Chicago Metallic Corp.

National Labor Relations Board - Board Decisions

Jan 30, 1985

273 N.L.R.B. 1677 (N.L.R.B. 1985)

CHICAGO METALLIC CORP. 1677
Chicago Metallic Corporation and Sheet Metal
Workers' International Association, Local
Union 170, AFL-CIO. Cases 21-CA-20824 and
21-RC-16865
30 January 1985
DECISION, ORDER, AND
CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 26 September 1984 Administrative Law
Judge Jesse Kleiman issued the attached decision.
The Respondent, Chicago Metallic Corporation,
filed exceptions and a supporting brief.
The Respondent excepts to the judge's findings
that employee Ralph Picazzo was not a supervisor,
that the Respondent violated Section 8(a)(1) of the
National Labor Relations Act by threatening Pi-
cazzo with discharge, and that the Respondent's
objections to the election should be overruled. The
Respondent does not except to the judge's finding
that Picazzo was not an agent of the Union. Addi-
tionally, no exception was filed to the judge's con-
clusion that the Respondent's discharge of Picazzo
did not violate Section 8(a)(3) of the Act.'
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, 2 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, Chicago
Metallic Corporation, Vernon, California, its offi-
cers, agents, successors, and assigns, shall take the
actions set forth in the Order.
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots have been cast for Sheet Metal Workers' Inter-
national Association, Local Union 170, AFL-CIO,
and that it is the exclusive collective-bargaining
1 We have not considered, and express no views concerning, the
judge's findings and conclusions as to which no party filed exceptions
See Sec 102 46(b) and (h) of the Board's Rules and Regulations, 29 CFR
Sec 102 46(b) and (h)
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfil 188 F 2d 362 (3d Cm 1951)
We have carefully examined the record and find no basis for reversing
the findings
representative of the employees in the following
appropriate unit:
All production and maintenance employees
and shipping and receiving employees, includ-
ing leadpersons, employed by Chicago Metal-
lic Corporation at its facility at 5501 Downey
Road, Vernon, California, excluding all other
employees, office clerical employees, manage-
rial employees, confidential employees, profes-
sional employees and guards and supervisors
as defined in the Act.
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN, Administrative Law Judge. On a
charge filed in Case 21-CA-20824 on November 16,
1981, by Sheet Metal Workers' International Association,
Local Union 170, AFL-CIO (the Union) the General
Counsel of the National Labor Relations Board, by the
Regional Director for Regional 21, Los Angeles, Califor-
nia, issued a complaint and notice of hearing on Decem-
ber 22, 1981, against Chicago Metallic Corporation (the
Respondent) alleging that the Respondent had engaged
in certain unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the National Labor Relations
Act. On December 29, 1981, the Respondent, by counsel,
filed its answer denying the material allegations m the
complaint.'
Previously, on September 16, 1981, the Union had
filed a petition for certification of representative with the
Board in Case 21-RC-16865 seeking an election among
all the Respondent's employees in an appropriate unit.
Pursuant to a Stipulation for Certification Upon Consent
Election executed by the Respondent and the Union on
October 1, 1981, and approved by the Regional Director
for Region 21 on October 2, 1981, a secret-ballot election
was conducted on November 5, 1981, among all the Re-
spondent's "production and maintenance employees and
shipping and receiving employees, including leadpersons,
employed by the Respondent at its facility located at
5501 Downey Road, Vernon, California, excluding all
other employees, office clerical employees, managerial
employees, confidential employees, professional employ-
ees, and guards and supervisors as defined in the Act "2
Jack Jimenez, the Union's assistant business manager,
testified that immediately preceding the Board election
on November 5, 1981, a Board agent conducted a pree-
lection conference on company premises. Present at the
conference were Donald Moore, the Respondent's plant
manager, and Kenneth E. Ristou, Jr., the Respondent's
legal counsel, representing the Respondent, and Jimenez
' In its answer the Respondent raised the following "Separate and Ad-
ditional Defenses" That the allegations of the complaint failed to state a
cause of action or proper charge against the Respondent, that at all times
relevant herein, Ralph Picazzo was a supervisor within the meaning of
Sec 2(11) of the Act, and that Picazzo's discharge was for good cause
2 Uncontroverted testimony herein shows that "leadpersons" were in-
cluded in the bargaining unit at the insistence of the Respondent and with
the Union's acceptance thereof
273 NLRB No. 207
1678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Bill Moyer, president of the Union, representing the
Union. Jimenez related that the Union chose Ralph Pi-
cazzo and Jerry CoIvard as its election observers, 3 and
the Respondent selected Mario Gonzales Diaz and Edith
Stewart as the Employer's election observers 4 Jimenez
continued that, after the observers were selected by the
respective parties, the Board agent asked the representa-
tives of the Respondent and the Union if any of the per-
sons chosen as election observers were supervisors. Ji-
menez added that he replied, "Not as far as I know," and
that the Respondent's representatives, including its legal
counsel, failed to reply to this question at al1. 3 Moreover,
on October 8, 1981, prior to the election, the Respondent
submitted a voter eligibility list (Excelsior list) to the
Board which included the following employees' names:
George Kreuger (production leadman), Ralph Picazzo
(assistant production leadman and maintenance leadman),
Jerry CoIvard (shipping and receiving warehouse lead-
man), Robert Gangle (toolroom leadman), and Pat Pat-
terson (production leadman-night shift).
The official tally of ballots showed that 19 votes were
cast of favor in the Union, 10 votes against the Union,
and 1 ballot was challenged 6 On November 12, 1981,
the Respondent filed timely objections to the election.
Upon investigation the Regional Director concluded that
the Respondent's Objections 1, 2, 4, 6, and 10 should be
overruled. With regard to Objections 3, 5, 7, 8, and 9 the
Regional Director found:
These objections relate to threats and other coer-
cive conduct allegedly engaged in by Ralph Pi-
cazzo, whom the Employer asserts to be a supervi-
sor within the meaning of Section 2(11) of the Act
Investigation of these objections revealed substantial
and material issues of fact which the undersigned
concludes may best be resolved in a hearing. On
December 22, 1981, the undersigned issued a Com-
plaint and Notice of Hearing in Case 21-CA-20824,
alleging inter alio, that the Employer discharged Pi-
cazzo on or about November 10, 1981, because he
engaged in union or protected concerted activities.
Inasmuch as the issues raised by Objections 3, 5, 7,
8, and 9 are closely related to the issues involved in
Case 21-CA-20824, the undersigned concludes that
these objections can best be resolved in a hearing
with the related issues of the complaint."'
On January 19, 1982, the Regional Director duly
issued an order consolidating Cases 21-CA-20824 and
21-RC-16865 "for the purposes of hearing, ruling and
decision by an Administrative Law Judge and that,
3 Ralph Picazzo was assistant leadman in the production department
and Jerry Colvard was the warehouse leadman. Jimenez testified that
CoIvard had at first declined to be an observer because he was against
union representation and had campaigned against the Union, but Jimenez
prevailed upon him to act as a union observer in the interest of fairness
4 Mario Gonzalez Diaz was a production employee, and Edith Stewart
a secretary, both employed by the Respondent at the time
5 Picazzo testified similarly about this
6 At the election the Respondent challenged only the ballot of Ralph
Picazzo for the reason that Picazzo was alleged to be a supervisory em-
ployee However, this challenged ballot was insufficient in number to
affect the results of the election
7 See G C Exh 1(g)
thereafter, Case 21-CA-16865 be transferred to and con-
tinued before the Board in Washington, D.C." No excep-
tions to the Regional Director's report or any request for
special permission to appeal from his order having been
filed by either party within the time provided therefor,
the Board by Order dated February 8, 1982, adopted the
Regional Director's recommendations as contained in his
report as set forth above.8
A hearing in the consolidated cases was held before
me in Los Angeles, California, on July 13, 1982. At the
close of the General Counsel's case the Respondent
moved to dismiss the complaint for failure of proof. I
denied this motion. All parties were afforded full oppor-
tunity to appear, to introduce evidence, to examine and
cross-examine witnesses, to argue orally on the record,
and to file briefs. Thereafter, the General Counsel, the
Respondent, and the Charging Party filed briefs. The Re-
spondent in its brief renewed its request for dismissal of
the complaint in its entirety and, additionally, requested
that "the election results in Case No. 21-RC-16865 be
voided." For the reasons hereinafter set forth I grant the
Respondent's motion to dismiss the complaint only in
part and recommend that the election results in Case 21-
RC-16865 be certified.
On the entire record and the briefs of the parties, and
on my observation of the witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, at all times material herein, has been
a corporation engaged in the manufacture, sale, and dis-
tribution of ceiling systems° and operates a plant facility
located at 5501 Downey Road, Vernon, California, for
this purpose. 1 ° In the course and conduct of the Re-
spondent's business operations during the preceding 12
months, these operations being representative of its oper-
ations at all times material herein, the Respondent sold
and shipped goods and products valued in excess of
$50,000 directly to customers located outside the State of
California. The complaint alleges, the Respondent
admits, and I find that the Respondent is now, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act
The complaint further alleges that, at all times material
herein, the Respondent's plant manager, Donald Moore,
and its plant superintendent, Ron Williams, have been
and are now supervisors within the meaning of Section
2(11) of the Act and agents of the Respondent acting on
its behalf within the meaning of Section 2(2) and (13) of
the Act. The Respondent admits these allegations. I
therefore find that the above-named persons are supervi-
sors and agents of the Respondent within the meaning of
Section 2(11), and 2(2) and 2(13) of the Act, respectively.
8 See G C Exh 1(i)
9 The Respondent manufactures "cross-T's and main runners" for
acoustic ceilings
° The Respondent's corporate "national headquarters" are in Chicago,
Illinois
CHICAGO METALLIC CORP. 1679
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I
find that Sheet Metal Workers' International Association,
Local 170, AFL-CIO, is, and has been at all times mate-
rial herein, a labor organization within the meaning of
Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
The complaint alleges that the Respondent violated
Section 8(a)(1) and (3) of the Act by threatening its em-
ployees with discharge if they continued to campaign on
behalf of the Union, and by discharging employee Ralph
Picazzo and failing and refusing to reinstate him because
he engaged in union or other protected concerted activi-
ties for the purpose of collective bargaining or other
mutual aid or protection The Respondent denies these
allegations
A. The Evidence
1. The alleged supervisory status of Ralph Picazzo
Picazzo commenced his employment with the Re-
spondent in June 1977 and was discharged by the Re-
spondent on November 10, 1981. For approximately the
last year of his employment with the Respondent, Pi-
cazzo held the position of day-shift assistant leadman in
the production department" and leadman in the mainte-
nance department," having been transferred to this job
from his previous position of leadman on the night
shift 13 As assistant leadman, Picazzo received an hourly
wage rate of $10.80, higher than the other production
employees except for those employees with substantially
greater seniority than he," the same "fringe benefits" in-
" Besides George Kreuger, the day-shift leadman, and Picazzo, the as-
sistant leadman, there are 18 employees in the production department
The day-shift hours are from 6 a m to 2 30 p m
12 The maintenance department consists of three employees besides Pi-
cazzo, including an electrician, a hydraulic pump repairman, and a
welder Their duties are to maintain and repair the "roll forming ma-
chines used to manufacture" the Respondent's products With regard to
his duties concerning the maintenance department employees, Picazzo
testified that although he "headed" the maintenance department, he only
worked with the maintenance employees when the y needed assistance,
when the work required to be done "necessitated more than one person,"
this occurring once or twice weekly with each of these workmen
13 The Respondent in its brief states that Picazzo, as the night-shift
leadman, "was the 'highest individual in the plant' Picazzo had four em-
ployees working under him on this shift, and had the responsibility for
security of the plant, work problems, and any emergency that might
occur during this time When a disciplinary problem would anse, It was
Picazzo who acted as the eyes and ears of management' by bnnging it to
the attention of Williams or Moore Thus, when Picazzo caught [four] of
the night-shift employees drinking, he immediately reported the situation
to Williams" The evidence herein shows that after Picazzo reported the
drinking incident to Williams, no disciplinary action was taken by Pi-
cazzo against these employees but instead Williams appeared at the plant
later that evening and suspended these employees and sent them home
While Picazzo testified that upon his transfer from night-shift leadman to
day-shift assistant leadman, his duties remained "roughly the same," he
also testified that when he became the assistant leadman he assumed the
new duties of evaluating employees, maintaining the upkeep of the metal
inventory, and the training and evaluation of newly hired employees
14 The Respondent's starting hourly salaries at the time were Operator
I-57 50 to $10, Maintenance 1—$7 to $10, Helper--$6
eluding medical care coverage as did the other produc-
tion employees, and he "punched a time clock" as was
required of all production and maintenance employees
with the exception of the plant manager, Donald Moore,
and the plant superintendent, Ron Williams
Picazzo continued that his duties as assistant leadman
were "to assist George Kreuger [leadman] in his basic
duties, 15 and also to head the maintenance department."
He stated that "Kreuger's duties were to maintain pro-
duction, which is to maintain a schedule showing the
type of bar and which machine is going to run it, and
also who was going to operate the machine" Picazzo re-
lated that the work schedules were prepared weekly and
solely by Krueger, and that he played no part in their
preparation. Picazzo continued that Kreuger also distrib-
uted the paychecks to employees, that he and Kreuger
usually ate lunch together with other production em-
ployees in the lunch area, that neither he nor Kreuger
had their own office, desk, or telephone as did Moore
and Williams," and that Williams maintained and kept
the timecards. Picazzo added that he worked mostly,
"Near the quality control area," from where he could
observe the entire production floor area, the employees
who were or were not working, and any "roll forming
machines" which experienced any problems or had
broken down during operation 17
Picazzo testified,
My main duties were to assist George Kreuger in
maintaining the production of the machines. In
other words, if there was a problem with the rolls
fluctuating . . or the face of the width being too
wide or too narrow, I would proceed to the ma-
chine and adjust the rolls to bring them to specifica-
tions . . . Keep the metal inventory up In other
words, what I did was just check to make sure that
there was enough metal available. And of course,
the evaluations, the weekly evaluations I used to
have.' 8
Concerning these evaluations," Picazzo testified that
he reviewed the work performance of the machine oper-
15 While Picazzo testified that he worked "under Kreuger," he also
testified that Plant Superintendent Williams was his immediate supervisor
and the person to whom he reported
" Picazzo testified that the warehouse leadman, Jerry Colvard, also
had his own office
17 Picazzo testified that he would "look over the schedule Fill out my
evaluation forms and wan to see if any machine were going to go down"
18 The Respondent uses "roll forming machines" in the manufacture of
the cross-Ts and main runners for acoustic ceilings which are its main
production items These machines are operated by a machine operator
and a helper both of whose work Picazzo evaluates Picazzo related that
he would check the finished bars produced on a machine as to specified
tolerances with calipers and a micrometer as part of his duties as assistant
leadman In the event Picazzo discovered that the bars produced did not
meet specifications, he would report this to Williams who would then
decide whether or not the work had to be done over Picazzo added that
on occasion he, himself, worked on the roll forming machines as an oper-
ator, but that this happened infrequently
19 Picazzo testified that Kreuger had prepared the employee evalua-
tions prior to his becoming assistant leadman and thereafter Picazzo did
this "to take some of the work load from George Kreuger " Picazzo
added that he did not evaluate the maintenance employees, only the pro-
duction employees
1680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ators and helpers on each of the different machines
weekly evaluating them as to quality and quantity of
their work by observing them at their jobs, after which
he would grade them on a work evaluation form. Pi-
cazzo stated that copies of these evaluation forms were
kept in the employees' personal files, by Plant Manager
Moore in a separate file, and by himself in a personal
notebook which Williams told him to keep and main-
tain. 20 Picazzo related that while he was unaware of the
use to which his employee work evaluations were being
put to by the Respondent, he confessed that he had not
prepared these evaluations "conscientiously," but instead
had just put down "anything that came to mind." 27 Pi-
cazzo added that Williams also evaluated the production
employees' work performances for the purposes of "a
three-month wage review." 2 2
Picazzo testified that he had no authority to hire, fire,
lay off, discipline, or promote employees, nor any au-
thority to effectively recommend the same, such author-
ity being vested in Plant Manager Moore and Plant Su-
perintendent Williams. Picazzo recounted that while he
also had no independent authority to suspend or disci-
pline employees, nor had he ever done so, yet he did
prepare and issue written disciplinary warnings and no-
tices to employees, including suspension notices, but only
upon the occasions when he was directed to do so by
Moore, Williams, and at times Kreuger. According to Pi-
cazzo, Williams would instruct him to issue a warning or
disciplinary notice to an employee including recommen-
dations as to the discipline to be imposed, whereupon Pi-
cazzo would prepare a "write-up form" with the em-
ployee's name, the reason for the warning or discipline,
the actual discipline to be imposed, and the date. Picazzo
would then obtain Williams' approval as to the wording
and acceptability thereof, after which both he and Wil-
liams would sign the form, with Picazzo's signature ap-
pearing thereon, "in the spot where it said 'company su-
pervisor." 23 Picazzo would then issue the writeup form
to the employee, and obtain the employee's signature on
the form Whenever an employee disputed the merits of
the disciplinary notice or action signified, Picazzo would
28 Picazzo also kept copies of disciplinary notices he issued in this
notebook, and he recorded overtime work assignments therein, as well
2i However, Picazzo admitted that on one occasion when he had
failed to evaluate the work performances of employees for a period of
time, he was told that Moore had become "upset" because he had discon-
tinued such evaluations Moreover, while Picazzo consistently and con-
tinuously maintained, throughout his testimony, that he was always told
by either Moore or Williams as to what duties he had to perform and
how to accomplish these duties, he also admitted that as to these work
evaluations, he prepared them by himself, in his own way, using his own
phraseology Picazzo added that as far as he knew his evaluations had
nothing to do with the "well-being of employees," and that, on one occa-
sion, Kreuger had jokingly said that he had seen the evaluations in a
trashcan
22 Moore also testified that Williams evaluates the production and
maintenance employees for purposes of wage Increases and merit In-
creases, with such increases then being subject to Moore's approval
23 Picazzo testified that Williams instructed him to sign the form as
"company supervisor" He also explained that on occasion Moore, Wil-
liams, or Kreuger would not be available to sign the form at which time
only his signature appeared thereon along with the employee involved
refer them to Williams or Moore for any further consid-
eration of the matter.24
Picazzo continued that he did, on occasion, transfer
employees from one work assignment to another, but
again only when instructed to do so by Williams. Pi-
cazzo stated that he also distributed work assignments to
the production employees based on the work schedules
prepared by Kreuger," and explained to these employ-
ees, if necessary, just what was required of them in the
performance of their work He testified that Williams
made the decision as to the need for overtime work and
the number of employees required to accomplish this.
While Williams also made the decision as to which em-
ployees were not to receive such overtime work Picazzo,
apparently at his discretion, made the actual overtime
work assignments from among the remaining eligible em-
ployees. However, according to Picazzo, overtime work
is voluntary and he merely asked employees if they
wanted to work overtime and assigned those who said
they did to such work unless Williams told him not to do
so. The evidence additionally shows that Picazzo also
trained new employees in the operation of the "roll
forming machines," during which time he also evaluated
their work performances, 23 functioned as an interpreter
on occasion for Moore or Williams when they spoke to
any of the Spanish-speaking employees, and served as the
Respondent's permanent representative on the "plant
safety committee." 27 Picazzo also attended management
meetings during which production matters at the plant
and plant expansion problems were discussed.28
Donald Moore, the Respondent's plant manager, testi-
fied that the position of "Leadman (Assistant)" was
originated in November 1979 and approved in August
1980 at a time when the Respondent was expanding its
Vernon, California facility, and was created to "[assist]
the current leadman in his job activities" Moore stated
that he prepared a job description for this position, set-
ting forth duties thereof, and that he perceived this posi-
tion as "basically equal" to the leadman but "assisting"
him, with their respective duties being "a joint function
24 Ptcazzo testified that, as assistant leadman, he issued "many" warn-
ing and disciplinary notices to employees See R Exhs 1-20 Concerning
these exhibits the evidence shows that Picazzo prepared and accom-
plished most of the writing on these forms except for the signatures other
than his own
25 In an affidavit given to a Board agent during the investigative stage
of these proceedings, Picazzo stated,
Regarding assignments of employees to work in the production area,
Ron Williams, George Kreuger and I would get together in the
morning and decide what work had to be done and who was going
to operate which machine
28 Picazzo denied that he discussed with Moore or Williams whether
or not these new employees were "good employees"
23 Picazzo testified that when he was assigned by Moore to the safety
committee he was never specifically told what his duties were, but only
to "sit in " He stated that Moore told him that these meetings were for
the purpose of "cutting down accidents and maintenance safety on the
job " He added that, at the safety meetings, employees made suggestions
about safety to Bob Gangel, who "headed" the committee and the meet-
ings, and who determined which repairs were to be made According to
Picazzo, his function was merely to be seen at these meetings
28 Picazzo testified that at the management meetings he attended,
while there where discussions about production and plant expansion
problems, he was never asked for his opinion or to provide any input into
these discussions
CHICAGO METALLIC CORP 1681
due to the expansion of our facility." Moore continued
that he reviewed the job description and the duties set
forth therein with Ralph Picazzo shortly after Picazzo
became the assistant leadman, 29 and again went over the
various aspects of it approximately 3 months later, when
Picazzo requested "clarification in some areas, and we
reviewed it again."
