Schwebel Baking Co.

SCHWEBEL BAKING COMPANY 35 Schwebel Baking Company and Jack E. Walsh. Case 8-CA-1 1313 April 25, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On September 19, 1979, Administrative Law Judge Thomas E. Bracken issued the attached De- cision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE THOMAS E. BRACKEN, Administrative Law Judge: This case was heard before me in Youngstown, Ohio, on July 10-12 and 24, 1978. The charge was filed by Jack 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 credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. I In adopting the Administrative Law Judge's conclusion that Re- spondent did not violate Sec. 8(aX3) and (I), Members Penello and Truesdale agree with the Administrative Law Judge that, for the reasons stated by him, Chatham Manufacturing Company, Inc., 221 NLRB 760 (1975), enfd. 538 F.2d 323 (4th Cir. 1976), and Precision Castings Compa- ny, 233 NLRB 183 (1977), are distinguishable from the instant case. They additionally note that they previously have indicated their disagreement with Precision Castings, as stated in their separate dissenting opinions in Gould Corporation, 237 NLRB 881 (1978), enforcement denied 612 F.2d 728 (3d Cir. 1979) (amended March 13, 1980). Member Jenkins dissented in Stop d Shop, Inc., 161 NLRB 75 (1966), cited by the Administrative Law Judge in support of his dismissal of the 8(a)(3) complaint. Member Jenkins notes that while Respondent in that case did have a lawful reason to discharge the union steward, the dis- charge was, in his view, in fact motivated by a desire to discourage union activity. Member Jenkins finds in this case no corresponding pattern of behavior by Respondent indicating that the asserted reason for discharge was pretextual. 249 NLRB No. 5 E. Walsh on August 25, 1977, and the complaint was issued on February 7, 1978. The issue in this case is whether the Respondent, Schwebel Baking Company, discharged Jack E. Walsh and Henry George Budaker on August 17, because of their efforts to carry out their duties as shop stewards of Bakers' Union Local No. 19, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Upon the entire record, 2 including my observation of the demeanor of the witnesses, and after due considera- tion of the oral argument of the General Counsel, and the briefs filed by the Charging Party and the Respond- ent, I make the following: FINDINGS OF FACT I. JURISDICTION The Company, an Ohio corporation, is engaged in the production of bread and other bakery products at its bakery in Boardman, Ohio, where it annually ships prod- ucts valued in excess of $50,000 directly to points located outside the State of Ohio. The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Bakers' Union Local No. 19 is a labor organization within the meaning of Section 2(5) of the Act.3 III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background For a number of years, the Respondent has operated a commercial bread-baking company, producing white bread, hearth-baked bread (hard crust), and wiener and sandwich buns. Since at least 1958, when Anthony A. Santangelo became the union steward, the Company has been a party to collective-bargaining agreements with a Union. In 1972, there was a merger of Local 1194 and Local 19, with Local 19 becoming the surviving union, and the bargaining representative of the Respondent's bakery employees. In 1972, Santangelo ceased being a steward. Henry George Budaker served as a steward from 1971 to 1974, and from October 1976 until his dis- charge in August. Jack E. Walsh served as shop steward from 1972 to 1974 and from October 1976 until his dis- charge. At the time of the discharges, there was a third shop steward, Raymond Cmil, Jr., who had served since 1975. All stewards were elected by members. On November 7, 1975, the Respondent, as a member of the Bakery Employers' Labor Council, entered into a All dates are in 1977, unless otherwise stated. 2 The transcript of the hearing contains various errors, particularly in relation to times of events. In the absence of any motion to correct the transcript. I have not undertaken to do so on my own motion, and be- lieve that the transcript of the testimony of the witnesses, coupled with the exhibits, is sufficiently accurate to permit the Board to carry out its statutory functions. 3 In the complaint, the Union's name is set forth as Bakery & Confec- tionery Workers' Union, Local 19, but in the collective-bargaining agree- ment received into evidence as Jt Exh I the name is set forth as Baker' Union Local No 19. ' The complete name of this union does not appear in the record SCHWEBEL BAKING COMPANY 35 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective-bargaining agreement with Local 19, that was effective from June 8, 1975, until July 2, 1977. This agreement was in effect on August 17, as admitted by the Charging Party in his brief, although the mechanics used to extend it are not set forth in the record. Ariticle 111, section 13, thereof, in pertinent part, sets forth the following right of a steward: The privilege of stewards to leave their work with- out loss of pay is extended with the understanding that the time will be devoted to the prompt han- dling of grievances and will not be abused. Article VII, entitled "Job Security," covers the dis- charge of an employee, as follows: The Employer shall give one (1) week's advance notice to the Union of its intention to discharge any employee or lay off any employee except in case of fighting, drunkenness from alcohol or drugs, dis- honesty, disorderly conduct, and insubordination. The question of whether or not such dismissal is without just cause may be referred by the Union to the Grievance Committee and to arbitration pro- ceedings as provided in Article XV hereof. The record is clear that, during the years in which Walsh, Budaker, Santangelo, and Cmil had served as stewards, they were allowed to leave most job assign- ments to try to handle an employee's grievance, prior to writing up a written grievance. George Green, the direc- tor of manufacturing, admitted that stewards could leave their work stations to handle a grievance if they were able to do it in a few minutes. The record is also clear that, when a steward left his job assignment to handle a grievance, he secured a relief, if he was operating auto- matic machinery that could not be left unattended. Walsh testified that he never had any problem at any time leaving his work station to handle a grievance. Bu- daker testified that he had never been denied the right to leave his station to handle a grievance, nor had he ever been disciplined for leaving and handling a grievance. Santangelo also testified that he had never been denied permission to leave his work area to handle a grievance. B. The Events of August 175 1. Prior to 12 p.m. On the morning of August 17, Anthony D. Santangelo punched in at 8:42 a.m., to begin his duties as a pan stacker. 