Breuer Electric Manufacturing Co.

190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Breuer Electric Manufacturing Company and United Steelworkers of America , AFL-CIO. Cases 13-CA-9001 and 13-RC-11822 June 30, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND JENKINS ballots, upon the basis of which the Regional Director shall issue an appropriate certification. ' The General Counsel subsequently filed a letter seeking to withdraw his exceptions In view of the fact that the Charging Party has relied on and in- corporated by reference the General Counsel's exceptions, we have con- sidered such exceptions as those of the Charging Party TRIAL EXAMINER'S DECISION On March 12, 1970, Trial Examiner Lloyd S. Greenidge issued his Decision in the above-entitled consolidated cases finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the com- plaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. The Trial Ex- aminer further recommended that the objections to the election be overruled, that certain challenges be sustained and that certain challenges be overruled, and that a certification of the results of the election be issued. Thereafter, the General Counsel filed ex- ceptions to the Trial Examiner's Decision and the Charging Party filed exceptions, adopting the General Counsel's exceptions to the Trial Ex- aminer's Decision, ' and a supporting brief. The Respondent filed cross-exceptions and a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with these cases to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. IT IS FURTHER ORDERED that Case 13-RC-11822 be, and it hereby is, severed and remanded to the Regional Director for Region 13 for the purposes of opening and counting the ballots to which the chal- lenges have hereby been overruled, and thereafter prepare and cause to be served on the parties a revised tally of ballots, including the count of said STATEMENT OF THE CASE LLOYD S. GREENIDGE, Trial Examiner: This con- solidated proceeding was heard at Chicago, Illinois, on November 12 and 13, 1969; it had its genesis in the efforts of United Steelworkers of America, AFL-CIO, herein the Union, to become the exclu- sive bargaining representative of employees of Breuer Electric Manufacturing Company, herein called the Respondent or Employer. The represen- tation proceeding in Case 13-RC-1 1822 was in- itiated on March 26, 1969, by a petition filed by the Union; it was followed by a Stipulation for Consent Election approved on April 17, 1969, and by an election conducted on June 4, 1969. The results of the election were inconclusive in that 30 votes were cast for the Union, 28 votes were cast against the Union, and 6 ballots were challenged. On June 11, 1969, the Union filed timely objections to conduct affecting the results of the election. The complaint in Case 13-CA-9001, which was amended at the hearing, issued on October 2, 1969.1 On the same day, October 2, the Regional Director issued his re- port on objections and challenges and, on October 8, 1969, an amended report on objections and chal- lenges, in which he (I) found that the objections and the challenges to the ballots of Angel Perez, Rogelio Rosa, Edward Wold, Paul Pellegrino, Ken- neth Warren, and John Juszkiewicz raised substan- tial and material issues which can best be resolved by a hearing; and (2) issued an Order Consolidating Cases and Notice of Hearing, thereby consolidating Case 13-RC-11822 with Case 13-CA-9001 for hearing herein, and transferring and continuing Case 13-RC-11822 before the Board. The prin- cipal questions presented are, in broad outline, (1) whether Respondent violated Section 8(a)(3) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, by discharging Angel Perez and Rogelio Rosa on March 25, 1969, and terminating the employment of Edward W. Wold on March 26, 1969;2 (2) whether Respon- dent, in violation of Section 8(a)( I) of the Act, in- terfered with, restrained, and coerced employees in the exercise of their Section 7 rights; (3) whether the unresolved challenges to the ballots of the six employees listed above should be sustained or over- ' The charge was filed on April 2, 1969, and a copy thereof was duly served on Respondent by registered mail on April 3, 1969 ' As noted above, the status of Perez, Rosa, and Wold is also in issue in the representation proceeding 184 NLRB No. 22 BREUER ELECTRIC ruled; and (4) whether the Employer has engaged in conduct which warrants setting aside the elec- tion. Respondent denies that it has engaged in any of the unfair labor practices alleged herein. Upon the entire record in these cases,3 including my observation of the attitude and demeanor of the witnesses , and after due consideration of the briefs. of the General Counsel, of the Respondent, and of the Union , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, an Illinois corporation , maintains a place of business at 5100 North Ravenswood, Chicago, Illinois, where it is engaged in the manu- facture and distribution of industrial vacuum cleaners and floor maintenance machines . During the past calendar year, a representative period, Respondent manufactured , sold, and shipped finished products valued in excess of $50,000 from its place of business in Chicago , Illinois, directly to customers located outside the State of Illinois. Dur- ing the same period, it received goods and material valued in excess of $50,000 directly from points outside the State of Illinois. The complaint as amended alleges , Respondent in its answer admits, and I find that , at all times material , Respondent has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent further admits, and I find, that United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Sunervisory Personnel The plant superintendent is Bobby Justice 4 the vice president of manufacturing is John Dye, and the product service manager is Edeward Slowik. The complaint as amended alleges, Respondent ad- mits in its answer as amended , and I find that, at all times material herein , Justice, Dye, and Slowik have been and are agents of the Respondent acting in its behalf within the meaning of Section 2(13) of the Act and supervisors within the meaning of Sec- tion 2(1 1) of the Act.' The complaint also alleges , and the answer as originally filed admitted, that employee Louis ' Pursuant to my request , the parties prepared and submitted a stipula- tion, after the close of the hearing , with respect to the hourly wage rate of Paul Pellegrino and certain other employees The stipulation is marked and received in evidence asTX Exh I A duplicate copy thereof is waived ° Identified in the complaint as Robert Justice, general foreman ' An allegation in the original amendment to the complaint that Niles Ford, drill press foreman, was an agent of the Respondent and a supervisor MANUFACTURING CO. 191 Akers has been , and is, an agent and a supervisor of the Respondent. On the opening of hearing, Respondent amended its answer to deny that Akers was a supervisor within the meaning of the Act, or that he was