Moore related that subsequently he held a meeting
with Ron Williams, George Kreuger, and Picazzo re-
garding the assistant leadman's position, "to redefine the
direction, so that there wasn't such a drastic overlap" in
the duties of Kreuger and Picazzo Moore stated that the
areas of responsibility worked out at this meeting were:
George Kreuger — production coordination, machine as-
signments, quality control, setup control, and machine
tooling directions, Ralph Picazzo —machine mainte-
nance, routine maintenance, safety committee, emergen-
cy procedures, emergency operations According to
Moore, both Kreuger and Picazzo were to be jointly in-
volved in training employees, proper housekeeping, plant
and employee security, employee discipline, and an im-
provement committee to recommend "procedural
changes, training personnel, discipline, cleanliness, house-
keeping, all of the things that make a plant a nice place
to work." 3 ° Moore added that he considered Kreuger,
Pat Patterson, Bob Gangel, and Picazzo all supervisors.
Picazzo denied ever seeing a copy of the final job de-
scription although he acknowledged that, shortly after he
became the assistant leadman, he met with Moore who
"went over roughly just more or less what he wanted
me to do as assistant leadman under George Kreuger,
which was mainly to assist with George, and to head
over the maintenance department." According to Pi-
cazzo, Moore also told him to "maintain the operation of
.t he machinery." Picazzo also denied that Moore had
ever discussed an "improvement committee" with him.
In support of the Respondent's contention that Picazzo
is a statutory supervisor, Moore testified that, approxi-
mately 4 months before the election, while Ron Williams
was on vacation, Kreuger and Picazzo had come to his
office and Kreuger told Moore that "It's Mr.
O'Shaughnessey again" Moore related that he asked
them what the problem was and Picazzo responded that
O'Shaughnessey "had left his machine unattended"
Moore stated that since O'Shaughnessey had violated "a
plant rule of some significance," Kreuger and Picazzo
"both felt that it was time to make a move on
O'Shaughnessey . . . time that we did something about
this." Moore continued that after he checked
O'Shaughnessey's "record" and found that "he was on
the verge of firing anyway, basically because of his histo-
ry," he told Kreuger and Picazzo, "I see no reason not
to fire him at this point. I think he has been given every
29 Picazzo was the first person to hold the position of assistant lead-
man
30 While Moore testified that the Job description fol assistant leadman
encompassed the duties which he wanted Picazzo to perform in that posi-
tion, and while he offered his belief that to the best of his knowledge
these were the duties being performed by Picazzo, he also admitted un-
certainty as to whether the job description accurately reflected those
duties actually performed by Picazzo when Picazzo assumed this posi-
tion
opportunity," O'Shaughnessey was subsequently dis-
charged. 3 ' Moore maintained that leadmen had the dis-
cretion to decide disciplinary action against employees.
Picazzo's version of this incident differed from
Moore's Picazzo testified that Kreuger had spoken to
him in Williams' office informing him that, earlier that
morning, Moore had told Kreuger that he "wanted Tom
O'Shaughnessey out today." Picazzo stated that after he
advised Kreuger that O'Shaughnessey had "just left his
machine," Kreuger directed Picazzo to "get him for
that." Picazzo continued that he then prepared and
issued a warning notice to O'Shaughnessey recommend-
ing "termination" as Kreuger had directed He related
that when O'Shaughnessey received the notice he tore it
up and wanted to see Moore about this Picazzo denied
that he had ever met with Moore to discuss
O'Shaughnessey's discharge or that he was present when
the discharge took place. Picazzo added that his only in-
volvement in the decision to terminate O'Shaughnessey
was that, "I was told to write him up."
Steve Kosiek, employed by the Respondent as a ma-
chine "helper," testified that he had observed Picazzo in
the performance of his job and that Picazzo's duties were
"writing up evaluations for employees' warning slips,
and just generally standing there combing the area
making sure that people were doing what they were sup-
posed to be doing " 32 According to Kosiek, the proce-
dure for the issuance of "warning slips" was that Ron
Williams would tell Picazzo "exactly what the person
had done," whereupon Picazzo would prepare the writ-
ten notice, give it to the employee involved, explain the
reason for its issuance and the rule infraction, obtain the
employee's signature on the notice, sign the form him-
self, and take the notice back to Williams for approval,
and the notice was then taken to the office Kosiek relat-
ed that he had actually received "warning slips" from Pi-
cazzo as an employee which were initiated by Williams
and prepared and issued by Picazzo as described above.
He stated that Picazzo would also tell employees, upon
giving them the warning notice, that "If they didn't want
to get another of these they better not do it again."
Kosiek added that Picazzo also spent "a lot of time"
talking to Williams and Kreuger "out there, right out on
the floor." Kosiek reiterated that Picazzo's work entailed
"writing up" employee work evaluations, "writing up"
disciplinary notices and "handing them to people and ex-
plaining the rules" and "standing around on the floor
making sure the men were working properly."
" Moore's testimony as to who actually recommended O'Shaughnes-
sey's discharge was somewhat equivocal and guarded At first Moore tes-
tified that both Kreuger and Picazzo had said that something ought to be
done about O'Shaughnessey, with Moore's testimony strongly inferring,
that he himself had made the determination to fire O'Shaughnessey
However, after what appeared to be an attempt by counsel for the Re-
spondent, through leading questions and remarks, to rebut this Inference,
Moore now denied having made this decision, remembered that the word
"termination" had been used although he could not remember by whom,
and maintained that he had "just supported their decision" Moreover,
Moore's testimony concerning the circumstances under which an employ-
ee can be terminated appeared guarded and at times evasive
32 At this time Kosiek was employed by the Respondent "In quality
control," checking the work produced by the machine operators and
helpers He testified as a witness for the General Counsel
1682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mark Freeland, formerly employed by the Respondent
as a warehouseman, testified33 that Picazzo had issued
several written warning notices to him during his em-
ployment with the Respondent 34 and that it was "more
than likely" that Picazzo had cleared the language on
such notices with Williams before he gave it to the em-
ployee. He related that Picazzo had no authority to
change any of the language in the warning notice with-
out Williams' approval. Freeland continued that Picazzo
would give him the warning notice to read, ask him to
sign it, and then if Freeland had any question about the
warning notice or "disagreed with the writeup," he as-
sumed that he could take it up with Williams or
Kreuger, "or someone else, like a step above him, so to
speak." While Freeland stated that Picazzo had told him
on one occasion that if he received another "write-up"
for absenteeism, he would be fired," he also testified
that both Williams and Kreuger had told him the same
thing on several occasions. 36 Freeland added that Pi-
cazzo did not hire, fire, promote, suspend, lay off, recall,
reward, or transfer employees, "it wasn't his job."
2. The discharge of Ralph Picazzo
Picazzo testified that soon after the Union had filed its
petition with the Board, he was informed by other em-
ployees at the plant that the Union was attempting to or-
ganize the Respondent's employees for purposes of col-
lective bargaining. Picazzo stated that, thereafter, he dis-
cussed "the issue of the union with other employees, at-
tended union meetings, and actively campaigned" for the
Union among the plant employees "on an individual
basis " 37 Picazzo related that on October 29, 1981,
Don Moore was entering the production area to
pass around anti-union propaganda. He then ap-
proached me and told me that if I continued to
campaign for the Union, that he would have me
fired, and if I did not believe that, Just to continue
and he would see me in court."
33 Freeland resigned from the Respondent's employ in February 1982
after a dispute with his stepbrothers, Jerry CoIvard, the warehouse lead-
man, and Larry CoIvard, another employee Freeland testified as a wit-
ness for the Respondent
34 Picazzo testified that on one occasion Williams instructed him to
"write [Freeland] up, stating he was suspended" His testimony as to
whether or not Williams had told him to suspend Freeland for "one to
three days" seemed equivocal
" Freeland testified that, a week or two before the election, Picazzo
had warned him about his failure to wear protective goggles on the job
as required by plant safety rules telling Freeland that, "because of my
record of write-ups that if I didn't watch myself and be sure to do every-
thing right as in wearing goggles that I would be written up and more
than likely fired" Freeland added that Picazzo did not issue a warning
notice to him on this occasion although Picazzo was aware that Freeland
was "an assured no vote against the union"
36 Moore testified that Freeland had received several warning notices
However, Moore's description of the Respondent's computer printout
system regarding the recording of warning notices was somewhat confus-
ing
37 Jimenez, the Union's business manager, testified that Picazzo never
obtained any employee signatures on authorization cards for the Union
except for his own
38 The Respondent admits having campaigned against the Union prior
to the election
Picazzo continued that later that day,
I was behind machine number seven, and [Moore]
was coming out of the maintenance department.
And he approached me again smiling and said that
he really didn't mean it quite that way. But that if,
in fact, I was campaigning for the Union, that he
could have me fired."
Picazzo recounted that on Friday after the Board elec-
tion held on November 5, 1981, he was in the production
area with Moore, Williams, and Kreuger, when Jerry
Colvard, the warehouse leadman, came over and told Pi-
cazzo "to keep away from his men, that to stay away
from them, and he didn't want to see me around them
anymore." Picazzo stated that later that day he had a
conversation with Moore in Moore's office as follows:
I asked Don Moore what the commotion was all
about He told me it was none of my business. I
told him I was not referring to the conversation he
had just had with Colvard, I was referring to what
went on in the production area. He says, "you
know very well what that's all about" And I said,
"No, I don't. I wish you would explain!" He told
me then, he says, "Come on Ralph, you understand.
You know what is going on." He says, "You never
really were on my side." I told him, "Yes, I was."
He says, "No I don't believe you!" I says, "Well, if
that is the way you feel, then I am sorry," and I
left.
Picazzo testified that on November 10, 1981, he was
called into Moore's office. Ron Williams was also
present in the office Picazzo continued,
[Moore] then told me that he was sorry that it
had to end this way, but he could not condone in-
timidating or threatening employees.
I then asked him who was it I supposedly intimi-
dated.
He said that was best left unknown.
I asked him what was it that I supposedly said.
He said that was best left unknown.
And I asked him also when did this take place.
He said that was best left unknown He then told
me that for his satisfaction, what was it that he had
supposedly done wrong.
I told him there was nothing he had done wrong
But also I had done nothing wrong. But evidently
someone had told him something, and he chose to
take their word over mine.
Upon this, he then stated that he would not in
any way block my unemployment, and that if I
wanted to sometime in the near future I could come
39 Picazzo testified that the only time he had any discussions with
Moore about his campaigning for the Union was on October 29, 1981 He
added that Moore had never mentioned anything to him about his alleg-
edly "campaigning on company time"
CHICAGO METALLIC CORP 1683
back and he would give me a letter of recommenda-
tion. He then handed me a check, and then I left.4°
Picazzo denied that, prior to the election or thereafter,
he had threatened any employee with "economic or
physical harm" if they told management about his "state-
ments regarding the Union," or if they "did not support
the Union." He also denied that Moore had given any
reason for his refusal to disclose the names of the em-
ployees who had alleged that Picazzo had threatened
and intimidated them, more particularly, ihat the reason
for this was that Moore was afraid that Picazzo or his
associates would take reprisals against such employees
once Picazzo knew who they were. Picazzo testified that
Moore gave him no opportunity to respond by way of
explanation concerning the allegations against him, and
he in turn made no effort to explain anything about this
to Moore at the time, because when Moore refused to di-
vulge any information as to the "who, why and when"
of his alleged threats and intimidation of employees, Pi-
cazzo was at a loss as to what he was supposed to have
done. Picazzo added that Moore had never asked him
about the conversations he had had with employees
during which he allegedly had threatened and intimidat-
ed them, these conversations, as discussed hereinafter,
having involved Brent Yankee, Larry Colvard, and Mark
Freeland.
Moore testified that about 10 days before the Board's
election held on November 5, 1981, Jerry Colvard, the
warehouse leadman, and Steve Kosiek, a warehouse em-
ployee, came to his office and K.osiek told Moore that
"Ralph Picazzo was the one that was pushing for the
union." Moore stated that Colvard asked him "what can
we do about it," and Moore replied, "I don't think we
can do anything about it." Moore related that CoIvard
and Kosiek also said that Picazzo "was campaigning for
the union on company time, and that he was the source
of the problem." Moore recounted that "Now, what they
meant by problem, I don't know . . . . I did not believe
it at that time . . . I didn't consider that Ralph was a
problem . . I kind of figured that the company had
been kind of nice to him, and I didn't expect it from
him." Moore continued that until he was apprised of this,
he was unaware that Picazzo was a union supporter, not
knowing "who was pushing the union," and was sur-
prised to find out that Picazzo was the one doing so.
Moore added that, during this conversation, neither Col-
yard nor Kosiek mentioned anything about Picazzo
having threatened or intimidated any employees. Ac-
cording to Moore, soon thereafter, approximately a week
before the election,
I approached Ralph and warned him that apparent-
ly from the indications I had heard he was cam-
paigning for the union on company time, and told
him that I would appreciate it if he would desist or
4 ° At Picazzo's unemployment compensation hearing, the Respondent
contested Picazzo's entitlement to compensation on the grounds that PI-
cazzo had been discharged for threatening and intimidating its employees
However, at his hearing the Respondent again did not identify any of the
employees who were alleged to have been threatened and intimidated by
Picazzo
refuse to do that, and he could be subject to dismis-
sal if he continued.4'
Kosiek denied that, prior to the election, he had gone
with Jerry Colvard to Moore's office to complain or
report about Picazzo's union activities. However, he did
testify that approximately 10 days before the election, he
had gone to see Moore about "some questions about the
union that I thought he could answer for me." Kosiek
stated that Karl Bernsten, the janitor, was present in
Moore's office and was upset and complaining about
"the hassle that was going on" concerning the question
of union representation, and Bernsten was "fed up . . .
and ready to just walk out the door, period." He related
that Jerry Colvard did appear in Moore's office "mo-
mentarily" but had said nothing and left. While Kosiek
could not recall what was actually said during this con-
versation, his testimony strongly implies that he and
Bernsten did mention to Moore that Picazzo was cam-
paigning on behalf of the Union, although Picazzo's
name was never actually mentioned. Kosiek recounted
that they all knew that they were "talking about Ralph."
He added that Moore appeared "shocked" about this
revelation, and that the conversation lasted "just a few
minutes."
Moore related that approximately 3 or 4 days after
CoIvard and Kosiek had first registered their complaints
with him against Picazzo, Colvard again came to see
Moore and "reiterated the same claim" regarding Picaz-
zo's continuing to campaign for the Union on company
time. He continued,
[Colvard] recorded his concern, hoping that we
would not have a union. His indication was that this
was not his dominant desire. I basically explained
the situation that we had to go through the due
process. And that was not enough to satisfy Jerry,
he still felt helpless as I did.42
Moore seemed a little confused about this conversa-
tion.'" At first he testified that Colvard had said nothing
about Picazzo having threatened employees. He then tes-
tified that Colvard had told him that
Ralph has been threatening my people . . . indicat-
ing that they should vote for the union, or else. . .
that they would have a problem after the union got
in . . . . Basically they were told to get on the side
of the union. And if they didn't, they would be
sorry, because once the union got in they wouldn't
have a job.
Moore added that he asked Colvard "where his informa-
tion was coming from," and Colvard answered, "from
Mark [Freeland] and Larry [Colvard]."
41 Moore stated that Picazzo did not deny this
42 Moore testified that Jerry Colvard had indicated to him on a
number of occasions his strong feelings "not to have the union voted in"
43 However, this may have been caused by counsel for General Coun-
sel's use of a time frame to pinpoint when this conversation occurred
which appeared to confuse the witness
1684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moore testified that he then sought out Larry Colvard
and asked him to "tell me first-hand what he had been
telling Jerry" Moore stated that Colvard said,
"He has got me all shook up" . . . that Ralph [Pi-
cazzo] had told him that if he did not get on the
side of the Union that he was going to have some
problems . . . . "What problems he plans, I don't
know. I have got enough now."
Moore added that he told Colvard to "take it easy, I
think things will turn out all right"
Moore continued that he also spoke to Mark Freeland,
I asked him what he had been telling Jerry that
Ralph had said, I would like to hear it first-hand. I
think he asked me what Jerry told me. And I reiter-
ated that . . . Basically to get on the side of the
union or there was going to be a problem. [Free-
land] says, "That is what [Picazzo] told me!" I be-
lieve Mark said that Ralph would get to him some-
how . . Well, as best as I recall it had something
to do with his job security . . . . He indicated to
me that he may not have a job, whichever way the
election went.
Moore stated that Colvard and Freeland were "a little
bit afraid of losing their jobs," and he told each of them
that any discharges of employees required discussion
with management before such discharge could be imple-
mented Moore related that he had spoken to Colvard
and Freeland in order to investigate the "rumors" he had
been hearing about the plant concerning Picazzo intimi-
dating and threatening employees while campaigning for
the Union.44
Moore testified that about 3 or 4 days before the elec-
tion he had another conversation with Picazzo relating
to Picazzo's "campaigning for the union on company
time, but it was, I guess you would call it a little more
heated, because I was annoyed because he was continu-
ing to campaign for the union on company time" Moore
related that he told Picazzo,
"Ralph, we understand you are still campaigning
for the union on company time. I request that you
discontinue that activity." And I indicated that he
would be subject to termination, and that I didn't
feel it was right what he was doing
Moore stated that while he did not tell this to Picazzo,
he felt that Picazzo, "as a supervisor," was not obliged
to campaign for the Union on company time He added
that Picazzo again offered no response to Moore's accu-
sation.
Moore testified that approximately 2 or 3 days before
the election Jerry Colvard came to his office and told
him that employee Brent Yankee "has just been threat-
44 Moore testified that he never investigated the circumstances of Pi-
cazzo's alleged activities on behalf of the Union, only as to the threats
Picazzo was rumored to have made to employees He added that other
than the reports about Picazzo's union activities, he had heard no other
"rumors" as to other employees campaigning for the Union or threaten-
ing employees at the plant
ened, also" by Picazzo. 45 Moore stated that since
Yankee did not report this incident to him that day, he
called the Respondent's attorney to apprise him of what
had occurred whereupon it was decided that Moore
would speak to Yankee about this "to confirm the
threat." Moore recounted that the following morning, he
visited Brent Yankee at his home and asked Yankee to
relate what had happened between him and Picazzo the
previous day. Moore continued,
Brent said that [Picazzo] approached him indicating
some sort of meeting. I forget the context of the
meeting. And that [Yankee] should be there, and
that if he said anything to anyone about this talk
that Ralph and Brent were having that he would
kill him—kill Brent . . . . Brent further indicated
that when Ralph said this, he turned away for a
second, looked back and smiled to see if Ralph was
kidding, and [Picazzo] either said, "I'm not kid-
ding," or "I am serious," or words to that effect.
Moore recounted that, at his request, Yankee prepared
and executed a written statement of what had occurred
between Picazzo and himself, and gave it to Moore, with
Yankee telling Moore that "I am afraid to come to
work" Moore added that he told Yankee that if he did
not feel up to reporting for work that day, he should
"call in by the standard procedure," whereupon Moore
left Yankee's house. According to Moore he then dis-
cussed this whole incident with the Respondent's "gener-
al manager in Chicago" and the Respondent's attorney,
which resulted in the posting of a security guard during
Yankee's shift at the plant.
Moore testified that about 3 or 4 days after the elec-
tion held on November 5, 1981, Jerry Colvard came to
his office and advised him that Picazzo had again threat-
ened employees Mark Freeland and Larry Colvard, tell-
ing them "that now that the election had been won,
there was going to [be] some fun around here and some
heads are going to be busted for those that didn't get on
the side of the union." He stated that Bernsten, the jani-
tor, came into his office "a minute or two later," and a
third person, whom he could not remember, was "stand-
ing virtually in the doorway" when Colvard told him
what had occurred. With more particularity Moore re-
counted that Colvard had stated that Freeland told him
that Picazzo had said, "Now that the union is in, those
that didn't get . . . on the side of the union, some heads
are going to be busted" Moore related that Bernsten,
with tears in his eyes, said, "They have got me all shook
up and I want to quit," whereupon Moore told Bernsten,
"Things will still work out. You will still have a place to
work." Moore indicated that Colvard said, "This is a
damn shame," and left Moore's office and Moore now
offered Bernsten the option of leaving work early since
he appeared upset, but Bernsten refused the offer. Moore
continued that later that same day he discussed this inci-
dent with Ron Williams asking Williams, "What do we
45 Moore testified that he had been told that this "confrontation" oc-
curred while Yankee was "working on his machine" and at approximate-
ly 2 30 pm
CHICAGO METALLIC CORP 1685
do now, Ron," to which Williams replied, "I don't
know" Moore testified that he also spoke to Larry Col-
yard and Mark Freeland about Picazzo's threat of "heads
being busted" and that "they were both fearful of harm,
bodily harm." Moore added that after he called his attor-
ney for "consultation," since he felt that Picazzo should
now be terminated, he then made a final decision to dis-
charge Picazzo while at home on the "evening of No-
vember the 9th" 1981.
Moore testified that he discharged Picazzo on Novem-
ber 10, 1981. Moore related that Picazzo was called to
his office about 2 15 in the afternoon and, with Williams
also present, he told Picazzo,
Inasmuch as you have continued to push for the
union on company time and threatened and coerced
employees, we find it necessary to terminate you at
this time
Moore stated that Picazzo responded, "I have been ex-
pecting it." Moore related that he now told Picazzo,
I am sorry it turned out this way I hope you will
understand my position. I indicated also that I
would do nothing to stand in the way of his unem-
ployment, and also volunteered a letter of recom-
mendation, if he felt it was necessary at any time.
