Meaden Screw Products

National Labor Relations Board - Board Decisions

May 15, 1998

325 N.L.R.B. 762 (N.L.R.B. 1998)

762
325 NLRB No. 142
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. 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), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
In light of our adoption of the dismissal of the complaint, we find
it unnecessary to pass on the judge’s finding that Brian Freid was
not a supervisor under Sec. 2(11) the Act.
2 In adopting the judge’s conclusion that Freid was discharged be-
cause the Respondent’s president suspected him of deliberately im-
pairing production, we note that the testimony of the Respondent’s
president, Meaden, corroborated the testimony of the Respondent’s
attorney, relied on by the judge, concerning Meaden’s reason for dis-
charging Freid.
1 All dates are in 1996 unless otherwise indicated.
Meaden Screw Products, Co. and Brian Freid. Case
13–CA–34483
May 15, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On August 1, 1997, Administrative Law Judge Wil-
liam G. Kocol issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief.
The Respondent filed cross-exceptions, a supporting
brief, and an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions, and
briefs and has decided to affirm the judge’s rulings,
findings,1 and conclusions2 and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the complaint be dismissed.
Valerie O. Barnett and Cynthia Rincon, Esqs., for the Gen-
eral Counsel.
Keith L. Pryatel, Esq. (Millisor & Nobil), of Cleveland,
Ohio, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
was tried in Chicago, Illinois, on May 12 and 13, 1997. The
charge was filed July 29, 1996,1 and the complaint issued on
January 31, 1997. The complaint alleges that Meaden Screw
Products, Co. (Respondent) discharged Brian Freid on Feb-
ruary 2 in violation of Section 8(a)(3) and (1) of the Act. Re-
spondent filed a timely answer which admitted the allega-
tions in the complaint concerning the filing and service of
the charge, jurisdiction, the labor organization status of the
International Association of Machinists and Aerospace Work-
ers, AFL–CIO (the Union), and agency status; Respondent
denied the substantive allegation of the complaint. It also al-
leges a number of affirmative defenses, including that Freid
engaged in acts of sabotage of Respondent’s goods and prop-
erty and that Freid was a supervisor within the meaning of
Section 2(11) of the Act.
Because I find that the General Counsel has failed to es-
tablish a prima facie case and that Freid was discharged be-
cause Respondent suspected that he was deliberately impair-
ing production, I conclude that the complaint should be dis-
missed.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, has been engaged in the manu-
facture of screw machine products at its facility in Burr
Ridge, Illinois, where it annually purchases and receives
products, goods, and materials valued in excess of $50,000
directly from points outside the State of Illinois. Respondent
admits and I find that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent employs approximately 110 persons at its fa-
cility, where it manufactures machine screw products and
other similar items. Respondent’s manufacturing operations
are divided into four primary departments. The multiple spin-
dle department produces screw machine products of 1-inch
diameter of larger. The davenport department produces
smaller screw machine products. The single spindle depart-
ment produces products that require longer cycle time to
produce. Finally, the CNC department consisted of computer-
ized, highly technical screw machines. Each of these depart-
ments had a leadperson with certain responsibilities for the
department. Freid was the leadperson with responsibilities for
the CNC department, where six other employees worked.
Freid reported to Jeff Obert, assistant plant manager, who
oversaw the CNC department as well as certain other depart-
ments. Completing the managerial hierarchy, Bobby
Gonzales was the plant manager and Tom Meaden was Re-
spondent’s president and chief operating officer.
Freid, who began his employment with Respondent in
1989, became leadperson in the CNC department in Septem-
ber 1994. On June 19, 1995, Freid received a written evalua-
tion in which he was rated on a scale of one to five in nine
categories. He was rated at five, the highest rating, in eight
of the nine categories and received a four in the remaining
category. Freid’s supervisor, Obert, wrote ‘‘[Freid’s] role as
leadman has allowed the company to make improvements in
the CNC area. [Freid] continually looks for ways to run the
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763MEADEN SCREW PRODUCTS
2 The record does not clearly disclose whether the signatures were
on authorization cards, a showing of interest petition or some other
matter.