acting as an agent of the Respondent whose conduct may be imputed to the Respondent. His status vitally affects or is dispositive of several issues raised herein. B. The Disputed Supervisory Status of Louis Akers Respondent manufactures and distributes indus- trial vacuum cleaners and related products. Its operations are conducted on two floors. General of- fices, a literature room, and the product service de- partment are located on the second floor. Em- ployees in five or six departments, including those assigned to the machine shop and the receiving, as- sembly, and polishing departments, work in an area on the first floor. There are approximately 72 em- ployees overall employed on two shifts, one from 7 a.m. to 3:30 p.m., the other from 3:30 p.m. to 12 midnight. Seven of these employees are assigned to the product service department under the direction of Edward Slowik , the product service manager. Slowik works in an office , enclosed by glass win- dows, about 12 to 15 feet away from the shop area. He spends 2 or more hours each day in the shop. The function of the product service department is to process customers' orders for repairs of, and replacement parts for, Respondent's products. The employee assigned to order filling and packing gets work orders from the sales or warehouse depart- ments and processes them " on a first-in, first-out" basis. The three employees detailed to repair work go directly to an order basket and extract work or- ders placed there by Slowik also on a "first-in, first- out" basis. Akers, a salaried employee,' was hired by the Respondent in August 1968. He was given a desk in the shop area where he performed clerical duties assigned by Slowik. In this regard , Akers checked internal transfer tickets for accuracy of nomencla- ture and quantity of items requisitioned . He also checked to see that the tickets were properly ex- ecuted. Further, Akers ordered parts from the production department . On occasion , his desk was used by other employees in the product service de- partment for the same purpose. The only witness called by the General Counsel for the purpose of establishing the supervisory status of Akers was Edward W. Wold.7 Wold, for- merly an order filler and parcel post handler in product service , testified that, sometime in August 1968, Roy Thompson told him that he (Wold) within the statutory definitions was struck at the hearing 6 Slowik 's secretary is also on salary r Akers did not testify Slowik announced that on or about April 18, 1969, Akers quit his job and has not been heard from since that date The General Counsel explained that he had attempted to subpena Akers but, apparently, without success 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would be taking orders from Akers after Thompson left Respondent's employ. A day later, according to Wold, Slowik said, "Now, you know this is Mr. Lou Akers and you'll take orders from him." Slowik, a witness for Respondent, recalled that, at the time he introduced Akers to the employees, he said, "I told them that Mr. Akers will convey my orders to them and I expect them to follow them; that he is going to be the leader out there." Wold averred that, in the latter part of 1968, Akers introduced Willie Jones to the service de- partment employees and then declared, "I hired a new receiving clerk and I have told him that he is supposed to help you out, especially in the morning with your house orders." Slowik testified, however, that he hired Jones and, at the time, told Akers to introduce him to the other employees and to'direct Wold to assist Jones in the procedure of identifying and receiving products. Continuing his recitation of Akers' alleged duties and responsibilities, Wold went on to say that Slowik asked Akers to review job applications and that Akers "would do all the hiring that has to be done." He admitted, however, that he had never seen Akers interview any job ap- plicant. On the other hand, Slowik testified that he interviews all applicants and hires and fires all em- ployees. Wold also testified that Akers assigned him over- time work, granted him time off, and directed him to go from one job to the next. However, he later acknowledged that he did not know whether, on such occasions, Akers had been directed by Slowik to ask Wold to work overtime, or whether Akers had been instructed by Slowik concerning job as- signments for Wold and others. In this regard, Slowik testified that he alone decides when over- time work is needed and that either he or Akers would ask an employee to work overtime. Further, that he alone is authorized to grant time off but that, on occasions, an employee would tell Akers he was leaving and would leave without permission. Wold recounted a conversation with Slowik in late 1968 concerning a blueprint_Wold wanted for a job on which he was then engaged. According to Wold, Slowik said, "you got a boss out there, go to see him because he's allowed to go in the engineer- ing room to get the plan for you." Wold continued to say that the reference was to Akers and that only supervisors were allowed in the engineering room. Generally describing Akers' duties and authority, Slowik testified that Akers was his helper and leg- man. By way of amplification, he further testified that, while Akers conveyed employees' requests for pay raises, he (Slowik) made independent in- vestigations to determine whether they were war- ranted; that, from time to time, Akers initialed em- ployee timecards but that this was only done after Akers had received permission from Slowik; and, that Akers handled minor disciplinary problems but again only pursuant to Slowik's instructions. Finally, Slowik averred that Akers never substituted for him. The General Counsel contends that Respondent held Akers out to the employees as the "leader" and "boss" whose instructions were to be followed. It is well established, however, that it is what the employee actually does as distinguished from the employer's characterizations of his duties that determines whether he is a supervisor. The General Counsel also contends that Akers had the authority to assign employees to various jobs, to transfer them during the day, to direct them in the per- formance of their tasks, and to request them to work overtime. As concerning the assignment of work and job transfer, it is clearly evident that, in the single instance relied on, Akers was merely relaying instructions from Slowik that Wold assist Jones, a new employee, in the performance of his duties. As to the direction of work, it is patent from the record that employees in the service depart- ment are essentially engaged in a repetitive opera- tion which does not require close direction or con- trol. And, with respect to the claim that Akers as- signed overtime work, the fact here is simply that, in those instances when Akers asked employees to work overtime, he was merely passing on instruc- tions from Slowik. Finally, the General Counsel ob- serves that Akers was the only salaried employee in the product