Moore continued that he presented Picazzo with his final
check and Picazzo then left his office Moore added that
Picazzo was an efficient employee with above-average
technical and mechanical ability, an excellent attendance
and punctuality record, and with work habits "well
above average." Moore maintained that the Respondent
would not have discharged Picazzo had he merely been
campaigning for the Union, but did so because Picazzo
had threatened and intimidated employees Moreover,
Moore admitted that after learning of Picazzo's union ac-
tivities, he did not issue any directives precluding super-
visors from campaigning for or against the Union during
working hours, nor did he at management meetings with
supervisors direct them not to do this.
Brent Yankee, a witness for the Respondent and em-
ployed by the Respondent as a machine operator, testi-
fied that 3 or 4 days before the election Ralph Picazzo,
the day-shift leadman, approached him while he was
working at his roll forming machine and said, "You
know, the union is trying to get in," to which Yankee
responded that he knew about this but that no one had
discussed the Union with him or invited him to attend
any union meetings 46 Yankee stated that Picazzo said
that "he was wondering . . . what way I was going to
be voting." Yankee continued,
And he Just started telling me that it would be
better to vote for the union We would be getting
some benefits, but I wouldn't know until after we
46 Yankee related, "I just heard, you know—from what I understood,
the way everybody was acting a lot of people we re voting, yes, be-
cause they wanted a union That's the way I took it I work night
shift and night shift is small and when I was coming in they were leav-
ing So I didn't really get to sit down and I was left out of every-
thing more or less"
voted. He said, "We'll have a meeting after you
vote." . . . he went into detail on telling me, you
know, that he couldn't tell me the benefits now be-
cause they're not written out yet, but he says, you
know, after the vote, everything will be drawn
down and we'll have the meeting to let you know
what you're going to get.47
I told him it didn't sound too good to me the
way he was putting it across to me because of the
idea that, you know, he was going to give me a
promise, what they were going to give me after the
election . . . . I told Ralph that the way it sounded,
he was getting paid off, and he said yeah, he was. I
also said something about making the money for the
mortgage because I knew he had Just been turned
down for a mortgage 48
He goes, "well, if you tell anyone what I've told
you, I'll get you, I'll kill you. I'd kill you if you tell
anyone of what I've told you" . . . I go, "you
didn't mean that" And he said, "I'll get you I'll kill
you" And he Just walked away, split.49
Yankee added, "I don't think he was serious. I can't
recollect that he was, but when anyone throws a threat,
I assume that you know, I've got to tell someone about it
or, you know, report—" 5 ° According to Yankee, while
his helper Vincent Negron was present near the machine
when this occurred, and could not hear what was said
between him and Picazzo at the time, Negron did over-
hear him subsequently tell Patterson what Picazzo had
stated
Yankee testified that he decided to tell his leadman,
Pat Patterson, about Picazzo's threat to kill him and
what Picazzo had told him about the benefits and, after
doing so, asked Patterson not to tell anyone else about
this incident, "I asked Pat to be quiet about it and Pat
says, —Yeah, I will " Yankee related that he had asked
Patterson not to repeat what he had told him because, "I
know Ralph: He used to be my leadman. I don't know if
he would do anything, but people can get greedy some-
times . . Yeah, I didn't want to get no one hurt at
47 Yankee testified that Picazzo did mention that if the Union won the
election, the employees would only be assigned duties consistent with
their particular jobs, and receive certain benefits "medical and all that
he didn't go into heavy detail but he says it'll be benefits better than
what we have now at this time, but we got to pay for it, per month"
Yankee also remembered that he had asked Picazzo if there was going to
be a union meeting before the election was held and Picazzo said, "No"
48 Yankee testified that Picazzo had said, "Yeah in a funny way,
like, I don't know for sure, you know, what way he meant," whether
Picazzo was acknowledging being "paid off" as a fact or was questioning
Yankee's seriousness in asking such a question at all Yankee stated, "I
didn't know if he was serious about it, but I wasn't really concerned The
only thing I was really concerned about was the threat"
46 Yankee also testified on cross-examination that Picazzo "was going
on telling about the benefits and stuff and he goes, Oh, and if you tell
anyone what I said, I'll kill you ! And when he started saying that stuff,
that's when I came back and started bringing up stuff, are you getting
paid off for this? You're making promises, you say you're going to make
a promise after I write down my vote? You know, what is this ?" He re-
lated that Picazzo came back later that day and asked him for 25 cents,
"And he acted like nothing happened"
5 ° Yankee also testified that while he did not think that Picazzo's
threat was senously made, "I didn't want to think that," but Picazzo had
"acted like he was serious, somewhat"
1686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all." 51 Yankee added that later that evening, Patterson
approached him and said, "I had to tell Don [Moore]."
Yankee testified that the next day Moore came to his
home and advised him that Patterson had told him about
the incident between him and Picazzo, and Moore was
"disturbed by what had happened" and Moore asked him
to explain what had occurred. Yankee stated that after
he had done so, Moore asked him if "he would be will-
ing to sign a statement if it was all true, sign a statement
to back it up." Yankee related that he agreed to do so
and told Moore additionally that, "I didn't expect Pat to
tell anyone. I wanted to keep quiet because I didn't want
to have anyone get in trouble. I just wanted to keep my
job. I told [Moore] the only reason I brought it up to Pat
is because when the threat came up to me, I just felt that
I needed to tell someone." Yankee recounted that he
then "wrote it and signed it at the house" Yankee con-
tinued that the conversation he had had with Picazzo in-
fluenced his vote at the election because, although "[I]
was telling everyone I was going to vote no . . . I was
wondering, 'It might be better. Who knows?" but after
this conversation with Picazzo, "I knew 100 percent that
I wasn't going to do it." Yankee added that because he
was not being invited to union meetings, he felt that he
was not liked, and that was another reason for his voting
against the Union.52
Concerning this Larry Colvard testified that 2 or 3
days before the election Brent Yankee had told him that
Picazzo threatened him saying, "I'm going to kill you."
Colvard stated that he went directly to his brother Jerry
Colvard and told him, "Well, another one's been threat-
ened" Colvard added that, "Because already up to that
time, if I'm not mistaken, Brent's car window had been
smashed out, stuff like this. There was little things writ-
ten on the bathroom walls about us. All over. It was just
the atmosphere of the company." 53 Freeland also testi-
fied about this incident. Freeland stated that sometime
during the week before the election Brent Yankee had
told him,
. • . that Ralph had threatened him about saying
things to his supervisors, because word had gotten
out about the things that were being said, and Brent
was rather shaken up at the time. It was hard to
really get a clear story out of him. He said—he said
something about threatening violence, and there
was another person there who thought the same
thing, because it was one of those situations where
it is hard to believe what you are hearing. That is
what he referred to me 5 4
51 Yankee also testified that he asked Patterson "to keep it quiet be-
cause I didn't want to get in a hassle over it, you know, a fight or any-
thing you know, with the other guys, and get my car broken, my win-
dows broken, like I did have happen after I did—after Pat mentioned it I
ended up getting my windows broken and stuff"
52 Yankee testified that Pat Patterson, his leadman, while they were at
a bar together after work, recommended that he vote against the Union
52 Colvard testified that wntten on the bathroom walls was the phrase,
"Death to the Dog Brothers," an obvious reference to the Colvard broth-
ers
54 Freeland remembered that the other employee present was named
Vince
Freeland related that Yankee had told him that the
reason Picazzo "had talked to him" was because "some-
body had said something to one of the supervisors"
about Picazzo speaking to employees about the Union.
Picazzo recalled that he had had a conversation with
Brent Yankee 2 days prior to the election with regard to
union benefits, "Something of that nature, yes." 55 Pi-
cazzo testified:
I approached Brent Yankee. We were pretty
chummy. I asked him what was going on, how he
had been, and he said fine. Hadn't seen him in a
long time, because he works on the second shift,
and he then proceeded to take over the conversa-
tion, discussing the problems he had had with his
former girlfriend, or a future girlfriend," and some-
where along the line, he asked me how I had felt
about the way the situation was going with the
union, and I had told him, well apparently every-
thing looks all right. He then asked about benefits
could you tell me more or less what we tend
to gain?
Well, I then explained to him . . . as far as I
know, I couldn't really say, because I did not know
about any possible benefits. All I told him was that
if the election went either way, if it went for, that
there would be negotiations, but I made no prom-
ises whatsoever, and also he did, kidding around,
ask me if I was being paid by the union, and I told
him—my response was, are you kidding?
Anyway, he then asked me . • • are there going
to be any more meetings, and I says, as far as I
know, I don't think so. He says, well, there must be
at least one more meeting, you know, right before
the election I says, as far as I know, I don't know
of any
And then in my closing statement, I told him, be
careful who you talk to.
Picazzo stated that he had made this latter remark be-
cause there were rumors circulating among the employ-
ees that "heads will roll," certain people would be losing
their jobs, with a "general belief that apparently Don
Moore was going to get even." Picazzo added,
Okay, there were certain rumors as to an employ-
ee by the name of Jerry Colvard that they believed
that his stand opposing the union coming into the
plant, and that also that they felt also that Don
Moore was only using him until the election was
over, in which case there was a possible chance he
may be terminated . . . • there was rumors to a cer-
tain list of certain names of certain employees
which were pending termination . . [by] Mr.
Moore.
55 Picazzo testified that Vincent Negron, Yankee's helper, was also
present and that this conversation occurred at Yankee's machine
56 Yankee was unsure if during the conversation with Picazzo he had
discussed problems with his girlfriend
CHICAGO METALLIC CORP. 1687
While Picazzo admitted that he may have passed along
some of these rumors, he denied having started them.57
Picazzo denied that he had ever threatened to kill
Yankee, either seriously or jolungly, if Yankee told
anyone about what Picazzo had said to him. Picazzo also
testified that neither Moore, the Colvard brothers, Free-
land, nor Brent Yankee himself had ever accused Picazzo
to his face of threatening to kill Yankee.
Larry Colvard, employed by the Respondent as a
forklift driver until May 26, 1982, 58 testified that Picazzo
had, on occasion, discussed the Union with him and that
"as the election drew near [these discussions] would get
more and more frequent The last week was every day,
maybe once, twice." He stated that Picazzo would say,
"Good things about what the union's going to do for
him but what Chicago Metallic hasn't. That's the best
way to sum it up." 58 Colvard added that he felt threat-
ened by Picazzo,
Only for the fact that when he was talking to me
and if somebody more high powered than he would
come up, he would automatically clam up. There
would be no more And then it became to where he
said . . what would happen to my older brother,
which is a supervisor there He told me directly
that when the union was in, Jerry was gone . . .
which is my brother—and I figured that if he's got
enough power to get my brother out of there, he
got enough power to get me out of there. I'd only
been there two months 6°
Colvard continued that about "one or two, three
maybe" days after the election, while having a "blinking
red light" repaired on his forklift by the electrician, Pi-
cazzo came over and asked what they were doing and
then said,
57 Picazzo testified that "somewhere between September and October
1981," prior to the filing of the Union's petition he had seen a typed list
of employees' names in Ron Williams' office, showing "any days they
were absent and tardy, any discrepancies of that nature" Picazzo stated
that there was a yellow line drawn through some of these names and that
Williams told him that there were "marginal employees," who "were to
be watched" Picazzo added that Kreuger was also present when this oc-
curred
58 Colvard testified as a witness for the Respondent At the time of the
hearing Colvard was not working, having "been hurt on the job"
59 While Colvard initially testified that he had never told Picazzo that
he was for or against the Union, after being shown his sworn affidavit
given to a Board agent on December 1, 1981, in which he stated, "When-
ever Ralph talked to me, I told him I was opposed to the Union," Col-
yard now testified, "I probably told everybody I was opposed to it at one
time S'
60 While Colvard stated in his affidavit that "[Picazzo] did not directly
threaten me with any reprisals if I did not support the union and I did
not hear him threaten any other employees," Colvard maintained he felt
threatened by Picazzo "even if he never said a word he did enough
that I thought about it I was worried about my job my job
security was threatened" Colvard also stated in his affidavit that prior to
the election, Picazzo had told him, "If the Union wins [Jerry Colvard]
will be gone" He added that Ptcazzo "made it sound like the company
would, because they figure—he figured thal since Jerry was still a wage-
earner and not a salary man that they wouldn't put him on salary, and
the Union wouldn't want him to be—wouldn't let a company man stay in
their union, or something, for some way of that, so that that is why he
would get canned"
Yeah, it's going to be fun around here now. I'm
going to enjoy this a lot Heads are going to roll.
The guys who talk for the company are going to
get their heads busted
Colvard related that Charles Young, the electrician, was
present when Picazzo had made this statement and that
soon thereafter he told his brother Jerry Colvard, the
warehouse supervisor, about what Picazzo had said.
Picazzo testified that, after the election, he had a con-
versation with Larry Colvard, at which Chuck Young
was present and to the best of his recollection, although
he really did not recall what was said,
It was mainly along the same frame. These employ-
ees were asking me about certain allegations, or cer-
tain people that were passing on these rumors, and
they were asking how I felt about them, and I told
them . as to my knowledge that I did not know
. . as to how valid these rumors were 61
Picazzo denied that he had told Colvard that after the
election his brother, Jerry Colvard, would be gone, or
that if the Union won the election, Jerry Colvard would
be fired. However, he did admit telling Larry Colvard
and/or other employees "of a rumor" concerning Jerry
Colvard, as he previously testified.
Mark Freeland testified that he and Picazzo had
spoken together about the Union on a daily basis for 2 or
3 weeks before the election 62 He stated that Picazzo
talked about the benefits to employees if the Union won
the election such as, pay raises, medical and dental cov-
erage, and about the "downfalls" of union representation,
as such initiation fees and dues. Freeeland related that Pi-
cazzo had mentioned his brother Jerry Colvard in a con-
versation,
He said that if the union [was] to go through, that
there was a possibility that rather than making Jerry
a management position, considering he was the traf-
fic manager, that they would fire him, because they
wouldn't want to pay him the wages that he would
deserve, you know, holding the title, so that he
would probably be fired after the union came in.
Freeland added that Picazzo also told him,
That it would be wiser to go ahead and go with the
flow of the union, as not to buck it, because after—
he was very sure that it would go through, and that
after it did, if you was a no vote, that you would be
making waves, and everything, and it would be
rough for you.
61 Larry Colvard denied that prior to the election there had been any
rumor around the plant that a number of employees were going to be
fired He also denied asking Picazzo if his brother Jerry's name was on a
list of employees to be so discharged
62 Freeland testified that it was common knowledge among the em-
ployees that Jerry Colvard, Larry Colvard, and he were all against the
Union He added that dunng their conversations together, sometimes in-
cluding Larry Colvard as well, Picazzo would tell him not to relate any
of this to Moore, Williams, or Jerry Colvard, but Picazzo did not threat-
en reprisals if they did so
1688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Freeland testified that the day after the election he ap-
proached Picazzo and since the union had won the elec-
tion, asked Picazzo, in effect, what he could do to get on
the Union's good side, and Picazzo responded,
He said I was a fuck-up, and that I better watch my
ass, because I was on the wrong side of the fence,
and things could get rough, you know, as far as my
job went, because I was a no vote, and I just was
not for the union at all.
Freeland recounted that he repeated what Picazzo had
said to him in this conversation, to his "boss, who is
Jerry, my brother."
Picazzo testified that before the election, he had a con-
versation with Mark Freeland concerning Jerry Colvard
wherein Freeland "wanted to know if there was any-
thing valid to the rumors that were being passed around
as to the standing of his brother Jerry Colvard's working
position." Picazzo stated, "I told him as far as I know, it
is just a rumor, that I did not know if it was true or
not." Picazzo could recall nothing else that was said
during this conversation. Again, Picazzo denied that he
had told Freeland that, after the election, Jerry Colvard
would be gone. Picazzo continued that a day after the
election he had another conversation with Freeland as
follows,
Well, he seemed mighty disappointed as to the turn
of the way the election had gone, and he just
wanted to know what was to be expected, and I
told him as I told everyone else that now we just
have to wait and see, you know, what happens
afterwards. It is totally up . . . to the negotiations.
Picazzo added that he had never told Freeland that he
was a "fuck-up," nor ever threatened Freeland with the
loss of his job if he did not support the Union.
The Charging Party called two rebuttal witnesses,
Reuben Vasquez and Dale Scott. Vasquez, employed by
the Respondent as a machine operator, testified that he
was on "medical leave" the 3 or 4 weeks before the elec-
tion, and that during this period a number of union meet-
ings were held at his home. He stated that at these meet-
ings no employee complained that Picazzo was threaten-
ing or intimidating them concerning their support for or
against the Union.63
Scott, employed by the Respondent as a welder, testi-
fied that in the weeks prior to the election on November
5, 1981, there were rumors circulating around the plant
concerning Jerry Colvard and that, "There was a few
people taking bets on how long he was going to last
after [the election] was over with, was about it." Scott
stated that no employees during this period complained
to him that Picazzo was threatening or intimidating
them, nor had he heard any rumors to this effect, "Not
63 However, Picazzo was complaining on behalf of the Union Presum-
ably, the employees who attended the union meetings would either be for
the Union, leaning towards supporting the Union, or undecided as to
union representation, but presumably definitely not for the Employer and
against the Union Therefore the chances of their either being intimidated
by Picazzo if he were engaging in such conduct, or complaining about it
to the Union at these meetings, would be slight at best
around me." However, Scott related that he had heard
that "somebody went up the front office, said there was
threats going on, and it spread all over the shop," but he
did not hear Picazzo's name "tied in with the threats."
Scott added that he had also heard that the employees
threatened were Brent Yankee, Larry Colvard, and Mark
Freeland, but again, not as to the name of the person
making such threats.
The evidence also shows that the Respondent has a
no-solicitation rule in its employees' handbook. This rule
provides:
Past experience has shown that solicitations and col-
lections always get out of hand. For this reason,
collections, soliciting of any kind, the selling of tick-
ets or merchandise, or the circulations of petitions
on company property are forbidden during working
hours. Additionally, there will be no distribution of
literature in working areas during either working or
nonworking hours. Further, there will be no oral
solicitation during working hours in any plant area.
However, the rule itself is not posted in the plant.
B Analysis and Conclusions
1. The supervisory status of Ralph Picazzo
Section 2(11) of the Act provides:
The term "supervisor" means any individual
having authority, in the interest of the employer, to
hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employ-
ees, or responsibility to direct them, or to adjust
their grievances, or effectively to recommend such
action, if in connection with the foregoing the exer-
cise of such authority is not of a merely routine or
clerical nature, but requires the use of independent
Judgment.
Supervisors are excluded from coverage of the Act. 64 In
enacting Section 2(11), Congress emphasized its intention
that only truly supervisory personnel vested with "genu-
ine management prerogatives" should be considered su-
pervisors, and not "straw bosses, leadmen, set-up men
and other minor supervisory employees "65
The status of a supervisor under the Act is determined
by an individual's duties, not by his title or job classifica-
tion. 66 It is well settled that an employee cannot be
64 Sec 2(3) of the Act provides
The term "employee" shall include any employee but shall
not include any individual employed as a supervisor
Sec 14(a) of the Act provides
Nothing herein shall prohibit any individual employed as a super-
visor from becoming or remaining a member of a labor organization,
but no employer subject to the Act shall be compelled to deem indi-
viduals defined herein as supervisors as employees for the purpose of
any law, either national or local relating to collective bargaining
See Florida Power & Light Co v Electrical Workers IBEW Local 641, 417
U S 790 (1974), Beasley v Food Fair of North Carolina, 416 U S 653
(1974)
65 S Rep No 105, 80th Cong , 1 Sess 4 (1947)
66 New Fern Restorzum Ca, 175 NLRB 871 (1969), Food Store Employ-
ees Local 347 (G C Murphy Co) v NLRB, 422 F 2d 685 (D C Or 1969),
NLRB v Bardahl Oil Co, 399 F 2d 365 (8th Cir 1968)
CHICAGO METALLIC CORP. 1689
transformed into a supervisor merely by the vesting of a
title and theoretical power to perform one or more of
the enumerated functions in Section 2(11) of the Act.67
To qualify as a supervisor, it is not necessary that an in-
dividual possess all of these powers. Rather, possession
of any one of them is sufficient to confer supervisory
status." However, consistent with the statutory lan-
guage and legislative, intent, it is well recognized that
Section 2(11)'s disjunctive listing of supervisory indicia
does not alter the essential conjunctive requirement that
a supervisor must exercise independent judgment in per-
forming the enumerated functions." Indeed, as the court
stated in Beverly Enterprises v. NLRB, 661 F.2d 1095,
1098 (6th Cir. 1981):
. . . regardless of the specific kind of supervisory
authority at issue, its exercise must involve the use
of true independent judgment in the employer's in-
terest before such exercise of authority becomes
that of a supervisor.
Thus, the exercise of some supervisory authority in a
merely routine, clerical, perfunctory, or sporadic manner
does not elevate an employee into the supervisory ranks,
"the test must be the significance of his judgment and di-
rections." 70 Consequently, an employee does not become
a supervisor merely because he gives some instructions
or minor orders to other employees." Nor does an em-
ployee become a supervisor because he has greater skills
and job responsibilities or more duties than fellow em-
ployees. 72 Additionally, the existence of independent
judgment alone will not suffice for, "the decisive ques-
tion is whether [the employee has] been found to possess
authority to use independent judgment with respect to
the exercise . . . of some one or more of the specific au-
thorities listed in Section 2(11) of the Act." 73 In short,
"some kinship to management, some empathetic relation-
ship between employer and employee must exist before
the latter becomes a supervisor for the former." 74 More-
over, in connection with the authority to recommend ac-
tions, Section 2(11) of the Act requires that the recom-
mendations must be effective.
