Erie Technological Products, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1975

218 N.L.R.B. 878 (N.L.R.B. 1975)

878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Erie Technological .Products, Inc. and International
Union of Electrical, Radio and Machine Workers,
AFL-CIO
Erie Technological Products , Inc., State College Plant
and International Union of Electrical, Radio and
Machine Workers, AFL-CIO-CLC, Petitioner.
Cases 6-CA-7115 and 6-RC-6599
June 26, 1975
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On November 13, 1974, Administrative Law Judge
Richard L. Denison issued the attached Decision in
this proceeding. Thereafter, Respondent and the
Charging Party filed exceptions and supporting
briefs, the General Counsel filed limited cross-excep-
tions and a brief in support thereof, and Respondent
filed a brief in answer to the General Counsel's and
`Charging Party's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, fmd-
ings,1 and conclusions of the Administrative Law
Judge and to adopt his recommended Order as
modified herein.
We agree with the Administrative Law Judge that
Respondent violated Section 8(a)(1) and (3) of the
Act by the transfer of employee Ruth Dewitt and
that Respondent violated Section 8(a)(1) of the Act
by issuing employee Robert White a written warning
entitled "Preview of technical qualifications prior to
6 month review," creating the impression that his
union activities were under surveillance, and placing
him on 30 days' probation.
However, we also fmd, contrary to the Administra-
tive Law Judge, that the interrogation of White by
Supervisors Richard Brewer and Donald Wilklow in
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule 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 General Automation Manufacturing Incorporated 167 NLRB 502
(1967).
Member Jenkins would also find a violation of Sec. 8(a)(1) in
Respondent's announcement of proposed pension benefit improvements on
218 NLRB No. 126
the latter's office on November 5, 1973, violated
Section 8(a)(1) of the Act.
It is undisputed that at the November 5 meeting
White was asked by the two supervisors why he
supported the Union . Notwithstanding the evidence
that the ensuing discussion took place in a friendly
atmosphere, we fmd that such an interrogation had
no legitimate purpose and was not accompanied by
any assurance against reprisal . Accordingly, we find
that the interrogation was coercive and therefore
violated Section 8(a)(1) of the Act .2
The Administrative Law Judge , on the basis of the
unfair labor practices committed by Respondent
during the critical period between the date the
petition was filed in Case 6-RC--6599 and the date of
the election therein, recommended that the election
be set aside. We adopt this recommendation. In so
doing, however, we rely solely on the objectionable
conduct committed during the critical period, includ-
ing the additional violation of Section 8(a)(1) found
herein, and we do not rely on evidence of alleged
misconduct committed prior to the - filing of the
petition . Thus, we disavow the Administrative, Law
Judge's statement in footnote 29 of his Decision that
his recommendation to set aside the election is
supported by the background of other unfair labor
practices which were committed outside the critical
preelection period.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified herein, and hereby orders that Respondent,
Erie Technological Products, Inc., State College,
Pennsylvania, its officers, agents, successors, and
assigns , shall take the action set forth in the said
recommended Order, as so modified:
1. Insert the following as paragraph 1(b) and
reletter the subsequent paragraphs accordingly:
"(b) Coercively interrogating employees with re-
spect to their union or other protected activities."
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT Is HEREBY FURTHER ORDERED that the election
held on November 8, 1973, in Case 6-RC-6599 be,
October 22, shortly before the November 8 election. Despite Respondent's
claim that the pension changes were decided upon before the union
organizational campaign commenced on August 20, the fact is that they
were not included in Respondent 's August 17 notices of proposed wage
increases . The timing of the announcement , 17 days before the election,
plainly had a tendency to interfere with the employees' freedom of choice.
Since the increased benefits were not to be effective until January 1, 1974,
this early announcement on October 22, in the absence of some explanation
of the necessity therefor, is an unlawful attempt to interfere with the
election.
ERIE TECHNOLOGICAL PRODUCTS
and it hereby is, set aside, and that said case is
hereby remanded to the Regional Director for
Region 6 to conduct a new election at such time as
he deems that the circumstances will permit the free
choice of a bargaining representative,
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties ha the
opportunity to present their evidence, it has been
decided that we violated the law and we hav been
ordered to post this notice . We intend to car^y out
the Order of the Board and abide by the foll ng:
WE WILL NOT transfer , place on proon,
issue written warnings or performance
Previews , or otherwise punish employees be-
cause they engaged in union activities or co cert-
ed activities for their mutual aid or protection.
WE WILL NOT coercively interrogate employees
with respect to their union or other proiJected
activities.
WE WILL make Ruth DeWitt whole for any loss
of earnings she may have suffered during the
period of her transfer to Plant 4.
WE HEREBY RESCIND our actions in issuing to
Robert White a "Preview of technical qualifica-
tions prior to 6, month review" and in placl4g him
on 30-day probation , and will removi 6 any
documentation relating to these actions from his
personnel file.
WE WILL NOT unlawfully restrict employees'
access to and contacts with other employees for
the purpose of interfering with , restraining, or
coercing them in the exercise of their rights under
Section 7 of the Act.
WE WILL NOT threaten employees that their
union activities are known to us, thereby creating
an impression that their union activities are under
surveillance.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights guaranteed in Section 7 of
the Act.
1 All dates are in 1973 unless otherwise specified.
2 Only events occurring between the date of the filing of the petition and
the date of the election may serve as a basis for objections to an election.
Ideal Electric and Manufacturing Company, 134 NLRB 1275 ( 1961).
Respondent's contention at the outset of the hearing that the formal
documents in the case should contain the request to proceed filed by the
879
All our employees are free to engage in union
activities or concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion. Our employees are also free to refrain from any
or all such activities.
ERIE TECHNOLOGICAL
PRODUCTS, INC.
DECISION
STATEMENT OF THE CASE
RICHARD L. DENISON, Administrative Law Judge: This
consolidated proceeding, under Section 10(b) and Section
9 of the National Labor Relations Act, as amended, was
heard, pursuant to due notice, before me, on June 26, 27,
and 28, 1974, in State College, Pennsylvania.
The original charge in Case 6-CA--7115 was filed on
November 19, 1973, by the Charging Party-Petitioner, and
was thereafter amended on November 30, 1973, and March
26, 1974, respectively.' The complaint, originally issued on
March 29, 1974, and further amended at the hearing,
alleges that the Respondent-Employer has violated Section
8(a)(1) of the Act by conduct consisting of granting
employees wage and pension increases, interrogation,
restricting employees' access to other employees, threats, a
compulsory transfer, the denial of a "full increase" to an
employee, the issuance of a written warning termed a
"Preview. . . ," and the placing of an employee on
probation. A portion of the above-described conduct,
namely, the transfer, denial of a "full wage increase,"
issuance of the "Preview. . . ," and placing of an
employee on probation, is also alleged as a violation of
Section 8(aX3) of the Act.