service department. The observation finds no support in the record as it clearly appears from the testimony of Slowik that Akers was one of two clerical employees on salary in that depart- ment, the other being Slowik's secretary. Upon this state of the evidence, in particular the testimony of Slowik which I credit, it appears and I find that Akers was merely conduit for orders from Slowik and that he had no authority to hire, fire, discipline, grant time off or overtime, or to make any effective recommendation regarding these mat- ters. The evidence also shows and I find that Akers did not exercise the type of independent judgment or responsible direction for the work of other em- ployees that would indicate supervisory authority. Because the record shows that Akers did not per- form any of the functions of a supervisor within the meaning of Section 2(11) of the Act or of an agent as defined in Section 2(13) thereof, I find and con- clude that he was not a supervisor or an agent of the Respondent within the statutory definitions.8 Since I have found that Akers was not a super- visor, I further find that the threats and interroga- tions attributed to him, if credited, were not bind- ing on the Respondent as they were not authorized, condoned, or ratified and, therefore, can only be considered as expressions of Akers' personal opinion without company sanction or support. 'See Plastics Industrial Products, Inc , 139 NLRB 1066, 1067-68, Cook Chocolate Company, 137 NLRB 1517, 1519-20, Lampc raft Industries, Inc 127 NLRB 92, 94-95 BREUER ELECTRIC MANUFACTURING CO. 193 C. The Union's Appearance at the Plant On March 12, 1969,9 the Union, under the guidance of Representative Eliseo Martinez, in- itiated an organizational campaign among Respond- ent's employees. Martinez sought and obtained the assistance of employee Angel Perez in this ef- fort. On March 14, Perez signed a union authoriza- tion card which he had obtained from Martinez and, between March 14 and 18, distributed from 40 to 51 union cards among the plant employees. In all of this, Perez was assisted by employee Rogelio Rosa who also signed a union card on March 14 and solicited employees signatures . Respondent learned of these stirrings among its employees be- fore March 25, the date of the discharge of Perez and Rosa. Thus, Justice acknowledged that he was aware of the distribution of union leaflets before that date as employees brought them into the plant and threw them on the floor or in trash cans. Justice also acknowledged that Martinez or his partner handed him a union card one morning as he was entering the plant. Supervisor Slowik testified that employee Lou Akers told him, sometime in March, that the Union was handing out leaflets: Respondent's attitude toward this event is per- haps best illustrated by Justice's response to em- ployee inquiries concerning his opinion about a union . To employee Jerry Dortman, Justice related that he left West Virginia because he did not like the way the Union conducted its business in that State. Apparently, the same information was im- parted, on four or five occasions, to other em- ployees in employee-initiated conversations. When queried as to whether he had discussed the Union's campaign with employee Robert Henderson, his brother-in-law, Justice testified that Henderson might have asked but that he did not express an opinion because Henderson already knew his view on the matter of unionization from an earlier as- sociation in Kentucky. D. Interference, Restraint , and Coercion The complaint alleges, and the answer denies, that on or about March 24, Justice interrogated employees regarding their union activities. In sup- port of this allegation , the General Counsel in- troduced testimony from Perez as follows: About 6:40 a.m., March 24, Perez was in the washroom getting ready to put a number of signed union cards in his locker. Perez had just removed the cards from his pocket and was holding them in his hands when Justice walked up and asked, "What's that?" Perez replied, "You know what that is." Justice de- nied ever seeing Perez with union cards near his locker and, inferentially, denied asking what they were. For the purpose of this Decision I shall as- sume, without deciding, that Justice made the re- mark attributed to him by Perez. If uttered, it can- not, in my opinion , reasonably be construed as a threat or reprisal by the Respondent but, on the contrary , amounted to no more than an innoucous and, in context , almost meaningless inquiry. Clearly, Justice did not indicate by the alleged re- mark any awareness of the significance of the cards, even in Perez' account of the exchange. Hence , I shall recommend that this portion of the complaint be dismissed . Bonnie Bourne, d/b/a Bourne Co . v. N.L.R.B., 332 F.2d 47 (C.A. 2), Can- non Electric Company, 151 NLRB 1465 , 1470; Blue Flash Express, 109 NLRB 591. E. Discrimination in Regard to Hire and Tenure of Employment 1. The discharge of Angel Perez and Rogelio Rosa Perez and Rosa entered Respondent 's employ in August 1966 as machine operators and both con- tinued in that classification until March 25, 1969, when their employment was terminated under cir- cumstances detailed below. Each received three pay raises. Perez and Rosa were active supporters of the Union, passing out union cards to other employees inside and outside the plant allegedly during non- working hours. Between March 14 and 18, Perez distributed from 40 to 51 union cards among the 72 plant employees. Indeed, he was probably the most active union proponent in the plant. In this effort, Perez was aided by Rosa who, on March 17, at- tempted to enlist the support of Robert Henderson Both signed union cards on March 14 and attended the union meeting on March 21. While Justice acknowledged that, before March 25, he had ob- served union organizers distributing literature out- side the plant and had seen employees bring union literature into the plant and scatter it on the plant floor, there is no direct evidence of company awareness, before said date, of the role of Perez and Rosa in the union drive. Perez testified, corroborated by Martinez and by Rosa in certain particulars, that on March 19, while having lunch with Rosa and talking with Martinez in front of the plant, Justice passed within 3 to 4 feet of the place where they had assembled, sat on the hood of an automobile parked about 15 feet away, and watched Perez and Martinez closely. Rosa testified that, on the morning of the discharge, Justice observed Rosa and Martinez as they were conversing by Martinez' automobile parked a distance of about 20 feet from the plant door. For his part, Justice averred that he had no recollection of having seen Perez and Martinez together on March 19. He testified that he went outside during the lunch period that day and observed eight or nine employees with Martinez but then promptly returned to his office because "he didn't want to get involved in any of their conversations." Justice " Unless otherwise noted, all dates