to succeed him as
supervisor was between Basil Norman , who had 2 years
seniority in the department over Barbarette, and Barbarette,
according to Vice President Steinberg . Norman was chosen
for the job. A year later in May 1971 , Manufacturing Man-
ager Al Smith offered Barbarette the Job of night supervisor
for the transformer department. Barbarette was not keen
about working nights and stalled giving an outright declina-
tion. The job was not filled at the time of trial.
Employee Barbarette was subject to the draft by the
United States military forces. Vice President Bergman testi-
fied that he discussed the matter of requesting a deferment
with Vice President Steinberg, who handled such applica-
tions for the plant, and, under the criteria that the employee
was making a contribution to the war effort and could not
be easily replaced, recommended to the draft board def-
erment of Barbarette. A deferment was granted Barbarette
in January 1969 and renewed several times. Respondent's
last application for renewal, dated January 5, 1971 (exhibit
GC-10), stated that employee Barbarette "is most impor-
tant to us as a senior laboratory technician."
All of the testimony by the management and employee
witnesses indicated that in employee Barbarette 's 3-1/2
years of employment he had become the most experienced
and able of the employees in the transformer department.
He was the highest paid employee in his department at the
time of his discharge, and though the size of the periodic
increases in pay he received was a source of recurring un-
happiness on his part and of some discussion with supervi-
sors, he had never failed to receive a merit increase in the
semiannual wage reviews conducted by Respondent each
May and November? There were employees (still on the
7 The November 1971 review was delayed because of the nationwide wage
freeze and , when a wage raise was permitted and the merit review completed
55
payroll when he was discharged in December 1971) who
had been skipped over for merit raises or received raises less
in amount than his.
Dismissal and summary of reasons: At the end of the nor-
mal workday, December 10, 1971, without the occurrence
or appearance of any event that could be said to have pre-
cipitated an on-the -spot discharge, employee Barbarette
was told by Supervisor Norman to pack up his things and
be off the premises by 4:30 p.m.; his job was ended. When
asked the reasons, Supervisor Norman told Barbarette he
was discharged because of his habitual lateness for work,
because he had committed a job error, because he had used
the pay phone 1 minute before his break , and because of .
poor slow work . When Barbarette asked Norman that he
write out these reasons , Norman refused , saying he was told
not to write them down .8 Barbarette wrote them down for
himself.
At trial, Supervisor Norman and Vice President Stein-
berg, who took responsibility for the discharge, gave the
reasons for discharge with additions or embellishments
upon those given Barbarette . Lateness in reporting for work
remained as originally described . Work incompetence was
added as a caption for slow work, low output (the latter was
new), and a work error on a group of eight transformers in
which the diodes were inserted backwards. Use of the pay
phone 1 minute before break time was redescribed as exces-
sive use of the pay phone on worktime without permission.
The attitude of employee Barbarette was added as a further
reason , with a different meaning attributed to attitude by
Steinberg and by Norman, discussed infra.
Lateness: Employee Drotos of the wiring department, a
longtime employee , testified that at one time the starting
time for the employees was 8 a.m. A change was made
moving the start to 7:30 a.m. (with a correlative half hour
earlier quitting time), but with an option to choose to start
at either 7:30 or 8 a.m. Drotos chose 8 a .m. then changed
to 7:30 a.m., and testified that there were others in his
department and other departments that continued to report
for an 8 o'clock start . Barbarette in the transformer depart-
ment was among them.
Employee Barbarette testified that he requested and was
allowed a change back to the 8 a.m. start in the summer of
1971 in order to help his wife get to her place of employ-
ment.
Under Respondent's practice an employee was allowed 6
minutes leeway in reporting for work. Beyond that, his pay
was docked one-tenth of an hour's pay for every 6 minutes'
lateness . This was in accord with Respondent 's employee
handbook rule (exh. R-2, p. 8). The written rule also stated
that lateness of less than 6 minutes would still be regarded
in late December, Barbarette was no longer on the payroll and was not
considered.
e Following December 10, employee Ianno, who succeeded Barbarette as
employee Committee representative for the department , asked for a meeting
with Supervisor Norman to inquire into the firing of Barbarette and employ-
ee Brennan who had been fired 15 minutes before Barbarette on December
10. Interestingly, at the time on December 10, and before his own discharge,
Barbarette had prevailed on his fellows not to go on strike over the firing of
Brennan , a high school boy who had spent about 2 months in the department
and was let go for doing poor work . Supervisor Norman met with employee
lanno and readily discussed Brennan 's case , saying he was discharged for
doing poor work , but refused to discuss the reasons for Barbarette's dis-
charge.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as lateness , but the testimony indicated that the comments
of supervisors and written warnings were directed to those
who habitually exceeded the 6-minute leeway.
