Aquatech, Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1990

297 N.L.R.B. 711 (N.L.R.B. 1990)

AQUATECH, INC 711
Aquatech, Inc. and United Steelworkers of America,
AFL-CIO-CLC. Cases 8-CA-21428 and 8-
CA-21539
, January 31, 1990 _
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 29, 1989, Administrative Law
Judge Arline Pacht issued the attached decision
The Respondent filed exceptions and a supporting
brief
The National Labor Relations Board has delegat-
ed its authonty in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and bnef and has
decided to affirm the judge's rulings, findmgs, 1 and
conclusions and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Aquatech,
Inc , Cleveland, Ohio, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order, except that the attached notice is substi-
tuted for that of the administrative law judge
, In adopting the judge's determination that the statements of the Re-
spondent's owner, Ben Fisco, that it would not agree to a union shop or
dues checkoff Implied an unwillingness to bargain in good faith, we find
that any contention that those statements are lawful is belled by the con-
text of the Respondent's simultaneous 8(a)(1) violations Within that con-
text, those statements conveyed a sense of futility about the value of pro-
spective bargaining, and thus improperly interfered with the employees'
concerted activities See Tommy's Spanish Foods, 187 NLRB 235 (1970),
enfd iii'pertnient part 463T 2c1 116, 1'18 (9th Cu . 1972)
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT threaten employees with surveil-
lance by suggesting that we may identify those
who sign union authorization cards, by threatening
that we will demand mandatory drug testing
should collective bargaining take place, by threat-
ening to refuse to negotiate in good faith 'or by so-
liciting and remedying employee gnevances in
order to discourage their support for union repre-
sentation
WE WILL NOT discharge employees because they
have engaged in union activity
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer Michael McAlpine, Robert Nau-
joks, Charles Naujoks, Cotrell Glaze, and John
Pocius immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially eqUivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed and WE WILL make them whole
for any loss of earnings and other benefits resulting
from their discharge, less any net mtenm earnings,
plus interest
WE WILL remove from our files any reference to
their unlawful discharges and WE WILL notify them
that this has been done and that their unlawful dis-
charges will not be used against them in any way
AQUATECH, INC
Rufus L Warr, Esq , for the Acting General Counsel
Stephen A Markus, Esq and Robert J VanderVeld, Eiq
(Ulmer & Berne), of Cleveland, Ohio, for the Respond-
ent
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge Upon
charges filed by the United Steelworkers of America (the
Union) on December 30, 1988, 1 and January 31, 1989, a
consolidated complaint issued on February 28, 1989, al-
leging that the Respondent, Aquatech, Inc , violated Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act
(the Act) The Respondent answered on March 8, 1989,
denying that it had committed any unfair labor practices
The case was tried before me in Cleveland, Ohio, on
May 24, 1989, at which time the parties had full opportu-
nity to examine witnesses, introduce documentary proof,
and present oral argument Taking into account the wit-
nesses' demeanor, and on the entire record, including
t Unless otherwise specified, all dates refer to events in 1988
297 NLRB No 110
712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
posttnal briefs submitted by counsel for the Acting Gen
eral Counsel (General Counsel) and Respondent pursu
ant to Section 10(c) of the Act, I make the following
FINDINGS OF FACT
Jurisdictional Findings
Respondent, an Ohio corporation with an office and
place of business in Cleveland Ohio at all times material
herein has manufactured sewer cleaning equipment An
nually, in the course and conduct of its business oper
ations Respondent sells and ships from its Cleveland fa
alit), products goods and materials valued in excess of
$50 000 directly to points outside the State of Ohio Ac
cordmgly, the complaint alleges Respondent admits and
I find that Aquatech Inc is an employer engaged in
commerce within the meaning of Section 2(2) (6), and
(7) of the Act
The Union is now and has been at all times material
herein, a labor organization within the meaning of Sec
ton 2(5) of the Act
THE ALLEGED UNFAIR LABOR PRACTICES
I EVIDENCE OF 8( A )( 1 ) VIOLATIONS
The Union Campaign
The events giving nse to this proceeding began in late
July 1988 when Hank Shaffer a tow motor operator
tutted a union organizational campaign He began by
asking his coworkers if they would be interested in join
mg a union After receiving many affirmative responses
Shaffer contacted the United Steelworkers and arranged
to meet with a business agent several days later At this
meeting, the agent provided Shaffer with authonzation
cards While on breaks over the next 10 days Shaffer