hereinafter are in 1969 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also testified that he did not recall seeing Rosa and Martinez in front of the plant the morning of the discharge, although admitting that he is at the plant door every morning. I am persuaded that Respond- ent had knowledge of the union activity of Perez and Rosa before the discharges for the following reason: As a result of Respondent's small work force, the Board's small plant rule is operative. Pur- suant to this rule, and on the entire record, includ- ing the open nature of Perez' and Rosa's union or- ganizing conduct and the unconvincing nature of Justice's denials, it is reasonable to infer-and I find-that word of their union organizing activity came to the attention of Respondent's supervisors shortly after they became engaged in it and prior to March 25. New French Benzol Cleaners and Laundry, Inc., 139 NLRB 1176, 1179; American Grinding & Machine Co., 150 NLRB 1357, 1366; Angwell Curtain Company, Inc. v. N.L.R.B., 192 F.2d 899, 903 (C.A. 7); N.L.R.B. v. Joseph Antell, Inc., 358 F.2d 880, 882 (C.A. 1); N.L.R.B. v. Lawson Printers, Inc., 408 F.2d 1004 (C.A. 6). The grounds assigned by Respondent for the discharge of Perez and Rosa concern an incident that occurred in the late morning of March 25. The testimony is in conflict with respect to the events of that day and an incident the previous day. Ac- cordingly, I recite the versions of witnesses for both sides. a. The version of Bobby Justice and Niles Ford Sometime on the morning of March 24, Nile Ford, the machine shop foreman and Perez' super visor, assigned Perez to work on the drill press "logging collar inserts." Perez remonstrated stating, "I can't make this rate on this job." Ford rejoined with the query, "How come, lately, every time I as- sign you to a job, before you even turn a machine on, you want to start complaining about it?" Whereupon, Perez directed foul and obscene words toward Ford and threatened to punch him in the nose. Ford did not report the incident that day. About 12:45 p.m., the same day, Justice asked Niles why Perez was in the assembly area and not at his machine. Ford said he did not know. Shortly after this Perez returned to his work station. At approximately 8 a.m. on March 25, the day of the discharge, Justice observed Perez and Rosa, for about 5 minutes, in the receiving areal" where they were standing around talking. Sometime after this, Justice called the matter to Ford's attention and de- manded an explanation. Ford explained that he was having some difficulty keeping Perez and Rosa on their machines but Justice directed him to put them back to work. Ford went after Perez and Rosa, en- countered them by the milling machines in the receiving department, and instructed them to 10 According to Justice, Perez was a distance of 25 to 30 feet away from the bending machine to which he was then assigned n The work bell is synchronized to the timeclock return to their machines. About 10 a.m., the same day, Justice noticed that Perez and Rosa were again away from their work stations and once again asked Ford where they were. At this point and for the first time, Ford informed Justice about the threat and obscene remarks Perez had directed toward him the day before. Justice reprimanded Ford for not reporting the incident sooner and again directed him to find Perez and Rosa. As before, Ford found the dischargees in the receiving department talking to Henderson. For the second time that day, Ford ordered them back to work. Still later between 11:45 a.m. and 11:50 a.m. the same day, Justice was proceeding to the polishing department, when he observed Perez and Rosa in the washroom washing up prior to the sounding of the lunch bell and contrary to published rules. In a moment of pique, Justice fired them on the spot. Quoting Justice, "So, I blew my top and fired them." Justice explained to the dischargees that they had been warned about leaving their machines and washing up early and that they were fired for continued violations of company rules. Rosa asked if Justice was firing him and Justice answered affirm- atively. To this Rosa Responded, "Good, that's just what I wanted." Shortly thereafter and before the bell sounded for lunch, Justice told Ford that he had found Perez and Rosa in the washroom wash- ing up and had fired them.'[ Justice remained in his office until 12:30 p.m. but did not see Perez or Rosa after the discharge meeting. b. Perez' version Perez admitted calling Ford "a couple of bad things," did not deny the threat to punch him in the nose , but placed the date of the incident as 6 or 7 weeks before the date of the discharge. Sometime between 10:30 a.m. and 11 a.m., on March 25, Robert Henderson, Justice's brother-in- law, approached Perez at his machine and asked how the campaign was going. Perez offered Hen- derson a union card and tried to induce him to sign it to no avail. After a discourse of 5 to 6 minutes, Henderson returned to his machine about 15 to 20 feet away. Still later, Perez saw Henderson and Justice talking in front of the door to the toolroom but did not overhear the conversation. However, in the course of the said conversation, one or the other looked at Perez who was from 60 to 65 feet away.12 Perez acknowledged that he had seen Justice and Henderson converse at the latter's machine practically every day After this, Perez saw Justice walk over to Rosa's machine but did not see him talk to Rosa. About 11:50 a.m. that morning, Perez observed Rosa walking in the direction of the washroom where he stayed for 1 minute. At ap- proximately 11:55 a.m., Justice approached Perez, 12 At this point in time, a large punchpress machine and a die rack 7 to 9 feet tall were between Perez and Justice and Henderson BREUER ELECTRIC MANUFACTURING CO. 195 at the latter's work station, and told him he was fired. When asked for an explanation, Justice said it was because Perez "no work on the company's side." Perez shut down his machine and walked in the direction to the washroom. Each advised the other that he had been discharged. Perez explained to Rosa that, in his case, it was because he did not work on the company side. Perez, accompanied by Rosa, continued to the washroom where they washed up and changed their clothing. After this, Perez looked for Justice to ascertain the reason for the discharge but could not find him. Perez and Rosa then punched out, left the plant, and at- tempted to locate Martinez without success. Perez remained outside while Rosa returned to the plant to find Justice About 1 minute later, Rosa left again and both departed. On cross-examination, Perez first averred that he did not recall anything that happened prior to the conversation with Henderson and did not leave his machine before then. Later, however, Perez ad- mitted that he did in fact leave the machine before the said conversation, for a period of 5 to 10 minutes, to find materials 6 to 10 feet away. And, still later, acknowledged that he left more than once to obtain materials as