Summitville Tile, Inc.

SUMMITVILLE TILE. INC. Summitville Tile, Inc. and International Brotherhood of Pottery and Allied Workers, SIUNA, AFL-CIO. Cases 8-CA 11772 and 8 RC 11235 September 28, 1979 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN FANNING AND MEMBERS PENEII.() AND MURPHY On June 4, 1979, Administrative Law Judge Wil- liam F. Jacobs issued the attached Decision in this proceeding. Thereafter, the Charging Party and the General Counsel filed exceptions and supporting briefs, and Respondent filed an answering brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions' of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the complaint be, and it hereby is, dismissed in its entirety. I We do not adopt the conclusion of the Administrative Law Judge that the termination of the employees was the less effective alternative available to Respondent to deal with the card playing by the night shift. We will not substitute our judgment for the business judgment of Respondent by con- cluding, as the Administrative Law Judge did, that the "quickest, easiest. and least painful way of getting the night shift to stop quitting early and playing cards on Company time was simply to tell them to stop doing it." The Board will not instruct employers as to what is the best way to deal with serious breaches of discipline. Neither do we adopt the conclusion of the Administrative Law Judge that Respondent's owner. Johnson, went to the plant the evening of March 3 in order to catch employee Moyer doing something which could be utilized as a legitimate basis for taking action against him. Subject perhaps to indepen- dent confirmation, the report of the night watchman, relayed to Johnson on the afternoon of March 3, that the night shift was playing cards gave John- son a legitimate basis for disciplining Moyer. Johnson's personal involve- ment in the investigation of the matter does not support a finding that John- son was searching for a reason to fire Moyer. A talk with the night watchman or a direct investigation of the report by another member of management that evening would also have accomplished that objective, had Johnson been seeking a basis for termination. Although Johnson may have welcomed the opportunity to discharge Moyer upon confirmation of the night watchman's report that evening, the facts do not imply that Johnson sought out a reason to discharge Moyer: the reason, in fact. had been dropped in Johnson's lap that afternoon. IT IS FURTHER ORDERED that the challenges to the ballots of Ronald Lowery, Olie Moyer, Jr., Stewart Clapper. Ralph Decker, Marvin McClaskey, Richard Mason, Dan Hole, and Michael McClure in the elec- tion conducted in Case 8 RC-11235 be, and they hereby are, sustained, and shall remain unopened and uncounted. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for International Brother- hood of Pottery and Allied Workers, SIUNA, AFL- CIO, and that said labor organization is not the ex- clusive representative of all the employees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. DECISION STATEMENT OF THE CASE WILLIAM F. JACOBS, Administrative Law Judge: These consolidated cases were heard in Canton, Ohio, on August 31, September I and September 6 through 8, 1978.' The petition in Case 8-RC-11235 was filed February 15 by In- ternational Brotherhood of Pottery and Allied Workers, SIUNA, AFL-CIO, hereafter called the Union. Following the filing of said petition, Summitville Tile, Inc.. hereinafter called Respondent and the Union, entered into a Stipula- tion for Certification upon Consent Election pursuant to which an election was conducted by the National Labor Relations Board on April 6 in the appropriate stipulated unit.2 The election results reflect that there were 51 ballots cast for and 55 against the Union, with 8 challenges, a num- ber sufficient to affect the results of the election. The charge in Case 8 CA-11772 was filed by the Union on March 8 against the Company, and on March 27 complaint' issued thereon alleging the discriminatory discharge of nine em- ployees' on March 3, including the eight who were subse- quently challenged by the Board agent conducting the elec- tion on grounds that their names did not appear on the eligibility list. Following the election, conducted by the Na- tional Labor Relations Board, the Regional Director for Region 8, on April 25, issued an Order directing hearing on challenged ballots, in which he stated that inasmuch as the determination of the challenged individuals' eligibility would depend upon the resolution of issues contained in the unfair labor practice case, he would issue an order provid- I All dates herein are 1978 unless otherwise indicated. 2 All full-time and regular part-time production and maintenance employ- ees, including shipping and receiving employees, excluding all office clerical employees. professional employees, guards and supervisors as defined in the Act. 3 The complaint was amended at the hearing to add as alleged supervisors, James Augsberger and Virgil Whitmyer. ' All nine employees were alleged to have been terminated in violation of Sec. 8(aHX3 and I , and one of them. Olie Moyer. Jr. additionally. n viola- tion of Sec 8(a8 4) and ( I ) of the Act. 245 NLRB No. 111 863 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing that the two cases be consolidated for hearing before an Administrative Law Judge. The Order consolidating cases and notice to consolidated hearing issued July 7 and pro- vided for consolidation for purposes of hearing, ruling and decision by an Administrative Law Judge after which, it was further ordered, that Case 8-RC-11235 was to be transferred to and continued before the Board in Washing- ton, D.C. In its answer filed April 3, Respondent denied all substantive allegations contained in the complaint. All parties were represented at the hearing and were af- forded full opportunity to be heard and present evidence and argument. All parties filed briefs. Upon the entire rec- ord, my observation of the demeanor of the witnesses and after giving due consideration to the briefs, I make the fol- lowing: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Jurisdiction is not in issue. The complaint alleges. Re- spondent admits and I find that at all times material herein, Respondent has been engaged in the manufacturing of floor tiles in Minerva, Ohio, and elsewhere and is and has been, at all material times, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION Testimony and documentary evidence contained in the record amply supports the finding that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. UNFAIR LABOR PRACTICES Background Respondent is a manufacturer of ceramic floor and wall tiles and operates plants in Minerva and Summitville, Ohio. The Minerva plant, the only one involved in the instant case, employs between 150 and 175 employees whose work revolves around the two tunnel kilns located at that plant which are operated 24 hours a day, 7 days a week and 52 weeks a year. The capacity of the kilns, generally deter- mines production, with a fixed number of kiln cars sched- uled each day. Thus, all operations except packing depend upon the timing of the kilns and as one car is removed from a kiln another is put in, so that the kilns remain full at all times. The plant schedules 63 cars per week which is top capacity, 12 each on Mondays and Tuesdays, I I each on Wednesdays, Thursdays, and Fridays and 6 on Saturday. Although for the past 4 or 5 years Respondent has oper- ated primarily as a day shift operation with some sort of a night shift, as of about a year before the hearing the night shift became more formalized. At that time, the day shift, consisting of between 125 and 140 employees, worked from 7 a.m. to 3:30 p.m. The night shift consisting of 10 or 11 employees worked from 3:30 p.m. until midnight, while 7 or 8 part-time employees worked at various times between the hours of noon and 7:30 p.m. When the night shift became permanent in March 1977 it consisted of three teams of three employees, each team operating a type of press known as a cookie cutter, with one additional employee operating the tow motor. There was also a kiln fireman on the night shift who also acted as night watchman. When the night crew operated the cookie cutters, it was responsible to Plant Superintendent Giovenelli. When it was not needed for this type of work, however, it did other types of work- grinding, waxing, or packing and was responsible to other supervisors in charge of those particular functions. The Practice of Quitting Early Prior to March 3-Day Shift The day shift's quitting time, prior to March 3, was 3:30 p.m. Inasmuch as production was geared to the capacity of the kilns and a certain number of carloads of tiles were scheduled for loading and unloading each day, the quota or output goal was sometimes completed before the 3:30 p.m. quitting time, and depending on the particular type of job at which a worker might be employed, he might or might not be required to work right up close to quitting time. Whenever the type of product so required, employees work- ing at jobs geared to production sometimes had to work right up to the last minute while on other occasions they might finish early, sometimes half an hour early or, on rare occasions, even earlier than that.' When employees shut down early because their work was completed they were expected to clean up their work area until quitting time. According to Fred H. Johnson, Respondent's owner and chairman of the board, employees might occasionally drift away from their work stations early and be found lined up at the timeclock as early as 3:15 p.m. On these occasions, however, when Johnson observed this happening maybe once or twice a year, he would instruct his supervisors to correct the practice inasmuch as he felt that it was not fair to other employees who had to continue working through to quitting time, to see these employees standing around doing nothing. Inasmuch as Johnson did not, however, maintain his office at the Minerva plant and was not fre- quently present' in the Minerva plant working area at quit- ting time, his testimony must be considered more valuable as a description of the rule in effect rather than of the prac- tice. In most cases, the other witnesses testifying on the sub- ject, agree with Johnson's testimony to the effect that the practice of quitting early, and how early, depended to a large degree on the particular job being done, and my analysis of the testimony of all witnesses leads me to con- clude that this was, in fact, the case. Therefore, testimony concerning practices on particular types of jobs is given more weight than generalities descriptive of the entire shift8 See the testimony of Fred H. Johnson. 6 Ronald Lowery, an employee of 4-1/2 years testified that he only saw Johnson at the plant at quitting time once when employees were through working and just standing around. 7 Although Olie Moyer, Jr., an alleged discriminatee and key figure in this case testified at one point that all departments shut down early and that supervisors were aware of this fact, he testified elsewhere that the practice of the day shift as regards quitting earl), depended upon the type of job being done. ' Thus, the testimony of Olie Moyer, Jr. that in all the operations, idle time, after clean up, was about 20 minutes, though true, as an average, is of less importance than other testimony dealing with specificjobs which reflects the reasons for quitting early. 864 SUMMITVILLE TILE, INC. because reasons for early quitting may be applied to spe- cific jobs hut not to the entire shift. Thus, on the selecting/ hacking line, where the employees took care of the fired ware, and on the cookie cutters, these jobs required doing as many carloads as were scheduled that particular day, and depending on the amount and type of products pro- duced, selectors and hackers 9 could complete their assigned work in from 5 minutes to an hour before quitting time.'" Most witnesses" testified that the selecting and hacking lines would shut down between 2:30 and 3 p.m.2 Since it is undisputed that Respondent scheduled 12 carloads of tiles on Monday and Tuesday and 1 I on each of the other week- days, it appears reasonable to conclude, and certain testi- mony supports the conclusion," that the hackers shut down at about 3 p.m. on Mondays and Tuesdays and as early as 2:30 p.m. on other weekdays. After shutting down, the hackers would take from 5 to 20 minutes to clean up and therefore would frequently have from 15 to 45 minutes'4 of down time after cleanup. According to Supervisor Whit- myer, even when the hackers and selectors had 40 or 45 minutes left after cleaning up, they still had plenty to do. They brought up skids and generally kept busy getting set up for the following day. A certain percentage of employees would check out at 3 p.m. and leave the plant which was their option. Those who stayed might then go to the rest- room or get a can of pop and, in general, relax. Though normally employees did not stand around and talk, they sometimes did, on which occasions they were not criticized for doing so. This standing around talking and drinking pop, when it occurred, happened between 3 and 3:30 p.m.. when the employees were still on the clock and getting paid for it. Though they were still on the clock, Whitmyer never told any of these employees to put down the pop and get to work. Plant Superintendent Giovenelli, on the other hand, testified that on occasion he would sometimes direct them to work, but that on other occasions he would permit them to stand around for as much as 20 minutes. Though em- ployees between 3 and 3:30 p.m. would stand around in groups talking, Whitmyer would never tell them to "break it up and go back to work" because their work had already been completed. Though on these occasions, he might have assigned them other jobs such as packing, for there was always packing to do, he never did so. Alleged discriminatee Olie Moyer, Jr. testified that in the selecting area, clean up was finished between 3:10 and 3:15 p.m. after which employees stood around doing nothing whatever. According to Moyer, Supervisors Whitmyer and Lynn Campbell, in particular, were aware of this fact and never told them not to quit early. But Moyer also testified that Olimpio Giovenelli, production supervisor, on the other hand, when he supervised the hackers in 1976 and The hackers' job consists of manually lifting tiles from an off-bearing belt from an extruder and placing the tiles on dryer or kiln cars. 10 Supervisor Virgil Whitmyer testified credibly to this fact u Witnesses so testifying include Louive and Campbell. Olie Moyer. Jr., McClure Mason. and Lowery testified. in large, in support of their testi- mony. T On Saturdays they shut down /2 hour early. i Cf. Lowery's testimony. 14 Based upon a composite of all of the testimony of witnesses who testified on the matter. 