distributed the cards to a large number of employees and
ultimately obtained signatures from approximately 75
percent of the work force He also gave batches of cards
to several volunteers who then solicited authorizations
from the workers in their respective departments Later
in the month Shaffer and his group of volunteer assist
ants also distributed union buttons and other paraphema
ha Several of the General Counsel s witnesses testified
without dispute that various supervisors observed them
carry out their organizational activities Thus, uncontra
dicted evidence establishes that the Respondent knew
that a union campaign was afoot by mid August at the
latest
The September 1 Meeting
Sometime in late August Union Representative Al
Capone contacted Respondent s owner Ben Fisco, Jr to
request recognition Shortly thereafter, on September 1
Fisco took the unusual step of holding meetings with
two separate groups of plant employees Accounts of
Fisco's remarks delivered to approximately 50 employees
at the first of these meetings are uncontroverted
According to generally consistent accounts offered by
several witnesses, Fisco stated bluntly that the shop was
his that he had run his business without a union and
would continue to do so He asserted that he would have
no difficulty in identifying those who signed authonza
ton cards and suggested that the employees still could
withdraw them He further stated that if the Union suc
ceeded in its representational efforts he would refuse to
agree to a union shop or dues checkoff and would insist
on mandatory drug testing at the bargaining table Risco
also remarked that he believed he had treated his em
ployees fairly and saw no reason why they needed a
union He then assured the employees that he had an
open door policy that anytime an employee wished to
discuss anything with him he would be glad to do so
Before the meeting concluded, a number of employees
asked why they had not received pay raises Fisco re
sponded that he had no knowledge of their pay scales
but would look into the matter One employee in par
ticular asked why he was receiving lower wages than
others with less seniority than he had Fisco encouraged
this employee to discuss the problem with him pnvately
Other employees complained about squalid conditions
in the plant lunchroom and restroom Fisco promised im
provements, and true to his word, the Respondent began
to address these complaints the next day The restroom
walls were painted and pipes were unclogged so that the
floors would not remain wet as they had in the past The
lunchroom also was painted and several days later,
picnic tables were freshly painted A week or two later
curtains were hung in front of restroom stalls granting
privacy which previously had been nonexistent Later
still toilets were repaired which either had leaked or not
functioned at all 2
II RESPONDENT S CONDUCT INTERFERED WITH
RESTRAINED AND COERCED EMPLOYEES
Paragraph 9 of the complaint alleges that a number of
the statements made by Fisco violated Section 8(a)(1) of
the Act The uncontroverted accounts of his brash re
marks, summarized above provide ample support for
these allegations
Specifically as paragraph 9(A) of the complaint al
leges by suggesting he could learn the identities of the
employees who signed authorization cards Fisco indicat
ed that their union activities would be disclosed The
threatening tenor of his remark was underscored when
he insinuated that the workers could recall their cards
In other words, Fisco implied that it was in the employ
ees best interest to retract their cards before he discov
ered who they were 3
In fact Fisco would not be privileged to view authon
zation cards in the Union s possession But his deceit on
this score is not the gravamen of the complaint Rather
the real harm stemmed from the fear he tned to instill by
suggesting that he would be privy to their union activity
Fisco s remarks were intended to encourage employees
2 The foregoing descnption of Fisco s statements at the September 1
meeting and Respondent s actions thereafter is based on an a compilation
of the unrefuted and generally consistent testimony of witnesses for the
General Counsel mcluding Robert Naujoks Zvonko Besednjak Cottrell
Glaze Michael McAlpine and John Poclus
3 Because the complaint does not allege as unlawful Risco s suggest or
that employees withdraw their authonzation cards I cannot find that his
statement to that effect constitutes a separate violation of the Act See
International Mfg Co 238 NLRB 1361 (1978)
AQUATECH, INC 713
to retract their cards and abandon support for the Union
Such conduct tends to interfere with, restrain, and
coerce employees in exercising rights guaranteed by Sec-
tion 7 of the Act
Similarly, Fisco's comment that he would demand
drug testing at the bargaining table should the Union
prevail was not a neutral statement reflecting a good-
faith position unrelated to the Union's advent Rather, as
the General Counsel accurately points out in his brief
Although it is certainly permissible for an employer
to propose a drug testing policy during bargaining
with a union, it is no more permissible for an em-