Supervisor Norman claimed at trial that employee
Barbarette 's lateness was worse than all others in the trans-
former department . The record did not sustain this claim.
As employee Fetiak testified, Barbarette had a better record
than most of the employees.
Using as typical the time and attendance records of the
transformer department employees for October, November,
December 1971, exhibits R-20(a)-(h), and Vice President
Steinberg 's testimony , it was shown that employee Barbar-
ette was over the 6 -minute leeway but twice in the 10 weeks
ending December 11; whereas, in the same period , employ-
ee Loss was over the leeway 10 times; employees Cabrera
and Fetiak were over the leeway 6 times each ; and employee
Olson was over the leeway 5 times . None of the latter four
employees was the subject of discharge , layoff, or even writ-
ten warning , for such tardiness .9
The evidence disclosed instances where Respondent had
issued written warning notices to employees who were fre-
quently late, but Barbarette was not in that category and
had never been given such a notice or warning. There was
also evidence of at least one case where an employee had
been discharged for constant lateness that included failure
to even come in or report. Vice President Steinberg testified
that Barbarette was not guilty of any such lapses, indeed,
had never been absent without official approval or being
excused.
Additionally there was considerable evidence that, plant-
wide, the problem of getting the employees in, and punched
in, at or before the starting times was a continuing , unsolved
problem , that in large measure stemmed from inadequate
available parking . Most of the employees had to depend on
automobiles to get to and from work, and Respondent had
provided for, and obtained immediate control of , only half
of the parking space needed when it moved from Mt. Ver-
non to its present plant location . Those employees with
unassigned parking scrounged for space elsewhere , includ-
ing some illegal parking, until Respondent acquired use of
a distant location from which it ran a station wagon-type
bus to bring in and take back those who parked there. The
conveyance was not always adequate or on time for the
number of people involved , and evitably there was waiting
and delays both morning and night, and some resultant
surreptitious morning punch-ins by some employees before
they parked (occasionally overlooked by sympathetic super-
visors, other times not).
As already indicated , under the discussion of the Com-
mittee supra, employee Barbarette , who was among those
that parked in the distant lot, was most vigorous in keeping
after Respondent to cure the parking and related problems.
Even prior to the formation of the Committee he had acted
as spokesman for a group of employees whose cars had been
vandalized at the distant parking lot, and had prevailed
9 If the timeclock punch-ins within the 6-minute leeway were included, as
Respondent contended was proper under the "book" rule in testing lateness
for Barbarette , the record of all of the employees would look proportionately
worse . Applying the "book" test , rather than actual practice, to Barbarette
alone was discriminatory.
upon management , Vice President Steinberg specifically, to
provide a guard if the employees were to continue to park
their cars in the distant place, called Pathmark. Obviously,
Barbarette did not endear himself to Steinberg and manage-
ment by continuing to insist in the Committee meetings of
September 24 and November 1 on a better solution for
employee parking than Pathmark.
Alleged work incompetence: Supervisor Norman testified
that all of the employees, including himself, have committed
and commit errors in their work. Employee lanno, who
spent a great deal of his time testing the work product of the
employees in his department, testified that the range of
errors encompassed from 1 to 2 percent of the work per-
formed. He explained that these were not all human work
errors, as such, but were often the coincidental result of the
method of production or faulty design. As a result, certain
designed protections might be destroyed or eliminated in
the production process or not function as designed, and a
faulty transformer would be produced that might short cir-
cuit on individual testing or when placed into units with
other transformers. lanno said he had never found an error
in Barbarette 's work.
Employee Barbarette conceded that in his 3-1 /2 years of
work he made some errors, and that one of them occurred
about 2 weeks before his discharge on a group of eight
transformers that together comprised a module. He had
inserted the diodes backwards in the transformers, but un-
fortunately this did not show up on initial individual testing
of the transformers, and was discovered in testing the mo-
dule as a unit in a larger unit. Engineer Feldman and Super-
visor Norman advised Barbarette of the mistake. Because
the transformers had undergone a protective baking pro-
cess, called "randacing," they could not be taken apart for
correcting the position of the diodes (as they might have
been if the protection was wax). The module functioned, but
not at the designed output, and could be used in a rede-
signed unit ; hence it was laid aside, and not destroyed.
Vice President Steinberg said he heard of Barbarette's
error from Supervisor Norman and Vice President Bergman
the day before he, Steinberg, directed Barbarette's dis-
charge, but conceded he made no inquiry as to when it
happened. Steinberg claimed that it was this "inexcusable
error," plus Barbarette's "wandering around," added to the
other alleged causes, that precipitated the discharge, and
that the error cost Respondent well over $2,000 and more
nearly $300 to $400 per transformer.