they lasted only 15 minutes and, as a consequence, that he moved back and forth all day. Further, Perez conceded that, on the day in question, he was away from his work area between 9:30 a.m. and 10 a.m. to get coffee at a vending machine 90 to 100 feet distant from his work station. Perez denied leaving his machine and walking around the plant with Rosa on March 24 or March 25, denied that Ford ordered him back to work on March 25, and denied that he was in the washroom when he was discharged. c. Rosa's version After the bell had rung on March 25, Rosa went to the washroom. Justice followed him and said, "You got discharged." Rosa did not respond. In- stead, he washed his hands and then looked for Perez whom he encountered on the way to the washroom. At that time, in Rosa's own words, "everybody was working." Each reported to the other that he had been discharged. Rosa asked Perez if he was given a reason. Perez replied, "He told me I was [not] working for the company's side." Rosa returned to the washroom with Perez and both changed their clothing. After this, Rosa went to the office where he waited 2 or 3 minutes for Justice to no avail. Rosa and Perez then left the plant but, about 3 minutes later, Rosa returned to make a telephone call. Still later, Rosa again at- tempted to confer with Justice and this time found him in the office. Rosa asked for an explanation and Justice said, "You got discharged that's all." Rosa acknowledged that he left his machine, about 10 a.m., for a period of 4 or 5 minutes, to get materials from the milling machine operator 65 to 70 feet away, but denied that he was with Perez at the time and denied that Ford ordered him back to his station on the morning of the discharge. CONCLUDING FINDINGS I credit the mutually corroborative testimony of Justice and Ford over the self-contradictory and conflicting accounts of Perez and Rosa, and reach this conclusion upon the totality of the following considerations: (1) Perez vacillated and was uncer- tain as to whether he left his machine before the discharge. First, he testified that he did not leave the machine before or after the conversation with Henderson but later acknowledged that he did, on several occasions and for periods of 5 to 10 minutes, to obtain materials only 6 to 10 feet distant from his work area. He also admitted that he left the machine between 9:30 a.m. and 10 a.m., or about the time Justice was looking for him, to get coffee at a vending machine 90 to 100 feet away from his work station. Rosa also acknowledged that he left his machine about 10 a.m. allegedly to secure handles in the milling de- partment for a job he was working on. The parts number on Rosa's job card for the morning of March 25 was 8542-C. This means, according to the credited account of Ford, that Rosa was as- signed a job on a fan chamber and this did not require the use of handles. Consequently, there was no reason for Rosa to go to the milling department to obtain handles for the job assigned. (2) Perez testified that, about 11:50 a.m., he observed Rosa walking in the direction of the washroom and, I minute later, saw him leave the washroom. Rosa averred that he did not go to the washroom until after the bell had rung at 12 noon. He also averred that, after he left the washroom and as he was proceeding through the work area to Perez' station, he observed "everybody was working." Obviously, if everyone was still at work, the bell signaling the start of the lunch period could not have rung. This latter testimony of Rosa's is, in effect, an implied admission that he entered the washroom prior to the sounding of the bell and buttresses the accounts of Justice and Perez in this regard. (3) Perez and Rosa testified that they left the plant together. However, Perez' timecard shows that he puched out at 12:08 p.m. and Rosa's sets his punch out time at 12:03 p.m. Assuming Rosa did not enter the washroom until after the bell rung at noon, to have accomplished all that Rosa said he accomplished between his discharge and punch out time was, in- deed, an extraordinary feat. Thus, within an inter- val of less than 3 minutes, Rosa encountered and was advised by Justice of the discharge, sought out and conferred with Perez about the discharges, returned to the washroom with Perez, changed his clothes, waited 2 or 3 minutes for Justice, and then punched out. (4) While Rosa testified that Perez told him about the time of the accurrence, that he (Perez) had been discharged because he was not on the company's side, pretrial statements given by 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rosa do not contain the alleged remark. Asked to explain the omission, Rosa declared that he did not recall the statement until sometime during the preparation for the trial in this case. (5) Perez testified that he never solicited an employee to join the union during working hours yet admitted that he had attempted to get Henderson to sign a union card on company time. (6) Perez admitted direct- ing vile and profane language toward Ford and did not deny the threat to punch him in the nose. In view of the foregoing, as well as demeanor, I do not regard Perez' or Rosa's denials of the credited testimony of Justice and Ford as reliable and I do not credit them. The Respondent contends that Perez and Rosa violated two plant rules13 and were discharged for so doing; the General Counsel argues that the real reason for the discharges was their union activity. It must be remembered that the General Counsel has the burden of proof, that union membership and activity provide no immunity to an employee discharged for misconduct, and that, where an em- ployee behaves in an offensive manner, it is not for the Board to say that the penalty imposed is too severe. But it must also be remembered that an em- ployer may not exploit an incident and attempt to use it to justify a discharge when his real motivation was not the employee's conduct in question, but rather his union activity. The issue, therefore, is whether Respondent seized upon the incident re- lated above to provide itself with an ostensibly valid reason to get rid of two employees, while the real reason was their union activity. It has already been reported that Perez and Rosa were active in behalf of the Union, and Respond- ents protestations that it was unaware of this ac- tivity are not credited. The dischargees' testimony of their union activity is not contradicted. Further, in view of the scope and extent of such activity and the small size of Respondent's plant, it is reasonable to believe that news of their union activity came to Respondent's attention shortly after they engaged in it and before March 25. On the other hand, the only probative evidence of company hostility to the union campaign appears in certain remarks of Justice uttered in response to employee inquires concerning his feeling about the campaign. To such employees, Justice frankly declared that he left West Virginia because he did not like the way the union there was conducting its