1977. made sure that the employees alwa,,s had brooms in their hands, even if they did not do an'ything with them. and were merely standing around. Moyer's testimony on this point fully supports that of Giovenelli. This testimony indicates that different members of management took vary- ing positions with regard to the necessity of giving the ap- pearance of being busy during downtime. in order, appar- ently, to comply with Johnson's admonition. In agreement with Whitmyer, Moyer testified that if employees com- pleted their work. they could check out rather than stand around talking until quitting time. A number of employees were called to testif', concerning the practice of stopping work before quitting time and all testified in agreement with Whitrmyer and Moyer that upon completing their cleaning up chores, the employees just stood around, drank pop, and talked until it was time to punch out and that this practice was observed by members of management who were pretty much doing the same thing. Although none of' them were ever reprimanded for standing around talking. waiting until 3:30 p.m. checkout time, some chose to check out at 3 p.m. rather than just hang around. The waxing and grinding room facility was located in a separate building. Employees who testified on the subject stated that it closed down between 3 and 3:20 p.m., depend- ing on the type of work being done. after which it took from 5 to 10 minutes to clean up. Though there was no supervi- sory office in the waxing and grinding room. Whitmy'er, when he was supervising in 1976 and 1977. would come in about 3:10 p.m. while the employees were shutting down and check up on production. Olie Moyer. Jr.. who was the towmotor operator on the day shift during this period, would then tally up the tickets which reflected production and would take them to the office. The remaining 5 to 20 minutes left was considered downtime and the employees would stand around and talk until it was time to punch out. It would appear from the general concensus of testimony that there was much less downtime in the waxing and grinding room, about 15 minutes, due to the nature of the work, than there was in the selecting and hacking areas. In the waxing and grinding area there was a spray waxer. This operation was shut down about 3 p.m.'" according to most witnesses. ('leaning up. however, was an extensive process leaving either no down time thereafter or at most 10-15 minutes. During this brief period, in the presence of supervision, some employees stayed in the area, sitting and talking, others left. The work of packing on the packing line, during the rel- evant period, involved packing the finished products in car- tons for shipment. The packing crew usually consisted of six employees, sometimes more or less. The makeup of the crew varied for employees were frequently assigned to the packing line when they were no longer needed elsewhere. Similarly, employees already working on the packing line might be taken off that job and reassigned to another job where their services were more in demand. Thus, the pack- ing line served as a sort of manpower pool. It also served as the place of employment for those employees who were 15 Moser alone testified that the spray waxer shut down between 2:50 and 3 pm 865 DECISIONS OF NATIONAL LABOR RELATIONS BOARI) unable to perform other duties as well as for those who had nothing else to do. Inasmuch as the C'ompany was under- staffed and the kilns produced faster than the product could be packed, there was always packing to do. Further, since the other work done at the plant was done in accordance with the quota based on kiln capacity, whereas the packing line work was not, the other job took priority, and packing was left to be done when it was convenient. As to the practice of shutting down the packing line prior to the 3:30 p.m. quitting time, witnesses called to testify stated that the packing line was shut down between 3 and 3:20 p.m.'6 when, unlike the other departments which shut down automatically when the work was completed, super- vision told the packers when to shut down. After shut down, there was only about 5 minutes cleaning up to do leaving down time of anywhere from 5 to 25 minutes. Dur- ing this period employees would stand around and talk. To summarize the practice during the day shift of stop- ping work before quitting time, the record indicates that in each department, depending on the amount and type of work to be done, employees would stop working early. clean up and relax, chat, and drink pop until quitting time, and although this downtime amounted frequently to 30 minutes on the selecting and hacking lines because of the scheduling of the work, it still amounted to from 5 to 25 minutes on the packing line where there was still work to be done, and since all of the standing around was observed. I find that it was condoned by members of supervision pre- sent at the time. Night Shift As noted earlier, the night shift, prior to March 3. was composed of three teams of three men each. Each team was to operate one of the three cookie cutters, when operating the cookie cutters was the assignment for the evening. Olie Moyer, Jr. was the towmotor operator on the night shift and these 10 employees comprised the night shift, not in- cluding the kiln fireman/watchman, Gruber. When the night shift was not operating the cookie cutters, it did any of the other jobs done by day shift employees including grinding or packing According to Fred Johnson, production figures for the night shift cannot fairly be compared to those of the day shift, because the night shift was comprised of the same 10 employees who had worked together over a long period of time, were not disturbed by interruptions and had access to the towmotor whenever it was needed, whereas the day shift employees were constantly moved around, were inter- rupted in their work by such reassignments and sometimes did not have the use of the tow motor because it was servic- ing other operations. Granting all of this to be true, never- theless Johnson admitted that he never had occasion to criticize any night shift employees because of their lack of production or for any other reason prior to March 3. Supervisor Virgil Whitmyer testified also that although he was familiar only with the night crew's production with regard to grinding, he never had occasio to discuss its pro- ' Since the termination of the night shift on March 3, the packing line has, worked through until 3:20 or 3 25 p.m duction with other supervisors or to criticize it. He testified that the night crew's production was at least equal to the day crew's production and that he could not recall any oc- casion when the night crew failed to equal the day crew's output. He stated that it could be true that the night shift did better on grinding than the dav shift. and that it regu- larly outperformed day shift employees when packing. al- though, like Johnson, Whitmyer stated that this was so be- cause there was not a full crew packing on days since other areas were constantly borrowing or adding to the packing line labor pool. Olie Moyer, Jr.. characterized by Respondent as the night supervisor and by General (ounsel and the Charging Party as a leadman, testified that with regard to production. the night shift tried to keep pace with the day shift so that if the day shift had produced a certain number of skids. the night shift attempted to do the same number of skids plus a little more. Generalis. according to Moyer. it succeeded in its goal although sometimes it failed. Of course. the produc- tion goal of the night shift depended upon the type of work it was assigned on any particular evening, the number of employees working on that assignment that night, and the number of employees and their production in that area that afternoon. This means of establishing the production goal for the night shift was, according to Moyer, always the practice. and to reach that goal the night shift worked until quitting time which was midnight or until 11:45 or 11:30 p.m. when, if at that time the production goal had been reached, the night shift would shut down, then clean up. and sit around and talk until it was time to punch out. Though free to do so, night shift employees did not punch out early. Moyer testified that it was never a secret that the night crew stopped work after equaling or slightly surpass- ing the day crew's production, and no one from manage- ment ever questioned Mover about the practice of stopping work early. On the other hand, there is no evidence that management knew of this practice. In order to determine the output of the day so that pro- duction goals could be set for the night shift. Moyer would consult certain cards which reflected the number and type of product produced that day by the cookie cutters, that is if the night shift was assigned to the cookie cutters that evening. In this wa3 the night shift knew how to pace itself. Pacing itself when assigned to the waxing and grinding room was more difficult for the night shift. according to Moyer. since there were no cards bearing information con- cerning production in the grinding and waxing room similar to those used in connection with establishing coo)kie cutter production goals. Moyer testified that in this regard he had to rely on his previous day shift experience to establish pro- duction goals for the night shift when assigned work in the grinding and waxing room. One wonders, in this respect however. why. if Moyer's system of establishing night shift production goals based on day shift production was not objectionable to management. as he implies in his testi- mony. he did not simply ask (;iovenelli. Whitmyer. or some other person in higher althorit what the dav shift pro- duced. explaining his reasons for sking. namell\. that ilhe desired to utilize the da? shifts plrodluctiol figures as a goal for the night hift. As pposed to mlanageinent. he did 866 SIIMMITVILIE TILE. INC sometimes inquire of rank-and-file employees about day shift production. With regard to the night shift establishing production goals for its packing line work, there were cards available which contained information concerning the number of em- ployees and hours spent during the previous shift on pack- ing. as well as the number of cartons or pieces packed. Based on this information, the night crew would try to do a comparable amount of work, taking into consideration the size of both crews. Several other night shift employees were called to testify concerning the night shift's production and each supported Moyer's testimony to the effect that the night shift always tried to do a little more than the day shift in the area of their assignment and invariably succeeded. Similarly. they testified as did both Moyer and members of management that the night shift never was criticized regarding its pro- duction. Finally, these rank-and-file employees testified in accordance with Moyer's testimony that after meeting or exceeding the day shift's production, the night shift shut down, ordinarily having worked until between 11:25 and 11:40 p.m.,'7 after which they would sweep up. then wait around until it was time to punch out at midnight. The Supenrisoyn Status of Olie MoIer. Jr. General Counsel and Charging Party take the position that alleged discriminatee Olie Moyer, Jr. was, at the time of his discharge, a rank-and-file employee while Respon- dent contends that he was in charge of the night crew and a supervisor under the Act. General Counsel, in support of his position, and to distinguish Moyer from the supervisory staff, adduced testimony that Moyer was not salaried whereas certain other individuals, admittedly supervisory, were salaried: that he did not attend supervisory meetings: that he did not come under the same written sickness and health policy which covered salaried personnel: that he punched a timeclock; that he did not have his own office or desk; that he was covered by a pension plan whereas sala- ried personnel were not; and that he was paid for overtime. received a Christmas bonus and was eligible for a perfect attendance bonus whereas admitted supervisors were not. while those supervisors were eligible for performance bo- nuses whereas rank-and-file employees and Moyer were not. Additionally, Moyer had never hired or interviewed perspective employees and had no authority to transfer em- ployees from one shift to another or from one job to an- other on his own, although if and when a question of reas- signment arose, it was always Moyer who was authorized to call Giovenelli by telephone to seek instruction as to whether the employee in question should be reassigned or sent home. Occasionally, it was predetermined before the shift started that the night shift would perform one type of work for a part of the evening then another task for the rest of the evening. When this predetermination occurred, Gio- venelli would so instruct Moyer and when the time came, later during the shift to switch from one job to another, it was Moyer who initiated the changeover. ' One employee testified that when he first began working the night shift it shut down to clean up at 11:50 p.m.. but later on it began to shut down earlier, but even so. there was no change in the amount of production In support of its position. Respondent adduced testimony that Moser was in complete charge of the entire plant dur- ing the night shift and had received a 15-cents-per-hour raise when made a supervisor in recognition of the job he was doing. This 15 cents plus the 10 cents per hour he received for driving the tow motor amounted to 25 cents per hour more than the other employees on the night shift received. Aside from the various applicable indicia of supervision utilized by each side to argue its position concerning Moy- er's supervisory status or lack thereof, the record reveals that in the day-to-day operation of the plant, and with par- ticular respect to the night shift. Moyer's role was clearly different from that of other rank-and-file employees on the night shift. Thus, each day when he reported to work, he and he alone would receive instructions from Giovenelli as to what type of work the night shift would perform that evening, and what kind of special problems, if any. might be expected. Once informed of the type of production to be done, Moyer, an employee with 10 years experience. knew what else had to be done and thereafter merely advised the rest of the shift where their work stations would he that evening. In Giovenelli's absence. Whitmyer would give Moyer his instructions. Again, on these occasions. Whit- myer dealt solely with Moyer and no one else. After receiving his instructions from Giovenelli or Whit- myer at 3:15 p.m., and thereafter advising the rest of the night shift where they would be working, Moyer spent 90 percent of his time driving the towmotor and doing other physical labor and 10 percent of his time directing other employees. When he was first assigned the night shift job in March 1977, Giovenelli told Moyer that he would be a working foreman and that he was "more or less to keep an eye on" the other employees and "if something came up, let him know." Since that time this is what Moyer did. Aside from driving the towmotor, taking out scrap, mak- ing minor repairs, setting up skids and other such physical laborr Moyer was also required to fill out the pallet cards indicating the amount of production. As far as directing the other employees is concerned. Moyer and other witnesses testified that after Moyer assigned them their work station for the evening, in accordance with higher management's instructions, they knew what to do and performed their du- ties as the job required, and unless there was a new man who needed help, Moyer's directions were limited to telling the crew to speed up production if they were lagging behind or to move a kiln car one way or the other. In accordance with his instructions from Giovenelli to let the latter know if something came up. Moyer would contact Giovenelli by phone when problems arose, whether the problems involved equipment or personnel. Thus, whenever there