The burden of proving that an employee is a "supervi-
sor" within the meaning of the Act rests on the party al-
67 Advanced Mining Group, 260 NLRB 486 (1982); Magnolia Manor
Nursing Home, 260 NLRB 377 (1982), NLRB v. Southern Bleachery &
Print Works, 257 F.2d 235 (4th Cir. 1958), cert. denied 359 U.S. 911
(1959)
"NLRB v. Ajax Tool Works, 713 F.2d 1307 (7th Cir. 1983); NLRB v.
Bergen Transfer & Storage Co., 678 F 2d 679 (7th Cir. 1982); NLRB v. Joe
& Dodze's Tavern, 666 F.2d 383 (9th Cir. 1982).
69 NLRB v. Wilson-Crissman Cadillac, 659 F.2d 728 (6th Cir. 1981),
Poultry Enterprises v. NLRB, 216 F.2d 798 (5th Cir. 1954).
79 NLRB v. Wilson-Crissman Cadillac, supra; Hydro Conduit Corp., 254
NLRB 433 (1981); Federal Compress & Warehouse Co. v. NLRB, 398 F.2d
631 (6th Cir. 1968)
71 NLRB v. Wilson-Cnssman Cadillac, supra; NLRB v. Doctors' Hospi-
tal of Modesto, 489 F.2d 772 (9th Cir. 1973).
72 Federal Compress & Warehouse Co. v. NLRB, 398 F.2d 631 (6th Qr.
1968); NLRB v. Merchants Police, Inc., 313 F.2d 310 (7th Cir 1963).
73 Advanced Mining Group, 260 NLRB 486 (1982); NLRB v. Brown &
Sharpe Mfg. Co., 169 F.2d 331 (1st Cir. 1948).
74 Advanced Mining Group, supra; NLRB v. Security Guard Service, 384
F.2d 143 (5th Cir. 1967).
leging that such status exists. 75 In making determinations
regarding supervisory status, "the Board has a duty to
employees to be alert not to construe supervisory status
too broadly because the employee who is deemed a su-
pervisor is denied employee rights which the Act is in-
tended to protect."76
The Respondent asserts that Picazzo is a supervisor
within the meaning of Section 2(11) of the Act and is
thereby outside the Act's purview and protection. The
General Counsel maintains that Ralph Picazzo is not a
supervisor within the meaning of Section 2(11) of the
Act, adding,
Section 7 of the Act provides that "employees"
have certain protected rights and an employer com-
mits unfair labor practices under Section 8(a) of the
Act where it infringes upon those "employee"
rights. Although the Board had held that certain
employer conduct with respect to "supervisors"
constitutes a violation of Section 8,(a) of the Act,
Parker Robb Chevrolet, Inc., 262 NLRB 402, Coun-
sel for the General concedes that Respondent has
not engaged in such conduct with respect to Pi-
cazzo. Thus, Picazzo is only entitled to the protec-
tion of the Act if he is not a "supervisor" within the
meaning of the Act.
At the time of his discharge, Picazzo held the position
of assistant leadman and therefore the initial issue to be
resolved herein is whether, in the performance of his
duties, Picazzo was a statutory supervisor when termi-
nated.
At the outset it should be noted that, with regard to
the issue of Picazzo's supervisory status, I credit the tes-
timony of Picazzo over that of Moore. While it is true
that Picazzo's testimony did reflect instances of uncer-
tainty and evasiveness and was somewhat guarded at
times, Moore's testimony on occasion also exhibited
these same characteristics and, importantly, Picazzo's tes-
timony on this issue was supported somewhat by Steve
Kosiek and Mark Freeland, who testified as witnesses for
the General Counsel and the Respondent, respectively,
and whose testimony I believe. 77 Moreover, and signifi-
cantly as to this issue, Ron Williams and George
Kreuger, the witnesses best able to testify as to Picazzo's
actual duties and authority as assistant leadman in gener-
al, and the effectiveness of his recommendations in par-
ticular, were not called as witnesses to testify. From the
failure of the Respondent to offer Williams' and
Kreuger's testimony regarding Picazzo's duties and au-
79 RAHCO, Inc., 265 NLRB 235 (1982); Tucson Gas & Electric Co., 241
NLRB 181 (1979); Commercial Movers, 240 NLRB 288 (1979).
76 RAHCO, Inc., 265 NLRB 235 (1982); Westinghouse Electric Corp. v.
NLRB, 424 F.2d 1151 (7th Cir. 1979), cert. denied 400 U.S. 831 (1970).
77 Kosiek was still employed by the Respondent at the time he testified
herein and the Board has long held that testimony against the interests of
one's employer while still in its employ is entitled to added support. See
Shop-Rite Supermarket, 231 NLRB 500 (1977). Freeland, on the other
hand, was no longer employed by the Respondent when he testified
herein, having left the Respondent's employ over an argument with his
stepbrothers, employees Jerry and Larry Colvard. Testifying as a witness
for the Respondent, his testimony on the Issue of Picazzo's duties, in part
supportive of Picazzo's testimony, is more likely to be true.
1690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thority, I draw the inference that their testimony would
have been adverse or unfavorable to the Respondent's
case and its contentions herein 78
The Respondent in its brief asserts,
. . . it is clear that the assistant lead is a supervisor.
As conceived, the job requires decision-making in
various areas of supervisory concern, including
work assignments, discipline, scheduling and em-
ployee evaluations. In addition, the assistant lead is
relied upon by management to oversee quality con-
trol and safety. And while Picazzo may not have
consistently performed each of these duties, the
mere fact that he had authority to do so is sufficient
to establish his supervisory status. Hirsch Broadcast-
ing Co., 116 NLRB 1780, 1783 (1956).
I do not agree. And while the Respondent further asserts
that "From Picazzo's own testimony, it is clear that his
job description [R. Exh. 25] serves as a practical summa-
ry of his job," as will be discussed hereinafter, this does
not reflect nor consider various important and significant
differences between the job description and the actual
duties performed by Picazzo.79
Moreover, despite the written job description, the evi-
dence herein indicates that there was some confusion
concerning just what Picazzo's duties actually were to
be, as illustrated by Moore's own testimony that, after
initially meeting with Picazzo to explain the duties of the
position of assistant leadman, Picazzo had subsequently
come to him for "clarification" of such duties; and fur-
ther, that Moore had been required thereafter to hold a
meeting with Williams, Kreuger, and Picazzo, "to rede-
fine the direction so that there wasn't such a drastic
overlap" in the duties of Kreuger and Picazzo as lead-
man and assistant leadman, respectively. Picazzo testified
that he had never seen a copy of the job description in
evidence although he and Moore had discussed a "rough
draft" of his duties soon after he became the assistant
leadman, and he and Moore "went over roughly just
more or less what [Moore] wanted me to do as assistant
78 From the failure of a party to produce material witnesses or rele-
vant evidence obviously within its control without satisfactory explana-
tion, the trier of the facts may draw an inference that such testimony or
evidence would be unfavorable to that party See 7-Eleven Food Store,
257 NLRB 108 (1981), Publishers Printing Co. 233 NLRB 1070 (1977)
7 ° The Respondent's descnption of Picazzo's actual dunes is as fol-
lows
Picazzo worked the day-shift with responsibilities in the production
and maintenance areas He testified that his immediate supervisor
was plant superintendent Ron Williams, and that his duties were to
assist the production lead, George Kreuger, and "to head the mainte-
nance department" On any given day, Picazzo had 18 machine oper-
ators and helpers under him in the production department as well as
three maintenance employees (an electrician, a hydraulic pump re-
pairman, and a welder) and the Janitors He did not work side-by-
side on a daily basis with any of the production or maintenance em-
ployees Rather he gave them assistance, when necessary, which was
on the average of once or twice a week In the production depart-
ment, Picazzo supervised the maintenance of equipment, checked the
metal inventory and made weekly evaluations of employee perform-
ance He also assigned work to production employees based on a
schedule kept at the quality control desk Significantly, the employ-
ees would go to Picazzo whenever they had questions regarding
their work assignments, and he would organize overtime crews to
meet production needs
leadman under George Kreuger, which was mainly to
assist with George," maintain the operation of the ma-
chinery, and act as leadman in the maintenance depart-
ment.80
In the instant case, while the evidence shows that Pi-
cazzo had authority to assign and direct production em-
ployees and to evaluate them, including newly hired em-
ployees whom he also trained in the performance of their
jobs, had a role in the disciplinary process, and per-
formed certain other duties which might be construed as
supervisory in nature, on the record as a whole I am
convinced that Picazzo possessed no authority to act
other than in a routine manner and only as a conduit be-
tween employees and management, and that he was
therefore not a supervisor within the meaning of the Act.
Further, a preponderance of the evidence fails to show
that Picazzo exercised any independent judgment in per-
forming his duties as assistant leadman.
The record is clear that Picazzo had no authority to
hire, transfer, suspend, lay off, recall, promote, dis-
charge, or reward any employee, or to adjust employee
grievances. While Picazzo's rate of pay as assistant lead-
man was higher than the other production employees,
except for those employees with substantially greater se-
niority than himself, still he was paid on an hourly basis
like the other employees, received the same fringe bene-
fits as they did, "punched a time clock" as other employ-
ees did, ate lunch with the employees in the lunch area,
and had no office, desk, or telephone assigned for his
own exclusive use as did acknowledged Supervisors
Moore and Williams. 8 ' Moreover, George Kreuger, the
leadman, distributed employee paychecks and prepared
the weekly production work assignment schedules, and
Ron Williams, the plant superintendent, kept and main-
tained employee timecards and absentee records.
The Respondent in its brief also asserts,
According to the job description . . . the assistant
lead's primary function is "To supervise the produc-
tion operations of the assigned department in the
most effective and efficient manner." [Emphasis
added ] In accordance with this goal, the assistant
lead has the responsibility of recommending
"changes in work methods or procedure and cost
reduction possibilities" and can "plan and control
department operations."
However, there is no evidence in the record that Picazzo
ever recommended changes in work methods or proce-
dures and/or cost reduction possibilities, or that he in
any way had any input into the planning and controlling
of the production department's operations. Additionally,
there is no evidence in the record that the Respondent
looked to or sought such input from Picazzo about these
matters.
In this vein, Picazzo testified that while he regularly
attended management meetings during which plant pro-
duction and expansion problems were discussed, he was
The fact that additional meetings were required to clarify the duties
of assistant leadman would tend to support Picazzo's testimony
81 Judd Valve Co. 248 NLRB 112 (1980)
CHICAGO METALLIC CORP. 1691
never asked for his opinion or recommendations con-
cerning such problems nor asked to provide input into
these discussions. He stated that he "sat and listened . . .
all they do is say what to do, and I do it." 82 The Re-
spondent alleges in its brief:
Picazzo would have the Administrative Law Judge
believe that a leadman—who worked directly in the
quality control area, checked specifications daily,
insured the quality of the product and issued warn-
ings to those who failed to meet the standards—had
absolutely nothing to report on the success or fail-
ure of production methods and that he was never
asked for his opinion. Why would the Company
even bother to include Picazzo if nothing was ex-
pected of him in the first place?
However, Picazzo's testimony concerning this is not at
all unbelievable as the Respondent would imply. The
evidence suggests, and it is reasonable to assume, that
Moore and Williams, in conjunction with the Respond-
ent's main office, set production policy and planned and
controlled overall departmental operations. Since Picaz-
zo's duties were to assist Kreuger in implementing these
policies on the production level under the overall super-
vision of Moore and the immediate direction of Williams,
Picazzo would have to be aware of management deci-
sions, thus his attendance at these meetings, where prob-
lems arising therefrom were discussed, would be neces-
sary and helpful. Also, Picazzo's role as an informational
conduit between the employees and management, implic-
it in his duties as assistant leadman, would require his
presence at these meetings." Moreover, Picazzo report-
ed to Williams daily, and it is again reasonable to assume
that he would inform Williams of any problems arising in
the production area, so that Williams thus had the infor-
mation at hand during these meetings negating the need
to question Picazzo thereon. On the other hand, while
Picazzo may not have been asked for his opinions during
these meetings, there is no evidence that he was specifi-
cally precluded from participation in the decisions, it ap-
pearing that he just did not do so. Significantly, while
Moore testified herein, he did not specifically dispute Pi-
cazzo's above testimony, and as pointed out above, nei-
ther Williams nor Kreuger was called as a witness by the
Respondent to contradict Picazzo's testimony. From the
record evidence, it strongly appears that the responsibil-
ity and authority in this area was actually vested in Ron
Williams, the plant superintendent, in Donald Moore, the
82 I assume that the Respondent submits that Picazzo's attendance at
management meetings also indicates his supervisory status. As the admin-
istrative law judge in Ahrens Aircraft, 259 NLRB 839, 843 (1981), states,
Although under certain circumstances such attendance has identified
an employee as a company representative, I am aware of no case in
which such attendance, in the absence of other criteria, is sufficient
to cloak an individual with supervisory status. It should also be
noted that attendance at management meetings is not among the su-
pervisory functions identified in Section 2(11).
83 Picazzo's role in transmitting instructions from management and any
information from employees back to management, standing alone, does
not make him a supervisor for purposes of the Act. See Injected Rubber
Products Corp., 258 NLRB 687 (1981); American Feather Products Corp.,
248 NLRB 1102 (1980).
plant manager, and perhaps somewhat in George
Kreuger, the production leadman, and not with Picazzo.
The Respondent's brief continues,
The assistant lead also has responsibilities in the
area of work schedules. He can assign work and
adjust schedules, arrange changes in job assign-
ments, assist in the preparation of the vacation
schedule, and plan temporary personnel require-
ments when required by the production schedule
. . . . [Picazzo] also assigned work to production
employees based on a schedule kept at the quality
control desk. Significantly, the employees would go
to Picazzo whenever they had questions regarding
their work assignments, and he would tell them
what was required. In addition, he would organize
overtime crews to meet production needs.
However, the evidence herein shows that Kreuger, the
production leadman, prepared the weekly work schedule
which indicates "the type of bars and which machine is
going to run it, and also who was going to operate the
machine." Picazzo played no part in the preparation of
these work assignments. While Picazzo distributed the
actual work assignments to the employees each day, the
assignments were based on the work schedules prepared
by Kreuger and there is no evidence in the record that
Picazzo had any choice as to which employees were as-
signed to which machine. It would also appear from the
evidence that Picazzo had no authority to vary the infor-
mation on the work schedule in any way, and although
he had transferred employees from one work assignment
to another, this was done only on the instructions of Wil-
liams to do so."
All things considered, Picazzo's role in assigning em-
ployees to the roll forming machines is a routine one,
"more clerical than supervisory"" and does not require
the use of independent judgment and accordingly does
not confer supervisory status. In fact, the assigning of
employees to operate the machines requires little or no
skill or judgment since Picazzo simply followed the pro-
duction leadman's listing. Put in proper perspective,' Pi-
cazzo exercised very limited or no judgment at all in al-
84 I am not unmindful that Picazzo stated in his Board affidavit that
each morning he, Williams, and Kreuger would "get together and decide
what work had to be done and who was going to operate which ma-
chine." However, this is not necessarily inconsistent with his testimony at
the hearing that he assigned employees to the roll forming machines on
the basis of the work schedules prepared by Kreuger, only reassigning
them when Instructed to do so by Williams. There is no evidence in the
record that any input by Picazzo at these morning meetings regarding the
assignments was other than routine or perfunctory, or required the exer-
cise of independent judgment. The more likely circumstances occurring
at these meetings were that Williams decided what work had to be done
and he and Kreuger considered any changes in work assignments. Pi-
cazzo was then informed as to what work assignments he wasto distrib-
ute to the employees, with Picazzo's role being that of a conduit of mana-
gerial decision based on the work schedule and production needs, rather
than with Picazzo exercising any independent judgment on decision-
making as to the scheduling of the production employees. See Rich's Pre-
cision Foundry, 262 NLRB 678 (1982); Hydro Conduit Corp., 254 NLRB
433 (1981). Since Williams and Kreuger were not called as witnesses by
the Respondent, this omission lends support to the above.
85 Hydro Conduit Corp., supra; NLRB v. St. Francis Hospital, 601 F.2d
404 (9th Cir. 1979). Contrast: Liquid Transporters, 250 NLRB 1421 (1980).
1692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
locating the assigned jobs to employees and, as assistant
leadman, merely served as a conduit for management in-
structions. Thus, "The assignment of work was routine
in nature and did not depend on the exercise of inde-
pendent discretion, which is the hallmark of the supervi-
sor."86
Moreover, there is no showing that employees require
close supervision in performing the duties to which Pi-
cazzo assigned them. Since the products to be produced
are generally standardized and the employees assigned to
work classifications, the record fails to establish that any
directions given the employees by Picazzo required the
exercise of independent judgment. 87 Additionally, the
fact that the employees went to Picazzo "whenever they
had questions regarding their work assignments" does
nothing to change this. Picazzo was the person who dis-
tributed their work assignments, thus having full knowl-
edge of the work schedules, and was charged with main-
tenance responsibilities as to the proper functioning of
the machines Being also admittedly an experienced em-
ployee, with "above-average technical and mechanical
ability," the employees would naturally bring their ques-
tions to him and their doing so does not confer supervi-
sory status on Picazzo This appears to be merely a case
of employees seeking advice or instruction from a more
experienced and knowledgeable employee who is as-
signed additional duties, than that of employees seeking
managerial or supervisory direction that would elevate
such action to that commensurate with supervisory au-
thority. There is no evidence that he exercises in this ac-
tivity any of the powers listed in Section 2(11) of the
Act.
Implicit in the Respondent's assertion that Picazzo is a
supervisor is Picazzo's responsibility for seeing that the
work is completed properly and on schedule. However,
this responsibility is not, in and of itself, sufficient to
confer supervisory status. 88 There is no indication in the
record that Picazzo's resolution of any problem concern-
ing this responsibility requires the exercise of independ-
ent judgment characteristic of statutory supervisory
status." That is, there is no indication that his actions in
resolving such routine problems represent more than an
exercise of work judgment rather than that of delegated
authority." It would appear that if Picazzo encounters
any problems which he cannot resolve in a routine
manner, he is obliged to report this to Williams who
would resolve it. Even if Picazzo had the authority to
correct the work of employees, there is no evidence that
he could reprimand or othewise discipline them "to an
extent which might significantly affect the employees'
job status or work to his detriment." Thus, Picazzo exer-
86 Ahrens Aircrat, 259 NLRB 839 (1981), B-P Custom Building Prod-
ucts, 251 NLRB 1337 (1980) Also see Rich's Precision Foundry, supra, 262
NLRB 678 (1982)
87 John Cuneo of Oklahoma, 238 NLRB 1438, 1439 (1978), Medicine
Bow Coal Co. 217 NLRB 931 (1975)
88 Hydro Conduit Corp. supra, 254 NLRB 433 (1981), Leland Bros
Co. 243 NLRB 74 (1979)
89 Print-O-Stat, Inc. 247 NLRB 272 (1980)
9 ° Hydro Conduit Corp. supra, Dubin-Haskell Lining Corp v NLRB,
375 F 2d 568 (4th Or 1967)
cised little meaningful control over his coworkers' per-
formance 91
While it is Picazzo who requests employees to work
overtime whenever there is a need to do so, it is Wil-
liams who makes the determination as to whether over-
time is to be performed and which employees are not to
receive such overtime work. Furthermore, Picazzo does
not direct employees to accept overtime work. He
merely asks those employees who desire the additional
work to speak up and accepts their decisions as to the
assignments. There is no basis in the record for conclud-
ing that Picazzo exercises independent judgment in se-
lecting or in effectively recommending the selection of
employees who are to be assigned to perform such over-
time work. Additionally, Picazzo lacks the authority to
grant employees time off He has no discretion to grant
or reject employee requests to leave work early and
there is no evidence that he has ever done so. Accord-
ingly, his authority in this regard, if any, is not supervi-
sory.
Picazzo spends a good deal of his time inspecting the
work being performed by the other employees to ensure
that it is being done properly and to specification. Yet,
the work of an inspector, ensuring the quality of the
product being produced, is not one of the powers listed
in Section 2(11) of the Act. In fact, Congress made a
conscious decision to exclude such work from the defini-
tion of a statutory supervisor." Of course, if, in the per-
formance of his inspections, Picazzo had exercised any of
the supervisory powers of Section 2(11) of the Act—
such as being able to discharge, direct, reward, or disci-
pline employees, or effectively recommend such action—
then there would be a basis for concluding that he is a
supervisor. However, Picazzo does not exercise any of
these statutory powers. So far as the record discloses,
any direction that he may give in connection with in-
spection of work being performed by the employees "is
dictated solely and routinely by the specific demand of
each production job."" It has not been shown to be
other than ministerial." Moreover, there is no evidence
in the record that Picazzo "arranges changes in job as-
signments" independently, using any discretionary au-
thority, nor "assists in the preparation of the vacation
schedule."
The Respondent also maintains in its brief,
Regarding personnel, the assistant lead is required
to write employee evaluations . . . . More signifi-
cantly, the assistant lead "recommends wage in-
creases or promotions," as well as the "hiring of ad-
ditional employees" [Emphasis added ]
While it is true that Picazzo does write evaluations of
employees, he testified uncontradictedly that he makes
no recommendations therein as to promotion, transfer, or
salary raises. The evidence shows that Williams makes
91 Ahrens Aircraft, supra, 259 NLRB 839 (1981), Tucson Gas & Electric
Go, supra, 241 NLRB 181 (1979)
93 Hydro Conduit Corp. supra, Clayton Mark & Co. 76 NLRB 230
(1948)
93 Print-O-Stat, Inc. supra
94 Loffland Bros Go, supra
CHICAGO METALLIC CORP. 1693
all the recommendations as to these actions, with Moore
having the final say thereon. The evidence strongly
infers that Picazzo's evaluations of employees are but the
first step in an evaluation process for salary raises with
Williams and/or Moore making an independent determi-
nation as to whether employees should receive raises
and, perhaps where necessary, as to determinations of
promotion or transfer. There is no' evidence herein that
Picazzo's evaluations are followed and used as the basis
for such determinations. Nor does the evidence show
that Picazzo can effectively recommend any of the above
actions. At best, the evidence shows that Picazzo had
some input about these matters, but his evaluations are
only one aspect of the information considered, with the
final decisions in these areas being made independently
by Williams and/or Moore." What weight, if any,
would be given Picazzo's evaluations was obviously
completely within Williams' discretion, and since the
evaluation could be rejected by the Respondent without
explanation, these evaluations cannot be regarded as
having any decisive effect upon the employees involved.