6 Santangelo was a veteran employee, having commenced working for the Company in 1957. In March, an automatic pan stacker had been installed, but it was not functioning on this date, and Santangelo was ' As will be evident in setting forth the testimony of General Counsel's witnesses, and the testimony of the Respondent's witnesses, there are sharp differences as to the times that various events occurred during this day. While some of these differences are not material, others are, and these will be subsequently resolved herein. I Unlike most factory production employees who commence work as a body at the same time, shut down for lunch as a group, and leave as a group at the same time, these bakery employees commence work, go to lunch, and leave at staggered hours, so as to fit their work periods into the baking schedule. required to stack the pans on the conveyor belt by hand. Shop Steward George Budaker who had punched in at 9:28 a.m., was operating a divider machine on the hearth goods line, when he was approached by George Green, the director of manufacturing. Budaker testified that around 10:30 a.m. Green told him that he was having trouble with Santangelo, that Santangelo was refusing to do his job, and that if he did not do it, he was going to fire him. Budaker and Green then went over to the pan stacker, and, after some discussion, Green told Santan- gelo that if he did not do the job the way he wanted it done, he was going to fire him.' Shop Steward Jack Walsh, who had punched in at 8:59 a.m., testified that Budaker told him, about 10:30 a.m., that Green had in- formed him that unless Santangelo put the pans on the conveyor belt faster, he was going to fire him. Budaker further testified that, about 11:30 a.m., he had a break, and walked to the rear of the bakery to the bread oven, and talked to its operator, Douglas Chan- dler. At this time, Richard Schneider, the plant produc- tion superintendent and next in authority to Green, ap- proached them and they discussed Santangelo's job per- formance. Schneider concluded the conversation by stat- ing that Santangelo was not doing his job the way man- agement wanted it done, and if he did not do it manage- ment's way, "we are going to fire him." During this period, Santangelo wanted a relief so that he could go to the bathroom. He testified that he was re- lieved "in and around noon." Walsh testified that he saw the relief man relieve Santangelo about 11:30 to 11:45 a.m. Green testified that at approximately 11 a.m., Schneider approached him about production problems in Santangelo's work area, and that he and Schneider then went to that production area.8 Here, Green told the di- vider operator 9 to run the machine at its established speed at all times, and also told Schneider to keep the production flow going. At approximately 11:30 a.m., Green returned to the same production area, and in- formed Budaker and Santangelo that, if Santangelo could not keep up, he would be fired. At this same time, he also told Schneider, that, if the line had to shut down again, he should send Santangelo home. 2. 12 to 12:30 p.m. a. According to General Counsel's witnesses Santangelo testified that he left the bathroom "around noon" and returned to his work area when Schneider told him that he wanted to talk to him; Santangelo in- formed Schneider that he was going back to work, and Schneider replied by telling him, "I want you to go over there and punch your card out." Santangelo then asked him what for, and was told for not keeping up with pro- duction. Santangelo further testified that this occurred "something after twelve."'° Santangelo then asked Schneider if he really meant it, and was told yes, and I Santangelo placed this conference at 10:45 until after 11 a.m. a Schneider corroborated Green's testimony throughout the hearing. a A divider operator receives dough from the mixing department, and operates a machine that cuts the dough into proper weights. IO The discharge of Santangelo is not an issue in this case SCHWEBEL BAKING COMPANY 37 again was told to punch his timecard out. Santangelo then waved his hand to Budaker, who "was looking in my area," and motioned for him to come over. " When Budaker arrived, Santangelo left without any conversa- tion, and went to Jack Walsh's work station. Walsh oper- ated two mixers for the white bread line. According to Santangelo, Walsh told him that he would be over as soon as he kicked the dough out of the mixer. When asked on cross-examination what time this was, Santan- gelo replied, "Around after 12:00, 12:15, 12:30." Santan- gelo then went back to his work area, and saw Schneider, Budaker, another employee, John Homrigou- sen, who was now putting pans on the conveyor. He fur- ther testified that Walsh "came right in a matter of a minute or so, he came right behind us." When Walsh ar- rived, Schneider left, and came back with Green. At this time, according to Santangelo, Green, Schneider, himself, Budaker, and Walsh were present. When asked if anybody said anything, he replied, "George Green says yes, that's right, he's fired." When Walsh proposed that they discuss it, Santangelo testified as follows: George Green told Jack Walsh, you got a dough due out at 12:40 and Jack says, I'm over here on union business on behalf of Tony and George says Jack, go back to work or you are fired. Jack says, I'm on union business and George repeated it again and then he said [Jack], you are fired. Santangelo then testified that about 5 minutes before that, Walsh had told him to go back to work, and that he had attempted to do so. However, Green had come right behind him, and pushed the pans out of his hand, and Schneider then told Green to "call the cops." San- tangelo stated that it was shortly after 12:30 p.m. when Walsh was fired by Green a second time, and that he himself left 30 to 40 seconds later, and went to the bak- ery's lunchroom. Budaker testified that "around noon," Santangelo mo- tioned for him to come over to the pan stacker area, and, when he arrived, Santangelo told him that he had been fired by Schneider. Santangelo then went to get Walsh, leaving Budaker and Schneider near the stacker. Budaker then asked Schneider to get the person who had given Schneider the order to fire Santangelo, fixing this time as "12:00 or shortly after 12:00." Budaker then claims he went back to his work station to check his job, and re- turned at "12:15, 12:20 roughly." Budaker testified that when he walked the short dis- tance back to the production area, Santangelo had re- turned, Walsh was coming from his mixer, and Green and Schneider were present. Budaker then asked Green why Santangelo was fired, and was told that it was be- cause he was not doing his job. Walsh then told Santan- gelo to go do his job and show the group what the prob- lem was. When Santangelo started to do his job, Green " Budaker's machine was located in the same production area that Santangelo worked in, and both employees' work stations were readily visible to the other. Walsh's work station was separated by a wall from Santangelo's and Budaker's work stations, with a doorway set therein, and was about 30 feet from the pan stacker stopped him. When asked what happened then, he testi- fied as follows: A. Then George Green told Jack Walsh to go back and do his job. Q. Did Walsh say anything? A. Walsh said, I'll return as soon as I am finished handling this grievance. Q. Was there any reply by Green? A. Not to my best recollection, no, Green said there is no problem, Tony is fired. I want you to go back to your station or you are going to be fired. Q. Did Jack say anything? A. Jack repeated himself that he was handling a grievance and he would return as soon as he was done. Q. Did Green say anything? A. Yes, George Green said if you are not going back now, you are fired. Q. Then what happened? A. George Green left and Dick Snyder left. Q. Approximately what time did George Green and Dick Snyder leave? A. I'd say 12:15, 12:30. Q. Then, what did you do? A. I went back to check on my machine to make sure everything was set up right and still running properly. Q. Then what happened? A. I looked back over towards Tony's work sta- tion and Mr. Green had returned. Q. Continue? A. I walked back over there to Tony's station and Mr. Green was telling Jack Walsh again, he says, you will have to go back and throw out the dough. Q. He was telling Jack Walsh what? A. Go back and throw out the dough and have the dough out on time. Q. Did Jack say anything to that? A. Jack repeated himself. He said I am on union business and I will return as soon as I am done. Q. Did George Green say anything? A. George Green said well, if you are not going back you are fired. Q. Approximately what time is this? A. 12:35 Walsh testified that the time at which Santangelo came to him in the mixing room was 12:15 p.m. After being told by Santangelo that he had been fired by Schneider, and told to punch his card out, Walsh advised Santan- gelo that he had one more dough to kick out of the mixer,t 2 and then he would come over. Walsh testified that he kicked the dough out of the mixer at 12:20 p.m., marked his dough sheet, that the next time dough would be due out was 12:40 p.m., so that he would not be re- quired to be back at his mixer until 12:40. He then walked 30 feet to the pan stacking area where he said the following employees were present: Santangelo, Budaker. 