Awrey Bakeries, Inc.

National Labor Relations Board - Board Decisions

Jan 23, 1970

180 N.L.R.B. 905 (N.L.R.B. 1970)

AWREY BAKERIES , INC. 905
Awrey Bakeries, Inc. and Carl E . Swope, An
Individual . Case 7-CA-7314
January 23, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
All parties participated in the hearing in Detroit,
Michigan, on August 4 and 5, and were afforded full
opportunity to be heard, to introduce evidence, to examine
and cross-examine witnesses, and to present oral
argument. Oral argument was waived and Respondent
filed a brief. Respondent's motion to dismiss the
complaint, on which ruling was reserved, is disposed of by
my findings below.
Based upon the entire record in the case, my reading of
Respondent's brief, and from my observation of the
witnesses and their demeanor, I make the following:
On October 16, 1969, Trial Examiner Arthur M.
Goldberg issued his Decision in the above-entitled
proceeding, finding that Respondent had not
engaged in the unfair labor practices alleged in the
complaint, and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and Respondent
filed a brief in answer to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case 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 brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations 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
Recommended Order of the Trial Examiner, and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
ARTHUR M. GOLDBERG , Trial Examiner: Based upon a
charge filed on April 30, 1969,' by Carl E. Swope (herein
called Swope or the Charging Party), the complaint herein
issued on June 24 alleging that Awrey Bakeries, Inc.
(herein called the Company or Respondent), violated
Section 8(a)(1) of the National Labor Relations Act, as
amended (herein called the Act). Respondent allegedly
violated the Act by giving consideration and weight to a
letter sent by Swope to the Company and the employee's
bargaining representative, an action on his part allegedly
protected by Section 7 of the Act, in making its decision
to terminate Swope.' Respondent denied all material
allegations of the complaint.
'Unless otherwise noted all dates herein were in 1969
'The pertinent parts of Sec . 7 and 8 are:
Sec. 7 . Employees shall have the right to self-organization , to form,
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Awrey Bakeries, Inc., a Michigan corporation, with its
principal office and place of business in Detroit,
Michigan, and a plant in Livonia, Michigan, is engaged in
the manufacture, sale, and distribution of baked goods
and related products.
During a representative 12-month period ending
December 31, 1968, Respondent, in the course and
conduct of its business operations, had gross revenue in
excess of $500,000 and purchased and caused to be
transported and delivered to its Michigan plants goods
and materials valued in excess of $50,000 directly from
points outside the State of Michigan.
The complaint alleged, the answer admitted, and I find
that Respondent is and has been at all times material
herein an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and meets the
Board's standards for the assertion of its jurisdiction.
11. THE LABOR ORGANIZATION INVOLVED
Council No. 30, United Distributive Workers affiliated
with Retail, Wholesale Department Store Union,
AFL-CIO3 (herein called the Union), is and has been at
all times material herein a labor organization within the
meaning of Section 2(5) of the Act.
At all times material herein the Union has been the
bargaining representative for a unit composed of all of
Respondent's employees at its Detroit area plants
exclusive of "drivers, employee servicemen, garagemen,
helpers, yardmen, retail clerks, office workers, foremen,
foreladies, doorman, watchmen, school girls and school
boys who work less than 24 hours per week, ... seasonal
employees, guards and supervisors as defined in the Act."
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Swope was hired by Respondent on February 24 and
terminated on April 28 during the 90-day probationary
,loin, or assist labor organizations , to bargain collectively through
representatives of their own choosing , and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or
protection , and shall also have the right to refrain from any or all of
such activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition
of employment as authorized in section 8(aX3).
f R • ! t
Sec. 8. (a) It shall be an unfair labor practice for an employer -
(1) to interfere with , restrain , or coerce employees in the exercise of
the rights guaranteed in section 7;
'The Union 's name appears as amended at the hearing
180 NLRB No. 142
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period in which the Company is contractually privileged to
discharge new employees without protest by the Union.