So far as the record discloses, any information which Pi-
cazzo may provide in connection with these matters is
based on his working skill and experience, and is insuffi-
cient to confer supervisory status. Moreover, there is no
evidence in the record showing that Picazzo recom-
mends the hiring of additional employees.
The Respondent additionally asserts,
As to discipline, the assistant lead not only assures
that Company work rules are enforced, but he also
"initiates and recommends appropriate disciplinary
action when necessary."
However, while the evidence tends to show that Picazzo
can verbally admonish employees for lateness, absentee-
ism, violating safety rules, and perhaps for performing in-
correct or unsafe work, his responsibility for ensuring
that work is performed safely "does not reflect the kind
of discretion indicative of supervisory status." 98 More
importantly, absent some showing of impact on employ-
ees' job status, verbal reprimands do not constitute "dis-
cipline" within the meaning of Section 2(11) of the
Act. 97 Here, there is no evidence that Picazzo's admon-
ishments regarding unsafe or improper performance of
work have ever had any effect on employees' job status.
Therefore, such verbal warnings do not serve to establish
the existence of authority to discipline employees.
The evidence also shows that Picazzo issued written
warning notices and placed employees on suspension. He
testified that he took such action only upon instructions
to do so, generally by Williams but also by Moore or
Kreuger. According to Picazzo, after being told to disci-
pline an employee for a particular incident and with the
specific discipline to be imposed, Picazzo prepared an
"Employee Warning" form, signed it, submitted the form
95 Ahrens Aircrat, supra, Hydro Conduit Corp., supra; Medicine Bow
Coal Co., 217 NLRB 931 (1975), and cases cited therein.
96 Hydro Conduit Corp, supra; Commercial Movers, 240 NLRB 288
(1979).
97 Hydro Conduit Corp., supra; John Cuneo of Oklahoma, 238 NLRB
1438 (1978).
to Williams for approval and Williams' signature, then
delivered the form to the employee involved. After ex-
plaining its contents to the employee Picazzo would re-
quest the employee to sign the form. If the employee dis-
puted the warning notice Picazzo told the employee that
he could do nothing to change it and that the employee
would have to discuss the warning with either Williams
or Moore for any further consideration. Picazzo testified
that, on occasion, Williams would tell him that he would
sign the warning notice at a later date and that, in these
situations, Picazzo would issue the warning notice to the
employee without Williams' signature thereon. It should
be noted that the testimony of Steve Kosiek tended to
support Picazzo's assertions concerning the scope of his
authority to discipline employees in this connection but,
more importantly, Freeland, a witness for the Respond-
ent, totally supported Picazzo's testimony as to this.
Freeland testified that if he questioned or disputed a
written warning issued to him by Picazzo, he went to
Williams or Kreuger, or someone else "above" Picazzo
for any further action thereon. Freeland also testified
that he knew that Picazzo "more than likely" cleared the
language on the warning with Williams before showing
the warning to the employees, and that Picazzo did not
have the authority to change any wording on the warn-
ing notices without Williams' approval. I therefore be-
lieve Picazzo's rendition of the scope of. his authority in
this regard. Again, significantly, neither Williams nor
Kreuger testified at the hearing to dispute any of this,
enforcing my above findings.
On the basis of the foregoing, with respect to the dis-
cipline of employees, Picazzo merely acted as a conduit
for managerial decision, to convey the previously deter-
mined discipline to the employees. Picazzo's preparation
of the warning form, obtaining signatures on the form,
showing the form to the employee and distributing
copies of the form for filing, are merely ministerial tasks
which do not require nor thereby constitute the exercise
of independent judgment. 98 The fact that the employees
may perceive Picazzo as a supervisor when they receive
the warnings from him, and see his signature on the line
labeled "Signature of Supervisor," is not determinative
because the facts herein show that Picazzo is not exercis-
ing supervisory authority.99
The Respondent also argues that Picazzo is a supervi-
sor under the Act because he effectively recommends the
discharge of employees, citing an incident in which a
former production employee, Tom O'Shaughnessey, was
discharged allegedly because of Picazzo. However, the
evidence does not support this allegation. Briefly, since
the facts thereon have been set forth in full detail above,
Picazzo testified that Kreuger had informed him that
Moore wanted O'Shaughnessey "out" that day. When
Picazzo reported that O'Shaughnessey had just left his
machine unattended, Kreuger directed Picazzo "to get"
O'Shaughnessey for this and to terminate him. Picazzo
issued a warning notice to O'Shaughnessey who tore it
98 Injected Rubber Products Corp., 258 NLRB 687 (1981); Hydro Con-
duit Corp., 254 NLRB 433 (1981); Eastern Boiler & Electronics, 228
NLRB 568 (1977).
99 Commercial Movers, supra.
1694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
up in Picazzo's presence and demanded to speak to
Moore about this. Picazzo denied making any recom-
mendation with respect to O'Shaughnessey's termination
Moore, on the other hand, testified that Picazzo and
Kreuger had come to his office and reported, "It's Mr.
O'Shaughnessey again" Moore asked them what the
problem was and Picazzo responded that O'Shaughnes-
sey had left his machine unattended. Moore stated that
since O'Shaughnessey was close to being fired anyway
because of his unsatisfactory employment record, he told
Kreuger and Picazzo that he saw no reason not to fire
O'Shaughnessey if they felt O'Shaughnessey should be
terminated, and that this was the time to do so. Howev-
er, Moore could not recall who first used the word "ter-
mination" in this conversation.
While I credited Picazzo's testimony concerning this
incident, especially in view of Kreuger's failure to be
called as a witness to testify herein and for the other rea-
sons set forth above, even assuming arguendo that
Moore's version is credited, the record still fails to estab-
lish that Picazzo possessed and exercised the authority to
effectively recommend the discharge of employees The
evidence tends to show that Moore made the final deci-
sion to discharge O'Shaughnessey, as he admittedly does
with all terminations of employees, and not on the basis
of a recommendation of termination by Picazzo, but
more likely from Kreuger. Apparently Picazzo had
spoken to Kreuger about O'Shaughnessey after which
they both went to see Moore. Picazzo perceived that he
could not go directly to Moore or take any action him-
self under the circumstances. Thus it would be Kreuger
if anyone who recommended the discharge, and not Pi-
cazzo.
Finally, the Respondent asserts in its brief,
. . the assistant lead is also relied upon for super-
vision of safety in the plant. He is given the respon-
sibility of assuring that the work area is properly
maintained and that mechanical safety guards and
equipment are functioning properly . . . . Further,
he "initiates corrective action when necessary."
[Emphasis added ]
Picazzo testified that he was assigned by Moore to the
safety committee, but was never told specifically what
his duties were, only to "sit in." At the safety meetings
employees made suggestions about safety to Bob Gangel,
who "headed" the committee, and who determined
which safety repairs should be made. The Respondent
offered no evidence to refute this 10 ° Further, the record
is devoid of any evidence that Picazzo ever initiated any
safety corrective measures or actions as assistant leadman
or safety committee member.
From all of the above, it is evident that Picazzo, as as-
sistant leadman, acted only in a routine manner and as a
conduit between employees and management. He does
not hire, transfer, suspend, lay off, recall, promote, dis-
charge, reward, or adjust grievances, and does not effec-
tively recommend such action. And while he may
"assign," "discipline," or "direct" employees, this re-
1 " Gangel did not testify at the hearing
quires no use of independent judgment on Picazzo's part,
being merely of a routine or clerical nature. Based on the
record as a whole, I find that a preponderance of the
credible evidence does not establish that Ralph Picazzo
was a supervisor within the meaning of Section 2(11) of
the Act, when he was discharged by the Respondent.'"
In view of the finding above, Picazzo is entitled to the
protection of the Act and the rights guaranteed employ-
ees thereunder '02
01 Although the parties' election stipulation provided for the Inclusion
of "leadpersons" and Inferentially "assistant leadperson," and although
Picazzo's name was contained in the Excelsior list given by the Respond-
ent to a Board agent prior to the election, the Board and the courts have
both held that such actions are not dispositive on the issue of supervisory
status, that an employee's supervisory status must be determined upon a
review of his duties and authority See Teamsters Local 692 (Absco Dis-
tributing), 209 NLRB 1144 (1974), Great Western Broadcasting Corp, 139
NLRB 93 (1962), Montgomery Ward & Co, 115 NLRB 645 (1956), enfd
242 F 2d 497 (2d Cm 1957), Valentine Sugars, 102 NLRB 313 (1953) Fi-
nally, in A & B Cartage, Inc , 256 NLRB 14 (1981), the Board ruled that
the parties' election stipulation was not dispositive on the issue of super-
visory status, even where the employees in question were named in a
Norris-Thermador list agreed to by the parties
However, the question of the Respondent's good-faith approach to the
Board's elective process must suffer some skepticism when the record
discloses that, despite the above, the Respondent now asserts that all
leadmen and Picazzo as an assistant leadman were supervisors within the
meaning of the Act These employees, George Kreuger, production lead-
man, Picazzo, production assistant leadman and maintenance leadman,
Pat Patterson, production leadman, night shift, Jerry Colvard, shipping
leadman, and Robert Gangel, toolroom leadman, included as a class of
employees in the stipulated unit and in the Excelsior list, voted unchal-
lenged by the Respondent at the election except for Picazzo, with the
Union accepting the Respondent's implied assertion by its actions at the
representation stage of these proceedings that they were not supervisors
under the Act Moreover, the silence of the Respondent's representatives
when asked by the Board's agent as to the supervisory status of Picazzo
and Jerry Colvard when they were selected by the Union as its election
observers reinforces this skepticism and doubt
1 " Ahrens Aircraft, Inc. 259 NLRB 839 (1981), Injected Rubber Prod-
ucts Corp, supra, Hydro Conduit Corp, supra, Savoy Brass Mfg Co, 241
NLRB 51 (1979), Maremont Corp, 239 NLRB 240 (1978), Eastern Boiler
& Electronics, 228 NLRB 568 (1977) Also see RAHCO, Inc. 265 NLRB
235 (1982) I have reviewed the cases cited by the Respondent in its brief
to support Its allegation that Picazzo was a supervisor within the meaning
of the Act, and find each to be distinguishable from the instant case For
example, in Earle M Jorgensen Ca, 240 NLRB 1296 (1979), "working
foremen," found to be supervisors, not only oversee the work of other
employees and daily assign them to their jobs, but have also transferred
employees from "one bay to another," investigate job accidents, and
make appropriate recommendations to management, handle grievances,
and apparently have some discretion with regard to disciplining employ-
ees and assigning overtime work Clearly Picazzo's duties as "assistant
leadman," while in part similar to that of the "working foremen," differs
substantially and pertinently
In Earle Industries, 146 NLRB 536 (1964), the employees held to be
supervisors and "whose duties were virtually identical to Picazzo's" as
asserted by the Respondent, also changed employee work assignments,
"with employer acquiescence" held himself out as having authority "to
discipline and responsibly direct employees work, recommended reten-
tion of an emloyee successfully, and in other ways recommended and af-
fected employee working conditions such as salary increases, time off,
and discharge"
In Simpson Electric Co , 250 NLRB 309 (1980), the compared employee
effectively recommended actions to be taken based on her evaluations of
employees' work, in contrast to Picazzo's duties as to evaluating the em-
ployees and the use made by the Responent of these evaluations The
other cases cited by the Respondent are in the same vein and are also
clearly distinguishable when carefully read and considered
CHICAGO METALLIC CORP 1695
3. Acts of interference, restraint, and coercion
Section 8(a)(1) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in
the exercise of the rights guaranteed in Section 7 of the
Act
The complaint alleges that the Respondent threatened
Picazzo with discharge if he continued to campaign on
behalf of the Union in violation of Section 8(a)(1) of the
Act The Respondent denies this allegation.
The evidence reveals that Picazzo first learned about
the Union's organizing campaign at the Respondent's fa-
cility from other employees after the representation peti-
tion had been filed. Prior to the election, Picazzo attend-
ed union meetings and' signed an authorization card for
the Union. Picazzo also engaged in discussions with
other employees in which he campaigned for the Union.
Although the Respondent campaigned against the
Union, 1 ° 3 it was unaware that Picazzo was campaigning
for the Union among its employees until about 10 days
before the scheduled election when, according tb Moore,
he was informed by Jerry Colvard and Steven Kosiek
that Picazzo was the one "pushing" for the Union, was
"the source of the problem," and was "campaigning for
the union on company 'time.',104
Thereafter, on October 29, 1981, Moore approached
Picazzo in the plant and engaged him in a conversation
with no one else being present at the time.-Picazzo testi-
fied that Moore told him that "if I continued to cam-
paign for the union, that he would have me fired, And if
I did not lbelieve that, just to continue and he would see
me in court" He stated that, later that same day, Moore
again approached him and said that "he really didn't
mean it quite that way But that if, in fact, I was cam-
paigning for the union, that he could have me fired." .P1-'
cazzoi maintained that these constituted the only occa-
sions when Moore had discussed with him his campaign-
ing for the Union. Picazzo continued that Moore had
never said anything . to' him about his "campaigning on
company time." He added that Moore did not explain
why he could not campaign for the Union, nor why he
could be fired if he did so.
Moore, on the other hand, testified that approximately
a week before the election,'" he warned Picazzo that,
"apparently from the indications I had heard he was
campaigning for the union on company time, and told
him that I would appreciate it if he would desist or
refuse' to do that, and he could be subject to dismissal if
103 The Respondent admits having campaigned against the Union prior
to the election Moreover. Picazzo testified uncontradictedly that Moore
passed around "anti-union propaganda" in the plant However, the distri-
bution of antiunion material by an employer is not unlawful in itself
absent some form of coercion or pressure upon an employee to receive
the material McDonald's, 214 NLRB 879 (1974), Farah Mfg Go, 204
NLRB 173 (1973)
104 While Kosiek denied that he had ever gone with Jerry Colvard to
complain to Moore about Picazzo's union activities, he did testify that he
had been in Moore's office when a Janitor, Karl Bernsten, had mentioned
to Moore that Picazzo was campaigning on behalf of the Union among
the employees
105 Since the election was held on November 5, 1981, Moore's recol-
lection that the first conversation occurred about a week before the elec-
tion substantially agrees with that of Picazzo
he contintied." 106 According to Moore, his second con-
versation with Picazzo occurred 3 or 4 days before' the
election and not later that same day, October 29, 1981, as
alleged by Picazzo Moore related that he told Picazzo
that he understood that Picazzo was "still campaigning
for the Anion on company time," and requested that Pi-
cazzo "discontinue that activity." Moore stated that he
"indicated that [Picazzo] would be subject to termina-
tion, and that I didn't feel it was right what he was
doing." Moore added that he used a more heated tone in
this later conversation than he had in the first because he
felt "betrayed" and "was annoyed because he was con-
tinuing to campaign for the union on company time."
Moore also admitted that he had not explained to Pi-
cazzo why he thought Picazzo's actions were not
"right."
While it is extremely difficult to decide whose testimo-
ny is to be credited since there were no other parties
present during these conversations and, in connection
therewith, only superficial circumstances and factors on
which to base a finding, yet, as will become clear herein-
after, it really makes no difference either way concerning
the resolution of this particular issue.
Generally, an employer engages in conduct violative
of Section 8(a)(1) of the Act by requiring that employees
refrain from engaging in union activities or by threaten-
ing employees with discharge if they did not cease their
union activities. Correlative to this is the governing prin-
ciple that a rule is presumptively invalid if it prohibits
solicitation on the employee's own time 107 "Working
time is for work" is a long-accepted maxim of labor rela-
tions.'" The Board, in its recent decision in Our Way,
Inc., 268 NLRB 394 (1983), signaled a return to the rules
enunciated in Essex International, 211 NLRB 749 (1974),
concerning employee solicitation on company premises
In Essex International, "the Board made clear that rules
using `working hours' are presumptively invalid because
that term connotes periods from the beginning to the end
of workshifts, periods that include the employees' own
time. The Board also held, in contrast, that rules 'using
'working time' are presumptively valid because that term
connotes periods when employees are performing actual
job duties, periods which do not include the employees'
own time such as lunch and break periods." 09 In Flori-
da Steel Corp., 215 NLRB 97 (1974), the Board found
that a rule using the term "company time" was unduly
ambiguous and restrictive and presumptively invalid,
comparing it to the rule prohibiting solicitation "during
working hours," appearing in Essex International.110
These presuinptions, which concern the facial validity
or invalidity of no-solicitation rules, can be rebutted by
appropriate evidence For example, an employer could
be shown to have unlawfully modified and applied a fa-
106 Moore could not recall the specific words he used in this conversa-
tion, but that what he testified to herein constituted the gist of what he
had said to Picazzo
107 Republic Aviation Corp v NLRB, 324 U S 793 (1945)
108 Peyton Packing Go, 49 NLRB 828 (1943)
109 Our Way, Inc , 268 NLRB at 394-395
110 Also see Intersystems Design Corp, 267 NLRB 1310 (1983), Ohio
Masonic Home, 205 NLRB 357 (1973), KDI Precision Products, 185 NLRB
335 (1970)
1696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cially valid rule, or an employer could show that he
communicated or applied an invalid "working hours"
rule in such a way as to convey an intent clearly to
permit solicitation during breaktime or other periods
when employees are not actively at work ill Additional-
ly, the presumptions can be rebutted by an employer's
showing that a no-solicitation rule "was justified by a
need to maintain discipline or production in its plant"
Additionally, the presumptions can be rebutted by an
employer's showing that a no-solicitation rule "was justi-
fied by a need to maintain discipline or production in its
plant." 112
Applying the above standards to the facts present in
the instant case, I conclude that the Respondent violated
Section 8(a)(1) of the Act whether Moore threatened to
discharge Picazzo if he failed to discontinue campaigning
for the Union or, alternately, whether he warned Picazzo
that he would be terminated if he continued to campaign
for the Union on "company time" In either case,
Moore's statements constitute overly broad prohibitions
on Picazzo's union activity. The Respondent offered no
evidence to show that Moore or anyone else explained to
Picazzo that he was permitted to campaign during non-
working periods without being subject to disciplinary
action. Nor did the Respondent offer evidence to show
that its no-solicitation prohibition was justified by a need
to maintain discipline or production at the plant Accord-
ingly, I find that the Respondent interfered with, re-
strained, and coerced Picazzo in the exercise of the
rights guaranteed in Section 7 of the Act and has thereby
violated Section 8(a)(1)." 3
4. The discharge of Ralph Picazzo
Section 8(a)(3) of the Act prohibits an employer from
discriminating against his employees in regard to hire,
tenure, and other terms and conditions of employment
for the purpose of encouraging or discouraging member-
ship in a labor organization
The complaint herein alleges that the Respondent dis-
charged Ralph Picazzo and failed and refused to rein-
state him to his former position of employment because
he joined or assisted the Union or engaged in other pro-
tected concerted activities for the purposes of collective
bargaining or other mutual aid or protection, in violation
of Section 8(a)(3) and (1) of the Act. The Respondent
denies these allegations and contends that Picazzo was
discharged for cause.
Direct evidence of a purpose to discriminate is rarely
obtained, especially as employers acquire some sophisti-
cation about the rights of their employees under the Act,
" i Our Way, Inc , supra at fn 6
112 Photo Drive-Up, 267 NLRB 329 (1983), Ace Machine Co, 249
NLRB 623 (1980), Plastic Film Products Corp, 238 NLRB 135 (1978)
113 The record also discloses that the Respondent maintains a no-solic-
itation rule in its employee handbook which forbids "solicitations of any
kind on company property during working hours" Under the
holding in Our Way, Inc , such a rule is presumptively invalid However,
inasmuch as the General Counsel does not allege a violation of Sec
8(a)(1) of the Act in connection therewith, nor does the record show
that, despite the failure to allege such a violation in the complaint, this
Issue was fully considered and explored at the hearing, with evidence of-
fered thereon, I will make no finding concerning this See Conair Corp,
721 F 2d 1355 (DC Cu- 1983)
but such purposes may be established by circumstantial
evidence.1 14 Under the law, if discrimination against an
employee is motivated by union considerations, it consti-
tutes a violation of the Act. Direct evidence of discrimi-
natory motivation is not necessary to support a finding
of unlawful discrimination and such intent may be in-
ferred from the record as a whole 116
Ralph Picazzo was discharged by the Respondent on
November 10, 1981. Picazzo's version of his conversation
with Moore occurring at the time of his termination dif-
fered from that given by Moore While Williams was
also present during this conversation, he was not called
as a witness to testify herein.
According to Picazzo, Moore advised him that he was
being terminated because the Respondent "could not
condone intimidating or threatening employees." Picazzo
stated that Moore refused to disclose the names of the
employees whom he had allegedly intimidated or threat-
ened, the nature of the threats made or the intimidation,
nor when these incidents had allegedly occurred, al-
though Picazzo requested such information. Picazzo re-
lated that Moore neither asked him anything about any
purported conversation with other employees nor gave
Picazzo an opportunity to explain any of the circum-
stances of the allegations made during this conversation
Picazzo added that he had no idea at the time what
Moore was referring to when he said that Picazzo had
threatened and intimidated employees.