was a machine breakdown which he could not take care of himself. Moyer would call Giovenelli to let him know, whereupon Giovenelli would tell him what to do, either reassign the employees to other jobs or have them clean up. Similarly, on occasions when personnel problems erupted on the night shift, Moyer. in line with the authori- zation from Giovenelli. would immediately contact Giove- " On Saturdays Moyer worked as a general laborer, hacking. selecting, driing the towmotor. packing or operating the cookie cutter 867 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nelli to advise him of the matter. Thus, on two occasions Moyer contacted Giovenelli to advise him that employees had been engaged in fighting at the plant. On the first occa- sion, in the spring of 1977, two employees on the night shift got into a fight. Moyer separated the combatants, told them to simmer down, and advised them that he was going to call Giovenelli which he subsequently did. Giovenelli told Moy- er to let the two employees finish out he night, that he would talk to them the following day hut that if the situ- ation flared up again, Moyer should send them home. Moy- er then advised the two individuals involved what Giove- nelli had said, and they were quiet thereafter. Giovenelli called the two combatants into his office the following day but apparently Moyer took no part in any disciplining of them if, in fact, there was any. On the second occasion, in January or February 1978, two other night shift employees, Melville and Hole became involved in an argument which culminated in Melville throwing a box with several tiles in it at Hole, cutting his hand. Again, in accordance with es- tablished procedures, Moyer called Giovenelli. Giovenelli told Moyer to send them home, that he would speak with them in the morning. Moyer told them what Giovenelli had said, and they went home. The following day Melville was issued a 3 day suspension by Giovenelli without any consultation whatsoever with Moyer. Later, when Hole arrived both he and Moyer were called into Giovenelli's office. The circumstances which led up to the fight were discussed. Hole was advised that unless he stopped telling other employees what to do, he would probably "get some time off or would be fired."'" During this meeting, according to Hole, Moyer "just sat there lis- tening to Mr. Giovenelli talk, and when he got done he agreed more or less." At one point, Hole was asked to leave the room and Giovenelli and Moyer discussed the matter, including the fact, apparently, that Hole had not fought back but had just let Melville hit him. Based on these facts Moyer "went to bat" for Hole and the result was that Hole was given only a 1-day suspension rather than 3. With regard to Moyer's role in the disciplining of Hole, I find that his participation in the discussion with Hole and Giovenelli which preceded the giving to Hole of the -day suspension for engaging in the fight, was isolated. He was not consulted nor did he participate in the discussion in Giovenelli's office following the fight between the comba- tants in the first fight. Nor was he consulted with regard to the suspension of Melville. Thus, it is quite clear that par- ticipation in the disciplining of night shift employees was not a standard part of Moyer's duties, indicative of supervi- sory authority. I find that his participation in the discussion concerning Hole's fight with Melville, was therefore more in the role of a witness rather than anything else, and do not rely thereon in determining whether or not Moyer is a su- pervisor under the Act. In April or May 1977 an incident occurred which must be considered in determining the supervisory status or lack thereof of Olie Moyer, Jr. On that particular occasion, at about 11:30 p.m., Moyer observed that one employee was ' Although in his testimony regarding this meeting, Hole used the word "they," it appears from the entire context of the testimony that Giovenclli was doing the alking, not both Giovenelli and Moyer together. not keeping the belt that feeds the press full, as he should have been doing. Moyer advised the employee to keep the belt full as required, but he still did not do as instructed. Moyer then said to the individual, "If you don't want to work, go home." And he did! The following day Moyer was told that he had overreacted, that he "wasn't supposed to do that," that he should not have sent him home. After this incident, whenever a question came up of sending someone home, for fighting, or for whatever reason, Moyer would first call Giovenelli and ask him what he wanted to do. The incident demonstrates that whatever authority Moyer thought he had concerning this type of action, he did not have, and he was really a conduit of Giovenelli's authority rather than an independent authority himself. When the night shift worked on a job that had a quota, such as when it worked on the cookie cutters, it was ex- pected to produce in accordance with that quota, for the one time that it failed to do so. Moyer was questioned by Giovenelli as to why production was low. This incident oc- curred during the summer of 1977. When asked about the deficiency in production. Moyer explained that he had been working with two new men and that he had had trouble with the machines. Giovenelli apparently accepted Moyer's explanation because thereafter Moyer was never again re- quired to work with untried personnel. The importance of the incident lies only in the fact that in the one instance that production did not meet the satisfaction of Giovenelli. he took steps to rectify the situation himself and did not re- quire Moyer independently to make changes or decisions on his own to bring production up to meet the requirements of the Company. Other than in the single instance noted there was no testimony indicating that Moyer was charged by Respondent with maintaining specific levels of produc- tion. Though Moyer apparently was not expected to meet any particular production quotas or standards he would decide when the crew had done enough work and when to quit for the night."' This decision was made on his own and was reached, as noted earlier, by his determining, as well as he could, what the day shift's production had been, and then matching that production or exceeding it by a little. The record contains no evidence that management was aware of Moyer's approach to production. When Moyer was satis- fied with the amount of production, he shut down for the night. Similarly, he decided when the employees should take their breaks and when they should temporarily cease work to have lunch. When Moyer gave orders to shut down for the night or to break for lunch or coffee break, the employees followed his instructions. There was certain testimony concerning employees who wished to quit early. before the shift was over. Moyer testi- fied that employees who desired to leave early could do so but had just to check it out with Moyer. then punch out. If they knew before the shift started that they intended to leave early, they had to advise Giovenelli of their intention. With regard to overtime, it so happened that overtime was authorized for the night shift by Giovenelli on a few occasions, principally on cold winter nights when there 20 Of course, when the night shift worked on the cookie cutters, their out- put, like that of the day shift, was predetermined and they quit work when the job was done. 868 SUMMITVILLE TILE. INC. were carloads of tiles in the drier, which if left there over- night, would freeze. On these occasions Giovenelli would ask Moyer to stay after the shift long enough to move these cars elsewhere to a heated area. When it was necessary for Moyer to have a helper, he would request permission to have another employee stay overtime with him and was allowed to choose whomever he preferred. Whichever em- ployee he chose to remain to help him was free to reject the offer of overtime, at which instance Moyer would offer the overtime to someone else. Thus, although Moyer could not authorize overtime, he could decide to whom to offer what little overtime was made available to Giovenelli. In summary, the record reveals that Moyer, in many ways, shared with the rank-and-file employees conditions of employment which would indicate that he was one of them. Similarly, the record reveals that he lacked most of the indi- cia commonly identified with supervisory status. Those few aspects of his work which appear to reflect supervisory au- thority are not, in my opinion, sufficient to warrant the conclusion that Moyer is a supervisor. Thus, the fact of his receiving 15 cents per hour more than the other employees more likely reflects, as testified by management personnel. that he had responsibilities over-and-above those of the other employees, for he was, in fact, in charge of the shift to the extent that he served as Giovenelli's eyes, "keeping an eye" on the others to see that Giovenelli's orders were car- ried out. The fact that Moyer received this additional com- pensation does not, however, conclusively demonstrate su- pervisory status, particularly here, where the record reveals that he did not display true independent judgment in per- forming any of his job related functions. Commercial Mov- ers, Inc., 240 NLRB 288 (1979). Similarly, the fact that Moyer was "in charge" during the night shift, with no higher members of management actually present is not dis- positive of the issue of his supervisory status, especially in such a case as this, where virtually every decision to be made had to be checked by phone with a superior. The fact that Moyer had to call Giovenelli before making any changes whatsoever during the shift, left him bereft of any of the authority to independently exercise discretion in such matters which has historically been considered the sine qua non of supervisory status. Westlake United Corporation, 236 NLRB 1114 (1978); Tri-County Electric Cooperative, Inc.. 237 NLRB 968 (1948). Of course as a leadman, which I find Moyer, in effect, to be, he did exercise that limited author- ity usually connected with that office. Thus, his instructions to employees that they should "speed it up" or move one car over to the side or similar directions are more akin to the directions given by leadmen rather than by individuals found to be supervisors because the tasks involved are con- sidered routine in nature and require no significant exercise of independent judgment. Laborers and Hod Carriers Local No. 341, affiliated with Laborers' International Union of North America, AFL-CIO (Bannister-Joyce-Leonard). 223 NLRB 917 (1976). Likewise, the few times that Moyer was permitted to choose an employee to help him move cars after the shift was over, thus awarding overtime to that employee, is not necessarily indicative of supervisory au- thority, particularly where as here, the individual employ- ees had the option of accepting or rejecting the opportunity to work the overtime made available. Westlake United Cor- poration, supra. Nor is it conclusive that Moyer made the decision as to precisely when the shift should break for lunch or for breaks since such decisions are also considered minor and routine in the absence of a showing that he had more important functions wherein he demonstrated author- ity to exercise independent judgment. Barnes and Nobhl Bookstores, Inc. 233 NLRB 1326(1977) citing Sunset Nurs- ing Homes, Inc.. dbla North Miami Convalescent Home. 224 NLRB 1271 (1976). The total lack of authority to assert independent judgment, contrary to the position of the Re- spondent, is most amply demonstrated by the failure of Moyer to effectively do so when he sent one employee home fr not properly performing his work and was repri- manded for it by being told he had overreacted or, in effect. that he had gone beyond his authority and then again on the night of March 3 when he shut down the packing line for the night at 11:23 p.m. rather than midnight and was promptly fired for doing so. ('learly. although Moyer was in charge of shutting down for the night, he was given no leeway in deciding when this should be done and had no authority to independently determine that the shift could shut down a few minutes early. If, Moyer were a supervisor, as Respondent contends, and could independently decide to shut down the shift early, then why did Respondent termi- nate the entire shift when all that the rank-and-file employ- ees did was to follow their supervisor's orders by stopping work when he decided to close down the line. Obviously. by terminating the entire shift. Johnson indicated that each employee was being held responsible for his own act in quitting work early the night of their termination. In short, I find that Moyer was not a supervisor within the meaning of the Act. CL'nion Activit, at the Plant The Union began its most recent organizational cam- paign at Respondent's Minerva plant in January when, ac- cording to L. D. McElhaney. Jr., vice-president of the Inter- national Brotherhood of Pottery and Allied Workers, he received a call from olie Moyer, Jr. requesting representa- tion for the employees of Respondent. McElhaney advised Moyer to get a committee together and he would try to set up a meeting. Moyer subsequently organized a committee consisting of himself, Ronald Lowery. a night shift em- ployee, and Robert A. Campbell, a day shift employee. and it was through these three employees that McElhaney worked. Although McElhaney testified that the night shift was prounion and Moyer testified in like manner, when asked to name specific individual union activists, Moyer named Larry Shaw. Frank Louive. Bob Campbell. and Joe Keester, the first three being day shift employees, and Kees- ter being on the noon to 7:30 p.m. shift. Among the night shift employees whose union activity was specifically dis- cussed. were Richard Mason. Michael McLure. and Ronald Lowery. Donald Hole. another night shift employee testi- fied that he was against the Union. Olie Moyer, Jr. testified that in January, he signed a union card and distributed a dozen such cards to other em- ployees. attended union meetings, made a speech at one of those meetings and advised other employees when meetings were forthcoming. either orally or on one occasion, by means of a written notice. During his speech at one of the 869 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union meetings, Moyer openly criticized Respondent, not- ing that there were things at the plant "that weren't exactly right" and commenting on the "inequalities" at the shop. Moyer also answered questions from other employees about the Union and spoke almost every day to day shift employees about the Union between the hours of 3 p.m. when he first arrived at the plant and 3:30 p.m. when the night shift began working. Much of this conversation took place by the kilns where the employees punch in, by the foreman's office, and in the waxing and grinding room. Moyer's role as a leading union organizer was confirmed through the testimony of employees Ronald Lowery and Bob Campbell. Ronald Lowery, the second member of the organizing committee, when asked by General Counsel what actions or activities he engaged in on behalf of the Pottery Workers Union, replied "None." When asked who were the leading union organizers in the plant, Lowery replied Moyer and Campbell, the third member of the committee and point- edly did not classify himself among them. Lowery did, how- ever, sign a union card and attend three union meetings. Thus, it appears that although Lowery was initially on the organizing committee, he was not outstandingly active on behalf of the Union and his activity was limited to that described above. Robert A. Campbell, the third member of the organizing committee was quite active in organizing on behalf of the Union. He signed a union card, passed out cards to other employees, attended union meetings and was the observer for the Union at the April 6 representation election. During the organizing campaign, Campell talked with day shift em- ployees about the Union and with Moyer and other night shift employees as the shift was changing.' This was during January and February. Although no supervisory personnel were present during these discussions, according to Camp- bell, his immediate supervisor, Virgil Whitmyer2 2 and an- other supervisor, Delmer Klingensmith, saw him pass out union cards during lunch hour and engage in other activi- ties on behalf of the Union at the plant. I conclude that Robert Campbell was, in fact, a leading union organizer. Larry Shaw was described by Bob Campbell as one of the main union proponents and as a union activist by Moy- er. Frank Louive testified to having engaged in conversa- tion with Shaw about the union sympathies of the night shift. Production Foreman Whitmyer, when asked by Gen- eral Counsel if it was common knowledge that Shaw was in favor of the Union, denied that it was, but later testified. when being questioned by counsel for the Charging Party. that he knew before the election that Shaw was "supposed to be for the Union." I find from this testimony that Shaw was a known union adherent and that management had knowledge of this fact. Frank Louive, a day shift employee, was a union activist who signed a union card himself, distributed union cards to 2tCampbell's testimony about actively discussing the Union with other employees was supported by the testimony of Frank Louive and Richard Mason. Ronald Lowery and Michael McClure testified that Campbell was a leading union organizer. 