Prior to his employment by Respondent, Swope worked
for short periods of time for a number of employers
Swope's employer immediately prior to Respondent was P
& R Sanitation This job as a truckdriver lasted for 60
days and ended when Swope was involved in an accident
while he was driving without lights. Swope testified that
he "hit a bump and the lights went out." At P & R
Swope refused to join the Teamsters which represented the
employees there because he said, "They will not represent
you " Before P & R Swope worked for Horst
Manufacturing Co. for less than 80 days, quitting Horst
because of "safety conditions"; he was discharged by
Kelsey-Hayes after 3 weeks; and was terminated by
Anchor Coupling for "misconduct" after approximately
65 days of employment. Anchor Coupling contested
Swope's application for unemployment insurance benefits
and he was forced to apply to the Wayne County Social
Aid Services for assistance. The county authorities
instructed Swope to seek psychiatric treatment. Swope
testified that during his one visit the psychiatrist
"questioned the motive of Wayne County Social Aid
Services sending me there. I made a statement that the
labor racketeering and union Pharisees have taken over
this country in premeditating slave labor."'
While employed by the Company Swope distributed to
a number of the employees copies of leaflets prepared by
an organization, Private Community Aid Service, Inc.,
composed of Swope and two others, Kenneth Berlin and
Bobby J. Ramsey. One leaflet entitled "Pioneer
Attributes" reads*
There is a group of people that is interested in our
society breakdown. Now we are prepared to expose
who is responsible for the mass mafia procedures. We
started to look into the Christianity factors and soon
learned that they are operating under mafia concepts.
Next we went to labor factors. We find that labor is
operating under mafia concepts. We then investigated
the political structure. We soon learned that by their
nebulous legislation that they are also using mafia
concepts. Then we investigated the union
establishments. We found that they were operating
under mafia concepts. Next we investigated various
departments of State and Federal government. They
also are participating in and upholding mafia activities.
We then investigated court procedures and we found a
large number of kangaroo courts and vigilante
committees. We investigated the "Blue Ribbon Bar
Society" and found that they are responsible for
lawlessness and moral breakdowns.
This leaflet ends with an offer to prove the facts alleged
and an appeal for help in correcting the conditions,
closing with the words, "Through Strength and
Determination "
The second leaflet, entitled "Lets Keep Freedom in
America," explains the purposes of the organization,
points to certain "facts of world conditions" such as high
taxation, personal financial insecurity, that "there are
certain ethnic groups" and "Christianity and religious
groups" which think "that they alone can lead and guide"
and asks for financial contributions to the organization
"to protect the underprivileged and control racketeering
conditions."
From the testimony of Swope . Respondent does not claim to have had
knowledge of Swope's prior employment record at the time of his
discharge on April 28.
B. The Swope Letter
On April 24 Swope delivered a copy of the letter set
out below to Walter Tylka, union steward in Respondent's
cookie department In addition Swope sent copies of the
letter to the Union's office and to the Company's
president and personnel department Swope's letter reads
as follows-
April 24, 1969
United Distributive Workers
Council 30
Dear Sir.
I, Carl Swope, an employee of Awrey Bakery Co.,
located at 12301 Farmington Road, Livonia, Michigan,
wish to record the fact that the above company has
deducted from my pay check, dated March 8, 1969, the
union initiation fee and one (I) month dues. These
deductions allow me legal rights to dissent against
illegal procedures and inequities in the company and
the union.
I am filing charges against the inequities
I Charging the union steward, in the cookie dept.
with neglect of union duties and responsibilities.
2 Charging "Louie" the wrapper machine operator
in the cookie dept. with misconduct Mr Fred Snyder is
his supervisor.
3
4
5
Improper grievance procedures.
Misconduct on union's behalf.
No production standards.
6 Company upholding bigotry
7 Past actions seem to indicate that the company is
displaying the actions of putting "Fear of God" in the
employees if they do not :Bow: to company policies and
accept undesirable conditions.
8 The union, representing the Awrey employees, past
actions indicate upholding item 7 above.
9 The employer is violating certain Federal and
State laws
If it is determined that the above charges cannot be
corrected through proper procedures, it will be
necessary to resort to state and federal agencies for
recourse.
If results cannot be obtained from the above action, I
have no other alternative but to reveal the conditions
and violations to the public, a news media and political
leaders.
Witnessed
cc
Sincerely yours,
/s/ Carl Swope
Carl Swope
Personnel Mgr. Farmington Plant
President, Awrey Bakeries Co.
Two forms of Swope's letter were placed in evidence,
one handwritten, the other typed. Swope stated that he
knew nothing of the typewritten version, insisting to the
point of offering to take a polygraph test that all letters
he sent had been handwritten by Kenneth Bertin, his
associate in the Private Community Aid Service, Inc.