Moore testified that he told Picazzo that he was being
discharged, "Inasmuch as you have continued to push
for the Union on Company time and threatened and co-
erced employees." Moore stated that Picazzo said, "I
have been expecting it." Moore added that if Picazzo
had engaged in union activity only, without having also
threatened and coerced employees, the Respondent
would not have discharged him.
The General Counsel asserts in his brief that, "regard-
less of which version of Picazzo's discharge is credited,
the termination was unlawful." I do not agree." 6 With
114 Jefferson National Bank, 240 NLRB 1057 (1979), Come Corp v
NLRB, 375 F 2d 149 (4th Cir 1967), Shattuck Denn Muting Corp v
NLRB, 362 F 2d 466 (9th Cif 1966)
1 " Photo Drive Up, 267 NLRB 329 (1983), Heath International, Inc ,
196 NLRB 318 (1972), Texas Aluminum Co v NLRB, 435 F 2d 917 (5th
Cif 1970)
iii However, I do agree, assuming arguendo, that if Picazzo was dis-
charged by the Respondent because he campaigned for the Union on
company time, his termination would be unlawful As found above, the
Respondent's no-solicitation rule was invalid as being overly broad I also
found that Moore's threats that Picazzo would be discharged if he did
not discontinue campaigning for the Union on company time were un-
lawful and violative of the Act Therefore, it must be presumed that the
Respondent's employees were free to behave as though no rule existed
And it is well settled that, absent any rule, talking about a union during
working time is protected activity unless shown to be otherwise See
Gulf Envelope Co, 256 NLRB 320 (1981), Panchzto's, 228 NLRB 136
(1977), enfd 581 F 2d 204, 207 fn 3 (9th Or 1978), Catalyst, 230 NLRB
355 (1977), enfd 581 F 2d 215 (9th Or 1978) The Board has long held
that a discharge for a violation of an unlawful rule is itself unlawful See
Switchcraft, Inc , 241 NLRB 985 (1979), enfd 631 F 2d 734 (7th Cir
1980), Kern's Bakeries, 227 NLRB 1329 (1977), J L Hudson Co, 198
NLRB 172 (1972), Stoddard-Quirk Mfg Co, 138 NLRB 615 (1962)
CHICAGO METALLIC CORP 1697
regard to this conversation, I credit Picazzo's account of
what was said therein. The failure of the Respondent to
call Williams as a witness, although he was present
during this conversation and presumably could either
corroborate Moore's testimony or contradict Picazzo's,
must be construed to weigh heavily against the Respond-
ent 117 Additionally, Moore admitted having made vari-
ous statements during the conversation, as alleged by Pi-
cazzo in his testimony, which tends to support Picazzo's
version thereof.'" Moreover, Moore's testimony that
Picazzo would not have been terminated but for his
having threatened and coerced employees implies that
Picazzo's campaigning for the Union on company time
allegedly played little part in the Respondent's determi-
nation to discharge him. Why then would Moore have
any reason to assert to Picazzo that this was part of the
cause of his discharge?' 19
The Respondent's actual alleged reason for discharg-
ing Picazzo is that he threatened and intimidated or co-
erced employees. It is evident that the Respondent con-
tends that Picazzo engaged in such conduct while solicit-
ing other employees to support the Union. In NLRB v.
Burnup & Sims, Inc., 379 U.S 21, 23 (1964), the Supreme
Court of the United States held,
Over and again the Board has ruled that Section
8(a)(2) is violated if an employee is discharged for
misconduct arising out of a protected activity, de-
spite the employer's good faith, when it is shown
that the misconduct never occurred. . In sum,
Section 8(a)(1) is violated if it is shown that the dis-
charged employee was at the time engaged in a pro-
tected activity, that the employer knew it was such,
that the basis of the discharge was an alleged act of
misconduct in the course of that activity, and that
the employee was not, in fact, guilty of that miscon-
duct.
Moreover, if it is shown that the Respondent discharged
Picazzo in such circumstances with an antiunion motiva-
tion, then the Respondent has also violated Section
8(a)(3) of the Act. 12 ° The fact that the Respondent may
have had a good-faith belief that Picazzo had engaged in
misconduct in connection with his union activities does
not constitute a defense to the violation, if, in truth, Pi-
cazzo had not engaged in such misconduct 121 However,
ii? See fn 78 herein
" 9 Moore admitted that he had told Picazzo that the Respondent
would not contest his unemployment insurance claim and that he would
provide Picazzo with a letter of recommendation if requested, although,
in fact, the Respondent did subsequently oppose Picazzo's claim for un-
employment insurance benefits
However, as will be more fully discussed hereinafter, I believe
that, in fact, Picazzo's union activity was a motivating factor in his being
discharged by the Respondent, along with the Respondent's belief that he
was guilty of misconduct while so engaged in these activities As for
now, note Moore's testimony that he "failed to see the difference" be-
tween Picazzo's campaigning for the Union on company time and his
having allegedly threatened and coerced employees, "since the basis of
the threats related to a [union] campaign
' 2 ° Elk Brand Mfg Co. 253 NLRB 1038 11981)
121 Giant Food, Inc , 252 NLRB 1308 (1980)
the burden of going forward with evidence to prove that
Picazzo did not, in fact, engage in the misconduct al-
leged is on the General Counse1.122
The record evidence shows that the Respondent,
through Moore, had knowledge that Picazzo was en-
gaged in protected activity, that of soliciting other em-
ployees to support the Union Moore acknowledged that
he had been advised by other employees that Picazzo
was engaging in union activity at the plant Additionally,
Moore accused Picazzo of campaigning for the Union on
company time and of engaging in misconduct by threat-
ening and coercing employees in the course of such ac-
tivity. Moreover, there is sufficient evidence in the
record to support a finding that the Respondent has a
"good-faith belief' that Picazzo had engaged in this mis-
conduct during his union activity. After Moore learned
that Picazzo had allegedly threatened employees Larry
Colvard, Mark Freeland, and Brent Yankee, he investi-
gated the incidents by questioning the employees who
had registered the complaints against Picazzo, and by
interviewing the threatened employees themselves, to
confirm what had been reported Moore also discussed
the incidents with the Respondent's attorney and in one
instance, with the Respondent's "general manager in Chi-
cago," before concluding that the complaints against Pi-
cazzo were valid and that Picazzo should be terminated.
I therefore find that the Respondent "honestly believed"
that Picazzo had threatened employees while soliciting
their support for the Union, an activity which, without
the alleged threats, would otherwise have been protect-
ed."3
I am aware that Moore did not afford Picazzo an op-
portunity to present his version of the incidents al-
leged.'" Nor would Moore disclose to Picazzo the
names of either the employees who had reported the in-
cidents or the names of the employees who had allegedly
been threatened, or the nature of the alleged threats, or
when they occurred." 3 However, Moore explained that
he had refused to divulge this information to Picazzo be-
cause he feared for the safety of the employees involved.
I believe Moore as to this, despite my having credited
Picazzo's testimony over Moore's as to what was said
during their conversation." 6 The very nature of the
threats allegedly made against employees, at least in part,
involved the threat of physical harm; 127 and there is evi-
dence in the record that soon after Yankee disclosed Pi-
cazzo's threat against him, the windows of his automo-
bile were shattered. Additionally, the Respondent posted
a security guard at the plant during Yankee's work shift.
i22 Burnup & Sims, supra at 23 fn 3
' 23 Classe Ribbon Co, 227 NLRB 406 (1976)
124 Contrast the facts in Elk Brand Mfg Co, supra, and the instant
case
129 Contrast the facts in PPG Industries, 251 NLRB 1146 (1980), and
the instant case
1 " As Judge Learned Hand stated in NLRB v Universal Camera
Corp, 179 F 2d 749, 754 (2d Cir 1950), "It is no reason for refusing to
accept everything that a witness says, because you do not believe all of
it, nothing is more common in all kinds of judicial decisions than to be-
lieve some and not all"
127 Picazzo had threatened to "kill" Yankee, and had told Larry Col-
yard that the antiunion employees would have their "heads busted"
1698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The above supports the reasonability of Moore's explana-
tion.128
In view of the above, the remaining factor to be exam-
ined under the Burnup & Sims guidelines is whether, in
fact, Picazzo was guilty of the alleged misconduct. The
misconduct, asserted by the Respondent as the cause of
Picazzo's discharge, involved threats allegedly made by
Picazzo against employees Brent Yankee, Mark Free-
land, and Larry CoIvard. Picazzo denied, "as far as he
knew," having threatened any employee
Briefly, since the conversation between Picazzo and
Yankee has been set forth fully above, Yankee testified
that about 3 or 4 days before the Board's election, Pi-
cazzo told him that if the Union won the election, the
employees would receive "some benefits . . medical
and all that," and that it would therefore "be better to
vote for the union." According to Yankee, at the end of
the conversation Picazzo warned him that "if you tell
anyone what I've told you, I'll get you, I'll kill you"
Yankee related that while he did not think that Picazzo's
threat was made seriously, Picazzo had "acted like he
was serious somewhat." Yankee added that he reported
the conversation to his supervisor, Pat Patterson, re-
questing that Patterson not tell anyone else about it be-
cause he did not want anyone to get "hurt" or "in trou-
ble." 129 Moore testified that, after he was apprised of Pi-
cazzo's threat to Yankee, he spoke to Yankee about this
the following day, and Yankee told him that he was
"afraid to come to work" that day As a result of this
incident the Respondent posted a security guard on Yan-
kee's work shift.
Larry Colvard and Mark Freeland both testified that
Yankee had told them, sometime during the week before
the election, that Picazzo had threatened him saying,
"I'm going to kill you." Colvard related that he told this
to his brother, Jerry Colvard, because he had also been
threatened by Picazzo and "Because already up to that
time, if I'm not mistaken, Brent's car window had been
smashed out, stuff like this. There was little things writ-
ten on the bathroom walls about us. All over. It was just
the atmosphere of the company." Freeland testified that
Yankee said that Picazzo had threatened him "about
saying things to his supervisors, because word had gotten
out about the things that were being said, and Brent was
rather shaken up at the time . . . he said something
about threatening violence." Freeland added that Yankee
had also told him that Picazzo had made the threat be-
cause someOne had reported to a supervisor that Picazzo
was campaigning for the Union at the plant.
Picazzo recalled having a conversation with Brent
Yankee "two days" before the election. While his ac-
count of what was said both differs and is similar in part
to Yankee's version thereof, most relevant is Picazzo's
"8 See NLRB v. Charles Batchelder Co, 646 F 2d 33, 40 (2d Cir
1981) It should also be noted that the General Counsel, in his bnef, does
not dispute the Respondent's "good-faith belief' that Picazzo had en-
gaged in misconduct while campaigning for the Union
129 In this vein, Yankee testified, "I know Ralph [Picazzo] He used to
be my leadman I don't know if he would do anything, but people can
get greedy sometimes I didn't want to get in a hassle over it, you
know, a fight or anything, you know, with the other guys and get my car
broken, my windows broken, like I did have happen after I did—after
Pat mentioned it I ended up getting my windows broken and stuff"
denial that he threatened to kill Yankee if Yankee told
anyone about what was said during their conversation.
Picazzo testified, "And then in my closing statement, I
told him, be careful who you talk to." Picazzo stated
that he made this latter remark to Yankee because there
were rumors circulating through the plant that "heads
will roll," that certain employees would be losing their
jobs, a "general belief that apparently Don Moore was
going to get even."138
The General Counsel in his brief submits that it is
more reasonable to believe Picazzo's testimony with
regard to this conversation than Yankee's. I do not agree
and therefore credit Yankee's account of what Picazzo
said concerning the "threat." The evidence herein fails to
disclose any reason or rational basis for supposing that
Yankee would report to his supervisor that Picazzo had
threatened to kill him, then tell fellow employees Larry
Colvard and Mark Freeland the same thing, if such a
threat had not, in fact, been actually made. Additionally,
between the testimony of Yankee and Picazzo concern-
ing the language used by Picazzo to caution Yankee
against telling others about the contents of their conver-
sation, their versions thereof are so different as to pre-
clude the chance of Yankee misconstruing or mishearing
the words so that, what Picazzo might have said was
phrased differently and in a nonthreatening manner.
Moreover, I was impressed with the demeanor and forth-
rightness of Mark Freeland as a witness, and this, in ad-
dition to the other reasons given for crediting his testi-
mony on another issue discussed herein, leads me to
credit his testimony in full, which supports Yankee's ver-
sion of the threatening language used by Picazzo rather
than Picazzo's 131 It should also be noted that employee
Dale Scott, called as a witness for the Charging Party,
testified that the employees at the plant had heard that
Brent Yankee and other employees had been threatened
On consideration of the record as a whole, and the testi-
mony of Yankee, Freeland, Colvard, Moore, and Scott
as opposed to that of Picazzo, I find that Picazzo did
threaten Brent Yankee as alleged herein.
Regarding the alleged threats made by Picazzo against
Mark Freeland, Freeland testified that prior to the elec-
tion Picazzo told him that it would be "wiser" for Free-
land to support the Union since the Union was sure to
win the election and "if Freeland was a no vote, that
[he] would be making waves and everything, and it
would be rough for [him]." Freeland continued that Pi-
cazzo had also told him that if the Union came in, the
' 30 This is unbelievable Why would Moore have reason to "get even"
with Yankee, who was against the Union anyway, since there is no evi-
dence in the record even suggesting that Moore believed that Yankee
would change his mind in opposing the Union
' 31 See fn 126 herein The General Counsel points up the following to
support his submission that Picazzo's testimony should be believed that
Picazzo did not also threaten Colvard and Freeland with physical harm
when he told them not to repeat the contents of their conversations to
Moore, Williams, or Jerry Colvard, that neither Moore and the Colvards,
nor Freeland ever accused Picazzo to his face of threatening to kill
Yankee although they knew about the threat, and that Picazzo took no
action against any individual whom he knew to be opposed to the Union
even though he had the opportunity to do so For obvious reasons, none
of the above is persuasive in supporting the General Counsel's submission
as to credibility
CHICAGO METALLIC CORP 1699
Respondent would discharge Freeland's half-brother,
Jerry Colvard, "rather than making Jerry a management
position . because they wouldn't want to pay him the
wages that he would deserve." Freeland added that,
soon after the election and the Union's victory therein,
he approached Picazzo and asked if there were anything
he could do to get in the Union's good graces and Pi-
cazzo told him that he was a "fuck-up," and had better
watch himself because he was "on the wrong side of the
fence, and things could get rough, you know, as far as
my job went, because I was a no vote, and I just was not
for the union at all." 3 2
Picazzo testified that before the election, during a con-
versation with Freeland, Freeland asked him if the
rumors concerning Jerry Colvard were valid as to Col-
yard's "standing" and "working position" with the Re-
spondent. Picazzo stated that he responded, "[A]s far as I
know, it is just a rumor, that I did not know if it was
true or not." Picazzo could not recall anything else that
was said during this conversation. However, Picazzo
denied that he had threatened Fieeland or that he had
told Freeland that after the election Colvard would be
gone. Picazzo continued that one day after the election
Freeland asked him what he could "expect" in view of
the Union's victory in the election and Picazzo an-
swered, "[That now we just have to wait and see, you
know, what happens afterward. It is totally up to
the negotiations." Picazzo denied having called Freeland
a "fuck-up," or having threatened Freeland with the loss
of his job if he did not support the Union.
For the reasons previously advanced herein with
regard to the credibility of Mark Freeland, and further
because Freeland testified in a clear and unequivocal
manner throughout his testimony, I credit his account of
what was said over that given by Picazzo.133
The General Counsel asserts in his brief that "it is
more reasonable to regard Picazzo's statements to Free-
land about watching himself as warnings made in an
effort to protect Freeland rather than as threats to
coerce him to support the Union" I do not agree. While
it is true, as pointed to by the General Counsel, that
prior to the election Picazzo had, on several occasions,
warned Freeland to watch himself because additional
warnings concerning his absenteeism and his failure to
comply with company safety rules would result in his
termination, yet, according to Picazzo's own testimony,
most of these warnings were generated by the Respond-
ent's management and/or supervisors, with Picazzo func-
tioning merely as the conduit between management and
Freeland. Moreover, it is apparent that these warnings
were not given to Freeland in order to protect him in his
132 The evidence indicates that It was common knowledge at the plant
that Mark Freeland, as well as Jerry Colvard and Larry Colvard, was
opposed to the Union However, Larry Colvard did testify that Freeland
at times wavered as to his opposition to union representation
"3 It should also be noted that Freeland's testimony was consistent
with Moore's account of what Freeland had told him when Moore "in-
vestigated" the threats alleged to have been made by Picazzo against
Freeland Moreover, employee Dale Scott, called as a witness for the
Charging Party, testified that prior to the election he had heard around
the plant that someone had threatened Brent Yankee, Mark Freeland, and
Larry Colvard, although Picazzo's name had not been "tied in with the
threats"
job, but to serve as warning notice that if he did not
maintain proper performance in his employment habits,
he would be discharged. In considering Picazzo's admo-
nition to Freeland, to the effect that he would be "wise"
to support the Union because it was sure to win the elec-
tion, and if he voted against the Union things could get
"rough" for him, it is obvious that this warning clearly
constituted a threat to vote for the Union or else, and
Freeland perceived it to be so. In no way can Picazzo's
statements be interpreted, under the circumstances
present in this case, as having been made to protect
Freeland rather than to coerce him into supporting the
Union.' 3 4
In further support of the above is the evidence show-
ing that, soon after the Union had won the election,
Freeland approached Picazzo and asked what he could
do to get on the Union's good side. If Freeland had not
taken Picazzo's warning seriously, why would he do
this? The only reasonable explanation is that in view of
Picazzo's threat that a "no-vote" would lead to Freeland
experiencing problems as to his job, even including re-
tention thereof, Freeland sought to circumvent this by
perhaps ingratiating himself with the Union through Pi-
cazzo's suggestions or advice, to mend his fences so to
speak. Moreover, Picazzo's response to Freeland illumi-
nates the intent of his previous warning to Freeland. Pi-
cazzo told Freeland in no uncertain terms that he was
vulnerable as to discharge, and would thereafter have to
be careful, "because I was on the wrong side of the
fence and things could get rough . . as far as my job
went, because I was a no vote, and I just was not for the
Union at all."' 3 5
Additionally, the General Counsel in his brief asserts
that Picazzo's statements to Freeland regarding Jerry
Colvard "were couched in speculative terms and did not
constitute threats." However, these statements must be
considered in the light of what was occurring at the
time Picazzo's statement that Colvard would "be gone"
when the Union came in because the Respondent would
not want to place him in a "management position" makes
sense only in the context of Colvard's notorious antiun-
ion position. Since rumor had it that the Respondent
134 Picazzo was perhaps the Union's strongest adherent among the Re-
spondent's employees at the plant while Freeland, along with his half
brothers in the warehouse, Jerry and Larry Colvard, was known to
oppose the Union Additionally, there is no evidence in the record that
Picazzo and Freeland were fast friends giving Picazzo some reason to
protect Freeland
"2 The fact that Picazzo refrained from issuing written warning no-
tices to Freeland or other employees during the period immediately prior
to the election or thereafter does not detract from the intimidating or co-
ercive nature of Picazzo's threats nor support the General Counsel's con-
tention that Picazzo did not engage in such conduct Various reasons for
Pi(azzo's failure to do so come to mind, 1 e, Picazzo might have felt that
his threats to Freeland were sufficient to change his mind about voting
against the Union and if Freeland's discharge were effectuated by the Re-
spondent before the election, what good were the threats Moreover, ac-
cording to Picazzo, wntten warnings were usually initiated by Williams
or perhaps Kreuger so that Picazzo's opportunity to issue a "write-up" to
Freeland after the election and before his discharge did not present itself
Be that as It may, I am not persuaded that Picazzo's failure to take such
action either supports Picazzo's version of what he said or his alleged
lack of intent to intimidate and coerce Freeland The courts and the
Board have often realized the effectiveness of threats as coercive and in-
timidating without the actual accomplishment of the threatened action
1700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not promote Colvard to a managerial position,
and therefore he would be let go, Picazzo's statements
strongly suggest that the Respondent would be com-
pelled to discharge Colvard under union pressure since
the Union would oppose his membership in its ranks be-
cause of his antiunion stance and he therefore could not
presumably remain as an employee under the collective-
bargaining agreement's union-security clause to be nego-
tiated thereafter Moreover, it is highly unlikely that the
Respondent would discharge an employee who was
known to be opposed to union representation and in sup-
port of its own position regarding the Union unless
somehow compelled to do so.1 36 The reasonable infer-
ence to be drawn from all of Picazzo's statements to
Freeland was that after the Union won the election,
those employees, including Freeland, who had failed to
support the Union would be punished, including "rough"
working conditions and possible loss of jobs, and that
Jerry Colvard, known as antiunion, would be terminated
no matter what. The threat and the menace inherent in
Picazzo's statements become patently clear under the cir-
cumstances present in this case.