22 Whitmyer denied that he knew that Bob Campbell was a leading union organizer but admitted that he had overheard employees talk about the Union during shift changing time. other employees, talked to both day and night shift employ- ees between 3 and 3:30 p.m. about the Union and helped obtain their signatures on the cards. He attended all union meetings. Louive testified that Supervisor Whitmyer was present during some of his conversations with other em- ployees about the Union. Among the employees with whom Louive had conversations about the Union were Richard Mason whom he testified was a night shift employee who was himself in favor of the Union. and Larry Shaw and Bob Campbell with whom he discussed the union sympathies of the night shift. According to Louive. Campbell told him that the night shift would vote for the Union. Louive's testimony concerning his union activity is sup- ported by that of Moyer who described him as a union activist and by Campbell who named him as one of the main union proponents. As was the case with Shaw, Whit- myer denied, at first, knowing that Louive was in favor of the Union. He did admit, however, to noticing night shift employees milling around with day shift employees as the shifts changed and hearing them talk about the Union. From this "gossip" Whitmyer heard the names of certain employees who were supposed to be in favor of the Union and Louive was admittedly one of these. I conclude that Louive was a union activist and that his role was known to management. Whether or not Whitmyer was present during the specific conversations wherein it was stated that the night shift would vote for the Union. and whether or not he overheard these remarks, is open to question. Evidence sup- porting such a finding is at best inconclusive and I make no such finding. Joe Keester was another individual named by Moyer and Louive as being one of the primary union activists but ex- cept for their bold assertions to that effect, there is no testi- mony to support their contention. Keester did not testify. In addition to the evidence discussed above wherein spe- cific individuals and their union activity were the subject of testimony, Moyer also testified that the entire night shift, except for one employee. was in favor of the Union. Ac- cording to Moyer, the night crew favored the Union, its members "talked it up every time they came in," and all but one signed cards. The night shift employees discussed the Union in favorable terms when they arrived at work be- tween 3 and 3:30 p.m. Only half of them attended union meetings, however. Richard Mason, a night shift employee. supported Moyer's testimony to the effect that all except one of the night crew supported the Union, and all spoke with Campbell about the Union, upon occasion, during the changing of the shifts as they gathered between the time- clock and the office. On at least some of these occasions, according to Mason. Giovenelli and Whitmyer were present and might have been close enough to hear the discussions. Night shift employee Michael McClure testified that be- tween 3:10 and 3:30 p.m., he too spoke with day shift em- ployees about the Union as they gathered around the time- clock, and in other areas of the plant as well. He also testified that supervisors were present at the time. During some of his discussions, according to McClure. he men- tioned the fact that the night shift employees were in favor of the Union. From the testimony available on the subject, primarily that of Moyer and Mason, it would appear that the night 870 SUMMITVILLE TILE. INC. shift crew members, all save one, were in favor of the Union and discussed the Union with Campbell" who seems to have been the focal point of all such activity during the period when shifts were changing. However, it is interesting to note that when witnesses were asked by General Counsel who the primary union activists were, invariably the same names were repeated, and none of them were on the night shift except for Moyer himself. Equally as interesting is the fact that there is sufficient evidence to warrant the conclu- sion that there was significant union activity in the form of discussion between 3 and 3:30 p.m. which was witnessed by management personnel and whereas these discussions al- most always included Campbell and frequently included Louive and Shaw, few night shift employees' names were mentioned in connection therewith, Moyer, of course, being the single exception. In fact. aside from Moyer, only Mi- chael McClure and Richard Mason of the entire night shift crew, were called to testify on the subject by General Coun- sel or Charging Party. McClure testified that he signed a union card and, as noted earlier, took part in discussions about the Union with Moyer and first shift employees in the presence of supervisors but did not speak with Camp- bell because he did not know him. Mason testified that he signed a union card, attended one or two union meetings and talked about the Union with other employees including Campbell while Campbell was still on duty and while su- pervisors were present. He also credibly testified, most sig- nificantly, that while he engaged in union discussions with Campbell, in the presence of management, that no one said anything to Campbell about not working, and that such discussions took place on three or four occasions. I conclude contrary to General Counsel that there is in- sufficient evidence to warrant the conclusion that the night shift was all actively in favor of the Union since five of the ten employees on the night shift-Decker, Clapper, McClaskey. Melville, and Gruszecki did not testify as to the extent of thier union activity, Dan Hole admitted that he was against the Union and Lowery was only minimally ac- tive. Granted a majority of the night crew may have fa- vored the Union, there is little substantial evidence that management was aware of their feelings for only Moyer. Mason, and McClure testified to participating in the discus- sions about the Union which took place as the shifts were changing and which were witnessed by management per- sonnel. Of course, it is possible that Whitmyer or some other management personnel may have heard one of the General Counsel's witnesses proclaim that the night shift was all in favor of the Union. believed the statement and thereafter acted upon it, but weighing against this assump- tion are two very substantially important facts: First, of the five employees who appear to have been most active on behalf of the Union-Shaw, Louive, Campbell, Keester. and Moyer, four continued in the employment of Respon- dent, even though it is clear from the record that the ac- tivity of three of the four was well known to Respondent. Second, even while Campbell and others were carrying on discussions about the Union on Company time and in the presence of supervision, management not only totally re- frained from any action which could possibly be considered U Michael McClure denied that he spoke with Campbell. violative of Section 8(a)( I), but did not even attempt to break up these discussions by ordering Campbell or the other employees on duty to grab a broom and sweep down, or otherwise show annoyance at their activity. In sum, with respect to the night shift's prounion stance, if it existed at all, there is insufficient evidence to warrant the conclusion that Respondent was aware of it. Addition- ally. the record clearly indicates that where Respondent was aware of union activit among its employees. it showed no inclination to interfere with said activities even when such activity occurred on company time and in the presence of supervisory personnel. The Events o March 3 Pursuant to the petition filed by the Union on February 2. a representation hearing with a prehearing conference was scheduled for the morning of March 3. That morning, some time before 9 a.m.. L. D. McElhane., Jr.. vice-pres- ident of the Union arrived at the courthouse in Minerva. Ohio to attend the conference and hearing. Shortly there- after. Moyer arrived. It was Moyer's intention to help McElhaney make decisions with regard to voter eligibility. Thereafter. Johnson and his attorney, Richard Colvin ar- rived. When Johnson saw Moyer in the company of McEI- haney. he exclaimed, "What the hell are you doing here!"24 Moyer replied that he was there to see what was going on. After Johnson and Colvin put their papers down, they left the conference room and went out into the hall while McEI- haney and Mover remained in the room, all parties await- ing the arrival of the representative of the Labor Board. When the Board agent arrived, all present sat down to dis- cuss which of Respondent's employees were eligible to vote. During this discussion. while working out which individuals were supervisory. Johnson and his attorney took the posi- tion that Moyer was a supervisor. The Union took the posi- tion that he was not, and should be eligible to vote. The election agreement was worked out with the decision being reached that Moyer should vote under challenge. The meet- ing lasted until about noon at which time the participants parted. Just as the meeting broke up and they were leaving Colvin shook Moyer's hand and said, "I hope to hell you know what you are doing." I interpret Johnson's exclamation directed to Moyer as indicative of shock, as he himself testified. and unhappiness " Moyer described Johnson's voice as gruff. Johnson testified merel) that he was surprised to see Moyer there but not angry. He testified that he was shocked to see Moyer present because "here was a man who I had all my faith in, being responsible for running the night shift for me and then to see him at a representation hearing just shocked me." Johnson admitted that he was not happy about Moyer's presence, and I find that Johnson was in act displeased with Moyer for actively and overtly helping the Union at the conference by conferring with McElhaney and giving him information '2 McElhaney and Moyer both testified that Colvin made this statement to Moyer. Colvin did not testify. Johnson testified that he did not hear the comment attnributed to Colvin but admits that he was not in Colvin's pres- ence throughout the entire conference. I credit Moyer and McElhaney and find that the statement was, in fact. made, in the context described abose Though McElhaney testified that earlier during the conference Johnson had made an identical remark to Moyer. Johnson denied making such a state- ment and Moyer did not support McElhaney's testimony I credit Johnson's denial and find that McElhaney was probabl confused in his recollection of events It seems unlikely that the exact, precise words were used b both Johnson and Colvin and in the absence of corroboration from Moyer. I will not credit McElhaney on this point 871 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or displeasure with Moyer for cooperating with the Union by conferring with its agent and feeding him information contrary to Respondent's interest, particularly since, as Johnson also admitted, he had placed his faith in Moyer as the individual in charge of running the night shift on Re- spondent's behalf.2 6 A certain amount of animosity arising from this confrontation may and is inferred. On the other hand, Colvin's statement: "I hope the hell you know what you doing," stated while the two were amicably shaking hands is open to too many interpretations to warrant a find- ing that it was necessarily indicative of animosity, and l place no weight on it. On the morning of March 3, while Johnson and Colvin were preparing for and participating in the representation conference, night watchman Gruber came to Giovenelli's office, as he was in the habit of doing, before leaving the plant at 7 a.m., when he had something wrong to report. These occasional reports, which occurred at a frequency of once every 2 or 3 weeks, usually had to do with mainte- nance problems, but on this particular occasion had to do with the fact that the night shift had been playing cards the night before."7 According to Giovenelli, Gruber did not mention anyone by name. This was the first time that Gio- venelli had ever heard anything about the night shift play- ing cards during working hours, and he did not know how long the night crew had been in the habit of engaging in such activity. Giovenelli determined to advise his superior of Gruber's report. When Augsberger, the plant superinten- dent arrived shortly thereafter, Giovenelli told him about the card playing the night before. After leaving the conference, Johnson went to lunch with Colvin, then went to the plant. When he arrived at the plant, which was, according to Johnson, about 2 p.m., he told Augsberger about Moyer's role at the representation hearing.2 8 Testimony is incomplete as to precisely what was 11 Even though Moyer has been found not to be a supervisor. but merely a leadman, Johnson's displeasure was probably very genuine. 