Swope explained that the letters were in Bertin's hand
AWREY BAKERIES , INC. 907
because his own handwriting is illegible. Paul Fox, an
employee called as a witness by Respondent who was not
unfriendly to Swope, testified that he was shown the
typewritten version by Swope who said at the time that he
was going to see that both the Company and Union
received the letter. I cannot fathom why Swope so
vigorously denied any connection with the typewritten
version of the letter. I do credit Fox.
Since much of the record testimony pertains to matters
raised in Swope's letter, each of the numbered items
therein is used below to organize the evidence of certain of
the events leading to his discharge.
"I -- Charging the union steward, in the cookie depr.
with neglect of union duties and responsibilities."
Swope testified that he had asked Tylka, the union
steward , "to make a correction in a problem . He ignored
the fact ." The problem, Swope testified , was with fellow
employee Louie Martiuk.
Swope was engaged in a running controversy with
Martiuk. At one time Swope complained to his foreman,
Fred Snyder, that Martiuk, who was operating the cookie
wrapping machine , was not helping Swope who was
assigned to removing the wrapped packages from the belt
which takes the packages from the wrapping machine.
Snyder told Swope that the machine operator did not have
to help him.
On another occasion Swope complained to Snyder
about Martiuk drawing pictures of naked people .' Snyder
testified that he had asked how Swope could determine
that the pictures were of naked people and that Swope
replied , "they don't have no clothes on." Snyder testified
that the pictures were just the outline and the form of a
person.
Swope testified that "the problem I had with Louie was
interceding and interjecting his intelligence when I was
there working . He was not refrained of the conduct. He
was allowed to continue it."
Some weeks before his discharge Swope had a violent
argument with Martiuk which led the latter to ask
Foreman Snyder for permission to go home . Employee
Fox testified that during a work break prior to the
Swope- Martiuk altercation Fox had been talking with
Swope . When Martiuk , who is foreign born and speaks
with an accent , joined the conversation Swope stated that
our men in Vietnam should be brought home and that
foreigners should be sent back there . This led to bitter
words between Swope and Martiuk with the argument
continuing when they returned to their work stations,
leading to Martiuk 's request to Snyder that he be allowed
to go home.'
Snyder testified that on another occasion Swope and
Martiuk had "quite an argument" over a remark by
Martiuk that the school system in Europe was better than
that in the United States.
Swope explained that he wanted Steward Tylka to take
his problem with Martiuk to Foreman Snyder to be
ironed out once and for all , but that after Tylka spoke to
the supervisor , the steward advised Swope to let the
matter go.
"2 - Charging 'Louie' the wrapper machine operator
in the cookie dept. with misconduct. Mr. Fred Snyder
is his supervisor."
Swope testified that the misconduct complained of was
Martiuk's drawing what Swope deemed to be naked
pictures on the job. Swope explained that he did not care
what Martiuk did on his rest period. Snyder testified that
Martiuk drew his pictures during working hours but when
there was no work to do.
"3 -- Improper grievance procedures"
Swope explained that this item referred to Steward
Tylka's failure to supply him with a grievance form.
Tylka testified that Swope had come to him for a
grievance form explaining, when Tylka asked why Swope
wanted the form, that he was having a problem with a
fellow union member, Martiuk. Tylka explained to Swope
that grievance forms were for use when the Company was
involved but that problems between members were settled
within the Union.'
Swope made his request to Tylka for the grievance
form on April 17 and 18 and wrote his letter on April 24.
When at the hearing herein he was asked against whom
he sought to file grievances, Swope testified
The why I filed this was one primary purpose, is to
get proper union procedures, to stop the people from
discrimination upon one another on the verbal
accusations. Somebody goes and says something here
or something there, it wasn't half facts. They didn't
understand. When I was in the union long years ago
when the union was built there was a set of procedures
that when you had a gripe, a complaint against an
employee or an injustice it was put down on paper, and
we had a grievance procedure a grievance committee to
take care of the problems, to see who was right and
who was wrong. This we don't have no more. Whoever
wants to have the consideration that's the one that gets
it.
"4 - Misconduct on union's behalf."
Swope explained that this referred to the fact that
complaints were verbal and not written, explaining,
"There is no records of any complaints what the
complaints are about, it is all verbal behind the Iron
Curtain, behind the Curtain you don't know what the
members is doing to one another; how they are
discriminating against one another."