12 The mixer was a stainless steel drum, about 4 to 5 feet in diameter and 5 feet high SCHWEI3EL flAKING COMPANY 37 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Joe Diamond, Timmy Best, and Jim Donnelly,' 3 as well as Green and Schneider. General Counsel then asked Walsh to tell again what Green said to him, if anything. A. He told me that I should return to work. Q. Did you say anything to George Green? A. Yes, I did. Q. What did you say? A. I informed Mr. Green that I was there per- taining to union business on Tony's behalf. Q. Did you tell him anything else? A. No, I didn't Q. Did George Green say anything to you? A. Yes. He informed me that I was fired. Q. Did he say anything else to you? A. Yes. He repeated it three times. He repeated it three different times. Q. What did he repeat? A. Return to work, return to work, return to work. Walsh testified that Lis best estimate of the time he was fired was 12:20 p.m. Then, a "few" minutes after he was fired, he told Santangelo to go back to work, and, when Santangelo tried to put pans on the conveyor belt, Green slammed the pans down, and told Santangelo that he had been fired. Green then informed Schneider that he should call the police. Walsh testified that he did not hear Green at any time tell Schneider to punch Santan- gelo's card out, but that he did hear Schneider tell Green to punch his, Walsh's card out. Walsh further testified that when Green fired him, Budaker did not say any- thing. General Counsel produced testimony from two rebut- tal witnesses, Jim Donnelly and Tim Best, who both worked in the tank area, near the pan stacking area, and were friends of Walsh. Donnelly testified that, shortly after noon, he saw Green, Schneider, Santangelo, Bu- daker, and Walsh together, after Santangelo had been fired. When asked by General Counsel what he heard, he replied, "mostly just arguing back and forth. Everybody was talking at one time. You really couldn't hear much of what they were saying." When asked if he heard any- thing that was more specific than just arguing, he re- plied, "Yes, I heard Mr. Green tell Jack Walsh he was fired." He further testified he heard it about 12:20 or 12:25 p.m., at a distance of 12 feet away, as he was walk- ing past the group to the timeclock.14 After he heard this, he punched his card out, at "some time around" 12:25 p.m., and went home. On cross-examination, Donnelly testified that he and Best punched out at the same time, and that he was "sure" and "positive" of this. He was then shown Best's timecard which was punched out at 12:37 p.m., and re- plied that he too punched out then at 12:37 or 12:38 p.m. When shown his own timecard, with a punch-out time of ' Neither Santangelo nor Budaker testified that Best or Donnelly was in this group 14 Both Donnelly and Best commenced work at 4:30 am. with a scheduled quitting time of 12 30 p.m lb All three of these employees were mixers, Jack Walsh, white bread, Richard Zeloniz, hard rolls, and David Brill, buns 12:50, he admitted that his previously stated punch-out time was incorrect. Best testified that he saw Walsh arrive in the area at 12:15 or 12:20 p.m., and that he heard Green say some- thing to Walsh, while at a distance of 5 feet away. He then answered General Counsel's questions as follows: Q. To the best of your knowledge and recollec- tion, what did he say? A. He asked him what he was doing. Q. Do you recall what if anything Jack Walsh said? A. He said he was on union business. Q. Did George Green say anything? A. Told him to return to his work station. Q. Did Jack say anything? A. He repeated he was on union business. Q. Did George say anything? A. He said you are fired. Best testified that he then stayed around a few minutes and walked up to the lunchroom, "because that is where everybody else was going, so I decided to follow." He stayed in the lunchroom for 5 to 10 minutes then punched out at 12:37 p.m., as he saw a few people being fired. b. According to the Respondent's witnesses Schneider testified that he discharged Santangelo around noon, as he returned to the production area from the men's room, because the way he had been feeding pans on the conveyor was slowing down production. Schneider told him that he wanted him to go home, and to punch his card. At this, Santangelo asked him if he was serious, and when Schneider answered that he was, Santangelo hollered to Budaker, "George, Dick is send- ing me home, what do you want me to do." Budaker then walked over to Schneider and told him that he "better see Green and get this straightened out right now, because if Tony goes we all go." Schneider then told Budaker that he was running the shop and that Tony was to punch his card and go home. Schneider, when asked if there was a reply, testified: "George im- mediately then, he hollered Jack, he said shut it down. He says, Richard, shut it down. He says, Dave shut it down." 5 With that, Schneider went immediately to Green's office, and informed him that he had fired San- tangelo, and that "they were shutting the shop down. Green went into Paul Schwebel's office for a minute or so, and then Schneider and Green proceeded to the pro- duction area arriving at about 12:05 or 12:06 p.m. Here they met Walsh, Budaker, and Santangelo. Green testified that when he arrived at the area, he verified Schneider's decision to fire Santangelo' 6 and Walsh then informed him that there would be no more ' At a hearing on December 6, before a referee of the Board of Review of the Ohio Bureau of Unemployment Services, involving the discharge of Walsh, Green had testified that Schneider had come to him at 12 noon and informed him that Budaker had told him there would be a walkout if Santangelo were fired, and that this was before Santangelo was fired. SCHWEBEL BAKING COMPANY 19 production until Santangelo was put back to work. Green then told Walsh it was specifically against the contract for the employees to engage in a work slow- down or stoppage, that there was a grievance procedure they should follow, and that they should go ahead and file the grievance. Walsh replied that, "We don't have a contract, there is no grievance procedure." Green stated that there was a contract, as a "continuance clause" in it kept the contract in effect. '7 It was at this time, Green testified, that Walsh told Santangelo to go back to work, and when Santangelo picked up a pan, Green put his hand on it, told him he was fired, and then told Schneider to get his card and punch it out. Green ad- mitted that during this conversation Walsh told him that he was on a break, and, as Green understood the situa- tion, he was on a break. Schneider testified that he immediately went to the ti- meclock and punched Santangelo's card out at 12:09 p.m. as shown on the Respondent's Exhibit 3, Santangelo's ti- mecard. Schneider then came back to the group in the production area, and Green told him to go see what time the next white slice dough was due out of the mixer.' 