2 Gruber's report appears as testified to by Giovenelli. Gruber was not called by Respondent to corroborate Giovenelli's testimony. nor was he called by General Counsel for examination as to the circumstances sur- rounding his March 3 report, the reasons why he made the report, or the fact of whether or not he had ever previously observed or reported night shift personnel for any reason, card playing or whatever. In the absence of testi- mony of Gruber. I am unfortunately left with the almost unbearably suspi- cious coincidence of Gruber's report of the night shift's card playing being presented for the first time to management on the same morning as the confrontation between Moyer and Johnson at the representation conference. In the absence of evidence or testimony to the contrary, I have no alternative but to accept Giovenelli's testimony even though I have found him not totally reliable in certain other facets of his testimony. The reason that Gruber may have reported the card playing on the morn- ing of May 3 rather than at some other time, or not at all. may or may not be related to the fact that on the evening before, at about 11:45 p.m. while the night crew was standing around the timeclock, Gruber came over and got into a discussion with Moyer about the pros and cons of union representa- tion, Gruber taking the antiunion position, Moyer the prounion position. Other employees were also involved. The discussion between Moyer and Gruber was described by Moyer and one other witness, Donald Hole. as an argument, during which Gruber appeared angry "because he started yelling at" Moyer. Whether it was this argument which prompted Gruber to report Moyer and the rest of the night shift there is no way of telling. According to Giovenelli, when Gruber made his report, the following morning, he did not mention Moyer's union sympathies or the argument he had had with him concerning unionism the previous evening. 2 Johnson's testimony with regard to the events of March 3 was both evasive and contradictory: said by Johnson to Augsberger during this discussion but it must be assumed that Johnson informed Augsberger that he was shocked and displeased that Moyer had supported the Union at the representation conference, as indeed he testified he was. Augsberger then informed Johnson that he had heard a rumor that the night shift was quitting early and playing cards. He asked Johnson if he had heard about it. Johnson replied that he had not. Augsberger then went on to explain that he had heard this rumor from Giovenelli who had heard it from Gruber. Shortly after Augsberger informed Johnson of the rumor that the night shift was quitting early and playing cards, Giovenelli came into the office to join Johnson and Augs- berger. According to Johnson, after Giovenelli joined the other two, he said to Augsberger, "Did you say anything to Fred [Johnsonl about the night crew playing cards?" Augs- herger, replied, "Yes. I told him about it." Giovenelli testi- fied that he could not recall this conversation, did not know that Johnson had been at the representation meeting that morning, and could not recall whether Moyer's role at the representation conference was discussed at this impromptu managerial meeting." Despite Giovenelli's testimony, how- ever, I find that Moyer's role in the representation confer- ence was fully discussed between Augsberger and Johnson, Q. Believing, as you say, that he [Moyer] was a supervisor, you felt doublecrossed by him being there with the Union helping the Union, didn't you? A. No. Q. You didn't feel doublecrossed at all? A. At that moment, I was shocked and surprised to find this man, my night supervisor, at this representation hearing. Q. When you got over your surprise and after the moment had passed. did you later that day consider it an act of disloyalty? A. I don't think that I gave much thought to it the rest of the day because we were pretty busy all day and I don't remember I didn't discuss it all da. Q. In other words, one of your supervisors, a man you trusted with the whole night shift, he comes to a Labor Board hearing with the Union and helps out the Union, and you don't give any further consid- eration the rest of that day; is that what you are telling us now? A. No, i'm not ellingou that n ... I'm nor sure. Q. Did you go up to Augsberger and say, "You know what hap- pened? That damn Moyer came down to the hearing with the Union"? Did you tell him something like that? A. No. I didn't say that JLDGE JA(OBS: Did you say anything like that? THE WirNFSS: No. Q. Did you tell Augsberger any thing about Moyer being at the hear- ing that morning? A. I mav have. Q. You may have. Would you think a little more and tell us if, in fact, you did not, in fact, say something to Augsberger about Moyer being at the hearing. You did, didn't you? A. You are trying to put words into m) mouth, sir. J;D6t JA(oBS: I think the question is: Did you say anything about that'? Did you? THE Wrt-eFSS: My answer has been right along we probably did. These are the events of the da) and I'm certain rwe discussed them Q. You probably did say to Augsberger that Moyer had been at the hearing? A. It's quite po.ssible, sir 24 Giovenelli's testimony with regard to this meeting struck me as incredi- bly evasive. 872 SUMMITVILLE TILE. INC. after which the card playing on Moyer's shift was likewise thoroughly aired and that Giovenelli participated in the dis- cussion. In my opinion, the probabilities require such a finding, Giovenelli's testimony notwithstanding. According to Johnson, as he was leaving the plant at about 3:30 p.m., another employee. John Costea called him aside and asked him if he knew that the men on the night shift was quitting early and playing cards. Johnson replied that he had not known, but would look into it. Costea went on to inform Johnson where the employees had been play- ing and indicated that it "was an every night thing" and that they had been quitting anywhere from 11:10 to 11:20 p.m. °0 On the basis of Costea's report and that of Gruber as rendered through Augsberger, Johnson, once home, deter- mined to investigate these rumors further. At about 3 p.m. Moyer arrived at the plant and was told by Giovenelli that the night shift would be working on the packing belt that night. Giovenelli did not mention to Moy- er Gruber's report concerning the card playing, nor warn Moyer that management was aware of the card playing that was going on and of which it disapproved. Since Giovenelli was Moyer's immediate supervisor, responsible for what- ever was being done on the night shift, it is strange that he did not make inquiry of Moyer concerning the rumors if. in fact, management cared about the card playing at all. Since Johnson testified that he did not decide to investigate the happenings on the night shift until after he left the plant, and the record is devoid of any testimony as to why Giove- nelli should not have called Moyer to task on the basis of the rumor, or at least question him on the subject. there is no logical reason for Giovenelli's failing to talk to Moyer about the reported card playing, unless, of course, it had been determined during the earlier discussions of that day, between Johnson, Augsberger, and Giovenelli, that nothing should be said to Moyer about the rumors, for fear of alert- ing him, so that the night crew could be caught redhanded. I find that this is what must have occurred, for it was Gio- venelli's province to supervise, direct, and discipline em- ployees on the night crew just as he had done in the past. and if the night crew's quitting early and playing cards was objectionable because it interfered with production or for any reason, the problem could most quickly have been solved by Giovenelli telling Moyer that he had heard the rumors and that the practice of quitting early and playing cards would have to stop immediately under threat of dis- charge. Such a warning would undoubtedly have resulted in the appropriately requested reaction on the part of Moyer and the night crew namely, full utilization of company time that very night for productive purposes. But Giovenelli, de- '0 Once again, as was the case with Gruber, neither Respondent nor Gen- eral Counsel called Costea to testify. Respondent failed to call him to cor- roborate Johnson to support his testimony that Costea's report concerning card playing on the night shift was indeed made for the first time on March 3 and was spontaneous, and General Counsel failed to call him to examine him on these subjects as well as the reasons which suddenly prompted him to report Moyer and the night shift the very day that Moyer appeared on behalf of the Union at the representation conference. Nothing appears in the record as to how Costea, who does not work on the night crew could possibl knosw what was going on dunng that shift. Failure of one party or the other to call either Gruber or Costea has resulted in gaps in the record, unanswered ques- tions, which if properly addressed could have been of substantial assistance to the undersigned in rendering a just and equitable decision spite discussions about the subject having taken place among management personnel less than an hour before. pointedly refrained from mentioning either quitting early or card playing to Moyer. I cannot conclude that Giovenelli's failure to confront Moyer with the charge of "stealing time" when he arrived at work at 3 p.m. on March 3 was a mere oversight) but rather conclude that it was not mentioned because another approach had been decided upon during the managerial discussions which had taken place between 2 and 3 p.m.. just minutes before. Since it is clear that the quickest, easiest and least painful way of getting the night shift to stop quitting early and playing cards on company time was simply to tell them to stop doing it, Respondent's failure to take this action in favor of the less effective alter- native which was subsequently actually utilized must have had an objective quite different from merely getting the employees to stop doing what management was objecting to." That objective was to catch in the act of playing cards on company time, Moyer and whoever else might be in- volved. Since catching the night crew playing cards would not result in full production, as would a timely warning, the chosen alternative was going to be less effective than the warning. Thus, it is patently clear that the objective of catching the night shift quitting early and playing cards was for some purpose other than remedying the effects of quit- ting early. The question once again arises, why would it be better for Respondent to catch Moyer and the night shift playing cards on company time than to stop them from doing it by means of a simple warning. The answer to this question is reflected in what eventually occurred, and which Johnson hoped would occur. Clearly, Respondent could not terminate Moyer on the basis of a mere rumor, but if actu- ally caught in the act of shutting down the line early. then playing cards, reading or whatever, on company time, dis- missal could be justified. In summary, I find that between 2 and 3 p.m. on March 3, Johnson, Augsberger. and Giovenelli fully discussed Moyer's role at the representation conference during which he freely offered his services to the Union's cause, and that they also discussed in conjunction with this role, the report that Moyer and the night shift were quitting early and play- ing cards on company time; that rather than warn him to cease this practice thereby putting a stop to the loss of downtime and production, they opted for trying to catch him and the night crew engaging in the rumored objection- able conduct; that since a warning would have most likely resulted in increased production and a saving to the ('om- pany, whereas the alternative action, ultimately decided upon, would have resulted and did result in a further loss of production time to the Company, the object in trying to catch the night shift quitting early was not to cure the ills resulting therefrom, but was an end in and of itself; that the reason why Johnson desired to catch Moyer "stealing time" 1, To conclude that it was a mere osersight, is to conclude that "stealing time" was unimportant, and consequently that the basis for the discharge was a sham. 12 Obviously, it would have been more effective simply to have told Moyer to stop quitting earl) because one must assume that had he been told to do so. he would have followed orders. That night and thereafter the night shift would have followed orders. worked through to quitting time, and obtained full production. An) other course would necessanl' delay full utilization of company time for productive purposes. 873 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was to be in a position to have a legitimate and lawful basis for terminating him; and that Johnson's desire to rid him- self of Moyer's services was based upon Johnson's displea- sure with Moyer for supporting, conferring with, and aiding the Union during the representation conference earlier in the day. At 3:20 or 3:25 p.m., Moyer and the night crew went down to the packing belt as told. The day shift selectors and waxing room employees had quit working at 3 p.m. or be- fore. When the night shift began working on the packing belt there were some noon-7:30 p.m. shift employees still working there. Moyer checked the card to find out the num- ber of employees who had worked on packing during the day shift and the production achieved, and determined. based on his findings, that 18 skids of 6 x 6 tiles would he the production goal for that night. The day shift had pro- duced 16 skids but since the night shift had a few more men for a few more hours. 18 skids would be considered good. According to the testimony of Johnson and Giovenelli, between 9:30 and 10:30 p.m.." Johnson called Giovenelli at his home and asked him if it would be all right to pick him up at II p.m. and then to go to the plant to see if the night shift was playing cards. I have found, however, for reasons already stated, that the course of action, most probably had already been decided upon earlier that afternoon. At II p.m. Johnson picked up Giovenelli and drove to the plant to check out the rumor. Johnson specifically de- nied that the predetermined object of going to the plant was to fire the night shift. They arrived at the plant at about 1 1:10 or I 1: 15 p.m. According to Giovenelli. they parked at the south end of the plant and entered through the south entrance. Instead of going directly to the packing installa- tion which Giovenelli knew to be the assigned work station of the night shift and where the night shift was, in fact, working, Giovenelli took Johnson on a Cook's tour of the plant indicating the various sites where the employees might have been playing cards if they had not been working at the time. Once again, if Giovenelli and Johnson were interested in determining whether or not the night shift was working at the time of their arrival, and equally interested in having them put in a full night's work, they would have proceeded directly to the packing line. But a full night's production was the farthest thing from their minds. Rather, catching Moyer redhanded, for the purpose of providing a basis for discharge was uppermost in Johnson's mind. This is clear from Giovenelli's' description of the circuitous, time-consuming wandering route which he and Johnson took while biding their time" wating for Moyer to make the mistake which they hoped to witness: " Johnson testified that he made the call at 9:30 p.m., while Giovenelli testified that he received the call at 10 or 10:30 p.m. 4 Johnson's testimony is in agreement with Giovenelli's. "Since Johnson picked up Giovenelli at his home at II a.m., and his home, according to Giovenelli. is a 5 minute drive from the plant, Johnson and Giovenelli spent 15 minutes skulking around the plant. Johnson implied that this time was used up looking for the night shift employees, and indeed wherever Giovenelli and Johnson looked, "no one was there." The fact that the two cautiously skirted the employees' work station and never once checked the