The petition for certification of representative by the
Board was filed in Case 6-RC-6599 on September 4, and
an election was held on November 8 pursuant to the
Regional Director's Decision and Direction of Election
issued October 4. The Charging Party-Petitioner filed
timely objections to conduct affecting the results of the
election on November 14 and by an order dated April 1,
1974, the Regional Director directed a hearing with respect
to objections Nos. 2, 3, and 4 which alleged in substance
that the Respondent-Employer (1) pursuaded employees to
vote against petitioner by granting wage increases and
benefits (2) interrogated employees about their union
activities, and (3) harassed and threatened retaliation
against employees because of their activities on behalf of
the petitioner.2
All parties were afforded a full opportunity to participate
in the trial and to argue orally. The General Counsel and
the Respondent have filed briefs which have been carefully
considered. Upon the entire record in the case and, from
my observation of the witnesses, I hereby make the
following:
Union, on the ground that this document operates as a waiver of the right to
file objections on charged unfair labor practice conduct preceding the filing
of the request to proceed, is without ment . The, Deutsch Company, 178
NLRB 616, 617 (1969); Lloyd A. Fry Roofing Co. Inc., 142 NLRB 673, 681
(1963); The Great Atlantic & Pac1frc Tea Company, 101 NLRB 1118, 1129-21
(1952).
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. JURISDICTION
The Respondent-Employer, Erie Technological Prod-
ucts, Inc., a Pennsylvania corporation, hereinafter called
Respondent, is engaged in the manufacture and nonretail
We of electrical component parts. Respondent operates
plants at three locations in Pennsylvania and has other
operations in Canada and Mexico. Only Respondent's
State College, Pennsylvania, plants, referred Wherein as
plants No. 1, 3, and 4, are involved in this proceeding.
During the past 12 months, a representative' period,
Respondent received at its State College, Pennsylvania,
plants goods and materials valued in excess of $50,000
directly from points outside the Commonwealth of
Pennsylvania. A§ admitted by the Respondent, based upon
the foregoing, I find and conclude that Respondent is now,
and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. LABOR ORGANIZATION
The Charging Party-Petitioner, International Union of
Electrical, Radio and Machine Workers, AFL-CIO,
hereinafter called the Union, is now, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. Supervisory Status
At all times material herein, the following named persons
occupied the positions set opposite their respective names,
and have been, and are now, agents of the Respondent
acting on its behalf, and have been, and are now,
supervisors within the meaning of Section 2(14) of the
Act.3
Gordon Farrell - Vice President of Industrial and
Community Relations; Lewis M. Palamara - Plant
Manager; Larry Heckman - Production Manager;
Carl Fomich - General Foreman, Plant No. 3; John
Rigo - Quality Control Manager; Elmer Stright -
MonoBlock Q.C. Supervisor; Richard Brewer -
Project 'Scientist; Donald Wilklow - Engineering
Manager ; Thomas Rhodes - Foreman
B. Background
A previous union campaign among Respondent's State
College, Pennsylvania, employees culminated in a rerun
election on November, 8, 1972, which the union apparently
lost. Thereafter, Ruth M. Dewitt and fellow employees on
the organizing conmittee kept in touch with Mr. Frank J.
Pugliano, the Union's area director, and discussed the
These findings are =based upon the pleadings , admissions , stipulations,
and where appropriate, the testimony of the individuals themselves
concerning their duties and responsibilities.
4 During this time DeWitt 's working hours were 7:30 a.m. to 4 p.m.
S Counsel for General Counsel's motion to correct the transcript at p.
116, 1. 23 to read "August 21" rather than August 31, unopposed by
Union with employees. Sometime in August DeWitt and
others decided to reactivate the committee in preparation
for another election campaign. At a meeting at the Holiday
Inn on August .13, attended by DeWitt and others with
Pugliano presiding, the formation of a committee was
discussed. At a second meeting on August 20, a supply of
authorization cards was furnished to DeWitt and two other
employees. DeWitt received between 200 and 300 blank
cards.
C. DeWitt Is Transferred
At the time the union campaign commenced in August,
Ruth M. DeWitt, who has been employed by Respondent
since March 11, 1957, was working as a quality control
inspector in the Monobloc Q.C. Department of plant 1.
The population of plant 1 is about 400 employees. Leona
Spangler, Virginia Billett, and Elmer Stright, DeWitt's
immediate supervisor, worked with DeWitt on the first
shift in a lab, an enclosed area about 18 feet long and 16
feet wide. Here DeWitt performed certain routine tests,
measurements , and inspections to insure the readiness of
the finished product for shipment. She obtained her
materials by making trips into the production area. The
entire quality control operations at Respondent's State
College plants is the responsibility of Quality Control
Manager John Rigo.
Immediately following the start of the union campaign,
as described in section III, B, above, DeWitt signed a card
and began soliciting card signatures from employees at
plant 1. Most of this activity was conducted in the morning
between 6:45 and 7:204 in the parking lot, work areas,
hallways, and the lunchroom. Approximately 20 to 30
employees returned signed cards to her at various times
before work, after work, during breaks, and during lunch
period. On August 21, Stright told DeWitt that Rigo had
instructed him to tell her not to go into the production area
to 'talk with employees on anything other than business.5
On August 27 employee Irvin Edward Fink returned some
union authorization cards to DeWitt as she stood in the
doorway of the lab. Supervisor Stright observed, this
activity from his desk a few feet, away .6 Later that day in
the afternoon, Stright told DeWitt that Rigo wanted to see
her in his office. There Rigo informed DeWitt that she was
to report to plant 4 the next morning as quality control
inspector replacing' Curt Krebs, who in turn was training to
assume Steve Harpster's job at plant 1 when and if
Harpster passed a Civil Service exam he had taken and left.
DeWitt protested stating that she did not want to go, but
when asked said she was not refusing to transfer. Rigo
stated that DeWitt could not have time "to think it over,"
as she requested, that the transfer was not an advancement,
involved no increase in pay, and that DeWitt could either
report to plant 4 at 7:30 a.m. or get out.7
On the morning of August 28, DeWitt reported to plant 4
where approximately 40 to 50 employees work divided into
Respondent , is granted
6 This finding is based on the credited testimony of DeWitt and Fink.
Stright did not testify.
T DpWitt's testimony about this conversation was much more detailed
and straight-forward than that of Rigo, who made only a passing reference
to it in his direct testimony . I credit DeWitt.
ERIE TECHNOLOGICAL PRODUCTS 881
two shifts. The Q.C. lab at plant 4 at that time differed
from that at plant 1 in that it was hot, dirty, and dangerous,
being surrounded by ungrounded high voltage equipment.
DeWitt testified that she was shocked many times between
August 28 and January 4, 1974, when DeWitt was
transferred back to her former job at plant 18 Further-
more, there was no overtime work at plant 4 as there had
been at plant 1.