3 In his brief the General Counsel quotes Freid as responding to
Obert’s inquiry with a ‘‘yes,’’ citing p. 59 of the transcript. I have
search the record in an effort to determine whether Freid’s response
was as clear as the General Counsel represents; I conclude the Gen-
eral Counsel’s recitation of the facts is in error in this regard.
4 The General Counsel does not allege that Respondent violated
the Act by any comments made during these meetings. These find-
ings are based on the uncontested testimony of Freid. Respondent
did not call Gonzales to testify or explain its failure to do so. Al-
though Obert did testify he did not deny these conversations as de-
scribed by Freid.
5 I have considered Obert’s testimony concerning this review meet-
ing. It is sufficiently hesitant in certain respects that I conclude that
Freid’s version is the more accurate one.
6 My findings in this section are based on a composite of the testi-
mony of Freid and Obert. Their testimony does not conflict in any
essential way. I have also considered and included relevant docu-
mentary evidence.
jobs at maximum efficiency.’’ At that time Freid’s salary in-
creased from $17.02 to $18.02 per hour.
B. Union Activity
During the summer months in 1995 Freid and other em-
ployees and leadpersons discussed the possibility of organiz-
ing a union campaign to obtain representation for Respond-
ent’s employees. In August 1995, Freid contact the Union
and spoke to Union Organizer Tim Pihl. Freid told Pihl that
the Respondent’s employees were interested in becoming
represented by a union. He pointed out that the interest had
mainly come from the leadpersons. Pihl said that the Union
represented leadpersons at other facilties and that he did not
see that as a problem. Approximately 2 weeks later a meet-
ing was held at a nearby hotel at which about 30 employees
were present, including Freid. During the meeting the em-
ployees were told about the process for obtaining union rep-
resentation, including that they would have to collect signa-
tures from about 70 to 75 percent of the employees indicat-
ing their support for the Union. Thereafter, Freid and other
employees obtained the necessary signatures.2 By the begin-
ning of October 1995, the signatures had been obtained and
another meeting was held at which the signed documents
were given to union representatives.
On November 1, 1995, the Union filed a representation pe-
tition with the Board seeking to represent a unit of Respond-
ent’s production and maintenance employees. Respondent
and the Union agreed to a stipulated election, and the elec-
tion date was set for December 16, 1995. However, the gov-
ernment shutdown that occurred that month forced the can-
cellation of the election. It was rescheduled for January 18.
The leadpersons’ ballots, including Freid’s, were challenged
at the election by Respondent on the basis that they were su-
pervisors. The employees voted to select the Union as their
collective-bargaining representative and the challenged bal-
lots were not determinative. On January 24, Respondent filed
objections to the election in which it asserted that three ‘‘su-
pervisors,’’ including Freid, had actively campaigned on be-
half of the Union by soliciting employee support for the
Union, making material misrepresentations on behalf of the
Union, and actually or impliedly threatening or coercing em-
ployees to support the Union. Thereafter, however, Respond-
ent withdrew the objections and recognized the Union. Col-
lective bargaining ensued and a contract was agreed to and
signed effective March 15, 1997.
Freid campaigned for the Union by setting up meetings,
handing out union literature, and distributing union buttons.
In December 1995, before the first scheduled election was
canceled, Gonzales approached Freid while he was working
in the CNC department. Gonzales thanked Freid for handling
himself in what Gonzales described as a professional manner
during the organizing campaign. Gonzales said that Freid’s
department continued to work and that he hoped that the
other leadpersons and their departments were working as ef-
ficiently as Freid’s department. On another occasion while
Freid was in the CNC department he was approached by
Obert who asked him if he really felt that a union was nec-
essary. Freid responded that he thought something was
wrong, that the employees had worked a lot of overtime and
their profit sharing was minimal.3 Freid also stated that he
thought it was unfair the way Meaden and Gonzales were
treating leadperson Steve Ewing, because they felt Ewing
had started the union organizing effort. Obert said that he
was surprised that Freid had started the union campaign, but
that he would not tell Meaden that information unless he was
asked. This conversation took place sometime after the peti-
tion was filed but before Freid’s December 1995 oral evalua-
tion, described below. Another conversation took place in
January before the election. Present were Freid, Obert, and
employees Boswell and McKee. Obert asked Freid how he
thought the election would go. Freid said that he felt the
Union still had good support even though the first election
had been canceled. Freid predicted that the Union would win
the election.4
In December 1995, Freid received an oral evaluation from
Obert and Gonzales. Freid was told that he would not receive
a written evaluation at that time because his wage rate was
above the maximum set by Respondent. Freid stated that he
felt he was underpaid for the skills he had; he was told he
had to raise that matter with Meaden. Obert and Gonzales
told Freid that he was doing a very good job but that they
wished Freid would improve his punctuality in showing up
for work because Freid was setting a bad example for other
employees. Freid replied that he would work on that prob-
lem, but if they added up all the time he was late, it would
not add up to 8 hours.5
C. Supervisory Status6
Six employees, excluding Freid, worked in the CNC de-
partment. Four employees and Freid worked on the first shift
and the other two employees worked on the second shift. At
about the time of Freid’s discharge in February there were
11 machines in the department.