8 Schneider then went to the adjacent mixing room, checked Walsh's dough schedule, and returned to the production area about 12:10 or 12:11 p.m., where he told Green that the next dough was due out at 12:40 p.m.' 9 Green then told Walsh that he had a dough due out at 12:40 p.m., and that he expected him to get it out at that time, to which Walsh replied, "George, I can't hear you." Green again told Walsh that there was a dough due out at 12:40 p.m., and that he expected it to be kicked out, and again Walsh answered that he could not hear him.2 0 Green next told Santangelo several times to leave the premises as he had been fired, and when San- tangelo refused, Green told Schneider to call the police. Green and Schneider then proceeded to Schwebel's office to discuss the situation, about 12:15 or 12:20 p.m. 3. After 12:30 p.m. a. According to General Counsel's witnesses Walsh testified that at approximately 12:30 p.m., he left the production area where he had been discharged, and went to the bread wrapper area to try to find Roy Cmil, the third steward. Not finding him there, Walsh went to the lunch area and there ran into Cmil where he told him that he and Santangelo had been discharged. Walsh described the conversation as follows: "Ray and I discussed the matter. It was a mutual agreement that we should call the Union Hall and notify them that he had been fired and I had been fired also." They then pro- ceeded to the conference room where Cmil called Local 1? Walsh denied that Green mentioned a grievance procedure or that there was a contract, or that the contract procedures should be followed. L On this date the Company was making 7,200 loaves of sandwich bread per hour. '1 While Santangelo denied remembering that Green asked Schneider to check the dough sheet, Budaker admitted that Green and Schneider discussed the dough schedule, and that Schneider left the production area to go through a door that led to the mixing area, where Walsh kept his dough sheets, and then returned to the pan Stacking area about 12:35 p.m. 20 Walsh denied that he said, "I can't hear you 19 in Cleveland. Upon completing the telephone call, Cmil told Walsh that he had talked to a business agent, and, if any members had been fired, to keep them in the lunchroom until the union officials arrived. Following the telephone call, Walsh and Cmil attempt- ed to leave the room, when Green and Schneider ap- peared. Green stuck his right arm directly across the door jamb, and Cmil ducked under Green's arm, fol- lowed by Walsh. The two employees walked down the dock, followed by Green, who was screaming at both of them, "Return to work you are fired, return to work you are fired." Walsh did not say a word but continued down the dock on through the double door that led to the production area. At this time, Green ran directly around in front of him and, "He told me that I had been fired." This occurred at 12:45 or 12:50 p.m., Walsh did not say anything in reply, and went to the bathroom, then to the lunchroom. When he arrived in the lunch- room, he found 10 to 15 other employees there. Finding Santangelo still in the lunchroom, Walsh placed his grievance book on the table and attempted to fill out a grievance for him, at roughly I p.m. The police arrived while Walsh was trying to write the grievance. However, Green walked into the lunchroom and in- formed Walsh "that I was fired again." At that time Walsh was aware that "There were quite a few people fired." Budaker testified that following Walsh's discharge at 12:35 p.m. in the pan stacking area, he had returned to his work station, ran one more dough, cleaned his ma- chine for the next dough, and at 12:45 p.m. told his crew that, as soon as they were done with the dough, they could take their lunch or break. Budaker then went to the lunchroom at 12:55 p.m. for his lunchbreak. Here, he met Walsh about I p.m., and they then walked to the production office, to check if Walsh's and other employ- ees' timecards had been punched out. Unable to find the timecards, they then decided to go to the bread wrap- ping area to talk to the other steward, Cmil. The two stewards proceeded through the doorway near the pro- duction office toward the wrapping area, when Green came the other way at approximately 1:40 p.m. Accord- ing to Budaker, Green grabbed him by the arm and said, "Wait, I want to talk to you." Budaker then testified as follows: A. Well, I told George, well, talk to me, you don't have to grab me to stop me. He told me, he said you have to go back to work. I told him I would go back to work as soon as I was done with this problem, handling this grievance. Q. What did George Green say to that, if any- thing? A. He told me there is no grievance. Q. What did you say? A. I told him I said, 20 people, maybe more are fired, I think that is a heck of a grievance. Q. What did he say? A. He said I want you to go back to your job. Q. What did you say, if anything? A. I said I will go back as soon as I am done with this and if I do go back, there is nothing to do, SCHWEBEL BAKING COMPANY 39 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD you fired my whole crew. You've fired my mixer, what would you like me to do when I go back? Q. Did he explain what he wanted you to do? A. He said he didn't care what I did, sweep the floor, sit down, it does not matter, just go back. Q. What did you say if anything? A. I told him, well, I can't do that until I handle this grievance. Q. Was there any further conversation between you and Mr. Green at that time? A. Well, he told me I was fired. Budaker testified that after being fired he tried to talk to Green some more, both were a little bit loud, when, "He put his clipboard on my chest there and wrote my name there and repeated that you are fired and pushed me away with his clipboard." Budaker then took Green's arms and moved them away, and left the area. Walsh tes- tified that he was standing right alongside of Budaker when this confrontation took place, and corroborated his testimony in large extent, but did testify that there was no pushing or shoving at all. Charles F. Hart, who had been putting on pans that day, was called by the General Counsel, and testified pri- marily on the incident concerning Budaker's discharge. Hart stated that he was coming through an aisleway for the timeclock in the production area, going towards the wrapping area, when he came upon Green and Budaker facing each other. He was sure that Schneider, Cmil, and Bob Stricko, a foreman, were also present, but he was not sure if Walsh was there or not. Hart said he was 4 feet away from the back of Green, who was also facing the wrapping area. Budaker was facing Green, with all three parties in a straight line. Hart testified that Budaker told Green that he was on union business and Green told him to go back to work and, when Budaker said no, Green told him that he was fired. At this time the argu- ment got "heated," and Stricko and Schneider, who were about 10 feet away, "got in and tried to separate" them. On cross-examination, when Hart was asked if he saw Green place a clipboard on Budaker's chest, he re- plied, "I saw him writing something. I was standing behind Mr. Green so I couldn't make out what was going on." Hart further testified that he did not see Bu- daker push Green, that it was just a heated argument. b. According to the Respondent's witnesses Green testified that, after he left the production area and went to Schwebel's office, he got Santangelo's record out and talked things over with Schwebel for about 20 minutes. Believing that there was no more dough to mix, and that the bakery would soon be out of production, the decision was made to call the police and have Santangelo removed. The police were called by Schwebel at 12:44 p.m., as set forth in the Respondent's Exhibit 17(b), the Boardman police call record. 