With regard to Picazzo's alleged threats to Larry Col-
yard, Colvard testified that, prior to the election, he and
Picazzo had discussed the Union occasionally but, "as
the election drew near," these discussions became more
frequent According to Colvard, Picazzo told him that
when the Union won the election, his brother Jerry Col-
yard "would be gone."'" While Colvard maintained
that Picazzo had not actually threatened him with any
reprisals if he failed to support the Union, nor had he
heard Picazzo threaten any other employees, he still felt
threatened by Picazzo, "[E]ven if he never said a word
. . he did enough that I thought about it . . I was
worried about my job . . . My job security was threat-
ened." Colvard related, "I figured that if he has got
enough power to get my brother out of there, he's got
enough power to get me of out there. I'd only been there
two months." Colvard continued that a few days after
the Union won the election, Picazzo told him that, "I'm
going to enjoy this a lot. Heads are going to roll. The
guys who talk for the company are going to get their
heads busted." 38 Colvard added that he then related to
136 Whatever the legality of this under court and Board law, It should
be remembered that the Respondent's employees are laymen and cannot
be presumed to have knowledge and familiarity with the nuances of labor
law Moreover, Picazzo's position with the Union, as perceived by the
employees, was one of strength and influence thereby enforcing any in-
ferences Picazzo might raise in his statements which could conceivably
be construed by them to be of an intimidating and coercive nature, espe-
cially threats intimating that their jobs were in jeopardy if they failed to
support the Union
137 In his affidavit given to a Board agent, Colvard stated that Picazzo
"made it sound like" the Respondent would be compelled to discharge
his brother Jerry because he was a "wage-earner" like the other employ-
ees and would be subject to the provision of any collective-bargaining
agreement executed between the Respondent and the Union, and since
the Union would not allow Jerry Colvard into its membership because of
his opposition to the Union, and the Respondent would not promote Col-
yard to a managerial position for its own reasons, Colvard would be dis-
charged pursuant to the provisions of such an agreement
138 Colvard testified that another employee, Charles Young, was
present when this conversation took place Neither the Respondent nor
the General Counsel called Young as a witness
his brother Jerry what Picazzo had said to him Moore
testified that after he had been informed about Picazzo's
threats to Larry Colvard, he spoke to Colvard who said
that "[Picazzo] has got me all shook up," and that he ap-
peared to be "afraid of losing [his] job."
Picazzo denied having told Colvard that, after the
Union won the election, his brother Jerry would be
fired. However, Picazzo did admit telling Colvard
and/or other employees about a "rumor" to the effect
that the Respondent for its own reasons, not arising out
of the Union's organizational campaign and ultimate suc-
cess therein, would discharge Jerry Colvard after the
election. Picazzo testified that, after the election, he had
a conversation with Larry Colvard and, although he
could not recall exactly what was said, he recollected
that Colvard and another employee, Young, asked him
about rumors circulating at the plant that some employ-
ees were scheduled by the Respondent for discharge, in-
cluding Jerry Colvard.' 39 Additionally, while Picazzo
admitted that he passed along to the other employees the
rumors that "heads will roll" and that "people will lose
their jobs," which he also maintained was common
knowledge among the plant employees, he denied ever
having threatened any employee with physical harm or
loss of employment if he failed to support the Union.
The General Counsel asserts that Colvard's testimony
is unworthy of belief because it evidenced an inconsisten-
cy with his "pre-trial affidavit," and because Colvard
was evasive while testifying on cross-examination as to
whether or not Picazzo had threatened him personally.
While it is true Colvard did testify that he never told Pi-
cazzo, during their conversations, whether he was for or
against the Union, and in his affidavit he states that he
did so, Colvard seemed genuinely confused about this
since he testified soon thereafter, "I probably told every-
body I was opposed to it at one time." This appears to
be the only inconsistency therein and the evidence herein
shows that it was common knowledge at the plant that
Jerry and Larry Colvard and Mark Freeland were op-
posed to the Union.
As to Colvard's alleged evasiveness on cross-examina-
tion, it should be remembered that he testified that, while
Picazzo had not personally threatened him directly, he
still felt threatened because of Picazzo's statements con-
cerning his brother Jerry's future employment with the
Respondent, and about Picazzo's general statement con-
cerning the discharge of those employees who had failed
to support the Union It appeared to me that what is al-
leged as "evasiveness" was actually Colvard's attempt to
make his position known while attempting to answer the
133 Larry Colvard denied that there was any rumor at the plant prior
to the election that a number of employees were going to be discharged
He also denied asking Picazzo if his brother Jerry's name was on any list
of employees to be fired While the Charging Party called two witnesses
who were employed at the time relevant thereto, Ruben Vasquez and
Scott, neither confirmed the rumor about an alleged employee discharge
list, although Scott did testify that, prior to the election, employees were
betting on how long Jerry Colvard would retain his employment with
the Respondent after the election was held It should be noted that this
latter testimony by Scott could readily be perceived to imply that Jerry
Colvard would be discharged when the Union won the election for the
reason that he was antiunion as asserted by Larry Colvard in his affidavit
and implied in Mark Freeland's testimony as stated above
CHICAGO METALLIC CORP 1701
questions posed in a truthful and complete manner. It is
not uncommon, and I have observed this in other cases,
wherein a witness who is unsophisticated in thought and
expression, and with little or no experience in testifying
under oath at a trial, will have difficulty in the context of
answering questions properly because of a feeling that he
is not being afforded the opportunity to fully tell his
story. I believe that this is what created a problem in
Colvard's mind as to how to answer the questions asked,
and translated into what the General Counsel perceived
to be evasiveness on his part.
Be that as it may, I credit Colvard's testimony over
that of Picazzo's for the reason that it was supported by
other credible evidence in the record, including the testi-
mony of other witnesses,"° and because it appears that
Picazzo has a greater stake in the outcome of these pro-
ceedings than does Colvard, and because although the
testimony of Yankee, Freeland, CoIvard and Moore
could have been contrived as to Picazzo's alleged threats
to employees, and that of Picazzo truthful, yet "if there
was fabrication, it would seem more probable that it was
the one, rather than the four, who was lying. "141
From all of the above, I find and conclude that Ralph
Picazzo did threaten employees as set forth above there-
by engaging in misconduct in the course of his union ac-
tivities
As indicated above, under Burnup & Sims, supra, an
employer who discharges an employee engaged in a pro-
tected activity known to the employer as such, the basis
of the discharge being an alleged act of misconduct in
the course of the activity, violates Section 8(a)(1) of the
Act, where the employee, in fact, was not guilty of such
misconduct This is true even where the employer has
acted in good faith. 142 The Supreme Court in NLRB v.
Burnup & Sims, 379 U.S. 21, 22 (1964), stated further,
We find it unnecessary to reach the questions
raised under Section 8(a)(3) for we are of the view
that in the context of this record Section 8(a)(1) was
plainly violated, whatever the employer's motive.2
2 The Court of Appeals, however, rejected without discus-
sion this suggestion of the existence of anti-union bias In its
petition for writ of certiorari the Board expressly stated that "The
propriety of this action [by the Court of Appeals] is not questioned
here" In light of this concession it is unnecessary for us to deter-
mine whether the Board's alternative finding of a discriminatory
motivation is supported by substantial evidence
Therefore, where the discharged employee had not, in
fact, engaged in the alleged misconduct during his pro-
tected activities the discharge is violative of the Act.'"
But where the employee has engaged in the misconduct
alleged, the discharge is not unlawful where the basis of
the discharge is, in fact, an "alleged act of miscon-
i " For example, Scott's testimony that he had heard at the plant that
Larry Colvard was one of those employees who had been threatened
during the Union's organizational campaign
141 Classe Ribbon Co, 227 NLRB 406 (1976), Fled Stark, 213 NLRB
209 (1974)
' 42 Burnup & Sims, supra, Rubin Brot Footwear Inc , 99 NLRB 610
(1952)
143 Burn up & Sons, supra
duct." 144 Moreover, where the discharged employee has
not engaged in the alleged misconduct and it is found
that the real reason for the discharge was his/her union
activity, the alleged misconduct being seized upon by the
employer as a pretext for discharge, such discharge con-
stitutes a violation of Section 8(a)(3) of the Act 145
The Respondent herein asserts that it discharged
Ralph Picazzo because he engaged in acts of misconduct
during his union activities. Although the General Coun-
sel has failed to meet the burden of demonstrating that
the misconduct alleged did not in fact occur, the evi-
dence herein establishing that it did, the record evidence
also clearly shows that the Respondent had another
reason for discharging Picazzo, that of his union activity.
In connection therewith and immediately coming to
mind is Moore's admission that Picazzo was discharged
not only for his misconduct while engaged in union ac-
tivity, but also for such activity which he believed was
also unlawful, and Moore's unlawful threats to Picazzo
to discontinue his "campaigning [pushing] for the Union
on company time."
The Board, in Wright Line, 251 NLRB 1083 (1980),
enunciated,
[W]e shall henceforth employ the following causa-
tion test in all cases alleging violation of Section
8(a)(3) or violation of Section 8(a)(1) turning on em-
ployer motivation. First, we shall require that the
General Counsel make a prima facie showing suffi-
cient to support the inference that protected con-
duct was a "motivating factor" in the employer's
decision Once this is established, the burden will
shift to the employer to demonstrate that the same
action would have taken place even in the absence
of the protected conduct.
The Supreme Court of the United States in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983),
approved the Board's Wright Line allocation of proof
An appraisal of the entire record convinces me that
the General Counsel made a prima facie showing that
Ralph Picazzo's union activity was a motivating factor in
the Respondent's decision to discharge him. The record
evidence establishes that Picazzo actively supported the
Union by campaigning on its behalf, that the Respondent
was aware of his union activities and was unhappy about
it,i46 and that the Respondent actively opposed the
Union, its union animus evidenced by both lawful 147 and
unlawful actions. 148 Moreover, the Respondent, through
Moore, in effect admitted that Picazzo was discharged in
part because of his union activities "on company
244 Classe Ribbon Co, supra, Rubin Bros Footwear, Inc. supra
242 Elk Brand Mfg Co, 253 NLRB 1038 (1981)
146 Moore testified that he was surprised when he learned of Picazzo's
activities on behalf of the Union, "since the company had been kind of
nice to him" Additionally, Moore unlawfully threatened to discharge Pi-
cazzo if he continued to campaign for the Union on company time
142 The evidence shows that the Respondent openly campaigned
against the Union
248 As found above, the Respondent engaged in unlawful conduct in
violation of Sec 8(a)(1) of the Act in connection with the Union's orga-
nizing campaign
1702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time." 149 From all of the foregoing, I find and conclude
that the General Counsel made a prima facie showing
that Ralph Picazzo's union activity was a motivating
factor in the Respondent's decision to discharge him
This having been established and in accordance with the
causation test enunciated by the Board in Wright Line,
the burden of proof shifts to the Respondent to demon-
strate that the same action would have taken place
against Picazzo even in the absence of his union activity.
The Respondent asserts that Picazzo was discharged
because he threatened and intimidated employees. That
Picazzo did threaten employees and, as will be more
fully discussed hereinafter, did intimidate them is obvious
from the record in this case, and I so found hereinbefore.
I have also concluded from the record evidence that the
Respondent was motivated in discharging Picazzo by
considerations of his union activity. Thus it must be de-
termined whether the Respondent would have dis-
charged Picazzo because he threatened and intimidated
employees had he not been engaged in campaigning for
the Union as well.
As stated in Twilight Haven, Inc., 235 NLRB 1337,
1342 (1978),
. . . both the Board and the courts have granted
considerable latitude to employees for argument and
counterargument in preelection situations, recogniz-
ing the "strong emotions" generated by union activ-
ity. Thus, failure to exercise "finesse and gentility"
in campaigning for or against representation will
not serve to divest employees of their statutory pro-
tection. Cement Transport, Inc., 200 NLRB 841,
845-846 (1972), enfd. 490 F.2d 1024 (C.A. 6, 1974);
see also 1V.L.R.B. v. Efco Manufacturing, Inc , 227
NLRB F.2d 675 (C.A. 1, 1955). "Meaningful pro-
tection in this situation must require that relatively
minor incidents or misconduct, such as name-calling
or somewhat ambiguous or veiled threats, do not
remove the Act's protection from the perpetrator,
or suffice to legitimize his discharge." Corriveau &
Routhier Cement Block, Inc., 171 NLRB 787, 788
(1968), enforcement denied . . . 410 F.2d 347 (C.A.
1, 1969).
However, unambiguous threats of violence' 50 and state-
ments that job loss would result from an employee's fail-
ure to support a union 151 fall outside the sphere of pro-
tected conduct.
In the instant case the evidence shows that Picazzo
threatened Brent Yankee, Mark Freeland, and Larry
Colvard and that these threats, under the circumstances
existing when made, reasonably tended to coerce and in-
timidate these employees in the exercise of the rights
149 While I discredited Moore's testimony that he told Picazzo that he
was being discharged in part because he had continued to campaign for
the Union on company time, I believe his admission that in fact this was
a consideration in the decision to terminate Picazzo
150 Florida Steel Corp v NLRB, 529 F 2d 1225 (5th Or 1976), also see
Kern's Bakeries, 227 NLRB 1329 (1977)
151 Classe Ribbon Ca, supra, 227 NLRB 406 (1976), Continental Woven
Label Co , 160 NLRB 1430 (1966)
protected under the Act.' 52 These were no minor inci-
dents of misconduct, such as name-calling or somewhat
ambiguous or veiled threats. The threats by Picazzo
against Freeland were unequivocal and Freeland per-
ceived them to be so as above stated And while Picaz-
zo's threats against Larry Colvard were not framed in
language directly threatening him, the threats carried the
clear implication that he would suffer the same fate as
his brother Jerry Colvard, the loss of his job, if he failed
to support the Union. It should be noted that Picazzo
was an intelligent, able employee, more so than other
employees involved, and as evidenced additionally by his
being advanced to assistant leadman by the Respondent
It should also be noted that all the threats, except for the
one against Brent Yankee and the general threat that
"heads will roll" directed against the antiunion employ-
ees, were made to or concerned the warehouse employ-
ees, it being common knowledge at the plant that they
all opposed the Union. Both Freeland and Larry Colvard
testified that they were worried about retaining their job
because of Picazzo's threats. Moore testified that they
had expressed their fears to him on this subject when he
questioned them about Picazzo's threats
Moreover, Picazzo's threat to "kill" Yankee if he told
anyone about Picazzo campaigning for the Union was
not one to be taken lightly either, and so Yankee per-
ceived it. While it is apparent that even Yankee did not
believe that Picazzo would kill him for disclosing their
conversation, it is equally clear that Yankee did feel that
Picazzo was not above causing him some kind of physi-
cal harm or damage to his personal property. Also, while
it is true that, in the context of a union organizing cam-
paign, it is not unusual for a tense atmosphere to be
present, with questioned loyalties and even some animos-
ity between management and the employees, and be-
tween employees against fellow employees, the evidence
herein shows that this is an instance where such atmos-
phere was highly charged and volatile. Threats were
made by Picazzo against at least three or four employees
of a serious nature Yankee suffered damage to his car
after it was learned that he had disclosed Picazzo's
threats against him. And written on the bathroom walls
at the Respondent's plant were threats against the "dog
brothers," a name commonly attributed to Jerry and
Larry Colvard, so that the threats were only thinly
veiled as against whom they were directed. Moreover,
the Respondent after being apprised of the threat to
Yankee felt that its seriousness merited the provision of a
security guard on Yankee's work shift.
From all of the above I find that Picazzo's misconduct
in threatening employees was of a sufficient nature to
justify his discharge as a reasonable exercise of manage-
ment's prerogatives in conducting its business and I con-
clude that the Respondent would have discharged Pi-
cazzo for this misconduct even if he had not engaged in
152 See Clear Pine Mouldings, 268 NLRB 1044 (1984) While that case
Involves the question of misconduct by strikers in the context of whether
reinstatement can be denied therefor, the test enunciated therein may
well be applicable to threats made in the context of representation elec-
tion campaigns Also see Newport News Shipbuilding Co v NLRB, 738
F 2d 1404 (4th Or 1984)
CHICAGO METALLIC CORP 1703
union activity.' 5 3 Of some significance in supporting this
conclusion is the fact that Picazzo was not summarily
discharged when the Respondent first learned of his mis-
conduct in threatening and inti midating employees. At
least three instances of threats involving Picazzo and
Yankee, and Freeland and Colvard occurred prior to the
election but the Respondent did not take any action
against Picazzo, despite the fact that it already knew
about his union activities and in fact resented his actions
on behalf of the Union. It was only after Picazzo contin-
ued on his course of threatening employees, occurring
after the Union had won the election, that the Respond-
ent finally discharged him.
Accordingly, I find that the Respondent has sustained
its burden of demonstrating that the same action it took
against Picazzo, that of discharging him, would have
taken place even in the absence of any protected conduct
on his part, the threats being outside the scope of the
protection of the Act in any context. Moreover, from all
of the above, I conclude that the Respondent did not
violate Section 8(a)(3) and (1) of the Ad by discharging
Ralph Picazzo. I shall therefore recommend that the
8(a)(3) and (1) allegations of the complaint relative to Pi-
cazzo's discharge be dismissed.' 5 4
IV. THE OBJECTIONS TO THE ELECTION
As set forth above, a secret-ballot election was con-
ducted by the Board on November 15, 1981, among the
Respondent's employees in an appropriate unit. The offi-
cial tally of ballots showed that 19 votes were cast in
favor of the Union, 10 votes against the Union, and 1
ballot was challenged." 5 On November 12, 1981, the
Respondent filed timely objections to the election. By
Order dated February 8, 1982, the Board overruled the
Respondent's Objections 1, 2, 4, 6, and 10 as recommend-
ed by the Regional Director for Region 21 in his Report
on Objections. Regarding Objections 3, 5, 7, 8, and 9, the
Regional Director found that these objections relate to
threats and other coercive conduct allegedly engaged in
153 See NLRB v Charles Batchelder Co, 646 F 2d 33, 40 (2d Cir
1981) The court of appeals stated therein,
Before an undisputed threat of violence to an employee can be writ-
ten off as pretextual with the consequent impact of depriving the em-
ployer of his right of management, more evidence than is before us
now must be presented
Additionally, the General Counsel argues that "a significant factor in de-
termining that alleged threats are a pretext to justify an otherwise dis-
criminatory discharge, is the failure of management to confront the ac-
cused with the facts and to afford him an opportunity to explain or deny
the accusations," citing Elk Brand Mfg. C'o , 253 NLRB 1038 (1981), and
other cases The General Counsel continues, "Moreover the inference to
be drawn is also supported in the present case by the fact that, although
Respondent raised the argument that Picazzo had intimidated other em-
ployees as a defense in Picazzo's unemployment compensation hearing,
Respondent also did not identify in that proceeding whom Picazzo sup-
posedly threatened," citing PPG Industrial, 251 NLRB 1146 (1980) While
I have already discussed this previously, I further lind that the circum-
stances present in the above cited cases differ significantly from the in-
stant case, i e, in the PPG Industries case, the employer offered conflict-
ing reasons for the discharge Also see NLRB v Charles Batchelder Co,
supra at 40
154 See Classe Ribbon Co. supra, Standard Motor Products, 265 NLRB
482 (1982) Contrast St Mary's Infant Horne, 258 NLRB 1024 (1981)
155 The Respondent challenged the ballot of Ralph Picazzo on the al-
leged ground that he was a supervisor within the mt aning of the Act and
thereby ineligible to vote in the election
by Ralph Picazzo, "whom the Employer asserts to be a
supervisor within the meaning of Section 2(11) of the
Act." The Regional Director also found that "these ob-
jections revealed substantial and material issues of fact,"
closely related to the issues involved in the instant unfair
labor practice case, and concluded that "these objections
can best be resolved in a hearing with the related issues
of the complaint." 56
In substance, Objections 3 and 5 alleged that "Supervi-
sor Picazzo" threatened employees with physical and
economic harm, and the loss of their jobs if they did not
support the Union, and if the employees told other em-
ployees or management officials about Picazzo's state-
ments regarding the Union. Objection 7 alleges that "Su-
pervisor Picazzo informed a bargaining unit employee
that his brother, a lead man, would be fired if the Union
won the election." Objection 8 alleges that "Supervisor
Picazzo," after "openly supporting and campaigning" for
the Union, and making the threats alleged above, "acted
as an observer for the Union during the election, thereby
creating an atmosphere of fear, coercion and domination
during the election process." Objection 9 asserts that
"Such an atmosphere of domination, fear and coercion
prevailed due to the participation of the supervisor in the
period proceeding the voting. As a result of this partici-
pation, the election was held in an atmosphere of fear
and reprisal which was not conducive to a rational un-
coerced choice of the bargaining representative."
In Zeiglers Refuse Collectors v. NLRB, 639 F.2d 1000,
1004-1005 (3d Cir. 1981), the court of appeals stated.
The purpose of holding representation elections is
to provide a means whereby workers may fairly
and freely choose their bargaining representative if
indeed they want one See NLRB v. A. J. Tower Co.
[329 U.S 324 (1946)]. A representation election
should be "a laboratory in which an experiment
may be conducted, under conditions as nearly ideal
as possible, to determine the uninhibited desires of
the employees." General Shoe Corp., 77 NLRB 124,
127 (1948) . . . . The Board has an obligation to
insure that an election is held "under such condi-
tions as well be conducive to the sort of free and
untrammeled choice of representatives contemplat-
ed by the Act" Methodist Home v. NLRB, 596 F.2d
1173, 1183 (4th Cir. 1979) . .
Hence, extreme care must be taken that the labora-
tory conditions have not become so tainted that em-
ployees may have based their vote not upon convic-
tion, but upon fear or upon any other improperly
induced consideration. The Board and the courts
have emphasized that the existence of a coercive at-
mosphere, regardless of how such an atmosphere
came about, is the critical fact upon which the
Board should focus in determining whether a fair
and free election was impossible. Diamond State
Poultry Co., 107 NLRB 3, 6 (1953); Cross Baking
The Regional Director for Region 21 therefore consolidated Cases
21-CA-20824 and 21-RC-16865 for purposes of hearing
1704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Co. v. NLRB, 453 F.2d 1346, 1348 (1st Cir.