packing area where Giovenelli personally assigned them to work, convinces me that Johnson and Giovenelli were, as stated above, wait- ing to spring the trap. Q. Then you entered the plant? A. Yes. Q. Where did you go then? A. We went back to, there is a Q. Would you be going north, south, east or west'? A. We were going north. Q. You were going to the north end of the plant? A. Yes. Q. Where did you go? A. There is a table here, where they sit and eat Q. ('. Referring to the key, what does "(" identify? Is that a particular place in the plant'? A. Yeah. That is where the cookie cutter presses are. There is a table there nearby where the: eat their lunches and plo' cards and stuff like that. Q. So then you went there and nothing was there, and what did you do then''? A. We went on to the there is an area here, in this open area here (indicating), and we went on through here, down to "A." Q. You, in a sense, continued northerly direction through the plant? A. Yes. Q. You were at "A" and what does "A" represent? A. "A" is another this is by the fireman's shanty. There are two picnic tables where they eat and ply cardv, if you want. We checked that area out. Q. Then where did you go? A. Then we went, we would be going east, and we went out to a small room where there are coke ma- chines here. There is another coke machine and a wall phone, a public phone. Q. This is on the east side of the plant you are point- ing to? A. That's right. There is another picnic table also in this room, here (pointing). We checked that and there was nothing there, so we went out through the door. Q. You are now outside the plant? A. Yes, sir. Q. Where did you go then? A. We went north, then, out to the tile grinding room and the waxing room, which is there where they were playing. Q. That is a separate building from the main plant? A. Yes. Q. What did you find at the time you went to the waxing and grinding room? A. Nothing. Q. Then what did you do? A. We came back out and went under the ware- house shed and we didn't see anything there: the, were still working. A. So, when we came in there. they were still swork- ing. But then all at once we didn't hear nothing, we just 874 StIMMITVILILE TILE, INC stopped here for a moment, and then all at once we seen them coming back through the shop. Meanwhile, Moyer, unaware that Giiovenelli and John- son were in the plant completed the 18 skids ' of tiles ats scheduled at 11:20 p.m.. and told the men to clean up while he shut down the line 17 At 11:23 p.m. the night shift started cleaning up. There was only a small amount of scrap to throw into the hopper and so after doing this, Moser and the others left the packing area and headed for the waxing room which was warmer and not as noise+ as it was next to the kilns where they had been working. To get from the packing area to the waxing room. Moyet and the others had to walk approximately 150 yards. passing the timeclock on the way. Therefore it is quite clear that they could have punched out and gone home hut chose not to do so. As the night shift arrived at the waxing room, someone suggested playing cards. Moyer, who had a deck, agreed. Four of the employees, including Moyer, gathered around a stack of skids. The others, all present in the waxing room began reading newspapers, snacking or were just sittinmg around. Just as Moyer was dealing the first hand, 2 to 4 minutes after shut down. Johnson and Giovenelli walked into the room. Johnson walked directly over to Moyer and asked rhetorically" "What the fuck are you doing?" Moyer replied simply. "We're done." Johnson retorted. "What the hell do you mean, you're done?" Whereupon Moyer re- plied. "We finished our work. We're done. sir." Johnson then stated, "Don't sir me! I've heard enough out of you. today.3" You've been nothing but trouble and I've got news for you. Buddy, you're fired." Thereupon Johnson turned to the rest of the night shift present and asked. "Are you clocked out?" Nobody replied vocally. but all shook their heads negatively. Johnson exclaimed. "You're all through. Go on, get out of here. You're fired. Get out of my sight. I don't ever want to see you again. I'm tired of you sons of bitches shutting down early." *4 Moyer interjected. "But sir, 38 The amount of production or lack thereof. as such, was not one of the reasons interjected by Respondent as a defense. Moyer's practice of gener- ally surpassing the day shift's output seems historically to have satisfied Respondent's demands and, in fact, Respondent stipulated that the sole rea- son for discharge was playing cards on company time. *' When Moyer decided to shut down the line there was, as always. still more packing that could have been done and there is no dispute that the night shift could have remained busy until quitting time. I consider the question rhetoncal because not only was it quite obvious what Moyer and the others were doing but Giovenelli and Johnson had been hanging around for 20 minutes, by that time, waiting for the card playing to begin. The form of the question was not nearly as indicative of surprise. as it was of anger. 3' Johnson had not talked to, nor heard from Moyer. since the representa- tion conference of that morning. I therefore conclude that Johnson's refer- ence of having "heard enough out of you today," referred back to the repre- sentation conference of that morning when Moyer sided with the Union against Respondent. Johnson's comment was indicative of his displeasure with Moyer because of his role in supporting the Union's cause. Johnson's remark highlights and is evidentiary of his antipathy toward Mover because of Moyer's support of the Union. Giovenelli testified that this statement was not made. He is not credited. 14 There appears no evidence in the record that Johnson was aware, prior to March 3. that the night shift had been shutting down early although there is evidence that Johnson was aware that day shift employees had sometimes shut down early, that he had objected to this practice and that he had taken steps in the past to correct the situation. I conclude that Johnson's remark did not necessarily indicate prior knowledge on his part., of the night shirt's propensity to shut down early and find no evidence of condonation. On the the day crew shuts down early. ['he selectors shut down early." and looking at Giovenelli. "You know that." Nei- ther Giovenelli nor Johnson answered. Ihe night shift then punched out and Johnson and Gioveneili collected the timecards of the employees who had just been fired. Ten minutes after the employees punched out Mason re- turned to ask Johnson for his job back. During the conver- sation which followed. Mason advised Johnson that the night crew had been quitting between I: 10 and I 1:25 p.m. each night for the past month or two. Despite Mason's en- treaties Johnson refused to retract his termination. Johnson and Giovenelli left about midnight. When Giovenelhl ar- rived at home he receited a phone call frontm Moer about getting his job back. Giovenelli told Moser that it would be better to call Johnson in the morning rather than at that time because Johnson was "kind of hot under the collar right then." Giovenelli opined that ma\be if lMoer had shut down at 11:40 p.m. rather than 11:30 the night shift would not have been fired. He expressed his s' mpath stat- ing that it was too had, that some of the men had been good workers. I conclude with regard to the events of the eening of March 3 that Johnson visited the plant after hearing that the night shift had been quitting early and playing cards. for the purpose of determining if the rumor was true. and if true to take whatever action he deemed proper at the time. With regard to Moyer, it is patently clear from Johnson's testimony and remarks of that morning i.e.. "What the hell are you doing here?." that he was displeased with Moyer's siding with the Union. His remarks of that evening. "I've heard enough out of you. today" convinces me that his initial displeasure with Mover was carried through to that evening and was the primary consideration br his decision to make his surreptitious visit to the plant in order to catch Moyer and only incidentally. whoeer else might be impli- cated stealing time, thereby pro,iding a legitimate basis for terminating them. When he ound them playing cards. reading, and sitting around on company time, he termi- nated them. The question to be answered next is whether Johnson would have terminated the night shift for stealing time, as he had, in the absence of union actis itv. The History o/ Coard Playing at, rthe Plai,, Mover testified at length about the playing of cards and other games at the plant. There is no doubt that card play- ing and the playing of board tpe games went on at the plant during lunch periods and perhaps during breaks" with the knowledge of supervisory personnel and without objection. Sometimes when games were played at lunch, the employees continued to play past the "back to work" time by 10 minutes and on these occasions Whitmyer would contrary. though I have determined that Johnson visited he plant the night of March 3 in order to catch Moyer and others playing cards on cm.copa time, and must have enjoyed that certain satisfaction that necessaril\ accorm panics vindication when one's suspicions are confirmed. he necrthelei, , as genuinely and justifiably angry with the night crew for cheating Ihe (onm- pany. 4( Giosenelli testified that although he was aware that emplosees plased cards during the longer lunch breaks, they did not do so during the shorter breaks Whitmyer testified. however. that emplosees plaed games blh at lunch and during breaks and that he neser criticized them for so doing 875 DECISIONS OF NATIONAL ABOR RELATIONS BOARD come out and give the employees a hand signal to start back to work, after which they would do so. Whitmver tes- tified that some sort of signal was necessary to get the men back to work after lunch 99 percent of the time. He testified also that certain employees, on crews other than his own, played cards every day. When he got "hung up" on a prob- lem and did not get out into the working area until 5 min- utes into the shift, and found that the employees were still playing cards, he would simply give them the signal to "crank it up." and never gave the employees any kind of oral or written warnings for these incursions into Company time. Needless to say, there was never any firings based on this type of employee infringement on Company time. De- spite General Counsel's argument equating 5 to 10 minutes of card playing past the lunch hour, to the events of March 3, 1 find a significant difference, and will not decide the case on the basis of the argued comparison. More significant is the testimony concerning the practice of certain employees of playing cards or board games after their shift had shut down for the day. This is the more appropriate bases for comparison as far as the events of March 3 are concerned. Thus, Moyer testified that when employees finished work early, they would stand around and talk, sometimes play cards or table top games-short games. When asked where employees played cards Moyer testified that he did not observe card playing in Giovenelli's area between 3 and 3:30 p.m.,42 but did observe card play- ing and other games being played in the waxing and grind- ing room. There was, however, no supervisory office in the waxing and grinding room at the time that Moyer observed employees playing these games, in which he participated himself. Nevertheless, at times when the supervisor4 in charge of the waxing and grinding room entered the area and found such games being played by employees who were "waiting to go home," he voiced no objection. But when asked directly about supervisors' knowledge of card playing Moyer seemed to hedge: Q. Were supervisors present when the games were played at these periods of time. A. Okay. Virgil, [Whitmyer, supervisor over the waxing and grinding operation] when we played cards or these table top games, yes, played them during breaks, during lunch, and after we were shut down and cleaned up in the evening. Not as often then because it was a big hassle because it was time to leave, you had to put it all away. JUDGE JACOBS: Get back to the day shift business. Remember when he was on the day shift. THE WiTNESS: That was on the day shift .... In the evening, I meant the afternoon. And elsewhere: Q. Do you recall seeing any supervisors in the area or observing the actual playing of these games, and this is when you were on the day shift? A. Yes. This is when I was in the wax and grinding room now. 42 Moyer testified elsewhere that Giovenelli "usually made sure they had a broom even if they didn't do anything." 41 Whitmyer was in charge. Q. Okay. A. I am talking about the tabletop games. We played the horse racing game and Virgil Whitmyer knew we played the horse racing game. He had been out through there at the time. Sometimes, okay, we played cards I didn't always plqy cards at the time. In the waxing and grinding room they playved cards during the lunch period. Now it carried over sometimes ten minutes past the lunch. Thus, although it must have been clear to Moyer that the questions posed were for the purpose of determining the extent to which employees played cards on company time with the tacit permission of supervision, Moyer insisted for the most part in discussing the playing of games during breaks or lunch time. At another point during his examination Moyer testified as fbllows: Q. During the time you worked on the night shift, when you would come in around 3:00 o'clock or so, did you personally observe during any of that one year period any playing of games in the plant? A. Okay, Behind the kilnfireman's office I have seen selectors playing cards. This was between 3:00 and 3:30. Q. Now who would be the supervisor in charge of that area? A. At that time it would have been Virgil Whit- myer. Q. And would you ever see Whitmyer between 3:00 and 3:30 when you came in? A. Yes. Q. Where would you see Whitmyer? A. He would generally be standing where the select- ing line was, or in front of the kilns themselves. Q. What would he be doing in front of the kilns or near the selecting line. A. He'd be talking with the selectors, just generally passing the time. Q. Now, on occasions when you saw the selectors playing cards in this period of time, would you see Whitmyer on any of those days you saw the selectors playing cards? A. On one occasion, that I know of for sure, that I can say for sure. Q. Tall us about that. A. He was standing, it would be [by the] farthest kiln, over by the transfer track, talking with somebody, I don't know who, and behind the kiln fireman they have a picnic table there, and there was a group of selectors playing cards. Q. Were you in a position where you could see both Whitmyer and the selectors at the same time from your point of view? 876 SUMMITVILLE TILE. INC. A. Yes. He could see that they were playing cards .... It had to be in) the winter between '77, '78. Thus, although General Counsel argued in his brief that "Summitville employees played cards and games and en- gaged in other recreational activity with great frequency, during both work and nonwork time," the testimony of Moyer, his strongest witness on the subject, clearly indi- cates that card playing was not at all frequent and, in fact, could name only a single instance of its occurring in the main building when it might have been observed by super- vision. That single instance of card playing being observed