ployer to threaten to make such a proposal in order
to dissuade employees from supporting a union than
it is to threaten to reduce wages or otherwise act in
retaliation against employees because of their union
activities
Fisco's pronouncement that he would insist on a drug
testing proposal, taken in context, was obviously de-
signed to discourage employees from supporting the
Union As such, the statement violated Section 8(a)(1)
While it is true that the Act does not require that par-
ties agree, "it does require that they negotiate in good
faith with the view of reaching an agreement if possible
" NLRB v Highland Park Mfg Co, 110 F 2d 632
(4th Cu. 1940) When Fisco asserted that he would not
accept a union shop or dues checkoff, he conveyed to
the employees) his unwillingness to approach bargaining
with the spirit of compromise or flexibility necessary to
reach agreement In effect, he implied that he would not
bargain in good faith Such statements, which suggest
the futility of selecting a bargaining representative, are
unlawful under Section 8(a)(1)
The record amply substantiates the allegation in para-
graph 9(0) of the complaint that Foca solicited griev-
ances and acted to remedy them swiftly Thus, when em-
ployees suggested their pay was inequitable, he agreed to
look into the matter When they criticized the state of
the restroom and lunchroom, he acted quickly, redecora-
tion and repair began the next day Fisco was not in the
habit of inviting grievances, nor of curing them Yet, on
the days immediately following the Union's request for
recognition, he indulged the employees with this atypical
behavior Of course, these gestures were designed to
convince them that they had no need for representation
Here, too, Respondent's conduct offended Section 8(a)(1)
of the Act
III ALLEGATIONS OF DISCRIMINATORY DISCHARGES
The complaint alleges, the General Counsel contends,
and the Respondent denies that eight employees were
terminated because of their support for the Union The
circumstances attending the discharge of six of the al-
leged discrimmatees is examined in sequence below 4
4 The General Counsel presented no evidence regarding the discharges
of alleged discnininatees Clarence Tufts and Thomas Wargo Conse-
quently, at the conclusion of the General Counsel's case-in-chief, I grant-
ed Respondent's motion to dismiss the complaint as to these two individ-
uals The pnncipal union organizer, Hank Shaffer, also was terminated on
August 26, ostensibly because of a poor attendance record However, the
David Rodriguez
David Rodriguez was offered a permanent position as
a welder on April 15, 1985, after having worked for 3
months at Respondent's facility on a temporary basis He
was employed continuously until the date of his dis-
charge on August 19 According to Rodriguez, the qual-
ity of his work was so good that he often was assigned
special tasks
On August 18, the day before he was discharged, Ro-
driguez was among a group of five employees who re-
ceived authorization cards from Hank Shaffer at a loca-
tion several blocks from Respondent's facility He signed
the card and returned it to Shaffer the following morn-
ing at another site away from the Aquatech premises To
Rodriguez' knowledge, no supervisor observed him on
either occasion He related that on the day he returned
the card, he was closely observed by his supervisors At
the end of that same day, on the order of his foreman
and plant manager, John Manes, Rodriguez was fired
The reason cited on his termination slip was excessive
absenteeism and tardiness
Respondent had in effect a document entitled, "Aqua-
tech Company Policy," which was provided to each em-
ployee at the time of hire It contained the following rule
governing attendance
After the probationary period absences from
work in excess of 1 day a month or 12 days a year
or tardiness in excess of 2 days a month or 20 days
a year may because for disciplinary action or termi-
nation (Respondent's Exhibit 1) 5
Undisputed record evidence showed that after being
suspended on two separate occasions in 1987 for exces-
sive absenteeism, Rodriguez was suspended a third time
on June 13, 1988, for two late arrivals and one unexcused
absence Then, several weeks later, on June 28, he re-
ceived a written warning that his failure to report for
mandatory overtime was "a final Disciplinary Action
before termination" (R Exh 3) His timecards further
establish that he was absent on 3 days in July, again on
August 1, 2, .6, and 10, and had two late arrivals on
August 12 and 18 before he was terminated on August
19
Under Wright Line, Rodriquez Was Lawfully
Discharged
The General Counsel contends that Rodriguez was
discharged as part of Respondent's overall, undifferenti-
ated scheme to provoke fear among its employees and
dissuade them from supporting the Union The Respond-
ent asserts that he was terminated solely because of his
unsatisfactory attendance and tardiness record Because
Rodriguez' discharge, as well as the discharges of the
five other employees discussed below, involves both per-
Board's Regional Office was unable to contact Shaffer during the 6-