2t Green and Schneider then went to the dock, met the police 21 The same call record states that the police arrived at 12:51 p.m and left at I:10 I credit this time of 1:10 p.m. over the 1:20 p.m. set forth on Resp. Eh 17 (a), as that is a radio log summary of many calls received hy the police, with the times obviously taken from the times set forth in the individual call record slips. upon their arrival, went to the lunchroom with them, and pointed out Santangelo. After the police had some discussion with Santangelo, Budaker, and Cmil, Santan- gelo agreed to leave and walked out with the police. Green then wanted to get production going, so he went looking for the employees to tell them to return to work. The firEt employee he met was David Brill, and he told him to go back to his work area, and be prepared to throw out a bun dough. When Brill refused to do it, Green fired him. Green then went to his office and picked up a clipboard so that he could record the events that were going on. On leaving his office, about 1 p.m., Green met Cmil and Walsh coming out of the thrift store. Green told Walsh that he had a dough to kick out, and that he wanted him to go to his work area, to which Walsh replied, "I can't hear you." Walsh walked past Green, Green followed him and Green told him that he had a dough to kick out, to return to his area and kick out a dough or he would be fired. Walsh again replied, "I can't hear you," and then Green told him he was fired. Green asked Cmil if he was engaged in a work stoppage and, when told that he was not and that Stricko had relieved him to take care of union business, Green accepted this answer. Green conferred again with Schwebel, informing him that he had fired Walsh. He then went to the lunchroom about 1:15 p.m. , where he saw "quite a few" people. He told everybody who was not on lunchbreak to leave the lunchroom and return to their work stations. When there was no general movement, Green called the names of George Semer, Bryan Svetlack, Charles Hart, and John Zomida, and when they refused to return to work, he fired them. He then went into the shop to check its status. About 1:45 or 1:50 p.m., Green went looking for Bu- daker to tell him to return to work, and saw him in the dock area about 15 feet ahead of him, heading towards the wrapping area. As Green called to him that he wanted to talk to him, Budaker turned around and charged at him with his hands in the air hollering, "don't you tell me what you are going to tell me," and that he would knock Green's head off. He then pushed Green into the open swinging doors of the aisleway, knocking his head against the door. At this time Green told him, "Now you are fired." With that, Budaker grabbed and shoved Green, Schneider got in between them, and Green escaped to the adjacent production office. Green denied that he put the clipboard on Budaker's chest. Schneider, who was with Green, corroborated Green's testimony as to this confrontation, and further testified that Stricko was present, and both had held Budaker back from further contact with Green. Robert G. Stricko, the production supervisor in the wrapping department, testified that as he came from the wrapping area he saw Budaker facing Green in the hall- way, between the production office and the wrapping area. It was between 1:45 and 2 p.m. and Stricko was about 10 feet away. He saw Green hit the door with his back, roll off the door, and then go into the production office. Stricko "stopped" Budaker, and then went to the production office, where he stood in the doorway with ---- SCHWEBEL BAKING COMPANY 41 Schneider, blocking any entry from the "group" who followed. Cmil, who was working as a bread wrapper operator on August 17, punched in at 10:55 a.m. He testified that he went to the lunchroom on a break at approximately 12:30 p.m., where he ran into Walsh. Walsh told him "they had fired Tony Santangelo and they were getting everyone into the lunchroom." 22 Cmil then asked Walsh if he had called the Union in Cleveland and informed them that the Company had fired an employee, and was advised that he had not. Cmil then suggested that they call Cleveland and tell them what was going on.2 3 Cmil and Walsh then proceeded to the thrift store and Cmil telephoned the Union, finally talking to a business agent: "I explained that they had fired Tony Santangelo and the employees were beginning to sit down in the lunch- room." He was told business agents were in the area, and would be there shortly. Cmil left the store and went back to his wrapping area, as he knew bread would be down shortly. He then asked his supervisor, Stricko, if he could have someone to relieve him, because he had union business to attend to; Stricko replied that he would watch the machines until he could get a relief.24 Cmil then left and went back toward the lunchroom where he saw Walsh and Budaker. At this time Cmil saw the police leave with Santangelo, and he then suggested that they go see Schwebel and try to get things straightened out before they got out of hand. Cmil and Walsh did go to Schwe- bel's office, but he would not meet with them. Cmil and Walsh then went to the telephone, and Cmil again called the Union in Cleveland, and was told that the officials were on their way. Cmil did not know at this time that Walsh had been discharged. Cmil and Walsh then started to leave the thrift store, when they encountered Green about I p.m. Cmil then testified as follows: George blocked the door and put his hands across the door. He told Jack he had a dough due out, go back in the mixing room. Jack said he couldn't hear him. I kind of got out of the room and went under his arm. Jack kind of got around him someway and George got around in front of us again and he told Jack, you have a dough due out, go back in the mixing room and Jack said I can't hear you George. We moved a little further on the dock, just a few steps at a time we were going. George said for the third time, Jack I want you to go back to the mixing room you have a dough due out. Jack says I can't hear you. George said you are fired Jack. 2' The Charging Party pointed out to Cmil that in his prehearing affi- davit he had stated "He [Walsh] responded that the men had walked off the job in protest of the firing of Tony Santagelo earlier that day." I do not find this to be a contradiction of Cmil's testimony above but find each statement to be a logical adjunct of the other. 's Cmil had been elected steward in January 1975, and served in that capacity until June 1978, when he became a production supervisor. " Stricko corroborated Cmil's testimony as to this relief, and placed their conversation as having occurred between 12:45 and I p.m. Cmil also testified that he considered himself and Walsh to be engaged in union business when the two telephone calls were made to Cleveland, and when they went to speak to Schwebel. 4. Stoppage of work The Respondent called various rank-and-file employ- ees as witnesses, and produced much testimony in order to try to prove that Walsh and Budaker had called a wildcat strike after Santangelo was fired. However, it must be kept in mind that the Company does not claim that either Walsh or Budaker was discharged because they called an unauthorized strike. It is the Company's position that Walsh was fired because he refused to obey a lawful order to return to work, and Budaker was fired because he assaulted Green. Even so, the events relating to a shutdown after Santangelo's discharge are material, as they set the atmosphere in which both of these em- ployees were discharged, and will be briefly reviewed. Edward Kubis was a bread divider operator on August 17, on the line for which Walsh was the mixer. Kubis, whose work station was the closest to Walsh's mixer, testified that Walsh, accompanied by Budaker, came over to his job station and "told me to run out the dough, and we were going to meet in the lunchroom." Kubis then ran out all the dough he had. He did not fix a time for this conversation, but did testify that it was before he went to lunch at 12:46 p.m., the time his time- card shows that he punched out for lunch. Kubis also testified that after his lunch, which ended at 1:07 p.m., as shown on his timecard, Budaker and John Zomida came up to him and said to him that "they were all going to walk out" and to come back to the lunchroom. Kubis did this, but when he heard Green say that anybody who left the building was automatically fired, returned to his work station. On cross-examination, the Charging Party pointed out to Kubis that at the hearing before the Ohio Unemploy- ment