bysupervision involved Whitmyer who, according to Moy- er's testimony, exhibited a rather permissive attitude toward employees playing games when he occasionally ob- served them doing so in the waxing and grinding room which was located outside and away from the general pro- duction area, where Giovenelli made sure employees had brooms, even if they did not use them. Thus, were I to rely on Moyer's testimony alone, I would conclude that Respon- dent did not generally approve or condone the playing of cards by employees on Company time during the 3 3:30 p.m. period, that period just before quitting time. Whereas Giovenelli attempted to follow, or at least attempted to give the appearance of following Johnson's orders by insisting that employees had brooms in their hands during the period of downtime, thus making card playing quite impossible, Whitmyer was somewhat more permissive in his supervi- sion, permitting employees who were out of sight, in the waxing and grinding room, during the period prior to check out time, to participate in games while awaiting check out. This is the most that can be made out of Moyer's testimony, if fully credited. Members of management who testified concerning the practice of card playing at the plant did not include John- son, presumably because he did not maintain an office at the plant and would not be aware of the day-to-day opera- tion, and the attitude of local management toward the prac- tice of card playing. Whitmyer, on the other hand, did work at the Minerva plant as a member of supervision. He testi- fied under cross-examination as follows: Q. People played cards on the day shift all the time, didn't they? A. No, sir. Q. Didn't they play during breaks? A. They could play at break period. Q. So they did play all the time, didn't they? They played every day? MR. MANN: Objection, you Honor. This is Mr. Burch's testimony again. The evidence according to Mr. Burch. Q. When I say all the time, I meant they played everyday, didn't they? A. I have no idea. MR. MANN: Show my objection on the record, please. Q. Didn't they play during their lunchtime on a regular basis? A. One particular group plays every day. Q. That is all I am asking. Don't they play during their breaks on a regular basis, some employees? A. I would say yes. Q. Isn't it a fact that employees play cards every day on the day shift? JUDG(E JACOBS: Counsel- MR. MANN: Objection, your Honor. This is about as slippery a cross-examination as I have ever seen. Q. They played during their lunch break and during their breaks everyday. at least some employees, right? A. I would say es. but I have no knowledge. Q. You never criticized anybody for playing cards during their break, did you? A. No. Q. You never criticized anybody for playing during their lunch break? A. No. Q. There is nothing wrong with playing cards in it- self, is there, as long as MR. MANN: Objection, your Honor. whether there is anything wrong with playing cards in itself. This ,nan is not here to testify to that. We have had somne evi- dence in the record that the reason Olie Moser. Jr. stated there was no card playing--so if that many peo- ple think there was no card playing at all. there is something wrong, and decidedly wrong. JUDGE JACOBS: I understand the question to mean with regard to the attitude of supervision. namel, this supervisor's attitude towards playing cards. specifi- cally. MR. MANN: Your Honor, we would object. Q. As far as you are concerned, there is nothing wrong with employees playing cards during lunch break and during this downtime?" There is nothing wrong with employees playing cards, isn't that a fact? A. (Nodding.) No, sir. MR. MANN: Objection. your Honor. He is getting cute again. Though it would appear. at first blush. that Whitm)er. in his testimony, agrees with Moyer that Respondent had no objection to card playing during the 3 to 3:30 p.m. shut- down period, the admission is illusory, inasmuch as Whit- myer was testifying to Respondent's attitude toward card playing by employees during lunch and break time whereas it was due to General Counsel's inclusion of the all encom- passing term, "downtime" in his final question, which might lead to the insupportable conclusion that an admission had been made. I find that Whitmyer never was asked directly whether or not employees played cards after shutting down nor examined with regard to his own permissive attitude toward the matter. Giovenelli, on the other hand, was asked directly and answered credibly, that cards were not played on company time by the day shift, at least not to his knowledge. He also testified that although he would not have interfered with the employees playing games between 3:10 and 3:30 p.m.. before checking out, he always insisted that employees in "General Counsel. unfortunately. wittingly or unwittingl>. expanded Whitmyer's testimony concerning the fact that Respondent did not object to card playing dunng breaks or lunch time to include within his final question the term "downtime" thus making it appear as though Whitm)er '.as agree- ing that Respondent had no objection to employees playing cards during the 3 to 3:30 p.m, downtime. Thankfully. General Counsel did not so argue In his brief. 877 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his department carry brooms. Giovenelli, was not ques- tioned as to the type of games he would permit them to play while they swept or leaned on their brooms but it seems unlikely that card playing is what he had in mind when he answered the question to the effect that he would not have said anything to employees who played games during this period. Despite the fact that General Counsel argued in his brief that card playing was frequent during the 3-3:30 p.m. shut- down period he produced only two rank-and-file witnesses other than Moyer to testify on the matter. Frank Louive. one of the leading prounion activists testified that he could recall employees playing cards after cleaning up, on just one occasion. He stated that this occurred about a year prior to the hearing and that although Giovenelli ordinarily would have been in the area, he could not testify as to whether or not he saw the card playing. Ronald Lowery, one of the alleged discriminatees testified as follows: Q. Was there any card playing before 3:30 after ev- erybody stopped working? A. In the four years that I was on days, I seen them once or twice. Q. You saw them once or twice, in the selecting de- partment? A. Well, down by the pop machine there was a pic- nic table there where everybody ate lunch. Q. All right. Were any supervisors around during this period of time? A. I don't believe any of them was seen. Q. Did you observe any other games such as horse racing games or anything of that nature among the employees? A. We used to play that at lunchtime on days. Q. Did you observe any game playing before 3:30 on the day shift? A. No. Thus, of all the employees who could be called to testify concerning the alleged frequent incidents of card and game playing among employees between the hours of 3 and 3:30 p.m. in the presence of supervision, General Counsel pro- duced only three. Two, Louive and Lowery testified that card playing was an extremely rare occurrence during this period, and neither could affirm the presence of supervision when it did, in fact, occur. Their testimony leaves Moyer standing alone with regard to supplying evidence on this matter. I do not credit him but rather find, contrary to General Counsel's position, that card playing was not at all a frequent pastime of day shift employees between the hours of 3 and 3:30 p.m. following clean up, but was ex- tremely rare, and not condoned by management. With regard to the practice of night shift employees play- ing cards Moyer testified that it began in December 1977 or January 1978. The night shift did not play cards every night, but did so with some frequency since that period, with different groups joining in from time to time. While some employees played cards after shutting down, others read magazines or sat around, watched the game or talked. On one occasion the night watchman told two of the night shift employees that if Johnson ever came in and caught them sitting around and playing cards on company time, they would all be in trouble or could even get fired. One of the two asked Moyer about the advisability of playing cards on company time, but Moyer simply told him that if there was any question, he, Moyer would be the one to whom they would come. This employee then advised other em- ployees of what Moyer had said. Clearly, Moyer was under the impression that he had more authority than he actually did. As far as management's attitude toward the night shift playing cards on company time is concerned. both Johnson and Whitmyer were asked and denied warning them about the practice. However, contained within the testimony of Johnson is the implied assertion that neither Johnson nor Whitmyer was aware of what was going on during the night shift until March 3. and therefore had no reason to issue such warnings. Similarly, the record is devoid of evidence that any member of management was aware. prior to March 3. that the night shift was quitting early and playing cards, and I so find. Position of the Parties, Analsis, and (Conclu.vion Respondent takes the position that on March 3. Johnson heard for the first time that the night crew was playing cards on company time. that he decided to investigate, did so, found the rumor to be true, and terminated the entire crew. The theory is neat and uncomplicated. Untfortu- nately, however, it is a bit too simplified for there are a number of attendant circumstances which must be given consideration before a decision on the case can be satisfac- torily rendered. If Respondent's theory of the case is simple, the same cannot be said of General Counsel's theory, for in his very well written brief he lists case upon case wherein the Board has drawn inferences from factual situations analagous in some degree to the facts of the instant case. In most of the cases cited, however. there was a basic flaw in Respondent's defense which enabled the Board to rely upon such infer- ences that flaw being, again in most instances, the fact that the employer did not have a solid, legitimate lawful reason for terminating the alleged discriminatees. Thus, General Counsel sites cases 5 in support of his contention that U.' S Soil Conditioning C'onpany. 235 NLRB 762 (1978). In this case, which was cited by General Counsel. Respondent was found to have at- tempted to justify its discharge of an employee on various shifting grounds, This fact and other reasons permitted the Board to look beyond the stated shifting reasons for discharge for some other unstated reason for discharge. The Board then found that the alleged discriminate had openly engaged in union activity. and inferred knowledge thereof The instant case is inapposite for reason that Respondent initially claimed that it terminated the night shift because it quit early and played cards on Company time and never deviated from that position, Respondent's stated position with regard to its reason for discharging the night shift, if reasonable, which I find it is, is solid, legitimate and lawful and provides no basis for looking beyond its circumstances. to root out inferences concerning probable Company knowledge of union ac- tivity to support a theory of discharge based on said activity. Similarly, General Counsel relies upon Tavlor Bros. Inc.. 230 NLRB 861 (1977) for the same proposition, but as stated by the Administrative Law Judge whose decision in the cited case was adopted b the Board: Direct knowledge is not always a necessary ingredient if under the particular circumstances and facts of the case, knowledge might rea- sonably be inferred. In view of Respondent's acknowledged antiunion animus. its blatant disregard for the rights of its employvees to engage in union acrivities, and its admitted questioning of employees regarding 878 SUMMITVILLE TILE, INC. knowledge of union activities and sympathies of the entire night shift crew may be established by resort to circumstan- tial evidence. These cases, however, fall into a particular category involving the proferring of specious reasons for discharging alleged discriminatees, shifting defenses or im- plausible explanations. Thus, these cases stand for the proposition that once it is determined that an employer is unable to offer a legitimate and plausible basis for discharg- ing a known union activist, it is both resaonable and accept- able under the law to assume that there is. in fact, a more logical basis for Respondent's action, namely the union ac- tivity of the alleged discriminatee. knowledge of' which may legitimately be inferred. In the instant case, however. John- son discovered the entire night shift quitting early. plaNing cards, reading magazines, and sitting around in other words stealing time. He had a perfectly legitimate reason for being upset and spontaneously acted upon it. This does not necessarily mean, of course that he may not have had other reasons for wanting to get rid of Moyer and perhaps the entire night shift. But under the circumstances here in- volved, there must be fairly solid evidence that union ac- tivity was an additional reason for the discharge and I do not find it in the record. Thus, although management was aware of the union activity of several activists there is not a scintilla of evidence that Respondent was willing to violate the law by interfering with this activity. There were no threats, interrogation nothing, prior to the terminations of March 3, to indicate that Respondent was willing to break the law to stop the organizational campaign. On the con- trary, there was testimony that Campbell during the down- time prior to 3:30 p.m., openly discussed the Union with other employees in the presence of management, and was permitted to do so, without any interference whatsoever. He was not even told to stop talking, grab a broom and sweep down which, arguably, management had the right to require him to do. Further, on the morning of March 3 Johnson was shocked to find out about Moyer's prounion sympathy. I believe this to be true. So, if Johnson did not know anything about Moyer's union sympathies prior to his showing up at the representation case conference, on what basis should it be inferred that he had knowledge that the entire night shift was pronunion. I am not willing to draw their union activities an inference of knowledge on the Respondent's part would not seem to be unreasonable. 