On cross-examination of Steinberg, it appeared that both
of these figures of cost were exaggerated,' and indeed ficti-
tious, since he finally admitted he didn't know the cost when
he told the Board it was $300 to $400 per transformer. It was
10 For example, on labor cost , which was the principal cost item, Steinberg
said he used a 25 -hour manufacturing time per transformer at $10 per hour
or a $250-per-transformer labor cost On a breakdown of the time by process,
using the figures he supplied , the time might be as low as 73 /4 hours and
no higher than 17-1/2 hours per transformer . He then admitted that he was
not familiar with the details of the manufacturing process and used 25 hours
as a "general" figure , in effect , picked out of the air.
In contrast, employee Barbarette, who did the work and knew the whole
process, testified he spent a total of 6 hours on all eight transformers , less than
I hour each, and totaled the work of winding , randacing, silk-screening, and
soldering on a punted circuit board at 55 to 60 minutes each (baking for an
additional I to 2 hours did not use up man -hours), for a total of approximate-
ly 14 hours for all eight transformers , or less than 2 hours per transformer.
ASTROSYSTEMS, INC. 57
obvious from his testimony , including admissions, that
Steinberg was the least qualified of any of Respondent's
witnesses to present the evidence on the nature and extent
of the error. The fact that he made the presentation when
those more familiar with the manufacturing process, such as
Vice President Bergman , Foreman Palasak , and Supervisor
Norman were present and testified , but were silent on this
subject, suggests not only exaggeration of the error for pur-
poses of this case, but that when the error was discoveted
it was in the same category and treated like others of the
human errors occasionally made by the best of the employ-
ees and routinely handled , as was the practice , by having the
supervisor alert the employee to the mistake . The evidence
establishes that nothing more than this was done at the time.
There was no discussion of the matter with Barbarette by
Bergman , Smith , or Palasak of the manufacturing supervi-
sory group, or indeed by Steinberg, nor were any warnings
written or oral given to Barbarette.
In this connection , employee Cusato , whom Supervisor
Norman said he regarded as a very competent employee,
testified that he made errors in his work and that Norman
would caution him on these occasions , but there was noth-
ing more.
Supervisor Norman testified that he had also regarded
employee Barbarette as a good worker but later changed his
opinion . He claimed to have warned Barbarette that he was
doing slow poor work, but there was no evidence of this
other than Norman 's generalization on the subject, and ad-
mittedly no warnings or comments in Barbarette 's file on
slow or poor work or regarding work errors, though Vice
President Steinberg testified that such warnings had been
issued to other employees . In addition , Vice President Berg-
man, who worked directly with Barbarette, testified that he
saw and talked with employee Barbarette two or three times
per week , and had never said anything to him about dissatis-
faction with his work.
Barbarette had engaged in discussion with his supervi-
sors, particularly Manufacturing Manager Al Smith, about
what he felt were inadequate pay raises, both before and
after several of the semiannual merit wage reviews.
Barbarette's early semiannual wage raises had been at the
rate of 20 cents per hour. When he took on the extra task,
or double duty, as he called it, of calibrating Respondent's
instruments, he was told this would be taken into account
and reflected in his future raises. When his May 1970 raise
was again only 20 cents per hour , he said he was giving up
the double duty. Vice President Bergman testified that,
when Barbarette stopped doing the calibrations because of
the unsatisfactory wage raise , he and Barbarette's supervi-
sor expressed disappointment, but agreed to it and took no
disciplinary action. Indeed, said Bergman, Barbarette con-
tinued to receive wage raises semiannually thereafter. How-
ever, in the November 1970 wage raise , Barbarette received,
and was told by Manufacturing Manager Al Smith that he
was receiving, only half of the previous 20-cent raise since
he wasn't going to do the "double" duty. Barbarette com-
plained again to Smith when the May 1971 merit raise for
him was again 10 cents per hour. Smith told him, said Bar-
barette, that it was only 10 cents because of his attitude, that
he was capable of doing a lot more. Nevertheless, in the
same conversation , Smith offered Barbarette the position of
night supervisor of the transformer department, if he was
interested . Barbarette said he would think it over.
Barbarette talked with Supervisor Norman, who indica-
ted that Smith 's position on the raise was the result of
Norman 's report to Smith . Barbarette suggested that Nor-
man keep a log on his work , but Norman declined, and
thereafter there was no mention of slow work or output to
Barbarette (as he testified, without contradiction). In this
connection , Barbarette also testified that there never had
been any discussion or indication on how long the perfor-
mance of any job should take.