month period following his discharge and, therefore, could not properly
investigate the merits of his dismissal
5 Hereinafter the General Counsel s exhibits will be referred to as G C
Exh followed by the exhibit number, the Respondent's exhibits will be
cited as R Exh followed by the exhibit number
714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
missible and impermissible causes, assessing the true
reason for the Respondent s actions in each case requires
analysis under the standards set forth in Wright Line 251
NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981)
cert denied 455 U S 989 (1982) Under Wright Line the
General Counsel bears the initial burden of proving that
the employees were engaged in protected concerted ac
tivity which was a dominant factor prompting the em
ployer s disciplinary action If the General Counsel suc
ceeds in establishing a prima facie case the burden shifts
to the Respondent to prove affirmatively that its adverse
actions would have been the same in the absence of the
employee s protected conduct
On applying the foregoing standards to the evidence
bearing on Rodriguez termination I am not satisfied that
the General Counsel has met his burden under Wright
Line Specifically, I find no evidence that the Respond
ent was aware of Rodriguez limited involvement in
union activity
As outlined above, Rodriguez did nothing more than
sign a union authorization card admittedly off the corn
pany premises and out of view of any known agent or
supervisor As the evidence (to be discussed further
below) establishes the Respondent was aware of some
organizational activity prior to the date of Rodriguez
discharge on August 19 However there is absolutely
nothing which shows that Respondent had reason to as
sociate Rodriguez with such activity
Under certain circumstances, the Board has inferred
that even though an employer may not have known of a
given individual s concerted activity, his discharge may
be found to be unlawful when it was a power display in
the form of a mass layoff where made for an unlawful
purpose to discourage union membership Portsmouth
Lumber Treating, 248 NLRB 1170, 1171 fn 8 (1980)
quoting The Larimer Press 222 NLRB 220 240 (1976),
enfd in pertinent part 568 F 2d 166, 176 (10th Cir 1977)
The circumstances needed to warrant such an inference
are not present here Rodriguez was terminated a week
before Shaffer, the chief union organizer, and several
weeks prior to the discharges of the five other alleged
discrimmatees on September 8 and 9 His dismissal was
not a part of a mass layoff and given the mobtrusive
nature of his union activity, other employees had no
reason to assume that he fell victim to Respondent s
blunt slash of reprisal at the union effort as a whole
Id at 1171 For the foregoing reasons I conclude that
there is insufficient evidence that Respondent knew of
Rodriguez union activity or that its knowledge that
some employees were engaged m organizational efforts
contributed to his discharge Hence, counsel has not es
tablished a prima facie case and the complaint as to Ro
driguez must be dismissed
Michael McAlpine
McAlpine began working as a machinist for Respond
ent on July 7 1985 He received a pay raise when he
was promoted to work on a burning table but after that
he often asked his supervisor Gary Skaggs about an
other raise On one occasion, he protested that his prede
cessor at the burning table had earned much more than
he had When Skaggs expressed disbelief McAlpine
urged him to check the records
McAlpine stated that he received an authorization
card from Shaffer during a lunchbreak away from the
plant On his return he placed the card on a table at his
worIcsite where Skaggs customarily placed his work
orders McAlpine believed that Skaggs saw the card
there before he could return it to Shaffer In any event
McAlpme was certain that Skaggs knew from general
shop talk that he was a union supporter McAlpine fur
ther testified that he attended several union meetings
On September 8, the day he returned from a week s
vacation, McAlpine was informed by Skaggs that he was
being terminated for poor attendance and inefficient
work habits McAlpine protested that his work was
good that he was far more efficient than two employees
he had trained on the burning table, and never had a
poor attendance record
In McAlpme s case the General Counsel has satisfied
its burden of proving a prima facie case Respondent pre
sented no evidence to refute the inference that Respond
ent was aware of McAlpine s union sympathies Further
particularly after the September 1 meeting Respondent
was well aware that one of the employees principal
grievances concerned pay raises It follows that the Re
spondent could reasonably suspect that those who were
most outspoken about their wages were also the most
likely union proponents Plainly, given McAlpine s re
peated requests to Skaggs for a raise, Respondent could
assume that McAlpine was among those who desired
union representation Moreover, Respondent made no at
tempt to defend McAlpine s discharge not a shred of
evidence was introduced to show that his attendance or
work performance was unacceptable Respondent s