General Counsel contends that DeWitt was transferred
to the much smaller plant 4 in order to inhibit her union
organizational activities.9 On the other hand, Respondent
contends that DeWitt's transfer was motivated by a
legitimate need to fill an "anticipated" opening in plant 4,
and by numerous employee complaints about difficulties in
working with DeWitt, including bickering and profane
name-calling. Thus, John Rigo testified that DeWitt went
to plant 4, and Krebs came from plant 4 to plant 1 to learn
Harpster's job in order to provide for the eventuality that
Harpster might leave if he passed a Civil Service examina-
tion he had taken. Rigo also testified that increasing
complaints about DeWitt "had come to the point that the
girls flat out said that they wanted transferred or that they
wanted her transferred."
Specifically, Rigo referred to complaints from Leona
Spangler and Virginia Billett, prior to August 28. Spangler
testified on direct examination that DeWitt hadcalled her
an S.O.B. because she had been permitted ° to work
Saturday overtime, and DeWitt had not.10 On. cross-
examination Spangler testified that DeWitt has been
making such remarks to Spangler at least a dozen- times
since Spangler first worked in the Q.C. monobloc lab in
1970. Virginia Billett testified that about every, week on
Thursday or Friday mornings DeWitt, would remark that
they should slow down in order, that there would be
overtime work on Saturday.1' DeWitt agrees , her perfor-
mance reviews from prior years confirm, and counsel for
General Counsel concedes, that for years DeWitt has had
problems in her relationships with fellow employees. At
times incidents occurred which resulted in an exchange of
profane name-calling. On one occasion as far back as 5
years ago Effy Harpster quit her job after such an incident
with DeWitt.
I find that DeWitt was transferred to plant 4 to inhibit
and minimize the impact of her union activities on
Respondent's employees in violation of Section 8(a)(3) and
(1) of the Act, and that the reasons espoused by
Respondent for her transfer are pretextual. This conclusion
is supported by evidence summarized above, and by the
record as a whole, as highlighted) by the following
significant considerations. First, it is undisputed, and
otherwise firmly established by documentary evidence and
oral testimony, that DeWitt's- problems with fellow
employees were known and tolerated by the Company for
8 On November 8 DeWitt served as the Union's observer at plant 4
during the representation election.
9 It is not alleged or urged that DeWitt's January 4, 1974, transfer back
to plant 1 was unlawful.
10 No time was specified for this incident.
11 Other incidents involving DeWitt testified by Billett, Helen Gandy,
Matthew Hayes, George Yearick, Charles Emeigh, and DeWitt herself are
immaterial to the allegations raised to the complaint since they occurred
after DeWitt's transfer on August 28. Nor does the testimony of these other
witnesses render incredible DeWitt's testimony concerning the events
13 years prior to the commencement of the union
campaign in August. Rigo testified that DeWitt had never
before been transferred because she had difficulty in
getting along with other employees because "if I trans-
ferred her, we would just move the problem." Second,
Respondent has not established that there occurred any
special incident immediately prior to the transfer which
was the "straw that broke the camel's back" with respect to
DeWitt's conduct toward other employees and motivated
Respondent to act. Although Rigo in his testimony
attempted to convey this impression through his reference
to complaints by Spangler and Billett about DeWitt, there
is no evidence that these complaints were in proximity to
the transfer. In fact, Spangler and Billett did not testify
that they ever complained to Respondent about DeWitt.
Third, the sudden and abrupt manner in which the transfer
was announced to DeWitt and effectuated the next
morning, following as it did closely on the heels of the
commencement of the union campaign and the observa-
tion of DeWitt's participation in card signing activities by
Stright, strongly points to an unlawful motive on Respon-
dent's part. Finally, the evidence concerning the highly
speculative prospect of Steven Harpster' s leaving Respon-
dent's employ, coupled with the fact that at the time
DeWitt was transferred the Q.C. lab in plant 1 was short-
handed necessitating the temporary transfer of employees
into the lab, also leads me to conclude that the transfer of
DeWitt, an experienced 'worker, was not based on any
compelling need for her services in plant 4. Instead,
Respondent was motivated to transfer DeWitt by a desire
to remove one of the Union's leading employee organizers
from their largest State College plant, a a location where
her activities would have little beneficial impact on the
Union's organizing drive, and I so fmd.12
D. The Petition Is Filed and a Wage Increase and
Pension Plan Improvements Are Announced
On September 4, the Union filed a petition, designated
6-RC-6599, seeking to represent the employees at Respon-
dent's State College plants. Pursuant to a notice signed by
General Manager Louis Palamara, posted on the Compa-
ny's bulletin boards August 17, declaring an intention to
announce a wage increase "this fall," a, wage increase
effective October 8 was announced by a notice dated
October 16, which contained data correlating the amount
of the increase with the date an employee was hired. This
same information was again posted on October 22, in the
form of a different notice which also announced for the
first time pension program changes providing for a
noncontributory plan and other pension changes effective
January 1, 1974. The complaint alleges that the announce-
ments of the wage increase and pension plan improve-
leading to her August 28 transfer.
12 At the hearing, at the conclusion of General Counsel's case,
Respondent moved that the allegation continued in paragraph 7(b) of the
complaint, as amended , that Ruth DeWitt failed to receive a full wage
increase about October 22, 1973. [sic] This motion, agreed to by counsel for
General Counsel, was granted.
The question, raised by counsel for General Counsel at the hearing, of an
alleged loss of overtime pay by DeWitt at plant 4 as compared to what she
might normally have received during the same period at plant 1, is a matter
to be disposed of at the compliance stage of this case.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments violate Section 8(a)(1) of the Act, in that they
constitute promises of benefit promulgated to dissuade
employees from joining or engaging in activities on behalf
of the Union. General Counsel's evidence consists entirely
of the three announcements described above, and the
testimony of Barbara Sauers that during the 1972 election
campaign at employee meetings Palamara stated that no
increase, could be given until after the election.13-
Gordon Farrell, the company's vice president of Indus-
trial and Community Relations, testified that in the fall of
1972 the Company- engaged the employee benefit consult-
ant firm of Hubbard-Bert, Inc., to review their pension
plan and make recommendations. In December 1972, then
Company President Walsh asked Farrell for his recom-
mendations for improvement of the salaried and nonbar-
gaining unit pension plan. Farrell submitted his recom-
mendations on December 22, 1972. Between January and
May 1973, Hubbard-Bert, Inc., conducted studies of
Respondent's plan. At a meeting on May 11, Hubbard-
Bert reported on these studies recommending the establish-
ment of two separate programs, one for salaried and
another for hourly rated employees. There followed a
number of meetings and telephone conversations between
Hubbard and Farrell throughout the remainder of May,
June, and July resulting in the submission of a final draft
proposal on August 15. On October 5, final approval was
given to the changes which were then communicated to the
managers, including State College Manager Palamara, at a
manager's meeting on October 10. The managers were
instructed to announce the changes as soon as possible
upon returning to their respective plants, giving January 1,
1974, as the effective date. This announcement was made
at Respondent's, unorganized group of plants, which
included the Carlisle, Pennsylvania, plant not involved in
this proceeding, and its organized plants in Erie, Pennsyl-
vania, where the changes were negotiated.