Use of telephone: Under the charge that employee Barbar-
ette made excessive use of the telephone , Vice President
Steinberg asserted that among the employees Barbarette
was the greatest user of the telephone on company time
without permission . In support of the assertion , Steinberg
first claimed he had reproved Barbarette for such calls a
number of times, but later changed this to "at least twice,"
and could only recall the one occasion to which Barbarette
had previously testified . This occurred , said Barbarette, in
June 1971, the day after the Union had filed the petition
with the Board for a representation election. He said he had
gone to the pay phone to call his wife on an insurance
matter , when Steinberg interrupted to ask Barbarette if he
was on breaktime; whereupon, said Barbarette, he did not
complete the call and went back to his work area. This was
the only occasion , said Barbarette , and there was no other
rebuke for use of the telephone until 6 months later, lt on
December 8, 1971, 2 days before his discharge . Barbarette
said he was summoned to the pay phone in the cafeteria by
employee Rose Simmons . It was a minute before his morn-
ing breaktime, according to Barbarette , and the caller was
his wife. He told her she was early and that he would call
her back, and did, on his breaktime. That same day Supervi-
sor Norman spoke to him, and said he had heard that Bar-
barette used the phone in off-breaktime . Barbarette
explained how he came to be on the phone, he said, where-
upon Norman told him he was being warned.
Respondent's handbook of conduct for employees (ex-
hibit R-2, promulgated September 10, 1971) contains a rule
on use of telephones , at page 6, which is a repetition of the
rule as it appeared in the handbook of 1967 (exhibit R-3).
It states that company phones are for business only, that a
pay phone is in the cafeteria for outgoing personal calls on
breaktimes only, and that no incoming personal calls will be
accepted unless they are of an emergency , nature.
Vice President Steinberg's executive secretary Mulvey ex-
plained that Respondent's longtime policy, going back to
the time the plant was in its former Mt. Vernon location,
was not as stringent as the written rule, Thus, contrary to
the written rule, the pay phone in the cafeteria was used on
breaktimes to receive incoming personal calls (as well as
making outgoing personal calls), and if an employee's
spouse called there was no emergency requirement for tak-
ing the call even on the supervisor's telephone. Many of the
other employees testified in support and none testified to
the contrary. For example, employee Cusato testified that
he regularly received incoming calls from his fiancee on
li It will be recalled that the alleged "verbal warning" of November 1,
1971, by Supervisor Norman was found to be a fabrication, supra
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
breaktime on the cafeteria pay phone , and got other calls on
Supervisor Norman 's phone on nonbreaktime . There was
also testimony that employees used the pay phone for out-
going calls on nonbreaktime , and were not discharged or
disciplined.
Employee Barbarette testified that following the June
1971 reproof by Steinberg , he, Barbarette , was being very
careful and used the phone sparingly . It was admitted that
he never was given a written warning concerning use of the
telephone.
Attitude: By employee Barbarette 's attitude , said Vice
President Steinberg , he meant Barbarette 's wearing of
chains , wandering around , whistling "Hail to the Chief,"
and coming late to work after getting permission to start
late.
Steinberg admitted he never discussed the wearing of the
chains (which followed the order confining Barbarette, Ian-
no, and Fetiak to their work area, discussed supra), or the
whistling , with Barbarette or the other employees of the
department , nor, as further admitted , did Steinberg direct
Supervisor Norman or any other supervisor to talk to Bar-
barette or the other employees about either matter , notwith-
standing Steinberg 's claim at trial that a government
inspector and a customer commented on both subjects un-
favorable to him. If unfavorable comment had been made
to Steinberg from such sources, it is quite obvious from the
train of events in the November-December 1971 period that
Steinberg would not have let the matters pass without chal-
lenge and taking action . It is more likely that , at the time,
those in any way concerned treated the matters as a bit of
harmless humor on the part of lively young people. There
is direct evidence of this in the case of Supervisor Norman.
Moreover , there is no evidence that the whistling was direct-
ed at Steinberg, other than his claim . Whatever evidence
there was indicated that "Hail to the Chief" was directed at
employee Barbarette , who joined in the whistling.
The claim that Barbarette was guilty of "wandering
around" had no concrete support in the evidence , and obvi-
ously stemmed from the dubious circumstances and warn-
ing of November 3, 1971, already thoroughly considered.
Likewise without merit was the claim that Barbarette was
guilty of tardiness, made even worse , it was said, because he
had been granted a special privilege to start his day later.
The evidence already reviewed indicated that Barbarette
had a good record for reporting on time and that the alleged
special privilege for him was no more than a choice of
starting times , of which employees other than Barbarette
availed themselves.