Compensation Board when he was asked "Did anyone direct you to go into the lunchroom after you had finished running your product," he had answered, "No." He also admitted that at the same hearing when asked if he had any conversations with Walsh or Bu- daker or both on August 17, he had mentioned only one conversation and that was with Budaker. I did not find Kubis to be a credible witness, and I do not credit his testimony. David Brill was the bun mixer on August 17, and he testified that he stopped mixing sometime around 10:30 a.m. because his shop steward Budaker simply told him not to throw out any more dough. He stayed by his ma- chine for a while, and then went to the lunchroom about 11:30 to see what was going on. Later, when Brill re- fused Green's order to return to work, he was dis- charged. He was subsequently reinstated and discharged again in November for reasons not related to this case. Brill was a stolid, impassive witness who had no obvious reason to favor the Respondent, and I credit his testimo- ny that Budaker told him not to throw out any more doughs. His asserted time estimates are obviously out of line, but I do not find that these estimates affect the sub- stance of his testimony. SCHWEBEL BAKING COMPANY 41 42 L)ECISIONS OF NATIONAL LABOR RELATIONS BOARD John J. Sebest, who worked in the bagging depart- ment, testified that he returned from his lunchbreak at 12:23 p.m., as shown on his timecard. Some time thereaf- ter, Budaker told him to shut his department down. A "little later" Sebest had a conversation with Walsh, which he describes as follows: "I told Jack that George wanted us to shut down but I said I only [have] two and a half years before retirement and George Green said anybody that walks out of the bakery is going to be fired. I was not going to walk out." He then quoted Walsh as saying, "Do what you have to do." Douglas Chandler, the bread operator, testified that Budaker did not tell him to go to the lunchroom, he only made a "mere suggestion" that he do so. When Chandler returned from lunch at 1:17 p.m., he felt that there was a strike because his divider operator was not working. He also told Budaker that he was not going to leave his area with bread in the oven, that there would be no damage and, if he shut the oven down, it would be done proper- ly. He stated that Budaker agreed. George Semer was a molder operator on the hearth bread line, with the other members of his crew being: John Zomida, Charles Grubber, and Budaker. Sometime after Santangelo was fired, Semer stopped operating his molder because, "We didn't have any dough. We ran out of the dough. George [Budaker] told us to go into the lunchroom." Semer's best estimate of the time he went to the lunchroom was around 12 p.m. Semer refused to return to work and was fired. Richard Zeloniz, the hard roll mixer, testified that he knew that Santangelo had been fired and that Walsh and Budaker were intervening for him as shop stewards. He was by his mixer and saw that "nobody brought out a trough back" and realized it was 12:30 p.m. He asked Budaker what was happening, and was told that "most of the guys are up in the lunchroom." Zeloniz then went to the lunchroom. Brill, Sebest, Chandler, and Semer were all reluctant witnesses for the Respondent, and obviously loyal union members whose sympathies were with the discharged employees. Zeloniz was extremely hostile and argumen- tative. However, their testimony does establish that, after Santangelo was fired, the employees gradually left their job assignments, stopped performing their regular duties, and assembled in the lunchroom, so as to constitute an unauthorized work stoppage. Hart, one of the General Counsel's witnesses, admitted that he took his lunch at 12:30 a.m. because "there was no work to do." Employees were standing around, and, since "there was no dough, there was no need for me to put pans on the conveyor." Walsh, in effect, admitted that there was a work stoppage when he answered the question: "As a matter of fact, throughout from approxi- mately 12:25. Mr. Green and Mr. Snyder were trying to get the bakery back in operation." His affirmative answer was "the bakery and the dock." C. Credibility The testimony of Walsh, Budaker, and Santangelo conflicted at numerous points with the testimony of Green, Schneider, Stricko, and Cmil. I have credited Green, Schneider, Stricko, and Cmil over Walsh, Bu- daker, and Santangelo, not only because of the demeanor of the witnesses, but also because of the inherent prob- abilities of the total testimony. The Respondent's wit- nesses impressed me as sincere and conscientious men, who told the facts in a direct, straightforward manner, exactly as they remembered them. Walsh was a tense, ar- gumentative, implausible witness whose testimony car- ried no conviction. For example, he admitted that he told Santangelo to go back to work after Santangelo had been fired, but denied that he was still functioning as a steward, answering, "How could I function as a steward if I had already been fired." Later in his testimony, he contended that, when he was in the lunchroom, he got out his grievance book and tried to write up Santangelo's grievance. Certainly, the writing up of a discharge griev- ance is the function of a steward. Budaker was an eva- sive and inconsistent witness whose testimony gave the strong impression of being fabricated. On being asked on cross-examination about what happened on August 17, the following colloquy took place. Q. It was work stoppage, wasn't it? A. I have no idea. Q. You don't know whether there was a work stoppage on August 17th? A. No, not at this time. Q. What time is this? A. I don't know. Q. You don't know what time? A. No. Q. When was there a work stoppage? A. I don't know if there was necessarily one. Santangelo was a brooding, unforthright witness, whose testimony I could not credit when in conflict with that of the Respondent's witnesses. Hart, Donnelly, and Best were, by far, the least impressive witnesses who testified during this hearing. Hart was an evasive, equivocal wit- ness. The two rebuttal witnesses, Donnelly and Best, were nervous, twitchy witnesses, who constantly had to be told to keep their voices up, used long pauses before answering questions, and had very little recall of any facts. I do not credit their testimony and regard it as fab- ricated. D. Analysis and Conclusions According to General Counsel, Walsh and Budaker were terminated because they engaged in protected con- certed union activities. For Walsh, the handling of San- tangelo's grievance, and for Budaker, the carrying out of his duties as a steward. In addition, the Charging Party contends that they, as stewards, were singled out from a larger group who had refused to work in exactly the same way. According to the Respondent, Walsh and Bu- daker were discharged not because they engaged in union activities, but because Walsh refused a proper order to return to work, and because Budaker assaulted Green. As an initial premise, it is apparent that the Respond- ent has had a stable relationship with the Union for many years, an indication of lack of union animus. Alton Box Board Company Container Division, 155 NLRB 1025 SCHWEBEL BAKING COMPANY 43 (1965). The collective-bargaining agreement between the parties contains union-shop and binding arbitration clauses, provides for the Union to serve as the exclusive hiring hall, and allows voluntary deductions for Ohio Drive or COPE. Walsh, Budaker, and Santangelo were unanimous that, in all the prior years in which they had served as stewards, they had never had any problem at any time in being able to leave their work stations to handle a grievance. The record shows that mid-morning August 17, a tenseness was developing in the bakery, over the manner in which Santangelo was performing his duties. Green made several visits to observe the manual handstacking of the pans, and returned at approximately 11:30 