State College Division General Manager Palamara
corroborated Farrell's testimony concerning the plans for,
and implementation of, the pension plan changes. In
addition, Palamara testified that- the October 16 and 22
wage increase announcements had their genesis at the June
13 general, managers meeting with corporate officials.
Following this meeting, as is the custom, the managers are
afforded an opportunity to request a special meeting with
corporate, officials concerning any matter of importance to
their area of responsibility which may require individual
attention.,P;alamara requested and obtained a meeting with
Farrell and,Walsh at which he recommended consideration
of a wage increase for the State College plants. In
agreement, Walsh and Farrell set October 1 as, the effective
date of the proposed„increase, and suggested that Palamara
study the, appropriate amount of increase with 15 cents per
hour as a focal, point. These recommendations were
13 I find that Sauer's testimony in this respect has no probative value
with respect to the issue of whether the granting of a wage increase in 1973
was violative, especially when considered in light of the circumstances
testified to, without contradiction by the Company's witnesses as discussed
below.
14 Counsel for General Counsel's objection to the introduction into
evidence of the August 23 notice, as Resp. Exh. 11 , on ground that the
document not supplied, fell within the scope of item 5 of a subpoena daces
tecum served on Respondent by General Counsel prior to the hearing was
overruled . In General Counsel's brief, it is moved that all testimony relating
confirmed by a letter dated June 13, 1974, in evidence.
Upon Palamara's return to State College he initiated
studies in consultation with Plant Controller Dale Smith
and then Personnel Manager Ken Loudenslager. Since the
1972 wage increase had favored the less senior employees,
it was decided to weight the 1973 increase in favor of the
more senior workers. Following the July 16-23 vacation
week, various employees informed Palamara and Pro-
duction Manager Larry Heckman of their-desire for a cost-
of-living increase, orally, and by means of a written
petition.
Thereafter 'when the studies were completed, Palamara
called Gordon Farrell and arranged to meet with him and
Walsh in State College on August 14. At this meeting the
participants discussed the employee's petition, and statisti-
cal survey data prepared by the personnel department
indicating a high employee turnover. It was decided to
announce the Company's intention to grant a wage
increase in the fall. Thus, on August 17 the following
notice, signed by Palamara, was posted:
Dear Employees:
Some of you have expressed concern about the rising
cost of living and I certainly agree that we are all
affected by the problems arising out of the nation 7s
economic conditions.
The wage increases made last November were
included in our operating budgets for 1973. The
company must continue to operate within these
established budgets and is further limited by govern-
ment imposed wage and price controls.
We are constantly aware of competitive labor rates
throughout the State College area and we will give
every consideration to these and the "cost of living" in
establishing our operating budgets for 1974.
We are working on wage proposals for 1974 and plan
to announce a wage increase this fall.
In the meantime we are hopeful that the current
economic imbalance will ease for all of us.
Sincerely,
L.M. Palamara
General Manager
This notice was followed on August 23 by a second notice
which essentially repeated the initial announcement.14
Subsequent meetings between Palamara and Farrell
occurred on September 4 and 10, at which time a total
dollar amount for the increase was concluded. Following
another general managers' meeting during the week of
October 8 Palamara and Farrell finalized the distribution
allotment. On October 15 and 16, in meetings attended by
to Resp. Exh. 11 be stricken on the ground that the document was not
furnished to General Counsel when requested at the outset of the hearing
pursuant to the subpena. This motion is demed. As the subpena is worded,
it is questionable whether Resp. Exh. 11 is included under item S of General
Counsel's subpoena daces tecum. Certainly the subpena is not worded with
sufficient precision to warrant the exclusion of the exhibit under the
circumstances presented . Furthermore, early in the hearing , well before
Respondent sought to introduce its Exh. 11, General Counsel and
Respondent entered into a stipulation concerning the dates on which
Respondent granted wage increases.
ERIE TECHNOLOGICAL PRODUCTS 883
the employees, Palamara announced the increase and its
distribution, effective October 8.15 At these meetings
Palamara also discussed the revised pension program.
In his brief General Counsel describes Respondent's
exhibits concerning the planning of the wage increase and
pension charges as "self serving," and argues even
assuming such increases were "contemplated" before the
union campaign, the timing of their announcements in
October (since Respondent had not given an autumn wage
increase since 1965, and gave its 1972 increase after the
previous NLRB election) demonstrates an unlawful mo-
tive. The leading case of N.L.RB. v. Exchange Parts
Company, 375 U.S. 405 (1964); Glosser Bros. Inc., 120
NLRB 965 (1958); Texas Transport & Terminal Co., 187
NLRB 466, 468 (1970); and The May Department Stores
Co., 191 NLRB 928 (1971); are cited as supporting
authority. On the other hand, Respondent contends that
the General Counsel has not sustained his burden of proof
in that DeWitt's testimony established that the union
campaign began on August 20, and the uncontroverted
testimony of Farrell and Palamara, as supported by
exhibits, shows that a wage increase and pension plan
changes decided upon prior to the Company's knowledge
of any union organizational drive. Respondent cites a
number of cases in support of its legal position, that where
the evidence shows employees' benefits were planned and
announced in advance of the employer's knowledge of
existence of the union's campaign, the granting of such
benefits is not unlawful, absent specific evidence of a
discriminatory motive, which Exchange Parts requires and
which it is contended General Counsel has not proved.
I find and conclude that the General Counsel has not
sustained his burden of proof that Respondent in granting
a wage increase and in announcing pension plan improve-
ments was motivated by an unlawful desire to dissuade its
employees from supporting the Union or engaging in union
activities. Unlike the cases cited by counsel for General
Counsel, the undisputed evidence shows that both the wage
increase and the pension plan changes were planned and
announced prior to Respondent's first provable knowledge
of the existence of the 1973 union campaign.16 Further-
more, there is no evidence that the Company ever used
these announced benefits as campaign propaganda, either
before or after the filing of the Union's petition on
September 4. General Counsel's contention that there is no
evidence of any compelling business ' reason for the
increases and the pension changes being announced'when
they were, and that only once before had Respondent
granted a fall wage increase, at most creates only a
suspicion concerning the Company's motive 17 This suspi-
cion is thoroughly overcome by Respondent's undisputed
evidence concerning the planning and announcement of
the increase. Finally, concerning the announced pension
plan changes, it is especially significant that these changes
15 , At a conference with Labor Counsel Arthur Kaufman on September
13, following receipt of the union representation petition, Palamara testified
he was advised that since in August he had announced a wage increase
would be granted in the fall, not to grant an increase would constitute an
unfair labor practice. Palamara testified that the weighted average increase
was 19 cents per hour, approximately 3 cents per hour less than the
weighted average increase in 1972.