Supervisor Norman said that he included in his meaning
of Barbarette 's attitude , the attitude of Barbarette to other
employees , which Norman characterized as abusive. Be-
yond this bland assertion by Norman, there was no support-
ing evidence , and much to the contrary . There was
considerable evidence , some already noted , that employee
Barbarette was most helpful to his fellow employees in the
performance of their work , that they sought and followed
his advice on work problems , and that he made available to
them diagrams and charts that he had prepared for his
personal use in simplifying work procedures on particular
jobs. Supervisor Norman admitted that the employees of his
department and the neighboring department had unan-
imously chosen Barbarette to be their Committee represent-
ative . Moreover, Norman conceded he had not mentioned
anything about abuse of other employees to Barbarette or
to Vice President Steinberg , who claimed responsibility for
firing Babarette.
C. The 8(a)(1) and (3) Findings
The foregoing analysis of the evidence , including scrutiny
of Respondent's alleged reasons for the discharge of em-
ployee Barbarette and for the other disparate treatment
accorded him prior to discharge , and accorded his fellow
employees lanno and Fetiak at about the same time, dis-
closes an attempt by Respondent to cloak its actions, taken
to curtail union and concerted activities by the employees,
in a cover of alleged violations of plant rules and work
discipline.
The inference , if not the fact, emerges that Respondent,
in particular Vice President Steinberg, concluded on or
about November 1, 1971, that it was time to be rid of the
"troublemaker" Barbarette , whose previous prounion activ-
ities and then current vigorous pursuit of collective employ-
ee aspirations through the employees ' Committee foretold
a renewed demand for recognition or election of the Union
as the employees ' representative in collective bargaining, or
possible use of the Committee for a like purpose.
Barbarette's persistence became clear in the November 1
meeting of the Committee with management , where he re-
newed his complaint of the September 24 meeting , concern-
ing inadequacy of wage raises to meet the cost -of-living rise,
and challenged the correctness of Vice President Steinberg's
figures and the aptness of his comparisons to a competitor
company . Barbarette also continued his attack upon the
shortage of close -in parking facilities and the attendant
need to extend late punch-in privileges . When the meeting
broke up , Barbarette told Steinberg's executive secretary,
Mulvey, that Steinberg's figures on wages demonstrated the
employees' need for a union.
Two days later, with the aid of Foreman Palasak , Super-
visor Norman , and Executive Secretary Mulvey , Vice Presi-
dent Steinberg figuratively pounced upon employee
Barbarette for an alleged infraction of plant rules (leaving
his work area without permission) when he left his work
area to complete an item of Committee business (to procure
satisfactory food vending machines for the employees) that
management had left to the employee Committee 's discre-
tion . The alleged infraction rested upon an unjustified
charge that Barbarette was out of his area without permis-
sion . The history indicated an absence of need for permis-
sion , generally, and in this situation , specifically. Foreman
Palasak, at the time, had accused Barbarette of using the
occasion to talk union business, and at trial Steinberg indi-
cated that he had shared a similar belief, notwithstanding
all of the objective evidence before Steinberg was that Bar-
barette was doing the Committee business.
Vice President Steinberg used the incident to issue a "Fi-
nal Warning" to Barbarette , preliminary to discharge. The
warning stated , without basis in fact , that Barbarette had
been guilty of repeated previous unauthorized absences. To
create the appearance that there had been some previous
warning justifying the label "Final Warning," Steinberg
ASTROSYSTEMS, INC.
caused to be put in Barbarette 's file, on the same day, No-
vember 3, a paper entitled "Verbal Warning," purporting to
indicate that 2 days earlier, on November 1, Supervisor
Norman had given Barbarette a verbal warning for contin-
ual and excessive use of the pay phone during working
hours without permission . Both the alleged claim of exces-
sive use of the phone without permission , and of giving a
verbal warning on November 1, were false.
The "Final Warning" was shortly followed with an order
forbidding employee Barbarette from leaving his area for
even the normal working purposes that required movement
between departments , and restricting any movement from
the area without special permission of his supervisor. The
same restriction was later imposed on employees lanno and
Fetiak , who had been openly associated with Barbarette in
the organization and campaign for the Union , and who
were known to be then attending the Union 's leadership
training classes with Barbarette . lanno was also Committee
alternate for Barbarette , and Fetiak had been runnerup.
These restrictions on movement were not applied to other
employees of the department or to the plant generally.
About the same time , beginning in November and contin-
uing into December 1971, Respondent cut off employees
Barbarette , Ianno, and Fetiak from the performance of any
of the transformer department overtime work , in which they
had always shared , and assigned it all to two less expe-
rienced or less senior employees of the department who
were not supporters of the Union and , in the case of at least
one of them, were openly opposed to the Union.