ure to supply any reason for discharging an employee
with an apparently unblemished 3 year work history
compels only one conclusion McAlpine was fired be
cause of his proumon stance in violation of Section
8(a)(1) and (3)
Robert Naujoks
The record leaves no doubt that Robert Naujoks also
was discharged for discriminatory reasons First hired by
Respondent in 1985 Naujoks worked continuously for
the next 2 1/2 years until 1987 when he resigned to go
into business with a friend His reemployment by Re
spondent in 1988 suggests that his performance was at a
minimum satisfactory
Naujoks served as one of the principal organizers
during the union campaign distributing authorization
cards he received from Shaffer as well as union buttons,
stickers, and other paraphernalia He testified without
contradiction that he engaged in this activity solely
during break periods or before and after work On one
such occasion a foreman Silvio observed him handing
an authorization card to an employee In addition Nau
joks related that a small band of employees who were
actively engaged in union campaigning often met during
breaks to discuss their activities m an area which was
easily observed by supervisors
AQUATECH, INC 715
On September 9, Naujoks was terminated summarily
At the end of the workday, in the presence of Manes and
several other supervisors, Naujoks received a separation
notice which stated that he had violated Company Rules
6, 9, and 13 regarding attendance, solicitation, and qual-
ity of work, respectively Naujoks denied that he had
violated these rules and asked to speak with Manes pri-
vately to ferret out the true reason for his discharge
Manes seized the separation notice and added the com-
ment, "Also threatened a supervisor"
Company Rule 9, proscribing solicitation, reads as fol-
lows
There shall be no collecting or soliciting of any
kind during the time employees are expected to be
working There shall be no distribution of literature
at any time in work areas, nor in any place or
manner which constitutes littering" (R Exh 1 at p
7)
Respondent introduced no evidence to refute Naujok's
assertion that he had distributed union materials during
nonworking times in nonworking areas Thus, there is
absolutely no proof that he violated Rule 9 Similarly,
Respondent made no effort to show that Naujoks
breached its attendance policy or produced shoddy
work In short, Respondent's claim that Naujoks was
fired for transgressing any of its work rules is bogus
Given its knowledge of union activity in general, and of
Naujoks' efforts on behalf of the Union in particular, the
conclusion is clearly warranted that Respondent fired
him for discnmmatory reasons condemned by Section
8(a)(3) of the Act
Charles Naujoks
Like Robert, his twin, Charles Naujoks began working
for the Respondent in 1985 In the spring of 1988, he was
appointed a leadman with a 60-cent-an-hour raise, sug-
gesting that the Respondent had some confidence in his
work skills and ability He, too, campaigned for the
Union, soliciting signatures on authorization cards, and
distributing other materials
On September 9, prior to starting work, Charles gave
a union button to a new employee known to him as Ed
Ed happened to work on the same piece of equipment as
the father of Plant Manager Manes As soon as the
senior Manes saw the button, he took it from Ed and
went to his son's office Immediately thereafter, Ed was
summoned to Manes' office Later the same day, Charles
Naujoks asked his foreman, Manfredoma, whether he
would be discharged, explaining that Manes knew he had
distributed some union material He also revealed that he
supported the Union as a way to reform conditions at
the plant
As he suspected, not long after his brother's termina-
tion, Charles was fired, ostensibly for violating Rules 9
(solicitation) and 13 (work quality) Not a scintilla of evi-
dence exists in the record to suggest that Charles violat-
ed the rule against 'solicitation Although Manfredoma
noted on Naujoks' separation notice that the quality of
his work and production had deteriorated by 75 percent,
no testimonial or documentary evidence was offered to
support this bald assertion At no previous time in Nau-
joks' career, had Respondent found it necessary to disci-
pline him for the inadequate quality or quantity of his
work Moreover, Respondent offered no proof at trial to
support Manfredoma's aspersion Therefore, I find it ex-
tremely unlikely that Charles Naujoks' purported viola-
tion of Rule 13 contributed in any way to the decision to
discharge him
Naujoks' separation notice does not mention poor at-
tendance as a reason for his discharge Yet, Respondent
spent considerable time in cross-examining him at trial
about it and in its brief focused exclusively on his attend-
ance record as the sole ground for what was styled as a
discharge "with just cause"
Charles Naujoks' attendance record was not exempla-
ry However, at no time in 1988 did he receive any
warnings or suspensions for absenteeism or tardiness In
fact, in the few months preceding his discharge, that is
from June to September, he was not late at all He was