"5 - No production standards."
Tylka testified that before he received Swope's letter,
Swope had asked if the Company had production
standards.
Fox recalled that once or twice Swope had mentioned
production standards in reference to the speed of the line
which carried the wrapped cookies and the empty cookie
pans from the wrapping machine and cooling device. Fox
testified that Swope "had a tendency to think that they
were having it against him for some reasons or other."
Fox explained that Swope "thought they had it out for
him so they were speeding it up."
'See "2 - Charging ' Louie' ... below.
'From the credited testimony of Fox and Snyder . Swope denied making 'From the credited testimony of Tylka. Swope denied telling Tylka that
any remarks about Vietnam and foreigners. I do not credit his denial his grievance was against Martiuk . I do not credit Swope's denial.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Foreman Snyder testified that during the week
preceding his discharge Swope had asked if the line was
not running too fast. Snyder replied that the line was
running no faster than usual
Swope denied complaining that the line had been
speeded up deliberately. He did recall once having called
to Fox's attention what Swope considered a speed up of
the line, but this was at a time when Swope was not on
the cookie line.
Swope complained that he could not determine if there
were any production standards or if there was a set of
number of cookie packages to be removed from the line
each minute or each hour.
"6 -- Company upholding bigotry "
Swope testified that this item referred to his problem
with Louie Martiuk. Swope explained that he had asked
Foreman Snyder to restrain Martiuk "from having the
political discussions and intellectual views" during
working time. Swope stated that Louie could have such
discussions in the restroom or lunchroom or at a private
home.
At another time Swope asked Snyder to stop Martiuk
from drawing naked women on the job. The Company
condoned bigotry, Swope explained, by permitting
Martiuk freely to draw pictures of naked women and to
expound his views.
"7 -- Past actions seem to indicate that the company
is displaying the actions of putting 'Fear of God' in
the employees if they do not :Bow: to company
policies and accept undesirable conditions."
As to this item in his letter Swope testified that he
knew of nothing specific. He claimed that "a lot of people
in general . . . crying in the establishment in the factory in
their employment about the union won't do nothing, you
can't get the union to do nothing to correct the problem."
Swope stated that he had been told by Paul Fox that if
one complained of the conditions he will get discharged,
but Swope testified, "I would not know what they was
talking about."
Later, Swope testified, "What they was speaking of was
going to the union for any disciplinary action or for any
correction of the conditions that prevailed of
discrimination nature among the employees."
"8 The union, representing the Awrey employees,
past actions indicate upholding item 7 above."
Swope testified that this item referred to Tylka not
interceding or doing anything on Swope's behalf with
respect to his problem with Louie Martiuk. Swope
generalized that employees were allowed to discriminate
against one another and the union took no disciplinary
action against such activity.
"9 - The employer is violating certain Federal and
State laws."
Swope claimed that the pans on which the packages of
wrapped cookies were placed were "unsanitary." He
testified that he spoke to Snyder and Fox about the pans
before writing the letter.
Other than the condition of these pans Swope pointed
to no violations of "Federal and State laws."
C. The Decision To Terminate Swope
As noted, the collective-bargaining agreement provides
for a 90-day probationary period for new employees.
During that probationary period the Company is free to
discharge new employees. Employees retained beyond the
probationary period are credited with seniority from their
original date of hire and receive all contract benefits
including recourse to the grievance machinery in the event
of discharge. Howard Disbrow, Respondent's vice
president in charge of production, credibly testified that
during the probationary period the Company seeks to
evaluate each new employee with a view to determining
his desirability as a permanent employee. This evaluation
procedure is in the main an informal one. While
Respondent's personnel department furnishes an
evaluation form used by supervisors, the written form is
seldom used and evaluations are often given orally. In
addition, weight is given to the opinions expressed by
longtime employees about the new hirees with whom they
work. To insure that each new employee will be evaluated
before expiration of his probationary period Disbrow's
secretary has a system of weekly followups and often
passes on the Disbrow comments she receives about
probationary employees.
Disbrow explained that because of his long association
with many of the production workers he constantly
received from rank-and-file employees telephone calls and
other communications calling his attention to plant
problems about which they are concerned and feel he
should attend to. Because he fears that this source of
information will be denied to him if he reveals the names
of his informants, particularly in dealing with the Union,
Disbrow claims that he deliberately dismisses from his
mind the names of those who supply him with such
information.