When new jobs were sent to the CNC department, Freid
was responsible for programming the machines so that the
new products were produced. On average, this occurred two
or three times a week. Once the machines were set up and
operating the operator did not have to continuously monitor
them since they were self-operating at that point. During the
time Freid was leadperson he was sent for training on pro-
gramming the machinery on two occasions for a week each.
All the other operators in the department also received simi-
lar training at some point. Freid was also responsible for
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764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Freid described the assignment of work from the production
schedule as follows: ‘‘It’s kind of brain dead thing, this you look
at it [sic], this one comes first, this one comes next.’’ Obert testified,
‘‘I don’t think I would make it that simplistic.’’ Regardless of how
the assignment process is characterized, Freid’s and Obert’s testi-
mony are essentially the same concerning how in fact assignments
were made.
checking a newly produced part to assure that it was manu-
factured in accordance with the specifications before that part
was turned over to the quality control department for first
piece approval.
Freid reported to work 15 minutes before the other em-
ployees. He used this time to start the machines that would
be used that day. He also reviewed daily production reports
filled out by the operators on the previous day. This form
has columns in which the employee is to record items such
as job-related downtime, nonjob-related downtime, and
downtime resulting from the unavailability of a machine.
Freid initialed these forms in a column labeled ‘‘foreman’s
O.K.’’ This indicated that the forms were properly filled out
in terms of correct job number, etc., and were an accurate
reflection of hours recorded. When necessary Freid would
correct any mathematical errors made by employees in filling
out the forms. Freid then spent the remainder of the day
working in the department operating a machine or setting up
another machine. During the day when an operator had prob-
lems with a machine, the operator would see Freid, who
would attempt to resolve the problem. If there was a pro-
gramming problem Freid was likely able to resolve it, since
he was responsible for programming the equipment so that
it would produce the parts in accordance with the specifica-
tions. If Freid was not able to solve the programming prob-
lem he consulted with engineering group on how to resolve
it. When there was a maintenance problem either Freid or the
operator would fill out a maintenance work order form. Freid
signed these forms to indicate that the maintenance problem
was genuine. Freid normally worked a 9-hour day; he spent
approximately 8 hours a day operating a machine.
One of Freid’s responsibilities was the assignment of em-
ployees to operate 1 or more of the 11 machines in the de-
partment. Operators generally ran two machines at time. At
the end of his shift Freid would prepare a schedule and as-
sign employees to certain machines to run specific jobs. Un-
foreseen circumstances, such as equipment failure, would
cause Freid to revise his assignments. Freid made these as-
signments based on his knowledge of the skill of the em-
ployee in operating a particular machine. For example, one
of the employees on the second shift usually operated the
milling machine and the other employee operated the lathe
until the mill operator had been trained so he could also run
the lathe. Some employees were able to operate all the ma-
chines in the department; other employees were able to oper-
ate only four or five machines. The abilities of the operators
was a matter of common knowledge and was not a matter
known only by Freid. Freid used a production schedule pre-
pared by the production control manager in assigning work.
This was issued weekly and listed the jobs and their comple-
tion dates, and Freid was told to follow the order set in terms
of completion dates. Thus, when an operator became avail-
able and needed work, Freid would look at the production
schedule and ascertain what job Respondent wanted com-
pleted next and then assign the operator to that job if the op-
erator was able to run the machine needed to do the job.7
At times Freid would deviate from the order set on the pro-
duction schedule when, for example, different jobs were very
similar to each other and setup time could be saved if the
jobs were run back to back. However, in those circumstances
Freid always first obtained permission from his superiors.