16 Although DeWitt testified that the first union meeting was August 13
were announced at all of the Company's plants within a
few days of the conclusion of the October 10 general
managers' meeting. Consequently I find that Respondent
did not violate the Act by announcing and granting a wage
increase and pension benefits as alleged in the complaint. I
will recommend that these allegations be dismissed.
E. White Is Threatened, Restricted, and Placed on
Probation
Robert Alexander White was employed by the Company
as an engineering technician. For approximately a year,
ending at the time of his termination on June 18, 1974, he
worked under the supervision of Richard Brewer on the
"fluidized bed project," the development stage of a new
capacitor coating process. White's duties involved the
preparation, testing, and evaluation of materials and
equipment, in order to prepare the new process for
production. White worked together with two other engi-
neering technicians, one of whom was Dennis Suckling, in
a separate engineering laboratory-office facility in plant 3.
Although these facilities were physically segregated from
the other engineering employees and the production,
quality control, and maintenance workers, White testified
that his work frequently brought him into contact with
these people, either to seek assistance or to obtain parts.
White signed a union card in late September and thereafter
attended about five union meetings, the first of which took
place on October 23. Approximately a week later, after he
had attended his second meeting, White was approached
on the production floor by Carl Fomich, general foreman
over plant 3, who asked why White had been frequently
talking to Barbara Sauers, one of the production workers
and organizing committee members. White replied that he
was being sociable and friendly. Then Fomich said he
knew that White had been to a union meeting, to which
White answered that he had nothing to hide. Fomich
responded that he knew White had a copy of the I.U.E.
constitution. White ended the conversation by repeating
that he was not trying to hide anything about it.
Fomich did not deny interrogating White. He testified
that he had noticed White was spending a lot of time
talking to individual production workers, and therefore he
went to White and asked what he was doing. According to
Fomich, this led into a conversation concerning the pros
and cons of the Union, and during the course of this
conversation White stated Fomich was going to find out
sooner or later that he was talking Union. At this point,
Fomich told White, "Look, you've got to quit talking to the
production employees." Fomich placed the date of this
conversation on October 31. Later, during the same week,
Foreman Allen Runkle came to the engineering office one
morning and asked White if he would not talk to any of his
people, because he felt that White's talking to them was
hindering their production. White disagreed that he was
and the initial company announcement of its decision to grant a fall wage
increase and pension improvements occurred on August 17, the record is
devoid of evidence that the Company knew of this meeting.
17 It was stipulated by Respondent and the General Counsel that past
increases had been granted on the following dates: June 1 , 1965; February
1, 1966; February 1, 1968; February 1, 1969; February 1, 1970; April 12,
1971; and November 13, 1972.
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hindering employees' production, but stated that he would
respect Runkle's wishes and not talk to them. According to
White, these instances were the first times that he had ever
been criticized for talking to production employees,
although he had engaged in such discussions on many
prior occasions.
On or about November 1, White and the other
employees attended a meeting called by the Company at
which General Manager Palamara and Personnel Manager
Pinkos discussed the Company's side of the union
question . At one point in the meeting questions were
permitted, and White asked these speakers to substantiate
a statement they had made concerning the possibility that
union members could be subject to fines and assessments.
White asked Palamara to give him the name of an
individual who had been fined or assessed by the I.U.E.
Palamara responded that he did not have a name at the
moment, but would get one. Early the following morning
Fomich and Runkle came to White's office just as White
was arriving for work. Fomich stated he understood that
White had asked Palamara a question yesterday. White
answered he did, and restated his question. Then Fomich
stated, "We just can't give you a name." Later that
morning, as White was walking through the production
area on the way to the small orders department, employee
Chuck Keith motioned to White and asked what White
thought of the company meeting the day before. Before
White had a chance to respond, Fomich arrived, and asked
White what he was doing there, and if he had cause to be in
that area. When White answered that he was just walking
through and had stopped for a second, Fomich ordered
him off the production floor because he was "hindering
production." White responded by asking the workers in the
vicinity if he was hindering their production, and when
they responded negatively, told Fomich that as far as he
knew, Fomich had no authority to order him off the floor,
and that if he had any complaint about his work White
wished he would take it up with his immediate supervisor,
Richard Brewer.18
Later on the morning of November 2, White received a
telephone call from Brewer requesting that White meet
with Engineering 'Manager Wilklow and himself at 1
o'clock that afternoon. In Wilklow's office, White was
handed a memorandum addressed to him from Brewer
entitled "Preview of Technical Qualifications Prior to 6
month Review." This document began by stating that its
purpose was to prepare White for his 6-month review
slated for mid-December, and stated in part that "certain
indications on your past, necessitate this preview with the
idea of definite improvements being made along technical
lines which appear, to have become slack." Then the
memorandum sets forth White's working hours, break
periods, and lunch, and reminds White, citing his time-
cards of the last few weeks, that any deviations from these
scheduled times 'must be approved by Brewer. The
memorandum closes with four additional instructions to
White, namely:
is Rule 4 on p. 21, of the Company's "Employee's Handbook" in
evidence as Resp . Exh. 15 fists "willfully hindering or limiting production"
as an offense which "will be subject to disciplinary action including
discharge."
19 Brewer testified that White commented that he was aware of the items
(1) Minimize personal contact during your working
hours and those that are necessary should have a direct
bearing on Engineering functions.
(2) All coordination of functions related to plant # 3
production should be done with and through the
General Foreman without fail (in this case, Carl
Fomich). You must also remember that the production
floor and people are directly are under his control.
(3) Any questions, comments and/or complaints on
your part concerning your status will come through you
and me and not via other people or sources.
(4) At all times, remember your main task as Eng.
Technician is to help (not hinder) production in all
phases.
The remainder of the meeting consisted of Brewer's
reviewing the contents of the memorandum, and informing
White that the listed items were the areas in which he
would need to improve in order to be properly prepared for
his probationary performance review in mid-December.
White was given a personal copy of the memorandum
which he read. The meeting lasted approximately 45
minutes.19
On Monday morning, November 5, White requested
another meeting with Brewer and Wilklow. White testified
that this request was prompted by his having reviewed the
preview memorandum over the weekend, which upon
reflection he felt to contain "inequalities," and to consti-
tute a mark against his record. White told Wilklow and
Brewer that he felt the memorandum was unjust criticism
and that it was a blemish on his record. White reviewed the
memorandum point by point from beginning to end. When
the discussion reached paragraph (2), in which Carl
Fomich was mentioned, White stated that he felt the
reason Fomich had tried to "throw me off the floor" was
because of the Union, since Fomich had previously
mentioned that he knew White had been to a union
meeting. At this point, Wilklow asked White "would you
mind talking about the Union?" White said that he would
not. Then both Wilklow and Brewer asked if White had
ever worked in a union shop, stating that they had. White
replied negatively. Then Brewer and Wilklow asked White
why he wanted a union, and White told them why he
thought a union was important. At the .end of White's
explanation, Brewer said that White was not of the same
opinion as Wilklow and himself, and White agreed. Then
Brewer asked if White thought if he could get a better deal
with the Union than he could from "Don and I." White
replied that he felt he could. According' to, White, at one
point in the conversation Brewer mentioned that he had
once taken a break with production people and was
cautioned that it was not wise for him to become too close
or to take breaks with production workers because
"engineering had to keep a little bit above the production
level."