1971) 157
Moreover, in those cases in which election conduct is
found to have inibited the employees' free choice in se-
lecting their bargaining representatives, it is the duty of
the Board to withhold certification and order a new
election."8
The Respondent contends in its brief that Picazzo's
"threats and intimidating conduct" resulted in the elec-
tion being held in an atmosphere of fear and reprisal
which was not conducive to a rational, uncoerced choice
of a bargaining representative and, therefore, the election
results should be "invalidated" and the election set aside
The Respondent continues therein that because Picazzo
was a supervisor who participated in the Union's organi-
zational campaign, and made threats to employees of ad-
verse treatment unless they supported the Union, the
election was "tainted by such supervisory pressure [and]
cannot be upheld." 159 In the alternative, the Respondent
in its bnef asserts that, "Even if it is somehow found that
Picazzo was not a supervisor, it is clear that his conduct
was of a sufficient magnitude to warrant overturning the
election."
As previously found herein, Picazzo was not a super-
visor within the meaning of Section 2(11) of the Act and
I therefore reject the Respondent's contention that the
election should be set aside because of his participation
in the Union's organizational campaign. In view thereof,
I conclude that the Respondent's Objection 9, founded
primarily upon Picazzo's alleged supervisory status,
should be overruled. Moreover, although the Respond-
ent uses the term "Supervisor Picazzo" in its Objections
3, 5, 7, and 8 and notwithstanding my having found Pi-
cazzo not to be a supervisor, the issue of whether the
election should be invalidated and set aside because of
Picazzo's conduct remains to be determined.
In Zeiglers Refuse Collectors v. NLRB, supra at 1005,
the court of appeals continues,
In determining whether a fair and free choice by
the employees was impossible the Board must con-
sider many factors. These include: the number of
the threats, the severity of the threats and whether
those threatened were put in fear, the number of
workers threatened, whether the threats were made
close to the election and whether they persisted in
the minds of the employees at the time of the elec-
tion, whether the reports of the threats were widely
circulated, whether the effect of pro-union threats
were cancelled out by pro-management threats, the
157 Also see NLRB v Sauk Valley Mfg Go, 486 F 2d 1127 (9th Cir
1973)
155 Valley Rock Products v NLRB, 590 F 2d 300 (9th Cir 1979),
NLRB v G K Turner Associates, 457 F 2d 484 (9th Cir 1972) Also see
Zeiglers Refuse Collectors v NLRB, supra, the court stating therein,
"Thus, if it is determined that a substantial possibility existed that the
threats affected the outcome of the election, a new election must be
held'
155 The Respondent cites several cases in support thereof, El Caballo,
251 NLRB 46 (1980), Delchamps, Inc. 210 NLRB 179 (1974), Lamar
Electric Membership Corp. 164 NLRB 979 (1967), Turner's Express, Inc v
NLRB, 456 F 2d 289 (4th Or 1972), NLRB v Heck's, Inc , 386 F 2d 317
(4th Cir 1967), Parkchester Machine Carp, 72 NLRB 1410 (1947)
closeness of the vote, Monmouth Medical Center v.
NLRB, 604 F 2d 820, 823 n. 4 (3d Cir. 1979), and
whether the threats can be attributed to the union
or the management, see e.g., Price Bros. Co., 211
NLRB 822, 823 (1974). See also Campbell Prods.
Dept, 623 F.2d 876 (3d Cir. 1980). The Board must
examine the record, determine the weight to be ac-
corded each factor, and applying its experience,
arrive at a final, articulated decision supported by
substantial evidence
Moreover, in NLRB v. Aaron Bros. Corp., 563 F.2d
409, 412 (9th Cir 1977), the court of appeals held,
The Board will not set an election aside unless
misconduct "constitute[d] an interference with free
choice, for or against a bargaining representative
. . . ." 1V.L.R.B. v. Bata Shoe Co., 377 F.2d 821 (4th
Cir.), cert. denied 389 U.S. 917 (1967), quoting
Anchor Mfg. Co. v. 1V.L.R.B. [300 F.2d 303 (5th Cir.
1962)] . . . . We adhere to the Board's policy that
"activities of a union's employee adherents which
are not attributable to the union itself are entitled to
less weight in the variable equation which leads to a
conclusion that an election must be set aside."
IV.L.R.B. v. Monroe Auto Equipment Co., 470 F.2d
1329 (5th Cir. 1972). Furthermore this Court has
recognized that the Board's policy "credits employ-
ees with the ability to give true weight to the possi-
bly impulsive allegations of fellow employees in-
duced by the heat of a campaign." NL.R.B. v. Sauk
Valley Mfg. Co., Inc., 486 F.2d 1127, 1131, n. 5 (9th
Cir. 1973). So to warrant overturning an election,
employee conduct must be "coercive and disruptive
conduct or other action [which] is so aggravated
that a free expression of choice of representation is im-
possible" [Emphasis added.] /80
It is well settled that an election will be set aside
where there is an atmosphere of violence or threats of
violence which precludes employees from exercising a
free choice. 161 For conduct to warrant setting aside an
election, not only must that conduct be coercive, but it
must be so related to the election as to have had a proba-
ble effect upon the employees' actions at the polls."2
The burden of proving that an election should be invali-
dated because of objectionable conduct rests with the
party filing the objections, in this case, the Respond-
ent. 163 The Respondent, as the party challenging pree-
' 60 Also see Valley Rock Products v NLRB, 590 F 2d 300 (9th Cir
1979)
161 Price Bros Co. 211 NLRB 822 (1974), Valley Rock Products v
NLRB, supra, Zeiglers Refuse Collectors v NLRB, supra
162 Valley Rock Products v NLRB, supra, NLRB v Golden Age Bever-
age Co. 415 F 2d 26 (5th Or 1969)
' 63 NLRB v Mattison Machine Works, 365 U S 123 (1961), Campbell
Products Department, 260 NLRB 1247 (1982) As the Ninth Circuit Court
of Appeals stated in Valley Rock Products v NLRB, supra, 590 F 2d 300,
302
It is well established that Congress has entrusted the Board with
wide discretion in conducting and supervising elections NLRB v
Sauk Valley Manufacturing Co. Inc. 486 F 2d 1127, 1130 (9th Cir
1973) Accordingly, the party challenging the election carries a
Continued
CHICAGO METALLIC CORP 1705
lection conduct, must establish that such conduct im-
paired employees' freedom of choice.'" Thus, when
preelection conduct is challenged on the basis that it
interfered with the election, the critical inquiry is wheth-
er employees were able to exercise free choice 165
Initially, it should be noted that, without some evi-
dence that the Union "instigated, direct ed, authorized,
adopted, ratified or condoned'' Picazzo's statements
threatening employees, those statements may not be at-
tributed to the Union.'" I can find no such evidence in
this proceeding. Picazzo held no position in or conferred
by the Union." 7 Nor does the record reveal any impro-
priety committed by a union official. Further, there is no
showing that the Union knew of Picazzo's improper acts
or that it failed to repudiate the m. 168 Therefore, Picaz-
zo's threats to other employees cannot be attributed to
the Union and must be considered as being those of a
third party
It has long been held that the acts of third parties, in-
cluding those of rank-and-file employees, even if the em-
ployees are "outspoken union partisans" are given less
weight in determining whether or not conduct actually
or potentially would affect the freedom of choice of em-
ployees. 169 However, both the Board and the courts
have held that where the conduct creates a general at-
mosphere of fear and reprisal which renders a free ex-
pression of choice of representative impossible, thereby
destroying the laboratory conditions of the election, the
election will be set aside, despite the fact that such con-
duct is not attributable to either party to the election."°
heavy burden in charging that coercion prevented a fair election, for
evidence must be furnished overcoming the presumption that ballots
cast under the the safeguards provided by Boat d procedure reflect
the true desires of the participating employees
"4 NLRB v Eurodrive, Inc , 724 F 2d 556 (6th Cir 1984), NLRB v
Basic Wire Products, 516 F 2d 261 (6th Cir 1975)
166 Ibid
"6 Six Flags Over Mid-America, Inc , 253 NLRB 111 (1980), Becurd-
Poulan Division, 247 NLRB 1365 (1980), enf denied 649 F 2d 589 (8th
Cir 1981), Firestone Steel Products Ca, 241 NLRB 381 (1979)
" 2 The fact that Picazzo was designated by the Union as an election
observer does not alter this finding In accordance with well-settled
Board law, Picazzo's service as an election observer did not confer upon
him the status of a union agent Moreover, there is no evidence in the
record that Picazzo received any payment for this service (That Picazzo
acknowledged being "paid off" by the Union for his union activities,
whether made seriously or jokingly, is too ambiguous in the record to be
considered evidence thereof ) Anchor Inn Hotel of St Croix, 262 NLRB
1137 (1982), Connecticut Foundry Ca, 247 NLRB 1514 (1980), Methodist
Home v NLRB, 596 F 2d 1173 (4th Cir 1979), NLRB v Bristol Spring
Mfg Ca, 579 F 2d 704 (2d Cir 1978) Additionally, the Union also desig-
nated Jerry Colvard, a known antiunion employee, as its other election
observer Further, while Ptcazzo did actually campaign on the Union's
behalf, by speaking to employees in its favor, he never obtained employee
signatures on union authorization cards other than his own, and had not
been instrumental in bringing the Union Into the Respondent's plant to
organize the employees Moreover, the Union in no other way, actually
or impliedly, held Picazzo out as its representative with the employees
Contrast, NLRB v Georgetown Dress Corp, 537 F 2d 1239 (4th Cir 1976),
wherein it was held that members of a union's "in-piant organizing com-
mittee" were agents of the union regarding their union activities
"8 Certain-Teed Products Corp v NLRB, 562 F 2d 500 (7th Cir 1977)
162 ATR Wire & Cable Ca, 267 NLRB 204 (1983), Six Flags Over Mid-
America, Inc , supra, Fabricut, Inc. 233 NLRB 1196 (1977)
"0 Sonoco of Puerto Rico, 210 NLRB 493 (1974), Steak House Meat
Co, 206 NLRB 28 (1973), Diamond State Poultry Co, 107 NLRB 3
(1953), Zeiglers Refuse Collectors v NLRB, supra, Methodist Home v
NLRB, supra
In applying the above Board and court decisions to
the circumstances present in this case, and while not con-
doning misconduct of the type found herein,'" I con-
clude that such conduct was insufficient to warrant the
setting aside of the election. Although Picazzo's various
statements to employees, made both before and after the
election, were found to constitute threats of an egregious
and Intemperate nature and sufficient to justify his dis-
charge lawfully, regarding this particular issue we are
concerned with his preelection conduct, and I find the
character thereof is not so aggravated as to create an at-
mosphere of fear and reprisal which so rendered a free
expression of choice of representative impossible and
thus destroyed the laboratory conditions of the election.
It should be noted that Picazzo's misconduct occurred
between 2 weeks and "two or three" days before the
election As stated by the Court of Appeals, Fourth Cir-
cuit, in Methodist Home v. NLRB, supra at 1184
If coercive conduct takes place on the very day of
the election, particularly if within an hour or two
before the election is to take place, it can be as-
sumed to have had a far more substantial effect on
the election than conduct occurring days or weeks
before the election, since in the latter case the effect
of the conduct may have largely been dissipated
before election day.
The evidence shows that Picazzo warned Mark Freeland
and Larry Colvard that their "brother" Jerry Colvard
would be discharged by the Respondent and "be gone"
after the Union won the election. As discussed above,
these employees interpreted this as, in effect, meaning
that the Union would insist on Jerry Colvard's dismissal
because of his known strong antiunion feelings and that
the Respondent would be compelled to comply there-
with Picazzo also warned Freeland that "it would be
rough for you" if he failed to support the Union. Free-
land and Colvard both testified that Picazzo's statements
caused them to fear for their job security. However, nei-
ther employee testified that this had altered their deci-
sion as to which way they intended to vote in the elec-
tion.'" Moreover, it should be remembered that when
they apprised Moore of their fears he assured them that
the discharge of employees was still subject to manage-
ment decision whatever the Union's input and that they
had nothing to worry about, that their jobs were secure.
The impact of this assurance, coming soon after Picaz-
zo's threats and a few days before the election, could
well have dissipated any coercive effects of Picazzo's
threats concerning these employees 173
ill As stated by the administrative law judge in ATR Wire & Cable
Ca, supra at 210
That is not to say that the acts and language used by these individ-
uals is to be condoned Rather, it is to accept the realities of the in-
dustrial setting and to note that antiseptic perfection is not a realistic
possibility
" 2 Contrast, Steak House Meat Ca, 206 NLRB 28 (1973)
" 3 It should be noted that Jerry and Larry Colvard and Mark Free-
land were known to be against union representation, and the tenor of the
evidence herein including the testimony given strongly infers, and it can
be reasonably presumed, that they voted against the Union in the election
Continued
1706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Additionally, in connection with Picazzo's threats in-
volving Jerry Colvard, the Board, in a somewhat analo-
gous situation, confirmed the ruling of the administrative
law judge in Anchor Inn Hotel of St. Croix, 262 NLRB
1137 (1982), that statements made by an employee, simi-
lar in nature to Picazzo's regarding Jerry Colvard and
which lent themselves to the same reasonable interpreta-
tion of meaning as in the instant case, did not interfere
with a free election, and upheld his recommendation to
overrule the election objection premised thereon.' 7 4
Picazzo also threatened to "kill" employee Brent
Yankee if he disclosed to anyone what Picazzo had told
him during their conversation about the Union. Picazzo
had previously been admonished by Moore to cease his
union activities or face discharge. That Picazzo did not
want the Respondent to know that he was continuing
this activity is strongly suggested by the evidence
herein.' 75 Thus it is apparent that his threat to Yankee
was directed toward this end rather than towards coerc-
ing Yankee into voting for the Union. While obviously
Picazzo would have liked Yankee to support the Union
by voting for it in the upcoming election, he did not
threaten Yankee to do so. Moreover, as Yankee testified,
this encounter with Picazzo actually strengthened his re-
solve to vote against the Union It is therefore evident
that Yankee did not act in fear of reprisal when he cast
his ballot.' 76
Additionally, while there is testimony in the record
that rumors were circulating at the Respondent's plant
that Larry Colvard, Freeland, and Yankee had been
threatened, Picazzo's name was not associated with the
threats nor was the subject matter thereof identified in
the record. The Respondent has the burden of proof on
this issue and evidence concerning the circulation of
rumors of ambiguous threats is not sufficient to establish
that an election was conducted in a general atmosphere
of fear of reprisal. Moreover, the Union won the election
by a vote of 19 to 10. Picazzo was found not to be a su-
pervisor so that his challenged ballot should be counted
and a good bet would be that he voted for the Union.
Thus the Union won by a 2-to-1 margin, not insubstantial
or that close, even though the total vote was not large,
30 eligible voters. As the United States Court of Ap-
peals, Fourth Circuit stated in Methodist Home v NLRB,
596 F.2d 1173, 1184:
despite Picazzo's threats After the Union had won the election, Freeland
asked Picazzo what Freeland could do to get on the Union's "good side"
Also he did not tell Picazzo that he had voted for the Union to support
his request to ingratiate himself with Picazzo and the Union, which he
most likely would have done if in fact he had voted for the Union
"4 As set forth above, Picazzo's statements concerning Jerry Col-
yard's discharge attain reasonable meaning only in the light of future
pressure by the Union which won the election, to get rid of an ardent
antiunion employee and in the context of a collective-bargaining agree-
ment containing a union-security clause
" 5 While not coupled with a threat as in the Yankee incident, Picazzo
also asked Freeland and Larry Colvard not to tell management about Pi-
cazzo's conversation with them concerning the Union
176 I am aware that Yankee suffered damage to his automobile (a
broken window) soon after his conversation with Picazzo While proper-
ty damage is of course a serious matter, this was the only instance of
such damage done to employee property appearing in the record and nei-
ther Picazzo nor the Union was connected to its accomplishment I do
not find this sufficient to change my finding concerning the threat to
Yankee See ATR Wire & Cable Ca, supra
[T]he result of the election itself, whether won by a
clear majority or by a close vote, is entitled to con-
siderable weight in evaluating the influence of the
challenged conduct on the fairness of the election.
It has been repeatedly declared that in a case where
"a change of only a few votes would affect the out-
come of the election, less egregious actions may re-
quire a rerun of the election than [in] a case in
which a clear-cut choice has emerged from the bal-
loting." N.L.R.B. v. Gulf State Canners, Inc., (5th
Cir. 1978) 585 F.2d 757, 759; Henderson Trumbull
Supply Corp. v. N.L.R.B. (2d Cir. 1974) 501 F.2d
1224, 1230.
The Board in ATR Wire & Cable Co., 267 NLRB 204,
210 (1983), affirmed the conclusions of the administrative
law judge that.
The policy of the Act is to further collective bar-
gaining if a majority of employees in an appropriate
unit so choose. The question here is whether the
wishes of a majority of the Respondent's employees
to bargain collectively should be set aside because
of the actions of a few individuals. Should the va-
lidity of an election depend upon the subjective
feelings of a few antiunion employees, even if those
subjective feelings were real as to them? I conclude
that the overwhelming case authority is to the con-
trary. Absent actual acts which would reasonably
intimidate or coerce employees in the exercise of
their votes, the wishes of a majority of employees
should not be lightly set aside
Accordingly, I find and conclude that Picazzo's pree-
lection threats directed to Mark Freeland, Larry Col-
yard, and Brent Yankee, while not to be condoned, were
insufficient to warrant the setting aside of the election. I
additionally recommend, in light of the foregoing, that
the Respondent's Objections 3, 5, 7, 8, and 9 be over-
ruled
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, found to constitute unfair labor practices oc-
curring in connection with the operations of the Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
VI. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
In light of the standards set forth in Hickmott Foods,
242 NLRB 1357 (1979), I conclude that a broad remedial
order is inappropriate since it has not been shown that
the Respondent has a proclivity to violate the Act or has
CHICAGO METALLIC CORP 1707
engaged in such egregious or widespread misconduct as
to demonstrate a general disregard for employees' funda-
mental rights. Accordingly, I recommend the use of the
narrow injunctive language "in any like or related
manner" in the recommended Order.
CONCLUSIONS OF LAW
1. The Respondent, Chicago Metallic Corporation, is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Sheet Metal Workers' International Association,
Local Union 170, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. By threatening an employee with discharge if he
failed to discontinue campaigning for the Union and/or
campaigning for the Union on company time, the Re-
spondent has interfered with, restrained, and coerced its
employee in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, and has thereby engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act.
4. The Respondent did not engage in unfair labor prac-
tices within the meaning of Section 8(a)(3) and (1) of the
Act when it discharged Ralph Picazzo.
5. The unfair labor practices engaged in by the Re-
spondent as set forth in Conclusion of Law 3, above,
affect commerce within the meaning of Section 2(6) and
(7) of the Act
The Objections in Case 21-RC-16865
It having been established herein that the acts relied
on by the Respondent did not in fact have such a coer-
cive effect as to warrant the setting aside of the election
held on November 5, 1981, nor interfere with the em-
ployees' free choice therein, I recommend that the Re-
spondent's Objections 3, 5, 7, 8, and 9 be overruled.
Since the Union received a clear majority of the valid
ballots cast in the election, I recommend that the Board
certify the Union as the exclusive bargaining representa-
tive of the employees in the unit found appropriate there-
in. i77
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed178
177 The appropriate unit consists of "all production and maintenance
employees and shipping and receiving employees, including leadpersons,
employed by [the Respondent] at its facility located at 5501 Downey
Road, Vernon, California, excluding all other employees, office clerical
employees, managenal employees, confidential employees, professional
employees, and guards and supervisors as defined in the Act"
I am not unmindful that some time has elapsed since that date of the
election on November 5, 1981, until today and that the courts have as-
serted that the Board should consider employee turnover over the pas-
sage of time in connection with representation and bargaining issues
However, there is no evidence in the record that the Respondent experi-
enced any employee turnover problem Moreover, had the Union been
certified by the Board as the collective-bargaining representative of the
Respondent's employees in an appropriate unit after the election, the em-
ployees would not be in any different circumstances, and should employ-
ee desires change as to representation, the Board offers procedures for
accomplishing this
78 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
ORDER
The Respondent, Chicago Metallic Corporation,
Vernon, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening its employees with discharge if they
engage in activities on behalf of the Sheet Metal Work-
ers' International Association, Local Union 170, AFL-
CIO, or any other labor organization.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2. Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Post at its facility located at 5501 Downey Road,
Vernon, California, copies of the attached notice marked
"Appendix " i 7 9 Copies of the notice, on forms provided
by the Regional Director for Region 21, after being
signed by the Respondent's authorized representative,
shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the allegations of unlaw-
ful conduct not specifically found herein to be violative
of the Act be dismissed
IT IS ALSO ORDERED that, in Case 21-RC-16865, Ob-
jections 3, 5, 7, 8, and 9 be overruled, the election held
on November 5, 1981, be validated, and the Sheet Metal
Workers' International Association, Local Union 170,
AFL-CIO be certified as the exclusive representative of
all the employees in the appropriate unit for purposes of
collective bargaining in respect to rates of pay, wages,
hours of employment, and other conditions of employ-
ment.
179 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
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 or-
dered 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
1708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities
WE WILL NOT threaten our employees with discharge
if they Join, support, or otherwise engage in activities on
behalf of the Sheet Metal Workers' International Asso-
ciation, Local Union 170, AFL-CIO or any other labor
organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
CHICAGO METALLIC CORPORATION