Freid also would assign employees to work on machines for
training purposes. At times Obert would instruct Freid that
an operator should be trained; Obert did this most frequently
for employee Austin. Freid would work with the employee
and provide the necessary training. Employees from the sec-
ond shift would come in early to receive training from Freid.
On one occasion Freid reported to Obert that an operator
was damaging tooling and that Freid had tried to talk to the
operator but he was ‘‘not getting through.’’ Freid asked
Obert to speak to the operator and Obert did so. Obert told
the operator that Freid had a concern that the operator was
not addressing. The operator claimed that he was doing noth-
ing wrong, but that he would try and work things out and
change. Obert testified that ‘‘we kind of left it at that.’’
On another occasion, on January 17, Obert recorded the
following incident involving Freid.
I was having a conversation with Deron Boswell,
C.N.C. Setter/Operator, while he was by the machines
that Brian Freid assigned him to operate. During our
conversation Brian Freid, C.N.C. Supervisor/-
Leadperson, walked up to us and asked Deron Boswell
if everything over here was okay. Deron Boswell re-
plied, ‘‘My machines are running,’’ Brian Freid said,
‘‘Well, if there was any problems in the department, he
should be made aware of that because after all he is
suppose to be supervisor of this C.N.C. Department.’’
Brian Freid then asked Deron Boswell, ‘‘When was the
last time you quality checked your production?’’ Deron
Boswell replied, ‘‘the machines are running very
good.’’ Brian Freid then went and picked up a quality
check off sheet that is placed by each machine and he
asked Deron Boswell, ‘‘Are you using the check off
sheet and marking it every hour like the department’s
procedures specify?’’ Deron Boswell said, ‘‘No, I
haven’t been.’’ Brian Freid said, ‘‘Let’s start doing
what we are suppose to be and not stand around talk-
ing.’’ Brian Freid then walked away and I told Deron
Boswell, ‘‘Brian is right. You should be filling out the
quality check off sheets.’’ I then walked over to Brian
Freid and said to him, ‘‘I agree with what you had to
say to Deron Boswell about filling out the quality
check off sheets, but I disagree with two of the things
that you did.’’
1. You never should have reprimanded Deron in
front of me or any other employee. All discipline
should be done in private.
2. You should try to refrain from raising you voice
when talking with an employee about a performance
problem.
Brian said, ‘‘Yes, he agreed but that it’s not easy to
do.’’ Brian then asked, ‘‘How would you feel if you
were telling people everyday to follow department pro-
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765MEADEN SCREW PRODUCTS
8 This is based on the credible testimony of Obert and Schreiner
as well as notes Schreiner made of the meetings. I do not credit
Freid’s testimony that Schreiner explicitly told the leadpersons that
they could not campaign for the Union or else they would be fired
or his later testimony that Schreiner said that they could be fired if
they campaigned for the Union.
9 Plant Manager Gonzales and Personnel Manager Ostrowski also
attended the performance review meetings.
cedures and they didn’t listen.’’ I said to Brian, ‘‘You
just have to keep reminding them of following the
proper procedure and if they do not, document that they
do not listen.’’ I then said to Brian Freid, ‘‘I hope you
were not just checking on Deron Boswell because he
was talking with me.’’ I asked if he had checked the
other C.N.C. employees today to see if they were fol-
lowing departmental procedure. He said that he had
been very busy today but that he will if he can find the
time.
When Freid became a leadperson there were only seven
machines in the department and only three employees on the
first shift, including Freid. Sometime in 1995 two machines
that had been in the single spindle department were trans-
ferred to the CNC department along with two employees.
That same year three new machines were purchased by Re-
spondent and placed in the CNC department. The training
needed to learn to operate these new machines resulted in
some loss of direct production time.
In Freid’s last written evaluation in June, he was evaluated
in the following areas: care of company property, house-
keeping, quality of work, quantity of work, flexibility, job
knowledge, dependability, attitude, and safety. Freid punched
a timeclock, as did the other operators in his department.
Freid took his lunch together with other employees from the
CNC department in Respondent’s lunchroom. Obert, Freid’s
superior, ate in another area.