Brewer and Wilklow's testimony concerning their No-
vember 5 meeting differs from that of White in only one
in the memorandum and that he generally agreed with him. White testified
that he said he understood what the memorandum was saying and that he
would have to think about it. In view of the events winch transpired the
following Monday, November 5, I credit White's version.
ERIE TECHNOLOGICAL PRODUCTS 885
significant respect. Both men admitted asking White if he
would be willing to talk about the Union, after White
stated that he felt he could progress faster through
collective bargaining with unions. They did not deny
asking White why he wanted the Union. Brewer's testimo-
ny was more detailed than that of Wilklow. According to
Brewer, the meeting began by itemized discussion of the
"Preview" memorandum .20 Then Brewer described to
White how a great many people in the engineering field
had come up through the ranks, that there were engineers
who did not have college degrees working at Erie, and
there was no reason why White could not progress and
improve his "status of life." It was against the background
of this discussion, which Brewer states lasted for approxi-
mately half an hour, that White remarked he felt that he
could progress faster on his own through collective
bargaining with unions. White explained he felt collective
bargaining could force companies to make changes faster
than the results that White had obtained through the
assistance of Brewer, Wilklow, or other people. It was at
this point that Wilklow asked White if he would mind
discussing the Union's advantages and disadvantages to
which White replied that he would not mind. According to
Brewer, there followed a "frank and open discussion"
about the Union.
On Friday, November 9, the day after the NLRB
election, White and Dennis Suckling, another engineering
technician, clocked out at lunch time, and went to the
Holiday Inn for lunch. Along with lunch they imbibed a
sufficient quantity of alcoholic beverages to cause them to
be of the opinion that they were not in any position to
work any further that day. From White's testimony it is
clear he was aware that Brewer was in Erie, Pennsylvania,
that day, and. that Wilklow had taken the day off.
Nevertheless, White returned to the plant twice more that
day and on the second occasion, punched his time card in
the "out" column at 4 o'clock, which entry he later crossed
off before signing the card and submitting it 21
On Monday, November 12, Brewer and Wilklow came to
plant 3 and questioned Suckling and White about the half
day off on Friday, and they explained the circumstances
surrounding the incident. On the afternoon of November
14, Brewer called White to the office of Production
Manager Larry Heckman. Only White and Brewer were
present. Brewer told White that because of the incident on
Friday, White was being placed on 30-day probation, and
that any other infraction of the rules and regulations would
subject him to discharge. Brewer testified that he discov-
ered the incident and upon investigation prompted by the
discrepancy in White's timecard and the fact that it showed
that White had only worked half a day on Friday. Next
Brewer discussed the matter with Don Wilklow, and both
men went to plant 3 and questioned White concerning the
matter.22 Upon asking White what had happened that
Friday afternoon, White described the luncheon and
20 Both Brewer and Window testified that at this point White once again
agreed with the criticisms contained in the memorandum. Based on the
testimony of all the witnesses present at this meeting, I find that the tenor of
the meeting does not readily lend itself to this interpretation, and I do not
credit Brewer and Wilklow on this point:
21 See Resp. Exh. 3. White testified that he was familiar with the rule
which requires all changes on a timecard to be approved by the supervisor,
drinking incident and stated he felt there was no pressing
need for work that afternoon. Consequently, he returned to
work on only two brief occasions to see if there were any
messages for him. Brewer returned to plant 1 and after
discussing the matter further with Wilklow, it was decided
to place White on a 30-day probation.
The General Counsel alleges that Respondent violated
Section 8(a)(1) of the Act with respect to Robert White
through Carl Fomich's conversation with White on
October 31 (alleged as creating the impression that White's
union activities were under surveillance); by Brewer and
Wilklow's interrogation of White on November 5; and by
Brewer's restriction against White's talking to production
employees on November 2. Respondent's issuance of the
November 2 "Preview" to White and the replacement of
White on probation on November 14 are also alleged as
violations of Section 8(a)(l) and (3) of the Act 23
Respondent generally denies having engaged in any of the
conduct alleged in the complaint, and argues that the
issuance of the "Preview" memorandum, Brewer's restrict-
ing White's access to production employees, and his later
probationary warning, were justified by White's conduct.
In support of this position Respondent- introduced evi-
dence, in addition to that summarized earlier, concerning
the instructions White was given at the outset of the job,
and the extent to which his duties might have necessitated
leaving the engineering-lab office to go into the production
area. Thus, Brewer testified that when he interviewed
White initially at plant 1, he explained, as a part of his
orientation, that White was not to allow his activities on
this development project to hinder or stop production.
Brewer testified that he told White he would have the
assistance of several people, but that in the initial stages of
his work, White should check with Carl Fomich when he
wanted material in order not to hinder or stop production
people. According to Brewer, he told White that if, in
Brewer's absence, White needed assistance , process techni-
cian Blanche Dearmitt would assist him in all facets or
factors of this project. However, Brewer further explained
that as the project developed and expanded, overrun
materials from the production floor were not sufficient to
carry on the work. At that point it became necessary for
materials to be assembled on a production floor, either by
White himself or by White's seeking others to perform this
work for him at several different locations when these
persons were available. According to Brewer, White was
instructed to check with Carl Fomich before either seeking
assistance from others or for the assignment of work space
either on the production floor or the small orders room. On
cross-examination, Brewer testified that this expansion of
the project occurred around mid-August or the first of
September. He also agreed that, in orienting White to his
work stations and duties at plant 3, he introduced White to
various, production workers.
and, although Brewer and Willdow were absent , another engineering
supervisor was present and available.
22 Willdow testified that he made the decision to discipline White.
23 The further allegations in the complaint as amended , that in October
1973 Allen Runkle unlawfully interrogated employees and threatened to
close the plant were dismissed upon Respondent's unopposed motion at the
end of General Counsel's case.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
White agreed that at the time he was trained for the job
Brewer told him what the job would entail and gave him
instructions concerning how he was to proceed. White also
agreed he was informed that Fomich was in charge of the
plant as general foreman, but stated he did not recall being
told that if he had any questions to ask Fomich, although
White admitted Brewer might have said that. White denied
Brewer ever told him that he did not want the engineering
department interfering with the production process. White
also agreed he was told that Blanche Dearmitt was an
employee experienced in all operations, from whom he
could seek advice, and that if he had occasion to come on
to the production floor, he should check with the
supervisors to make sure there was space available for him.