business. The re- mark suggests that Justice was not amicably disposed toward a union but this, per se, is not un- lawful. Section 8(c) of the Act expressly preserves an employer's right to voice his views, arguments, and opinions-if unaccompanied by threats or promises-and an employer, whether hostile or friendly to unions, may lawfully discharge em- ployees for any reason whatsoever, except for reasons related to the employee's union or con- certed activity. In short, we have here the basic ele- ments of employer knowledge of employees' union activity, discharges shortly after the employees en- gaged in union activity, but only a paucity of proof of an active union animus on the part of the Respondent. I turn next to a consideration of the two rules which Respondent alleges the employees violated. Sometime in August 1968, the Company posted a notice, in English, on its bulletin board which reads, in pertinent part, as follows: No shop employees allowed to leave machine before quitting or meal time except polishing department. On January 6, 1969, it posted another notice this time in every department, as well as on the bulletin board, and in Spanish and English. It states as fol- lows: Employees not allowed to wash up before 12:00 and quitting time except polishing de- partment. Anyone caught in violation of the above two times will be terminated. There is an obvious overlap in the rules since both enjoin employees against leaving their machines be- fore noon or quitting time. Perez, who does not read English, was uncertain as to his knowledge of the August 1968 rule. At one point, he declared that he did not recall seeing this rule and, at another, acknowledged that/he was aware of it 5 days before the discharge. Perez ad- mitted, however, that he knew of an instance, about 4 months before his termination, when an employee was discharged for leaving his machine to make a telephone call. I find that Perez was fully aware of both rules prior to March 25. Justice testified that, shortly after the January 1969 notice was posted, he found Perez and Rosa in the washroom before washup time. Continuing, Justice asked them if they had read the notice, told them they were not permitted to wash up before 12 noon, and warned them that they would be discharged for another infraction of the rule. In February, he again found the employees in the washroom without permission and once again warned them that they would be discharged if they persisted in an apparent disregard of the rule. I credit the foregoing testimony of Justice and the testimony of Perez and Rosa in conflict therewith is not credited for several reasons. At the hearing, Perez admitted that he violated the January 1969 rule once but then could not recall if there had been a second occasion. By way of amplification, Perez stated that, 5 or 6 days before the discharge, Justice told him, at his work station, that he would be discharged if he violated the rule three times. However, in a pretrial affidavit, P. ez declared: "Bob Justice told me that if I was in the washroom before 12:00 he would fire me. Justice saw me in the washroom on at least two (2) occasions about 4 " Leaving their machines on two separate occasions and being caught in the washroom before the sound of the bell BREUER ELECTRIC MANUFACTURING CO. 197 or 5 minutes before 12:00 and he said that if he caught me there again he would fire me. This was said to me about 6 weeks before I was fired." Rosa denied generally that Justice ever warned the dischargees about going to the washroom before noon. Rosa was admittedly an active union ad- herent whose testimony was influenced by his pro- union sympathies and his friendship with Perez. These circumstances render suspect his palpable at- tempt to bolster Perez' as well as his own cause. In addition, I have found Rosa's testimony self-con- tradictory in significant aspects. It seems reasonably clear, therefore, that Perez and Rosa violated the rule against going to the washroom to wash up on two separate occasions prior to March 25 and, on each such occasion, were warned against a repeti- tion of the offense. Undoubtedly, an employer may lawfully discharge an employee for an infraction of a plant rule. The immediate question, however, is whether this was the real motivation, or whether Respond- ent used it as an excuse to rid itself of two union leaders. It is clearly evident from the record that the Respondent refrained from engaging in any of the familiar forms of antiunion propaganda, or campaigning, coercive or otherwise, from which an inference of a discriminatory motivation for the discharges could be drawn. Certainly, Plant Su- perintendent Bobby Justice's remarks to four or five employees, in conversations initiated by them, that he left West Virginia because he did not ap- prove of the way a union was conducting its busi- ness in that State cannot serve to taint the avowed reason for the discharges.14 Also negating a finding that unlawful considerations dictated the discharges is the fact that, about 4 months prior to March 25 and before the advent of the Union, Respondent terminated another employee for leaving his machine in advance of quitting or meal time. The absence of any probative and reliable evidence of company antipathy to union or other concerted ac- tivity is patent and I so find. It is established law that an employer may discharge an employee for any reason, good, bad, or otherwise, provided he is not motivated by con- siderations of the employee's protected union or concerted activity. On all the facts, I am persuaded and thus find that Respondent discharged Perez and Rosa for cause. Perez admitted, at the hearing and in his pretrial statement, that he had been warned against any further infraction of the rule prohibiting washup before 12 noon and Rosa's denial of like warnings is not credited. Accordingly, I find and conclude that the General Counsel has failed to sustain his burden of proving by a preponderance of the credible evidence that the discharge of Perez and Rosa vio- lated Section 8(a)(3) of the Act. It is, therefore, recommended that the complaint allegations as to them be dismissed. 