Obert spent an average of about 1 hour a day in the CNC
department. Obert did not know how to program the ma-
chines in the CNC department so he relied on Freid to do
so and to train other employees to do so. Since Obert lacked
that technical knowledge the employees looked to Freid for
guidance and assistance on technical matters.
Respondent holds meetings for its managers and super-
visors. Freid did not attend those meetings until the Novem-
ber 1995 meeting, which was after the Union filed its rep-
resentation petition. Prior to that meeting Freid was told by
Obert that Meaden thought it would be a good idea if
leadpersons started to attend those meetings. During the first
November management meeting the participants discussed
topics such as incoming work, late jobs, and areas that need-
ed improvement. Freid, however, did not make any remarks
at the meeting. Another meeting was held about week or so
after the first meeting. Present at this meeting was David
Schreiner, Respondent’s attorney; Schreiner had not attended
the earlier meeting. During this meeting Schreiner said that
Respondent considered the leadpersons to be supervisors. He
said that supervisors were not protected under the Act and
could not campaign for the Union.8
Obert was responsible for conducting a formal perform-
ance review of the operators in the CNC department every
6 months. These reviews were used in determining wage in-
creases and promotions. Freid did not attend the performance
review meetings between the operator and Obert.9 Prior to
the performance review Obert would talk to Freid and ask
him how he felt an operator was doing on his or her job,
and Freid would provide an opinion; Freid possessed greater
technical knowledge of the work done in the CNC depart-
ment than did Obert. Their is no evidence that Freid made
any specific recommendations. Obert used the information he
gained from Freid as well as information he gained from var-
ious records maintained by Respondent, in formulating the
formal performance reviews. It was not until December
1995, or January that Freid was asked to play a direct role
in the operators’ formal performance review. At that time,
Obert summoned Freid into the office Obert shared with
Gonzales and asked Freid for his input concerning the work
performance of two operators that was to be used in their
performance review. Obert asked if Freid felt that the em-
ployees deserved a raise or a promotion. While Freid de-
scribed the type of work the operators did, he was reluctant
to suggest a specific amount for a raise, but he indicated that
he felt every employee deserved a raise, that all the employ-
ees were underpaid for the work they were doing; that their
hours had been cut from 11 hours per day to 8-1/2 hours per
day.
When Freid became leadperson in September 1994, he was
shown a job description for a generic leadperson position; he
was told that there was no specific job description for the
CNC leadperson position. However, thereafter a job descrip-
tion was established for that position. The job description for
Freid’s position, entitled ‘‘CNC Leadman Job Description’’
follows in its entirety.
Responsible for departmental management. Is an im-
portant member of the team with the responsibility to
keep the work flowing accurately on Meaden Screw
Products’ 24 hour work schedule.
Will work closely with both the primary Department
Head and Shift Supervisors. Will remain an hourly em-
ployee with the expectation of utilizing overtime him-
self to keep the Department operational. Will start work
15 minutes before the rest of the Department to guaran-
tee that the assigned schedules can be maintained. This
will also allow him to communicate with other
Leadmen and Supervisors in planning for their shifts’
responsibilities. Additional duties follow below:
1. Make all first piece, job approval inspections
before asking Quality Control for an okay.
1a. Responsibility for department’s work: dimen-
sions, finishes.
1b. Spot check production accuracy (quality with-
in department).
2. Okay all machine down time, either job related
or non-job related and inform the shift supervisor of
any problems.
2a. Certify reported cycle times to Production
Control.
2b. Certify production tickets accuracy.
3. Troubleshoot when necessary. Help to get the
job running if unable to assign alternate machine to
operator.
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766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The numbers for the other months of that year are as follows:
January—78.1, February—77.2, March—73.3, April—86.5, May—
86.8, June—69.9, and July—64.0.
11 Freid testified that at a meeting he challenged how Respondent
calculated the productivity in the CNC department. However, there
is no evidence that Respondent changed the manner in which it
measured productivity at any point relevant to these proceedings.
Thus, whether Respondent’s measure of productivity was the most
accurate way to do so is irrelevant.
12 This is based on the credible testimony of Obert and Meaden.
13 The findings in this section are based on the largely uncontested
testimony of Freid and Obert as well as relevant documentary evi-
dence.