He testified that he had seen other engineering technicians
often talking to production employees, but had never seen
anyone reprimanded for this.
While testifying, Robert White generally impressed me
as an alert young man who was attempting to accurately
relate the events concerning this case . He did not hesitate
or attempt to color his description of the November 9
incident, when he and Dennis Suckling took the afternoon
off. In many instances , his testimony does not, vary
significantly from that of company witnesses Brewer,
Wilklow, and Fomich, except that in many instances these
supervisors appeared to be over-emphasizing portions of
their testimony in order to justify the discipline meted out
to White. I do, however, consider it probable, and I find,
that Brewer did caution White, upon his being chosen for
the engineering job, against interfering with the work of
production employees. The very nature of White' s assigned
duties would seem to justify a word of caution by Brewer
in this area during White's interview and orientation at
plant 3.
Nevertheless, I find and conclude that the Respondent
violated Section 8(a)(l) of the Act by issuing to White the
written warning entitled "Preview of Technical Qualifica-
tions prior to 6 months Review" which altered his working
conditions by restricting him from contacts with pro-
duction employees . There is no evidence in the record that
any production employee ever complained that White was
hindering his production. Nor ' is there any evidence to
dispute White's own testimony that previous conversations
with production employees had occurred prior to his
expressed interest in the Union, without incident.24
The issuance of the "Preview" by Brewer and Wilklow
followed closely Fomich's undenied statements to White
that he knew White had been to a union meeting and had a
copy of the I.U.E. constitution, which statements, I fmd,
constitute an unlawful threat, in violation of Section
8(a)(1), giving the impression that White's union activities
were under surveillance . Furthermore, the "Preview"
(which is really. a written warning since no "Technical
Qualifications" are discussed therein) and restriction took
place on the day following the company meeting at which
White asked Palamara for the name of one person who had
been fined or assessed by the LU.E: It also occurred only a
24, Testimony and documentary evidence presented at the hearing by the
Respondent and the General Counsel shows that for the most part, at least,
the production area may be observed from Carl Fonuch's glassed-in office.
25 The charges filed in this case support only a finding of an 8(a)(1)
violation.
few hours after Fomich, accompanied by Runkle, had
talked to White about this matter, and subsequently
ordered White off the production floor for talking to Keith.
These circumstances strongly suggest that the issuance of
the "Preview" to White was designed to isolate a union
adherent, just as Respondent sought to neutralize the
activities of Ruth DeWitt by means of a transfer.
I further find, and conclude, that placing White on 30
days' probation also violated Section 8(axl) of the Act 25
White's companion in the November 9 incident, Dennis
Suckling, received only a written warning for conduct
identical to that for which White received a more severe
penalty, Wilklow, who made the disciplinary decision after
he and Brewer had interviewed White and Suckling,
testified that the reason for the difference was that White
had received a prior warning while Suckling had not. Thus,
it is clear that the decision to place White on probation,
instead of giving him a warning, was prompted' solely by
the existence of the previous unlawful warning given to
White for the purpose of inhibiting and restraining his
contacts with employees because of his union sympathies.
Finally, I find and conclude that Brewer and Wilklow
did not unlawfully interrogate White in Wilklow's office
November 5. It is undisputed that White requested the
meeting to protest what he considered to be "unjust
criticism" in the "Preview" and, during the course of the
discussion, himself raised the subject of the Union.
Wilklow then asked White if he minded discussing the
Union. It was only after White replied that he did not
mind, that the discussion ensued in which he was asked
why he wanted a union, and if he thought a union could
get him "a better deal" than White could get from his
supervisors.
F. The Allegation that Kenneth Eminheizer Was
Threatened with Loss of his Parole by Production
Manager Larry Heckman
Kenneth Eminheizer testified that he began his employ-
ment with Erie Technological Products, Inc., on August 7,
1973. At the time Eminheizer filed his application, he was
in jail for a probation violation. It was arranged through
Production Manager Larry Heckman that Eminheizer
would be interviewed by Carl Fomich, following which he
would report for work pursuant to a work-release program.
On August 27, Eminheizer was paroled. According to
Eminheizer, he first heard about the union campaign at
Erie "towards the end of July" when Thomas Rhodes, a
foreman and supervisor at the Company, who was also
employed as a guard at the countyjail, told him that there
was going to be another election to get a union at Erie
Tech.26 Eminheizer testified that he signed a union card 2
weeks after he began his employment, and thereafter
passed out 15 or 20 union cards in the cafeteria at plant 3.
He also attended the Union's meetings. Thereafter, during
the first week of November, prior to the election, his
foreman, Ms. Pat McClain, came to him and told him that
w Since DeWitt testified that employee efforts to commence a union
campaign began in early August , it appears that Emmheizer may be
mistaken by a few days with respect to this date, and also as to the time
when he signed the union card.
ERIE TECHNOLOGICAL PRODUCTS 887
Heckman wanted to see him in his office. When Emmheiz-
er arrived, Carl Fomich and Larry Heckman were waiting.
According to Eminheizer, Heckman began the conversa-
tion stating, "Ken, I cannot understand how the hell you
can knife me in the back the way you're doing. I have been
more than a man to you. I've-helped you. I got your ass out
of jail, and still you're knifing me in the back. Why?"
Eminheizer denied saying anything derogatory against
Heckman and stated that he did not know what Heckman
was talking about. Then Heckman responded, "All right.
These meetings that you're attending at the Holiday Inn,
who in the hell do you think you're hurting if you're not
hurting me?" Eminheizer answered that if he felt that way,
then he was hurting Heckman. Then, according to
Eminheizer , Fomich spoke up and said, "These meetings
that you have been to-" Eminheizer interrupted, answer-
ing, "Yes." Then Fomich said, "the union meetings,"
following which Eminheizer again interrupted saying, "I
know what you're talking about." Fomich continued,
"Who in the hell are you hurting if you're not hurting
Larry? He's the one who helped you. Why are you against
Larry?" Eminheizer answered that he would do anything
under the sun for Larry, which he had proved to him. Then
Heckman stated "Ken, knock this s- off. You don't need
to attend these meetings . I don't approve of the people
you're associating with. They are not very good people."
Heckman asked, "What are you talking about?" Heckman
replied "You know who you're associating with." Emin-
heizer asked, "Are you referring to Barb Sauers, Marcell
Eckenroth and Ellen Prye?" Heckman answered, "This is
right. They're trouble makers. Stay the hell away from
them. You have enough of trouble." Eminheizer answered,
"All right, sir." Eminheizer testified further that at a point
approximately 15 or 20 minutes before the end of the
conversation, Heckman said to him, "Ken, how long do
you have on parole or probation?" Eminheizer answered,
"three years." Then Heckman asked him if he liked jail,
and Eminheizer stated that he did not. At this point
Heckman responded, "You know, I can have your parole
revoked. All I have to do is call your parole officer, and tell
him what is going on." After Eminheizer agreed that he
realized this was true, Heckman stated, "Well then, knock
off this s-." Eminheizer testified that the conversation
lasted about 2 hours, and that he went to the office at
approximately 2 o'clock right before his last break.