In light of Respondent 's union animus, both actions, re-
stricting the normal plant movements of employees Barbar-
ette, Ianno, and Fetiak , and denying them overtime work,
were discriminatory changes in the conditions of their em-
ployment, designed to discourage them and other employ-
ees from participation in or support of union activities and
membership in the Union, in violation of Section 8(a)(3)
and (1) of the Act.
On December 8, 1971, Supervisor Norman gave employ-
ee Barbarette an oral warning because he had gone to the
telephone , 1 minute before his breaktime, in order to answer
an incoming call from his wife, for which he was summoned
to the phone by another employee. While the warning could
be justified under strict application of the written plant rule
that forbade acceptance of all incoming personal calls un-
less of an emergency nature, the actual plant practice was
much more relaxed and incoming personal calls were ac-
cepted on and off of breaktimes, on both the cafeteria pay
phone and the supervisor's phone, particularly when the call
was from the employee 's spouse . Hence it was obvious that
Barbarette 's supervisor -was discriminatorily applying the
"book" rule to Barbarette that was not applied to other
employees, in giving him the warning . While this discrim-
inatory oral warning was not charged by the complaint as
a violation of the Act as such, it is indicative of the sharp
surveillance under which employee Barbarette was kept in
this period of his employment, in the hunt for disciplinary
reasons upon which to rest the discharge.
Abruptly at the end of the day on December 10, 1971,
without any apparent triggering cause , employee Barbarette
was told he was fired and ordered off the premises. He was
refused written reasons for his discharge, and had to write
59
them down himself; and discussion of the reasons with his
fellow employees was refused on their inquiry to manage-
ment . The manner of effectuating the discharge indicates,
as already suggested , that it had been predetermined at least
as far back as the beginning of November when a pretextual
base was laid. The refusal to give unequivocal reasons, in
writing, or discuss reasons, at or about the time of discharge,
coupled with the fact that the reasons given at trial were
different from, or embroidered upon, what was told Barbar-
ette upon discharge , suggests afterthoughts by Respondent
to camouflage the true reason for the discharge.
The reasons given at trial for discharge of employee Bar-
barette largely reflect an attempt , without justification by
Respondent, to discredit the performance of an able em-
ployee who performed creditably for Respondent over a
period of 3-1/2 years.
As analyzed above, the claim of lateness in reporting for
work was not sustained by the evidence; on the contrary,
employee Barbarette had a good time and attendance rec-
ord that was better than most of his contemporaries in the
transformer department.
The claim of incompetence , including slowness, in his
work was without foundation and refuted by employee
Barbarette's record. From a start as a new employee in
mid-1968, he had risen to become the highest paid and most
versatile employee in his department at the time of his dis-
charge in December 1971. Barbarette typically worked on
five or six transformer jobs at a time, interrupted from time
to time by requests from the vice president in charge of
manufacturing and the engineering department, to run spe-
cial tests and experiments with transformers for unusual
applications. In addition he checked out units and wiring of
switches , helped pioneer new jobs with the engineering de-
partment, and took on the special task of calibrating
Respondent's instruments and test equipment. He prepared
his own charts to simplify performance of work and made
them available to fellow employees, along with other advice
and help on specific work problems, and he prepared a
six-page manual for workers in his department, on which he
was contemplating further work. He frequently worked
overtime to complete his regular and special assignments.
Barbarette had been considered for promotion to supervi-
sor of his department in competition with an employee who
had 2 years more seniority and experience , and later was
offered a night supervisorship which he declined . The latter
offer followed his complaints to his supervisors about inad-
equate pay raises, and their countergripe that he was not
putting out all of which he was capable, after he asked for
and was given relief from doing the calibrations because of
the inadequate pay raise.
This bickering over the size of pay raises, which com-
menced after the May 1970 merit wage review and ceased
with the May 1971 review, was the apparent source for
Respondent's allegations , at trial, of incompetent work. The
allegations were an obvious distortion of what had been the
pay raise issues between Barbarette and his supervisors,
because incompetent work would not have earned the pay
raises granted him semiannually (bearing in mind that for
other employees the raises were frequently less in size or
even wholly omitted), and would not have earned him the
offer of a promotion.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After discharge of Barbarette, and at trial, Respondent
made a point of exaggerating the magnitude of a work error
he committed in late November 1971, as part of the showing
of alleged incompetence. As already stated, the exaggera-
tion suggests that but for Respondent's desire to make a
case for discharge against Barbarette on grounds other than
the true grounds, this would have remained no more of an
error in kind and size than is expected and occurs in a
percentage of Respondent's work in the transformer depart-
ment, committed by all of the employees, including the best
of them. The evidence showed that Barbarette was one of
the best and made few errors, and that he was routinely
alerted to the error in this case by his supervisor and an
engineer, without any discussion or warning then or later on
the part of the managing supervisors in manufacturing or
elsewhere.