6 Is Illegal motive may be supported by a number of factors. such as coincidence in union activity and discharge, disparity of treatment, general bias and hostility toward the Union, variance from the em- ployer's normal routine and implausible explanation b the employer for its actions. The cited case differs from the instant case in that the cited case contains numerous instances of 8(aX I ) violations in the form of threats and interroga- tion of employees together with an implausible explanation by the employer for its action in discharging the alleged discriminatees. The instant case re- flects neither a blatant disregard of the rights of employees-indeed. there was no concomitant activity on the part of Respondent in the instant case against known union activists e.g. Louive and Campbell-as there was in the cited case, nor is there any problem herein with an implausible explanation offered by the employer for the discharge. In the absence of 8(a( ) activity by the Respondent, an implausible explanation on its part for the discharges, or some other convincing reason for looking beyond the stated reason for the discharge, a search for and dependence upon inferences is unwarranted such an inference on the basis of this record.4" Nor am I willing to find, on the basis of the evidence before me that Johnson was willing to terminate the entire night shift be- cause he assumed that i Moyer was prounion, the entire night shift was also prounion. In his brief. General Counsel argues, quoting Enenrs I.G.A. Store of lorence, Inc., 219 NLRB 121, 124 (1975): Where there are legitimate reasons for the discharge of an employee. the question is whether those were in ftact the only grounds for the dismissal, or whether the, were "put forth as a mere pretext to justif\ an Imper- missible discharge." Inasmuch as I have found no basis for inference that Respondent was aware of the night shift's prounion sympa- thies. except for course for Moyer. there exists no basis upon which to consider whether or not the termination of the night shift for stealing time was merelN pretextual. I refuse to transform Moyer's solitary aid to the Union at the representation meeting on the morning of March 3 into a general prounion campaign by the entire night shift on the basis of the evidence adduced by General Counsel appear- ing in the record, nor am I willing to expand Johnson's knowledge of Moyer's role to inexplicabl1 include knowl- edge of prounion sympathy on the part of such individuals as Decker. Clapper, McClaskey, or Melville. night shift em- ployees whose names hardly appear in the record at all. much less in connection with specific union activity. Hole. of course, even testified that he was not in favor of the Union. Thus, in the absence of substantial union activ it on the part of the night shift, and no basis for inferring that Respondent had knowledge of or assumed union activit on their part, the question of pretext does not arise. General Counsel. in relying on timeliness, to support his case, points out in his brief that it was only that morning that Moyer was discovered to be a prounion activist. But this, of course, has nothing to do with any employee other than Moyer. for onl] he was engaged in helping the Union during the representation conference. Moreover, if there is to be any consideration given to the element of timeliness, then the fact of the entire night shift's being terminated in timely fashion immediately upon Johnson's discovering them shutting down early, playing cards, reading maga- zines, or what have you, all on Company time, without checking out, is worthy of that consideration. In short I find that what occurred on March 3 was that Johnson was surprised and even shocked to find Moyer at the representation conference, on the morning of March 3, aiding and abetting the Union by supplying it with infor- mation in order to further its campaign to become the rep- resentative of Respondent's employees. I find, moreover. that Johnson was displeased with Moyer for taking the Union's part in these proceedings. Later in the day, when Johnson discussed Moyer's role as a union activist with 'General Counsel's reliance on Joseph Pollak Corp, 232 NI.RB 825 (1977) is. in my opinion. misplaced. In the cited case. the alleged discrimi- natee was heavily engaged In union aci ity in close proximity of manage- ment personnel, and she alone was terminated for said actiity. In he instant case. there is little or no evidence that most members of the night shift engaged In union acilvit., either ithin sight or hearing of management personnel or otherwise 879 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other members of management he noted, I am certain, his displeasure with him for supporting the Union, whereupon they advised him of the rumor that Moyer and the night shift were shutting down early and playing cards on Com- pany time. Whereas Johnson, aware of the prohibitions of the Act, had, to that point, scrupulously abstained from engaging in any activity violative of the Act, even though the identity of union activists was well known, he now de- termined to check into this rumor and if the story proved true to take effective and immediate action. I have found that had Moyer not been involved that morning in aiding the Union's cause, Johnson probably would not personally have become involved in investigating the card playing ru- mor but would more likely have simply asked Giovenelli to look into the matter. I conclude that Johnson became per- sonally involved in the investigation of the card playing rumor because of Moyer's union activity for the following reasons: First, it was Giovenelli's job to run the plant and he was in charge of the night shift. Second, Giovenelli had the job of running the plant and the record contains no basis for Johnson to assume that he could not control the situation. Finally, there must have been some reason why Johnson, as owner, would take the extraordinary step of visiting the plant miles from his home, skulking around the place in the dead of night, waiting for the employees to make their move instead of simply telling Giovenelli that afternoon to inform Moyer that he had heard the rumor and to "clean up his act." I am convinced that Johnson determined to check into Moyer's activities that night in order to catch him doing something which could be used, not as a pretext, but as a legitimate basis for taking action against him. When Johnson and Giovenelli visited the plant that night and found them working, they bided their time until 11:23 p.m., at which time the night shift shut down and began the card playing, magazine reading, etc., on company time. Johnson, at that point, felt that he had a legitimate reason to fire Moyer since he truly believed that Moyer and the others were cheating the Company as in- deed they were. Johnson may have been inwardly satisfied at being given the opportunity by Moyer to discharge him, but he did so, nevertheless, for the legitimate reason pro- vided by Moyer-cheating the Company. Thus, we are not faced with a situation where an em- ployer seeks out a pretextual reason for terminating em- ployees, the real reason being their union activity, nor are we faced with a situation where there are two reasons for terminating employees, one legitimate and one discrimina- tory and where the employees are terminated for both rea- sons. In either of these two situations a violation of the Act has occurred. Rather, what we have in the instant case is a situation where Respondent was clearly unhappy with Moyer for allying himself with the Union against the Com- pany; where although Respondent was not at all pleased with the prospect of unionization, it scrupulously avoided any violations of the Act: but finally when it became aware that Moyer might well be involved in cheating the Com- pany of time, it purposefully and designedly availed itself of the opportunity of catching Moyer and other employees red-handed, succeeded in doing so and fired them for it. It is well established that an employee is not insulated from discharge for cause simply by virtue of the fact that he has engaged in protected activity. Rosso and Mastracco, Inc., d/b/a Giant Open Air Market, 231 NLRB 945 (1977). For as stated in Klate Holt Company, 161 NLRB 1606, 1612 (1966): The mere fact that an employer may desire to termi- nate an employee because he engages in unwelcome concerted activities does not, of itself' establish the un- lawfulness of a subsequent discharge. If an employee provides an employer with a sufficient cause for his dismissal by engaging in conduct for which he would have been terminated in any event, and the employer discharges him for that reason, the circumstance that the employer welcomed the opportunity to discharge does not make it discriminatory and therefore unlaw- ful. Certainly misconduct which would justify a discharge. ab- sent any, protected activity will also justify a discharge de- spite protected activity. Rosso and Mastracco, Inc., supra. In the instant case. I feel that the employees who were caught by Johnson playing cards, watching others play and reading magazines on Company time would have received the same punishment whether or not they had been known to have engaged in, or suspected of having engaged in union activities."7 At least, in my opinion, General Counsel has not proved by a preponderance of the evidence that Respondent was motivated by discriminatory reasons when it terminated the entire night shift immediately upon dis- covering them sitting around and playing cards on com- pany time. Granted, there is little doubt that Johnson wel- comed the opportunity to terminate Moyer, whose services on behalf of the Union earlier that day obviously displeased him. But Moyer clearly invited the disciplinary action that was taken in this case.48 '7 The fact that Whitmyer may have occasionally permitted some game playing in the waxing and grinding room by day shift employees does not convince me that Giovenelli or Johnson would have condoned the night shift shutting down 37 minutes early and playing cards, watching the game, read- ing magazines and otherwise cheating the Employer of time. Similarly, though General Counsel's witnesses testified variously that the packing line shut down at 3:20 p.m., between 3 and 3:15 pm., between and 3 and 3:10 p.m. and at 3 p.m., and thereafter cleaned up for 5 minutes after which they stood around or went for pop, management witnesses testified without con- tradiction that the packing line during the day shift served as a kind of labor pool to which employees were assigned when not needed elsewhere and from which they were freely taken and assigned to otherjobs. Thus, the number of employees on the packing line fluctuated. Moreover, there was testimony that the caliber of employee assigned to packing during the day was of a poorer quality. frequently employees who could not, for one reason or an- other, work anywhere else. For this reason I find that the fact that Whit- myer may have shut down the packing line between 5 and 25 minutes early when the line may or may not have been understaffed is not fairly to be compared to the incident of March 3 when the entire night shift closed down 37 minutes early and sat around and played cards on company time. Though there is some evidence that Whitmyer was somewhat lenient with employees that worked directly for him. the record is clear. even from Moer's testi- mony, that Giovenelli always made sure that prior to quitting time, the men had to at least have brooms in their hands, to appear busy and that this was in accordance with Johnson's orders, I find no basis in the record for con- cluding that the action of the night shift on March 3 should have been condoned by management because of the practice of permitting the packing line on the day shift to shut down early. The two situations simply do not equate. Fikse Bros.. Inc., 236 NLRB 1351 (1978). General Counsel's argument that termination was too severe a discipline, was unwarranted and therefore indicative of ulterior motivation. I find unpersuasive in light of the fact that 880 SUIMMITVILLE TILE. INC Having found that General Counsel has failed to prove by a preponderance of the evidence that the discharge of the night shift on March 3 was discriminatorily motivated," and there being no other substantive allegations of unfair labor practices contained in the complaint, I shall recom- mend that the complaint be dismissed in its entirety. There- tore, on the basis of the foregoing findings of fact and the entire record in this case. I make the following: CONCI.USIONS O() LAW 1. International Brotherhood of Pottery and Allied Workers, SIUNA. AFL CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent is an employer within the meaning of Sec- Johnson's decision to terminate the entire night shift was clearly spontaneous and more emotional than deliberative. Similarly, there was testimony that there existed a specific disciplinary system calling for an oral warning first., then I. 2, or 3-day suspensions, then termination. This was, however, an unwnritten informal system and it is not clear from the record as to what type of breach of company rules this system would be applied. There was also testimony that an employee could be terminated for a first offense if it were serious enough. It would appear from the record that Johnson gave no thought to any formal or informal disciplinary system in existence at the Company when he discovered the night shift playing cards on March 3. hut rather acted spontaneously on impulse. Under the circumstances. I do not consider his failure to apply the informal disciplinary system indicative of discnminatory motivation. "' General Counsel points out that during certain conversations in June, between Johnson and management personnel of another corporation. John- son referred to employees Shaw and Louive as union radicals and stated that he would be glad to get rid of them. General Counsel in his brief relies on these statements as indicative of union animus. Surely, the record in its entirety clearly indicates that Respondent was hardly enamored of the pros- pect of union representation of his employees. Yet, it hardly follows as the night, the day, that simply because Johnson would prefer to run his Cornm- pany without a union, that he would go to any lengths including the commis- sion of unfair labor practices to keep the Union out. Indeed, the evidence all points to a contrary finding for there is not the slightest indication that Respondent in any way interfered with its employees' organizational activi- ties though the most active of them were known to supervision. Even the two individuals to whom Johnson referred as union radicals were still employed at the plant at the time of the hearing. tion 2(2), and is engaged in commerce as defined in Section 2(6) and 7) of the Act. 3. Respondent has not committed any of the unfair labor practices alleged in the complaint. Upon the foregoing findings of' 'act and conclusions of law. and the entire record in this case, and pursua;nt to Section 10(c) of the Act. I hereby issue the toillowin recom- mended: ORDER"' It is ordered that the complint he. and it herehb is, dis- missed in its entirety. Report on Challenged Ballots As set forth above, the Regional Director's Order direct- ing hearing on challenged ballots and his subsequently is- sued Order consolidating cases and notice of consolidated hearing provides, among other things, that the Administra- tive Law Judge shall determine the issue of' the eligibility of the eight employees named in the Order directing hearing on challenged ballots to vote in the election held April 6, 1978. in Case 8-RC- 11235. On the basis of the findings heretofore made in this con- solidated case, I find that Ronald Lowers. Olie Moer, Jr.. Stewart Clapper, Ralph Decker. Marvin McClaskey, Rich- ard Mason. Dan Hole, and Michael McClure were dis- charged for cause on March 3, 1978. Accordingly, I recomn- mend that the challenges to their eligibility to vote in the election be sustained and that their ballots should not be counted in ascertaining the results of the election. 50 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board. the findings. conclusions, and recommended Order herein shall. as provided in Sec. 102.48 of the Rules and Regulations. be adopted bh the Board and become its findings. conclusions. and Order. and all ohjecton thereto shall be deemed waived for all purposes 881