Breuer Electric Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 30, 1970

184 N.L.R.B. 190 (N.L.R.B. 1970)

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.