2. The separation of Edward W. Wold'5 Wold was hired in August 1967 as an order filler and parcel post handler and left Respondent's em- ploy on March 26, 1969. He worked under the direction and control of Edward Slowik, the product service manager. Wold was apparently a competent employee as he received three pay raises, the last near the end of 1968 or the beginning of 1969. As early as the summer of 1968, Wold had threatened to quit his job unless he received a pay raise. Indeed, Wold freely acknowledged that he had asked to be replaced about 10 times allegedly because he was overworked and underpaid. In December 1968, Respondent ran a number of newspaper advertisements for assistance in the product service department but the results were disappointing as new employees stayed only 1 or 2 days then left. In January, Wold requested more help and another pay raise but the request was de- nied by Slowik. Also, in January, Wold told em- ployee Akers that he was disgusted with the job and was going to leave. In early February, Akers, brought one Sonny Smith to Wold and said, "I want you to teach him all you know because you said you want to leave." Wold replied, "It's okay by me." Wold readily ad- mitted that he knew, from conversations with Slowik and Akers, that the Company was looking for a replacement for him, that Smith was to be his replacement, and that he was to train Smith for that purpose. Later in February, Akers approached Wold and declared, "Ed, you know what's going on around here. Ed Slowik is going to decide between one of you [referring to Sonny Smith as the other employee] who he is going to keep, but you'll at least get 2 weeks notice." On March 13, as he was entering the plant to commence work, Wold accepted a union authoriza- tion card and some union literature from Martinez. About 7:30 a.m. that day, Wold told Akers and other employees in his department about the en- counter with Martinez. Specifically, Wold related that he had obtained a union card and was going to sign and return it to the Union. At lunch the same day, employee Bill Platt disclosed to Wold and others-that he too was signing a union card. Friday, March 21, Wold again met Martinez out- side the plant and accepted more union literature. Sometime early that morning, Wold told Akers and other coworkers that, once again, he was greeted by Martinez, had obtained union literature, and in- tended to go to a union meeting scheduled for that evening. Akers responded, "Well, Ed, that's-use 14 See Trinity Concrete Products Company, 162 NLRB 1237, 1238-39 14 Unless otherwise indicated, the findings in this section are based on the credited testimony of Wold and Slowik which is either admitted or un- disputed 427-835 0 - 74 - 14 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD your own judgment there, your own initiative to go." Akers then turned to Smith and asked if he was going to attend the meeting. In another group gathering about 10 the same morning, employee Platt commented that, in the past, employees had been given their "walking papers" for attending union meetings. At lunch that day, Wold again told Akers he was going to the meeting and Akers re- marked "You know if you go to that meeting you can get fired too. You can get fired." To this, Wold replied, "That's all hogwash around here."16 Wold and about 24 other-,employees attended the union meeting the evening of March 21. About 7:30 a.m., Monday, March 24, Akers ap- proached Wold at his-work bench and asked if he had attended the meeting. Wold responded in the affirmative. Akers then put the same question to Jones and Smith and they said no. Early Wednesday morning, March 26, Slowik de- cided that Smith had been sufficiently trained to perform Wold's duties and that he needed only one man for the job. Slowik communicated his decision to Akers and told him to instruct Wold to appear in his office about 3:15 that afternoon. As directed, Wold went to the office where Slowik said, "Well, Ed, you have been wanting to quit for a long time" adding, "Here's you check. You are paid til Friday." Wold remonstrated stating, "You must be joking. It's only on account of the union." Slowik replied, "I don't know anything about that. There's no hard feelings. You are free to go." Wold rejoined, "Well, no hard feelings." After this, Wold returned to his work area, gathered his tools, and left. Normally, an employee is not paid for a period beyond the date of his separation. Slowik explained that Wold was compensated through Friday because he had given notice of his intention tolquit and had helped to train his replacement. It also ap- pears, as related above, that, at the time of Wold's requests to be replaced in December and January, the Company was experiencing some difficulty in finding and retaining employees to work in the product service department. In late December or early January 1969, it hired one Willie Jones and this brought the work complement in that depart- ment up to strength. However, when Smith was en- gaged in February 1969 as a replacement for Wold, the department was overstaffed. The General Counsel contends that Wold was separated on March 26, in the middle of the work- week, because he had attended the union meeting on March 21. Respondent's position appears to be that Wold had repeatedly expressed an intention to quit and the time came when it decided to hold him to his word. Wold's union activity was limited to signing an authorization card, participating in general conver- sations with fellow employees about the Union, and attending a union meeting with about 24 other em- ployees. Slowik denied knowledge of Wold's pro- union sentiments prior to his separation but acknowledged general awareness of the Union's or- ganizational effort before that time. As noted, Wold worked in the product service department, located on the second floor, with about six other em- ployees. Between March 13 and 25, Wold engaged in free and open discussions with his coworkers about the Union. In these circumstances, it is reasonable to infer-and I do-that word of Wold's union activity reached the Respondent prior to March 26. However, while knowledge of Wold's union activity may properly be-inferred, the only evidence offered to support the claim of an unlaw- ful motivation in his separation was that already considered in the cases of Perez and Rosa. And, as previously determined, the limited exchanges between Justice and a few employees concerning his opinion=about a union are insufficient to support a finding of an active antiunion animus by the Respondent. Nevertheless, the General Counsel ar- gues that a discriminatory motive may be inferred from the circumstance that the separation was ef- fected only 3 work days after Wold attended a union meeting, and on the same day the Employer rejected the Union's recognition demand and the Union filed its representation petition. The fact that Wold attended the union meeting did not distin- guish him from other employees who also attended. And, clearly, Wold's union activity cannot shield him from a separation for cause. Wold had re- peatedly expressed an intention to quit and, about 1 month before the start of the union campaign, Respondent hired a replacement for him. Wold was so advised at the time, expressed satisfaction with the arrangement, and agreed to train his replace- ment. In a word, then, the most that can be said is that Respondent should have given Wold reasona- ble notice in advance of the effective date of the separation.17 However, an employer's un- reasonableness or unfairness, if such be the case here, is not a matter with which the Act is con- cerned. Suspicious conduct cannot substitute for the solid evidence the Act requires to sustain a charge of discrimination or unlawful interference with an employee's protected concerted activity. Accordingly, I must conclude that the General Counsel has failed to support the allegation that Wold's separation violated Section 8(a)(3) of the Act and I shall recommend its dismissal. 