Disbrow testified that as a result of these
communications from employees ". . the name of Carl
Swope was not unfamiliar to me prior to the disturbance
. with Louie Martiuk." Disbrow had received reports
that Swope was being disruptive and was upsetting other
people in the cookie crew. Among other things, Disbrow
testified, he had been informed that Swope had made
charges that perhaps the Mafia dominated or influenced
the Company and Union and that there had been
"harassment" by Swope to force his views upon other
people. Disbrow concluded that because Swope was
upsetting other employees and was "a little more zealous
than the average person" during political and religious
discussions the situation should be looked into. However,
because there was no evidence at that time that Swope
was disrupting production, no further action was taken.
On one occasion, Disbrow testified, as he was passing
through the locker room he overheard an argument
involving Paul Fox, Joe Balogh, and Swope. In Disbrow's
words, Swope "was expounding vigorously." Disbrow
glanced at Balogh who "just sort of raised his eyebrows
and rolled his eyes and made a motion with his hand that
they were just letting the guy run." Balogh testified and
told of a discussion with Swope concerning religion in
which Balogh finally told Swope that they did not agree
and had just better leave things the way they were.
Some weeks before Swope's discharge Disbrow received
a telephone report that there had been a serious argument
involving Swope, Martiuk, and Tylka. The impression
which Disbrow received from this report was that the
argument had led to blows. Following this report Disbrow
went to Livonia plant where the cookie department was
AWREY BAKERIES , INC. 909
located to check on the incident. There Disbrow spoke to
Superintendent Wilbrink and Bernard Stelmaszek, who
supervises the sweet goods department, including the
cookie division. They advised Disbrow that they had heard
of the incident but did not think that it had been as
serious as Disbrow had been led to believe. Disbrow asked
for their opinion of Swope and they advised that Swope
was giving problems in the cookie department At that
time Disbrow asked that Stelmaszek follow up and
observe Swope for an evaluation as Swope was still in his
probationary period.
Stelmaszek testified" that following the conversation
with Disbrow and Wilbrink he made a point of observing
Swope's work on those occasions when he was in the plant
during Swope's scheduled shifts.' On more than one
occasion Stelmaszek observed that Swope was away from
his work station while the line was in operation and
production was going forward. At those times it was
necessary for others to step in and perform Swope's
duties. On the basis of his observation of Swope,
Stelmaszek concluded that Swope's work was less than
satisfactory
On Friday, April 25, Disbrow received a photocopy of
Swope's letter. Disbrow testified that because of "the
general tone" of that letter, not the specific items therein,
he determined to check with supervision at the Livonia
plant for a followup report on his prior request for an
evaluation of Swope. That afternoon Disbrow went to the
Livonia plant and spoke to Stelmaszek and Wilbrink.
Stelmaszek testified that Disbrow asked whether he had
observed Swope and for his opinion of the employee.
Stelmaszek gave Disbrow a report on his observations of
Swope at work. When Disbrow asked if Swope should be
discharged, Stelmaszek replied that he "would feel much
better if [Swope] were discharged because there seemed to
be an under current or something here that I can't
basically place my finger on, he does seem to be causing
some sort of commotion or else we wouldn't hear so many
comments." Stelmaszek pointed out that Swope's
probationary period was running out and concluded, "I
recommend that he be discharged." After Stelmaszek
recommended Swope's discharge, Disbrow agreed that this
was the best course to follow and then told Stelmaszek
about Swope's letter.'"
Disbrow's recollection of his April 25 conversation with
Stelmaszek substantially corroborated that of Stelmaszek.
However, Disbrow added that after Stelmaszek gave his
opinion that Swope should be fired, he asked for another
day or so to check with other people so as to give Swope
as objective an evaluation as possible.
On Saturday, April 26, Swope attended a union
meeting for Awrey employees. Swope asked for the floor
to make a statement. Swope spoke about his organization,
saying among other things that they could offer aid and
assistance in any field and would press any and all
problems up to the Supreme Court if necessary. After
some 15 minutes Swope was interrupted and asked if he
wished to take up any problem relating to his work, as an
employee of Awrey or as a member of the Union. When
Swope stated he had no such problem, he was asked to
relinquish the floor to others who wished to bring such
'Stelmaszek was a completely credible witness who impressed me with
his candor and obvious effort to honestly recount his role in this matter. I
credit his testimony.