absent twice in June, once in July, and twice on August
6 and 8 Respondent introduced no evidence to show
that he was absent from August 8 to the date of his dis-
charge on September 9 On other occasions, when Re-
spondent was genuinely interested in enforcing its rules,
discipline was imposed within a day or two of the date
on which the offending conduct occurred (See, e g, R
Exhs 34, 35) In terminating Naujoks on September 9,
the same day it rid itself of other union supporters Re-
spondent reacted belatedly after more than a month had
elapsed since his last absence This suspicious hiatus, to-
gether with Respondent's failure to cite attendance as a
cause of his discharge when he was fired, lead me to
conclude that Naujoks was unlawfully terminated for an-
tiunion reasons -
Cotrell Glaze -
Glaze was employed in September 1986 as a dnveshaft
specialist As the only employee experienced in fabricat-
ing drive shafts for Respondent's trucks, he worked inde-
pendently, that is, without immediate supervision He
spent any spare time in the machine shop under the su-
pervision of Foreman Gary Skaggs
Glaze signed a union authorization card and made no
secret of his union sympathies He openly wore a union
badge which he was certain was seen by the foreman,
Skaggs Further, immediately following the September 1
meeting, Glaze approached Fisco and asked for a wage
increase, proposing that he receive a commission for
each completed drive shaft Fisco said he would consider
the matter after Glaze was evaluated Glaze also admit-
ted to Fisco that he had signed a union card and asked
whether he would be fired Fisco responded that dis-
charges for that reason were against the law
On September 9, Glaze was asked to quickly complete
two drive shafts At the end of the workday, Skaggs told
him he was fired because of poor attendance His Notice
of Separation attributes his discharge to a violation of
Company 6 regulation 6 governing absenteeism In addi-
tion, Manes noted on this form that "Glaze was given a
warnmg with a 30 day probationary period on July 22,
716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1988 During that time he has violated the Aquatech
Company Policy (R Exh 16)
Record evidence suggests that Glaze had more of a
tardiness than an attendance problem which led to a
series of written warnings in 1987 Tardiness proved to
be his primary problem in 1988, particularly prior to
May when he participated in a month long drug rehabili
tation program under a company approved leave of ab
sence Then, On July 22 having violated a number of
rules, he received a written warning which placed him
on a 30 day probationary status and stated that contm
ued disorderly conduct would result m immediate termi
nation (R Exh 18) During this period he was late on
seven occasions His attendance records also reflect ab
sences on July 30 and August 20, both of which dates
fell on Saturdays Glaze explained without contradiction
that in June, when he had requested permission for a 1
week vacation Manes told him that the Respondent
could not permit him to take his vacation at one time
Instead, he could take it periodically Skaggs added that
Glaze could take leave 1 day a week with advance
notice Glaze testified that he believed his absences in
August in fact were vacation days
Although Glaze s tardiness and attendance record
leave much to be desired Respondent has failed to per
suade that he was fired for these reasons The General
Counsel showed that Glaze had a skill possessed by no
other Aquatech employee His ability to fabricate dnve
shafts apparently was valued for despite persistent tardi
ness and a month long cure at a rehabilitation program
Respondent retained him on its payroll Indeed Glaze
was so indispensable that he was refused a one week va
cation and required to stagger his vacation days over a
period of weeks
It is true that Glaze was placed on a 30 day probation
period on July 22 and that during that month he was
tardy seven times and absent twice However Respond
ent took no adverse action during or at the conclusion of
the probationary penod that is on August 22 In fact,
from August 20 to the date of his discharge on Septem
ber 9 Glaze wai neither tardy nor absent As noted
above Respondent typically dispensed discipline on or
about the date on which the objectionable conduct oc
curred Yet in Glaze s case Respondent waited for
almost 20 days before it took any action It is important
to bear in mind that on September 1 Glaze brought his
support of the Union to Fisco s attention His discharge
came just 9 days later on the same date that other union
proponents were dismissed for equally invalid reasons
Given these circumstances Respondent has failed to
prove that it would have terminated Glaze even in the
absence of his union activity See Wright Line supra
John Poems
John Poems like the four employees discussed above
was discharged on September 9 as part of Respondent s
efforts to sweep out union adherents The principal issue
here is whether in his position as leadman Pocius exer
cised supervisory responsibilities within the meaning of
Section 2(11) of the Act