16 The expressions of Platt and Akers, related above, were no more than personal opinions of rank-and-file employees unsupported by competent and probative evidence and, obviously, opinions not shared by Wold 'r Wold testified, as reported above, that Akers promised that Wold would receive at least 2 weeks' notice of the separation Slowik denied that Akers had been authorized to give any such promise Granted the promise was made by Akers, it is not binding on the Respondent as the evidence shows that Akers was not a supervisor or agent of the Respondent. BREUER ELECTRIC MANUFACTURING CO. 199 IV. THE REPRESENTATION CASE A. The Unresolved Challenges 1. Angel Perez , Rogelio Rosa , and Edward W. W old The ballots of Perez, Rosa, and Wold were chal- lenged by the Employer on the ground that their names did not appear on the voting list. As Perez and Rosa were lawfully discharged on March 25, 1969, and as Wold was lawfully separated on March 26, 1969, they were not employees of the Employer at the time of the election on June 4, 1969, and, therefore, were ineligible to vote. The challenges to their ballots must be sustained. not a supervisor within the meaning of Section 2(1 1) of the Act and, in consequence, recommend that the challenge to his ballot be overruled and his vote counted. The testimony offered to prove the supervisory status of Kenneth Warren, a partsman in the product service department, is so flimsy as not to warrant repetition here. Indeed, the Union, in its brief, concedes that it has not presented sufficient evidence to sustain the challenge. Accordingly, I recommend that the challenge to Warren's ballot be overruled and his vote counted. The record contains no evidence to support the allegation that John Juszkiewicz was a supervisor. I, therefore, recommend that the challenge to his bal- lot be overruled and his vote counted. 2. Paul Pellegrino, Kenneth Warren, and John Juszkiewicz The ballots of Pellegrino, Warren, and Jusz- kiewicz were challenged by the Petitioner for the reason that they were supervisors. Pellegrino, a shipping department employee, is assigned to the night shift's which is under the direction of George Rousoff, the warehouse manager. Rousoff stays at the plant until 5 p.m., or about 1-1/2 hours after the usual quitting time. Be- fore departing for the day, Rousoff assigns work to a crew of three or four night employees and leaves written instructions for them showing what orders are to be processed that evening. Pellegrino punches a timeclock and, like other employees, picks, packs, labels, and loads merchandise for shipment. He does not designate employees to load trucks as the employee who performs the prelimi- nary tasks incidental to shipment of merchandise usually moves it to the truck area and assists in loading it. However, Pellegrino or someone named Dave checks to see that all merchandise is loaded and that shipping papers are properly filled out and signed by the drivers. At times, he uses a desk to file receipted bills. If an employee runs out of work after 5 p.m., Pellegrino gives him other orders to process but the work is repetitive and the assign- ment is routine. Pellegrino is the highest paid in- dividual on the night shift, receiving $2.75 an hour as against $2.50 or less for the others on that shift. The difference appears to be due to his seniority which was about 6 months greater than the next senior night-shift employee. Pellegrino does not check timecards, has no authority to grant overtime or time off, does not evaluate the performance of employees, and his name does not appear on a posted list of supervisors. In view of the above and on the entire record in this case, I am persuaded, and find, that, at all times material herein, Paul Pel- legrino had no power to effect, or effectively recommend, changes in employees' status. Ac- cordingly, I further find that Paul Pellegrino was B. The Objections As stated above, this hearing was also held at the request of the Regional Director for the purpose of investigating the merits of objections filed by the Union to the conduct of the election. The written objections allege, in substance, that the Employer, during the preelection period, promised its em- ployees wage increases and promotions, granted certain employees wage increases, and posted notices promising to reduce the amount the em- ployees were required to pay in premiums for in- surance coverage, for the purpose, in each instance, of inducing the employees not to join, support, or vote for the Union. However, no evidence was presented to sustain the allegations of the objec- tions as filed. At the hearing, the Petitioner an- nounced that it relies on the alleged unfair labor practices as a basis for its objections. It is apparent from my findings with respect to the allegations in the complaint, as amended, that the Respondent did not contravene the Act in any manner during the critical period between the filing of the petition in Case 13-RC-1 1822 on March 26 and the day of the election on June 4. Goodyear Tire and Rubber Company, 138 NLRB 453, 455;' The Ideal Electric and Manufacturing Company, 134 NLRB 1275. Accordingly, since the claimed illegal conduct of Respondent during this period was also the subject of the objections, and since such con- duct was, I find, insufficient to taint the election held on June 4, and to preclude a free and un- coerced choice by the employees therein, it follows, and I find further, that the objections are lacking in merit. Accordingly, I recommend that the objec- tions be overruled. CONCLUSIONS OF LAW 1. Brewer Electric Manufacturing Company is an employer engaged in commerce within the meaning of Section 2 ( 6) and ( 7) of the Act. 2. United Steelworkers of America, AFL-CIO, is '" The hours of the night shift are from 3 30 p m to midnight 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a labor organization within the meaning of Section 2(5) of the Act. 3. The preponderance of the credible evidence does not establish that the Respondent has engaged in any unfair labor practice within the meaning of Section 8(a)(1) and (3) of the Act. 4. The objections by the Union to the election in Case 13-RC-11822 are lacking in merit. 5. The challenges to the ballots of Angel Perez, Rogelio Rosa, and Edward W. Wold in the said election are meritorious; the challenges to the bal- lots of Paul Pellegrino, Kenneth Warren, and John Juszkiewicz are without merit. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record, it is recommended that the complaint issued in Case 13-CA-9001 against the Respondent, Brewer Electric Manufacturing Company, be dismissed in its entirety. IT IS FURTHER RECOMMENDED that the objections to the election conducted on June 4, 1969, in Case 13-RC-1 1822 be overruled, that the challenges be disposed of in the manner set forth in section IV, A 1 and 2, supra, and that a certification of the results be issued.