a.m. 25 As Budaker admitted, Green told him that he was going to fire Santangelo if he did not do his job correctly. Bu- daker promptly passed this information to his fellow ste- ward, Walsh, and later to Chandler, the operator of the main oven. Santangelo then went to the men's room prior to 12 noon.2 6 Santangelo returned around noon, and Schneider then told him to punch his card out and go home. San- tangelo waved to Budaker, who was watching the meet- ing, and requested that he come over as Schneider was sending him home. Budaker came right over and told Schneider that he better get Green and straighten this out right now, "because if Tony goes we all go."2 7 When Schneider informed Budaker that he was running the shop, Budaker then hollered to the three mixers, Walsh, Zeloniz, and Brill, to shut down. Schneider immediately went to the executive office, and informed Green of what had happened. Santangelo also left when Schneider did and went into the white bread mixing room and told Walsh he had been fired and told to punch his card out. Walsh then kicked his dough out of the mixer and, as he testified, marked his dough sheet to show that the next time a dough would be due out was 12:40 p.m. Green and Schneider returned to the area about 12:05 p.m., at which time Walsh also arrived, joining Santan- gelo and Budaker. Walsh forthwith told Green that there would be no more production until Santangelo was put back to work. I fully credit Green's testimony that he then told Walsh that it was contrary to the contract for the employees to engage in a work stoppage, and that there was a grievance procedure, and that they should file a grievance. Green was a veteran employee in the baking industry having previously worked for the Ward Baking Company and the National Baking Division of the A & P. The inherent probabilities of his testimony are overwhelming, that the highest operating official of the Company would want to handle the Union's protest of Santangelo's discharge through the grievance and ar- bitration channels provided in the parties' collective-bar- gaining agreement, rather than through an economic 2 I have generally credited the times asserted by the Respondent's witnesses over the General Counsel's witnesses whose approximation were usually from 10 minutes to I hour prior to the Respondent's stated times. a6 Walsh testified he saw a relief man go to the pan stacker at 11:30 to 11:45 a.m. a7 Budaker, Santangelo, and Schneider all placed this conversation about noon. battle, by the employees walking out, and shutting the bakery down. There is no question but that the commer- cial baking of bread and rolls is a highly competitive business, and customers must be served to retain their business. A shutdown plant would have done great busi- ness harm to the Respondent, and Green as an experi- enced manager, requested that Walsh and Budaker follow the contract's grievance procedure, which would have obviated any cessation of production. Walsh refused to follow the contract grievance proce- dure, denying that a contract existed, although as ad- mitted during the hearing, it clearly did. Walsh then told Santangelo to go back to work, and when he attempted to put pans on the conveyor, Green stopped him. At this point Green told Schneider to get Santangelo's timecard and punch it out. Schneider went immediately to the ti- mecard rack, which was a short distance away, and punched Santangelo out at 12:09 p.m. While most of the times given by all witnesses were mental approximations, I find that this time of 12:09 p.m. is a firm beacon that supports most of the times I have credited herein. When Schneider returned, Green told him to go and see when the next dough was due out of Walsh's mixer. Schneider went to the mixing room, saw Walsh's dough sheet, 28 and returned about 12:11 p.m. to report that the next dough was due out at 12:40 p.m., and that he ex- pected him to get it out, and each time Walsh responded that he could not hear him. Since Santangelo had refused to leave the plant, it is only logical that Green and Schneider would go to Schwebel's office to discuss what to do next. Walsh's account of his noontime conversation with Green does not mention anything about Green telling him that he had a dough due out at 12:40 p.m., and that he was expected to get it out. Yet, both Santangelo and Budaker recalled it, as Santangelo testified that Green told Walsh "again," "you will have to go back and throw out the dough." In addition to crediting Green's and Schneider's testi- mony that Walsh was not fired at that time, I find that the inferences reasonably drawn from the testimony of employees solidly supports this finding. Walsh testified that when he was fired in the pan stacking area, Budaker said nothing. It is inconceivable that a veteran steward seeing a fellow steward fired, would stand there speech- less and make no protest. Earlier, when Santangelo had according to Budaker, only waved for him to come over, he had immediately gone to his assistance, and strongly contested Schneider's order. It is true that Budaker said nothing about Walsh being fired, and that was because Walsh had not been fired at that midnoon confrontation. Thereafter, the bakery was buzzing with talk about Santangelo being fired, but ony Santangelo, and not Walsh. Semer testified that Budaker came over to his machine and told him they had fired Santangelo, and that, even later, there was no discussion about Walsh being fired. Zeloniz testified "everybody" was upset be- 8 The dough sheet for August 17 was not produced by the Respond- ent as the Company only retains them for several weeks, and then dis- cards them. The only exception to this practice is the handling of the July 4 sheets, which are retained from year to year, that date being the heaviest baking day of the year. SCHWEBEL BAKING COMPANY 43 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause "they" tried to fire Santangelo. Brill learned of Santangelo's firing in the lunchroom, but not of Walsh's. Chandler testified that when he went to the lunchroom at almost I p.m., "a group of guys were standing around arguing, and upon asking them what was going on, "they said Tony had been fired." Best, in describing the mood of the plant after he punched out at 12:37 p.r., stated "everybody was pretty upset with Tony being fired." Donnelly testified that as he and Best stood by the time- clock just prior to punching out, the two talked about Santangelo being fired, but nothing was said about Walsh being fired.2 9 If Walsh had been fired shortly after the firing of Santangelo, certainly there would be as much discussion of his firing, as there was of Santangelo, but there was none. After Green and Schneider left the group, Walsh did not do the obvious thing if he had just been fired, and turn to Budaker right then and there to handle his griev- ance, but claimed that he went looking for Cmil. Bu- daker did not offer to help Walsh in his purportedly fired status, but, according to his testimony, went back to his machine, routinely took one more dough, ran the dough out, and told his crew they could take a break, and then he went to lunch. Certainly, these were not the reactions of a militant steward who had just seen a brother steward fired before his very eyes. It was no mutual agreement between Cmil and Walsh that caused the telephone call to the union office in Cleveland. It was solely Cmil's idea when Walsh told him that Santangelo had been fired, and that they were trying to get all employees to go to the lunchroom. On September 27, a little more than a month after that tu- multuous day, while Cmil was still a loyal shop steward, he had given an affidavit to the Board in which he re- ported that Walsh had told him that the men had walked off the job "in protest of the firing of Tony Santangelo." Certainly, if Walsh had told him that he had also been fired, Cmil would have put that in his affidavit. Also, Cmil