Pocius first was employed as an assembler in Decem
ber 1987 and the following April became a leadman He,
too was observed signing an authorization card by Fore
man Silvio His union activities went beyond this, how
ever, for he also distributed cards to approximately 10 or
20 other employees He testified without dispute that this
solicitation occurred both within and outside the shop
but always on nonworking hours He also wore a union
badge
Pools descnbed an encounter he had several days
prior to his discharge which presaged a quick end to his
career with Aquatech On September 6 Focus had a
brief exchange with another employee Lobner who
while accompanied by his supervisor Manfredoma just
had a wage review With Manfredoma present Lobner
told Pocius that he was denied a raise but would be re
evaluated in another 6 months Pools commented that
Lobner would get a raise only if the Union was success
ful After this Respondent could not have the slightest
doubt about Pocius allegiance to the Union
Three days later, Foot's was fired, ostensibly for vio
latmg Company Rule 13 Respondent presented no evi
dence that Foam violated any rule thus revealing that
the excuse offered for his dismissal was pure invention
and patently pretextual However Respondent contends
that Pocius duties as a leadman bring him within the
Act s definition of a supervisor so that he is not entitled
to the Act s protection 6
As a leadman Pool's received instructions from his
foreman about the work to be performed and priority as
signments 7 He in turn delegated the various tasks to
workers depending on their particular skills He offered
training to new employees and generally gave guidance
to employees who might need assistance At the end of
the workday, he prepared reports describing the work
which had been completed during his shift which he
turned over to the second shift He also made sure that
parts were available for his crew as well as the second
shift workers
However Poems spent each full day performing
manual labor side by side with his fellow employees, and
many overtime hours as well puttmg in an average of 60
hours a week He was hourly paid and received time and
one half for overtime just as his coworkers did The
record contains no evidence that he ever hired or recom
mended hiring anyone Neither is there evidence that he
disciplined transferred, assigned overtime, promoted or
otherwise rewarded any employee adjusted any gnev
ances or effectively recommended that such actions be
taken He was not included in supervisory meetings
As proof of Pm= authority Respondent introduced
a separation notice of one employee which Foot's had
signed in a supervisory capacity However, Pomo ex
o Sec 2(11) of the Act defines a supervisor as any individual having
authonty in the Interest of the employer to lure transfer suspend
layoff recall promote discharge assign reward or discipline other em
ployees or responsibly to direct them or to adjust their grievances or
effectively to recommend such action if in connection with the foregoing
the exercise of such authonty is not of a merely routine or clerical
nature but requires the use of independent judgment
7 Poems initially was asked to become a foreman but declined bellev
mg turnover in that position was too rapid Consequently when Pocius
first accepted the leadman s job Manes served as both plant manager and
foreman Subsequently Manfredoma was hired to fill the foreman slot
AQUATECH, INC

717
plamed the circumstances attending this incident without
contradiction Manes had asked him his opinion of an
employee who had worked only 4 days for the Respond-
ent Poems replied somewhat noncommittally that given
time, the employee would improve Subsequently, Manes
fired the employee but left the plant before signing his
separation notice Consequently, another supervisor re-
quested that Poems sign the sheet in Manes' absence
Thus, his controverted testimony shows that he per-
formed this task gratuitously, he had no involvement
whatsoever in the decision to fire this or any other em-
ployee
The burden of proving the supervisory status of em-
ployees rests with the Respondent as the party asserting
that status Tucson Gas & Electric Go, 241 NLRB 181
(1979) After reviewing the evidence upon which Re-
spondent relies to support its position that Poems was a
supervisor under the Act, I find that burden has not been
met
Respondent points out that as a leadman, Poems was
responsible for assigning work to members of his group
However, it is undisputed that Poems first received these
assignments from Manes and then from Manfredoma He
merely redistributed the assignment to his fellow workers
according to their level of experience Put in proper per-
spective, Poems simply served as a conduit for manage-
ment's instructions Therefore, the assignment of work
was routine in nature and did not depend upon the exer-
cise of independent discretion, the hallmark of the super-
visor See Cablevision System Development Go, 251
NLRB 1319 (1980), Wirtz Mfg Go, 215 NLRB 252, 254
(1974)
Respondent further asserts that Poems exercised inde-
pendent responsibility in directing the work of some