'Stelmaszek works varying shifts and was not always in the plant during
Swope's scheduled hours of work
"From Stelmaszek 's credited testimony.
problems to the assembled members.',
Disbrow works every Sunday On Sunday, April 27, he
spoke about Swope with Rudy Neutz, an assistant
superintendent at the Livonia plant. Neutz told Disbrow
that he had not had occasion to observe Swope himself
but passed on to Disbrow additional employee comments
that Swope was "screwy."
During the morning of April 28, Disbrow met with
Leonard Adams, a union committeeman, to discuss
problems which had been raised at the union meeting on
April 26. Adams asked what Disbrow knew about Swope,
explaining that Swope had spoken at length at the union
meeting but that they had been unable to understand his
talk. Disbrow and Adams also discussed Swope's letter,
Adams stating that he could not understand some of the
points in the letter
That evening, April 28, Disbrow returned to the
Livonia plant and asked Stelmaszek if he had given
further consideration to Swope's employment. Stelmaszek
replied that his opinion was unchanged and that he and
the other supervisors, mentioning Wilbrink by name,
recommended Swope's discharge. Disbrow then instructed
Stelmaszek to terminate Swope that evening. After Swope
reported for work he was told by Stelmaszek that he was
being discharged because his work was unsatisfactory
D Conclusions and Findings
I find that General Counsel has not sustained his
burden of proving that Respondent discharged Swope
because of his exercise of rights protected by the Act.
The complaint alleged that "Respondent, although not
relying solely on the letter . of Swope . . in making its
decision to discharge Swope, did consider and give weight
to [the letter] in making its determination to discharge,
considering the letter to be the last straw."': While
General Counsel has not explicated the theory of this
allegation, I cannot assume that General Counsel would
urge that because Swope sent the letter he was forever
after immunized from disciplinary action by the
Company. A matter of degree is involved. Assuming for
purposes of decision that Swope was engaged in activity
protected by the Act when he sent his letter," the issue
must be whether his discharge was occasioned by this
protected activity or was it brought about for other
reasons not violative of the Act. Stated otherwise, but for
his sending the letter, would Swope have been retained in
Respondent's employ.
As heretofore noted, Respondent had undertaken an
evaluation of Swope some weeks before receipt of his
April 24 letter. This evaluation came about for two
reasons. First, regular procedure called for an evaluation
of Swope as a probationary employee so that a
determination of his fitness for regular employment could
be made before expiration of his 90-day probationary
period. Second, his violent argument with Martiuk and
numerous disquieting reports that Swope was causing
dissention in the cookie department had made Swope a
topic of discussion at high management levels and raised
questions as to the desirability of retaining him as an
employee. Stelmaszek had made a point of observing
Swope at work before the letter came into being. I
particularly note that Stelmaszek, whom I found to be a
From the credited testimony of Martin Molnar, union representative
"Complaint , paragraph 13.
"Because of my findings below I do not deem it necessary that I resolve
this issue.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
totally credible witness , testified that his recommendation
to Disbrow on April 25 that Swope be discharged was
made before Disbrow told him of the letter.
Had Respondent been moved in whole or part to
discharge Swope because of the letter , I do not believe
that Disbrow , the man with the final say in the matter,
would have hesitated after Stelmaszek expressed his
feeling on April 25 that Swope should be terminated.
Instead , Disbrow acceded to Stalmaszek 's request for a
day or two to speak to others so that as fully an objective
evaluation as possible could be made of Swope . This grant
of additional time to insure a broad-based appraisal of
Swope precludes a finding that the letter was "the last
straw" in the determination to discharge . Rather, I find
that while the letter prodded Disbrow into calling for a
report on the inquiry into Swope's fitness as an employee
theretofore undertaken for reasons unrelated to protected
activity , it was Stelmaszek 's recommendation that Swope
be discharged , based on Swope 's work habits and the
"undercurrent" indicating that Swope was "causing some
sort of commotion ," and unrelated to his dispatch of the
letter , which occasioned Respondent's discharge of Swope.
Accordingly , I shall recommend dismissal of the
complaint in its entirety.
CONCLUSIONS OF LAW
1. Awrey Bakeries , Inc., is engaged in commerce with
the meaning of Section 2(6) and (7) of the Act.
2. Respondent has not engaged in unfair labor practices
as alleged in the complaint.
RECOMMENDED ORDER
It is recommended that the complaint herein be
dismissed.