would have reported to the Union in Cleveland when he made his telephone calls, that both Walsh and Santangelo had been fired. However, he only reported that Santangelo had been fired, because that was the only knowledge he had of any employee being fired. We then come to the time Walsh was actually dis- charged out on the dock sometime around 1 p.m. The bakery was in an uproar, with most employees not work- ing. The police had come to evict Santangelo, and, as Walsh admitted, Green and Schneider were trying to get the bakery back into operation. Green had already fired Brill when he refused to return to his work area, and the next employees he met were Walsh and Cmil, as they were coming out of the thrift store. As Cmil credibly testified, when Green told Walsh that he had a dough due out and to go back to the mixing room, Walsh replied that he could not hear him. Twice again, Green repeated this to Walsh as they pro- ceeded down the dock, and both times Walsh's only reply was that "I can't hear you." Thus, when Green 29 One witness, Hart, testified that when he went to the lunchroom around "12:00 or a quarter to one," the employees were talking about the firings of Walsh and Santangelo. As previously stated, I do not credit Hart's testimony. fired Walsh, Walsh was clearly not functioning as a ste- ward, and made no claim that he was functioning as a steward, or that he was on union business. Certainly a steward acting in any degree of a reasonble manner would have told Green that he was on union business, and not ignored Green's instruction, nor replied in such a totally unresponsive manner. Walsh had been away from his work station for some 50 minutes, and he knew that a dough had been due out at 12:40 p.m., and was now past due. Walsh knew that his job of mixing the dough was the start of the production process for the white bread, and, if he did not run the mixers, then physically remove the dough from the mixer and put it in a trough, and place the trough on the floor, the divider operator, the moulder, and the oven operator would have no work. Walsh had totally abdicated his duties as a steward, and also as an employee, and his discharge was for cause and did not violate the Act. I also find that Budaker was discharged because he as- saulted Green. There undoubtedly was physical contact between the two men, after Green called out to him that he wanted to talk to him. Budaker knew that Green had had Santangelo removed by the police, that Green had already fired a number of employees, and he was seeth- ing with anger when he charged Green, and pushed him into the swinging doors. Certainly such violence by Bu- daker against a supervisor was not within the scope of a steward's duties, nor part of the collective-bargaining procedure, and was sufficient grounds for Budaker's dis- charge. Budaker's claim that Green opened the conversa- tion by grabbing him was not corroborated by any wit- ness. Walsh testified that there was no pushing or shov- ing, and Hart stated that the whole thing was just a heated argument. Budaker would justify his placing his hands on Green, by claiming that Green put a clipboard on Budaker's chest, and then wrote his name down on it. Hart did not see Green put a clipboard on Budaker's chest, and it is against all probabilities that the older Green would so lay a clipboard on the chest of the angry, much younger looking Budaker, who was a pow- erful man, 6 feet 2 inches, and 210 pounds. It is also to be noted that in an affidavit given by Budaker to a Board agent I week after his discharge, he did not men- tion a clipboard, or that there was any physical contact between any persons. Budaker was not handling any grievance at the time he was discharged, but was in fact wandering about the bakery, encouraging employees such as Brill and Sebest to shut their machines down, and telling or suggesting to employees such as Semer and Chandler that they go to the lunchroom. The facts in the two main cases cited by the General Counsel and the Charging Party in support of their case, are clearly inapposite to the facts in the instant case. In Chatham Manufacturing Company, Inc., 221 NLRB 760 (1975), enfd. 538 F.2d 323 (4th Cir. 1976), the steward was clearly trying to file a grievance on behalf of the employees when he was disciplined. In Precision Casting Company, 223 NLRB 183 (1977), there was an unauthor- ized walkout by many employees. Following the termi- nation of the walkout, the employer admittedly singled out five shop stewards and suspended them, because as union stewards, they had failed to abide by their contrac- SCHWEBEL BAKING COMPANY 45 tual responsibility to take reasonable steps to terminate the work stoppage. Obviously, in the instant case, Walsh and Budaker were not singled out after the walkout was terminated, and then disciplined. They were discharged during the height of the walkout when they were not performing the duties of a shop steward. The Charging Party points out in his hrief that Re- spondent also fired five other employees on the same day for refusing to return to their work stations, Brill, Semer, Hart, Svetlack, and Zamodia. Since three of these em- ployees, Brill, Semer, and Hart, were reinstated some time later, the argument is then made that since Re- spondent has made no explanation why the two stewards were not reinstated, it necesarily follows that the Re- spondent singled out the other two stewards for disci- pline as in Precision Casting. This argument has no bear- ing on Budaker's discharge as he was fired for making an assault on a company official. I also find that this bare assertion as to Walsh does not meet the General Coun- sel's burden of proof. The record does not show how many employees were terminated, although during the course of the hearing there was testimony that many more than seven were discharged. The record, also, does not show how many employees were reinstated, or why any employees were reinstated, including Brill, Semer, and Hart.30 The Charging Party's statement, not being supported by proof, cannot be boot strapped to stand as a proven conclusion. General Counsel introduced no evidence to show hos- tility of any degree to Walsh and Budaker, or that the Respondent had ever sought to bar them, or any other steward from handling grievances. In fact, the evidence is totally to the contrary, as admitted by these two stew- ards and former steward Santangelo. Walsh and Bu- daker's words and actions plainly show that they had de- termined to take matters into their own hands, had 30 It is well established that an employer may choose among wrongdo- ers in meting out discipline. See N.L.R.B. v. Fansteel Metallurgical Corpo- ration., 306 U.S. 240, 259 (1939). chosen to totally ignore the grievance procedure of the collective-bargaining agreement, as well as the authority of management, and had abandoned their duties as stew- ards. Their actions totally exceeded the boundaries of ac- ceptable conduct, and made a mockery of the collective- bargaining process. Accordingly, I find that the General Counsel did not sustain his burden of establishing by a preponderance of the evidence that Jack E. Walsh and Henry George Budaker were discriminatorily discharged in violation of Section 8(a)(3) and (1) of the Act. It is therefore recommended that the complaint be dismissed. Rivieria Manufacturing Co., 167 NLRB 772 (1967); Stop & Shop, Inc., 161 NLRB 75 (1966). CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of the Act. 3. The Respondent has not discriminated against em- ployees Jack E. Walsh and Henry George Budaker, and has not engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) if the Act, there is issued the hereby recommended: ORDER 3 It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. "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 find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. S C H W E B E L B A K I N G C O M P A N Y 45~~~~~~~~~~~~~~~~~~~~~