shop employees It is true that as an assembler with con-
siderable prior experience, Poems was able to train and
guide his fellow workers in the performance of their
jobs However, he did not display any greater degree of
authority than any knowledgeable employee would in re-
lation to those who were less experienced See High Per-
formance Tube, 251 NLRB 1362, 1368 (1980), Hitchner
Mfg Go, 243 NLRB 927, 934 (1979) Moreover, al-
though Poems had the authority to correct the work of
others, there is no evidence he could reprimand or other-
wise discipline them Thus, he exercised little meaningful
control over his coworkers' performance See Tucson
Gas & Electric Go, supra
Given Poems' union activity, it is clear that he identi-
fied completely with the employees' interests He did not
regard himself nor could he have been viewed by others,
as an arm of management See High Performance Tube,
supra at 1369 Accordingly, based on all of the above, I
find that Poems was not a supervisor within the meaning
of Section 2(11) of the Act It follows that his discharge
for discriminatory reasons is unlawful under Section
8(a)(3) and (1)
CONCLUSIONS OF LAW
1 The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 The Respondent, through its owner, Ben Fisco Jr,
violated Section 8(a)(1) of the Act by
(a) threatening employees with surveillance in suggest-
ing that he would identify employees who signed author-
ization cards,
(b) threatening employees that he would demand man-
datory drug testing if he was compelled to engage in col-
lective bargaining,
(c) threatening to refuse to negotiate in good faith if
the Union prevailed in an election,
(d) soliciting and then remedying employee grievances
4 Respondent violated Section 8(a)(1) and (3) of the
Act by discharging the following employees because
they engaged in union activities Michael McAlpine,
Robert Naujoks, Charles Naujoks, Cotrell Glaze, and
John Poems
5 David ,Rodriguez was not discharged in violation of
the Act
6 The unfair labor practices set forth above in para-
graphs 3 and 4 affect commerce within the meaning of
Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that Respondent be
required to cease and desist therefrom and take certain
affirmative action designed to effectuate the purposes of
the Act
Affirmatively, Respondent shall be ordered to make
the following employees whole for any loss of pay suf-
fered by reason of their unlawful discharges, less any net
earnings during that period, in accordance with the
Board's formula set forth in F W Woolworth Go, 90
NLRB 289 (1950), with interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987) Michael
McAlpine, Robert Naujoks, Charles Naujoks, Cotrell
Glaze, and John Poems
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
eds
ORDER
The Respondent, Aquatech, Inc , Cleveland, Ohio, its
officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Threatening employees with surveillance by sug-
gesting that the Respondent's owner can identify those
who signed union authorization cards, threatening to
demand mandatory drug testing should collective bar-
gaining ensue, threatening to refuse to negotiate in good
faith if the Union prevails in an election, and soliciting
and remedying employees' grievances
8 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Discharging employees because they engage in ac-
tivities on behalf of a union
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
rights guaranteed by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Michael McAlpine, Robert Naujoks, Charles
Naujoks, Cotrell Glaze and John Pocius immediate and
full reinstatement to their former jobs or, if those jobs no
longer exist to substantially equivalent positions without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed and make them whole for any
loss of earnings or other benefits they may have suffered
as a result of the discrimination practiced against them in
the manner set forth in the remedy section of this deci-
sion
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order
(c) Expunge from its files any reference to the dis-
charges of the five individuals named in paragraph 2(a)
above and notify them in writing that this has been done
and that evidence of their unlawful discharges will not
be used as a basis for future personnel actions against
them
(d) Post at its office in Cleveland, Ohio, copies of the
attached notice marked "Appendix "9 Copies of the
notice on forms provided by the Regional Director for
Region 8, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places, including all places
where notices to employees are customarily posted Rea-
sonable steps shall bc taken by the Respondent to insure
that the notices are not altered, defaced, or covered by
any other material
(e) Notify the Regional Director for Region 8 in writ-
ing within 20 days from the date of this Order, what
steps have been taken to comply herewith
(f) It also is ordered that the complaint be dismissed
insofar as it alleges any violations not specifically found
° If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board' shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
..,