The claim that employee Barbarette made excessive use
of the plant pay phone on working time without permission
was also without foundation. There were only two instances
established, and these were the two occasions, 6 months
apart, in June and December 1971, testified to by employee
Barbarette himself. Indeed, the second instance, on Decem-
ber 8, 1971, was in connection with an incoming call, for
which Barbarette was summoned to the phone, and for
which, as noted above, his supervisor discriminatorily ap-
plied the "book" rule on incoming calls that was not applied
to other employees, in giving him an oral warning.
The problems that Vice President Steinberg and Supervi-
sor Norman said they had with employee Barbarette's "atti-
tude" were, as already shown, matters not discussed with
Barbarette and largely afterthoughts in the overall attempt
to discredit Barbarette's strong record as a good employee.
What comes through, from the summarization of the ar-
ray of groundless reasons for discharging Barbarette,
against the background of the rest of the record, is the clear
inference that the array was a facade to conceal
Respondent's determination that, no matter how able and
competent an employee Barbarette might be, he would not
be permitted to stay on as an employee because he was also
emerging as a capable and influential leader among the
employees for unionization, or for like objectives through
the employee Committee. There appears to be no other
reasonable explanation. The discharge of employee Barbar-
ette, because he engaged in union or concerted employee
activities and to discourage other employees from engaging
in such activities or from union membership, was a violation
by Respondent of Section 8(a)(3) and (1) of the Act. See the
holdings in N.L.R.B. v. Ulbrich Stainless Steels, Inc., 393
F.2d 871, 872 (C.A. 2, 1968), that the stated ground was not
the real ground for the discharge; Shattuck Denn Mining
Corp., 362 F.2d 466, 470 (C.A. 9, 1966), that the stated
ground was designed to conceal the unlawful motive; N.L.
R.B. v. Georgia Rug Mill, 308 F.2d 89,91 (C.A. 5, 1962), that
the employer's shifting explanations for the discharge
strengthened the conclusion that the true reason was the
employee's union activity; and N.L.R.B. v. Jamestown Ster-
ling Corp., 211 F.2d 725, 726 (C.A. 2, 1954), that, even if the
discharge was only partially motivated by the discriminato-
ry reason, it was in violation of the Act.
Respondent also violated Section 8(a)(1) of the Act by
engaging in acts of surveillance, including interrogation of
employees , and creating the impression of surveillance of
them, to discourage union or concerted activity, both before
and after the representation election . In this category of
violation was the supervisory staff's surveillance , or convey-
ing the impression thereof , of employees Barbarette , Ianno,
and Fetiak in the post-November 3 period; the preelection
questioning by Foreman Palasak and Supervisor Stark of
employee Wilhelms concerning the union literature that was
distributed, and his opinion of the Union; Foreman
Palasak's accusation of employee Drotos that he was "con-
spiring" with Wilhelms; and Supervisor Brown 's question-
ing employees as to why they wanted the Union. N.L.R.B.
v. L E. Farrell Co., 360 F.2d 205, 207 (C.A. 2, 1966).
CONCLUSIONS OF LAW
1. By denial of overtime to three employees, by discrim-
inatorily restricting their movements in the plant, and by
discharge of one of them, because of their activities in sup-
port of the Union and of similar concerted action through
an employees' Committee, and in order to discourage such
activities or union membership of employees, Respondent
has engaged in unfair labor practices within the meaning of
Section 8(aX3) and (1) of the Act.
2. By engaging in surveillance, including interrogation of
employees, and creating the impression of surveillance of
them, concerning their union and concerted activities and
to discourage such, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
3. The unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It will be recommended that the Respondent:
1. Cease and desist from its unfair labor practices.
2. Offer to reinstate employee Barbarette with backpay
from the time of his discharge, backpay to be computed on
a quarterly basis as set forth in F. W. Woolworth Company,
90 NLRB 289 (1950), approved in N.LR.B. v. Seven-Up
Bottling Co., 344 U.S. 344 (1953), with interest at 6 percent
per annum as provided in Isis Plumbing & Heating Co., 138
NLRB 716 (1962), approved in Philip Carey Mfg. Co. v.
N.LR.B., 331 F.2d 720 (C.A. 6, 1964), cert. denied 379 U.S.
888.
3. Make employees Barbarette, lanno, and Fetiak whole
for loss of overtime pay in November-December 1971, with
interest, computed as in paragraph 2 above.
4. Post the notices provided for herein.
Because the Respondent by its conduct violated funda-
mental employee rights guaranteed by Section 7 of the Act,
and because there appears from the manner of the commis-
sion of this conduct an attitude of opposition to the pur-
poses of the Act and a proclivity to commit other unfair
labor practices, it will be recommended that the Respon-
dent cease and desist from in any manner infringing upon
the rights guaranteed by Section 7 of the Act. N.LR.B. v.
Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941); N.L.R.
B. v. Bama Company, 353 F.2d 323, 324 (C.A. 5, 1965);
P. R. Mallory and Co. v. N. L. R. B., 400 F.2d 956, 959, 960
(C.A. 7, 1968), cert. denied 394 U.S. 918.
ASTROSYSTEMS, INC.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is hereby issued the following recommended:
ORDER 12
Respondent, Astrosystems, Inc., Lake Success, New
York, its officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discharge of employees because they engage in or
support union or lawful concerted employee activities.
(b) Denial of overtime to employees who engage in or
support union or other lawful concerted employee activities.
(c) Discriminatory restriction on movement about the
plant of employees who support or favor union or other
lawful concerted employee activities.
(d) Discouraging employees from support of or member-
ship in the Union or other labor organization by discharge,
refusal to recall, denial of overtime, discriminatory re-
strictions on movement about the plant, or other discrim-
ination affecting their tenure and conditions of
employment.
(e) Coercively interrogating employees concerning their
union sympathies.
(f) Engaging in surveillance , or creating the impression of
surveillance, of employees who engage in or support union
or other lawful concerted employee activities.
(g) In any other manner interfering with , restraining, or
coercing employees in the exercise of their rights guaranteed
under Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Make employee John Barbarette whole , in the man-
ner set forth in the section of this Decision entitled "The
Remedy," for any loss of earnings incurred by him as a
result of his discharge on December 10, 1971; and , in similar
manner, make employees Barbarette , John Ianno, and Mi-
chael Fetiak whole for their respective loss of earnings re-
sulting from the denial of overtime to them in November
and December 1971.
(b) Offer to employee Barbarette immediate and full re-
instatement to his former job or, if the job no longer exists,
to a substantially equivalent position , without prejudice to
his seniority or other rights and privileges.
(c) Preserve and, upon request , make available to the
Board and its agents, for examination and copying , all pay-
roll records, social security payment records , timecards, per-
sonnel records and reports , and all other records necessary
to ascertain the backpay due under the terms of this Order.
(d) Post in its plant at Lake Success, Long Island , copies
of the attached notice marked "Appendix." I Copies of said
notice, on forms provided by the Regional Director for
Region 29, after being duly signed by Respondent 's author-
ized representative , shall be posted by Respondent imme-
diately upon receipt thereof, and be maintained by it for a
period of 60 consecutive days thereafter , in conspicuous
places, including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, de-
faced , or covered by any other material.
(c) Notify the Regional Director for Region 29, in writ-
61
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
12 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Relations Board , the findings, conclu-
sions , and recommended Order herein shall, as provided in Sec . 102.48 of the
Rules and Regulations , be adopted by the Board and become its findings,
conclusions , and Order, and all objections thereto shall be deemed waived
for all purposes.
13 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."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge you because you engage in or
support union or other lawful concerted employee ac-
tivities.
WE WILL NOT deny you overtime because you engage
in or support union or other lawful concerted employee
activities.
WE WILL NOT discriminatorily restrict your move-
ments about the plant because you support or favor
union or other lawful concerted employee activities.
WE WILL NOT discourage you from support of or mem-
bership in the Union or other labor organization by
discharge , refusal to recall , denial of overtime , discrim-
inatory restrictions on movement about the plant, or
other discrimination affecting tenure and conditions of
your employment.
WE WILL NOT coercively interrogate you concerning
your union sympathies.
WE WILL NOT engage in surveillance, or create the
impression of surveillance , of employees who engage in
or support union or other lawful concerted employee
activities.
WE WILL NOT in any other way interfere with your
rights to belong to or be active for a labor union, or
other employee organization for mutual self-help, or to
refrain therefrom.
Because the Board found that we unlawfully dis-
charged employee John Barbarette on December 10,
1971, and unlawfully denied him and employees John
lanno and Michael Fetiak overtime work in November
and December 1971, because each of them engaged in
union and other lawful concerted employee activities,
WE WILL offer Barbarette immediate and full rein-
statement to his former job or , if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges.
WE WILL give Barbarette backpay with interest from
December 10, 1971.
WE WILL pay Barbarette, lanno, and Fetiak for their
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respective loss of overtime earnings in November and This is an official notice and must not be defaced by
December 1971, with interest . anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
AsTROSYSTEMS , INC. or covered by any other material . Any questions concerning
(Employer) this notice or compliance with its provisions may be direct-
ed to the Board 's Office, 16 Court Street, Fourth Floor,
Dated By Brooklyn , New York 11241, Telephone 212-596-3535.
(Representative) (Title)