Production Manager Larry Heckman admitted having a
conference with Eminheizer "about the end of October" at
which Carl-Fomich was present, but denied that either he
or Fomich made any threats to Eminheizer concerning the
Union, or otherwise referred to the Union in any manner.
According to Heckman, the interview in the office was the
culmination of a series of disturbing incidents involving
Eminheizer which upset other employees. For example, in
August a female employee accused Eminheizer of passing
drugs in the plant, and this accusation resulted in a
commotion when the police arrived and Eminheizer was
searched, but no drugs were found. Another incident
allegedly involved complaints by women concerning notes
passed to them from Eminheizer. In September Eminheizer
was moved to another section and another job. Thereafter
it was reported to management that he was having
difficulties with his female supervisor, that he was using
foul language to other employees, and that he was opening
the windows despite the instructions to keep them closed.
According to Heckman, he decided to talk with Eminheiz-
er when, near the end of October, Carl Fomich called him
and said he believed something should be done about the
situation. Heckman testified that in the office he pointed
out the number of complaints there had been from
employees and from his supervisor concerning his work
habits and attitude. According to Heckman, he told
Eminheizer "I have a responsibility to you and a
responsibility to your parole officer to make sure that while
you are working here that you are out and you become a
better person." Heckman testified that he explained to
Eminheizer that being in the type of situation he was in, he
was different from other people and had to work harder in
the eyes of other people to show them that he is going to be
a better person, and that "incidents with dope and this type
of thing and cursing and not listening to foremen" was
"going the wrong path." 27
I credit the testimony of Production Manager Heckman
over that of Eminheizer ,whose testimony was replete with
inconsistencies and inaccuracies. Furthermore, Eminheizer
revealed considerable hostility toward the Respondent on
cross-examination. These factors, considered in the light of
the additional fact that it was only after his discharge on
December 20, 1973, that Eminheizer came forward to
relate to the Board his version of the Heckman-Fomich
conference, causes me to conclude that his testimony
concerning this incident is unreliable . I further note that
Eminheizer's affidavit introduced into evidence as Respon-
dent's Exhibit 7 omits any reference to the remarks he
testified, were made by Carl Fomich in Heckman's office,
and in fact omits any reference to Fomich at all, except to
state that he was present and said little except to agree with
Heckman. I therefore find and conclude that the Respon-
dent did not violate Section 8(a)(1) of the Act during the
Heckman-Fomich interview with Eminheizer in the first
week of November as alleged in the complaint. I will
recommend that this allegation be dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By transfering Ruth Dewitt on August 27, from plant
1 to plant 4 for the purpose of inhibiting her union
activities, Respondent violated Section 8(a)(1) and (3) of
the Act.
4. By Richard Brewer's issuing to Robert White the
"Preview" warning on November 2 restricting his access to
production -employees, by Fomich threatening him that
Respondent knew of his union activities, thereby creating
the impression that such activities were under surveillance,
and by placing him on 30 days' probation on November
14, Respondent violated Section 8(a)(1) of the Act.
27 Carl Fomich did not testify concerning the interview with Heckman.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Respondent has not violated the Act in any respect
other than those specifically found.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I fmd it necessary to order
that Respondent cease and desist therefrom and to take
certain affirmative action designed to effectuate the
policies of the Act.
The Respondent having discrimmatorily transferred
Ruth Dewitt from plant 1 to plant 4 (until January 4, 1974,
when she was transferred back to her former job at plant
1), I fmd it necessary to order the Respondent to make her
whole for any loss of pay she incurred by reason of the
discrimination practiced against her, backpay to be
computed on a quarterly basis plus interest at 6 percent per
annum as prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962), from the date of transfer to the date of
reinstatement in her former position.
Having found that Respondent discriminated against
Robert White, by issuing on November 2 the "Preview of
Technical Qualifications prior to 6-month review," and on
November 14 by placing him on probation with the written
memorandum to that effect being placed in his personnel
file, I fmd it necessary to order the Respondent to rescind
these actions and remove the described documents from
Robert White's personnel file.
Finally I shall recommend that Petitioners' Objections 1
and 2 as set forth in' the order directing hearing on
objections and notice of hearing issued by the Regional
Director for Region 6 on April 1, 1974, be overruled, but
that, based on the violations within the critical period
found herein, Petitioner's Objection 3 be sustained, and
that the NLRB election held on November 8, 1973, be set
aside and a new election held.29
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER3°
The Respondent, Erie Technological Products, Inc.,
State College, Pennsylvania,. its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Transferring employees, placing employees on proba-
tion, issuing employees discriminatory "Previews" or
warnings, or otherwise discriminating against them with
regard to the tenure of their employment or any other term
or condition of employment because of their union activity
or concerted activity for their mutual aid or protection, or
29 Ideal Electric and Manufacturing Company, supra. I conclude that the
unfair labor practices found to have occurred within the critical period
warrant this recommendation . The correctness of this conclusion is
supported by the background of other unfair labor practices which I have
found that Respondent committed outside the critical period.
30 In the event no exceptions are filed - as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended order herein , shall, as provided in Sec.
in any like or related manner interfering with, restraining,
or coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
(b) Threatening employees that their union activities are
known to the Company thereby creating the impression
that these activities are under surveillance.
(c) Restricting employees access to, and contacts with,
other employees for the purpose of interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act: '
(a) Make whole employee Ruth Dewitt for any loss of
earnings she may have suffered during the period in which
she remained discriminatorily transferred to plant 4, in the
manner set forth in "The Remedy."
(b) Rescind the November 2 "Preview of Technical
Qualifications prior to 6-months review" and the Novem-
ber 14 30-day probation period given to Robert White and
remove from its personnel files any documentary evidence
of these discriminatory actions.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records, and all other records necessary to
analyze whatever amount of backpay may be due under
the terms of this Order.
(d) Post at its plants 1, 3, and 4 in State College,
Pennsylvania, copies of the attached notice marked
"Appendix."31 Copies of such notice on forms provided by
the Regional Director for Region 6, after being signed by
an authorized representative of Respondent, shall, be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 6, in writing
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT Is FURTHER REcommENDED to the Board that the
Unio4-Petitioner's Objection 3, as set forth in the order
directing hearing on objections and notice of hearing in
Case 6-RC-6599 issued by the Regional Director of
Region 6 on April 1, 1974, be sustained, and that the
results of the election of November 8, 1973, be set aside
and a new election directed.
IT IS FURTHER RECOMMENDED that the remaining objec-
tions relating to unfair labor practices not found to be
violative herein be overruled.
IT Is FURTHER ORDERED that the complaint be dismissed
in all other respects.
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.
31 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" sh it read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.` N