4. Double check set-up pans to determine of all
gages [sic] and tools are correctly in the pan.
4a. Secure stock as required.
4b. Secure tools as required.
4c. Secure gages [sic] as required.
5. Important to make sure the operators are at
their work stations and performing their work duties.
6. Train assigned trainees in the use of equipment,
piece part inspection procedures and set-ups.
7. See that jobs are run as scheduled.
8. With Production Control, schedule jobs.
9. Keep track of production so that orders are
filled.
10. Make records and tapes of jobs.
11. Keep list of spent tooling.
12. See that scheduled maintenance on equipment
is performed.
13. Work with serviceman as needed and perform
requested troubleshooting.
14. Responsibility for immediate work area ap-
pearance.
15. Will not be a production employee or phys-
ically account for his time.
16. Write and improve on programs. When pos-
sible, try to make jobs run faster and improve set-
up times.
17. Assist Department Head in evaluating employ-
ees prior to their Performance Review.
18. Any other responsibilities as assigned by the
supervisor.
At the time of the hearing in this case Respondent had not
hired or assigned anyone to replace Freid as leadperson in
the CNC department. Instead, Respondent used an employee
from the engineering department to perform some of the
technical work that Freid had performed. The person from
the engineering department was not moved to the CNC de-
partment; instead he was used in a ‘‘dual role’’ in both de-
partments.
D. Production
As described above, by virtue of his duties as leadperson
Freid played a role in maintaining the productivity of the
CNC department, and Respondent took that departmental
productivity into account in assessing Freid’s performance.
However, prior to November 1995, Freid was never shown
the production records that Respondent kept for that depart-
ment. These records show that productivity in that depart-
ment began to decline. For example, productivity as meas-
ured by hours per machine per week produced declined from
65.5 for August 1995, to 46.2 for September 1995.10 This
was the steepest decline in productivity among the four pri-
mary production departments. For October 1995, the records
show that the productivity level in the CNC department rose
to 52.3. Productivity for November 1995, declined to 38.1
and the backlog for the CNC department was the largest
among all four primary production departments. In December
1995, the productivity in that department declined to 32.2
and in January it rose to 37.7.11
At the hearing Freid agreed that production had dropped
in the CNC department. He attributed the decline in produc-
tivity to various factors. When production was high they
were running the same job on each of the machines, but
when there was a decline in productivity the department had
been running shorter jobs that required more time for set up.
In support of this assertion the General Counsel introduced
documentary evidence comparing productivity figures for the
month of January 1995, with those of December 1995. Those
records showed that in January the machines in the CNC de-
partment were producing 1920.11 hours; for December that
number was 1263.15. For January 120.36 hours were spent
on machine set up; for December that number rose to 220.50.
In January the machinery was unusable 28.30 hours; for De-
cember that number was 107.00. Finally, in January the ma-
chinery was unusable for nonjob-related reasons 5.20 hours;
in December that number was 23.10. Freid also explained
that there was less productive time when training was in-
volved since the operator being trained was not already fa-
miliar with the machine.
The new machinery, additional set up time and downtime,
and training accounted for some decline in the productivity
of the CNC department, but it did not fully explain the ex-
tent of the decline in production experienced in that depart-
ment.12
E. Attendance13
As indicated above, during Freid’s oral evaluation in De-
cember 1995, Obert and Gonzales asked Freid to attempt to
improve his punctuality; that this was setting a bad example
for other employees. Respondent’s attendance policy in effect
in 1995 provided that an employee would receive a point if
the employee did not work at least 4 hours on a scheduled
workday. An employee would receive two points if the em-
ployee did not call and failed to report to work on a sched-
uled workday. When the employee accumulated 10 points
during the period from January 1 through December 31, the
employee would receive a verbal warning; at 12 points the
employee would receive a 3-day suspension and at 13 points
the employee would be terminated. No points were assessed
against employees for arriving tardy or leaving early so long
as the employee worked 4 hours.
Attendance records show that during 1995 Freid arrived
late or left early approximately 88 times and these occasions
were spread fairly evenly throughout the entire year. Freid
was usually tardy no more than 5 minutes. No points were
assessed against Freid on these instances under Respondent’s
attendance policy. For that year Freid had accumulated six
points due to other instances of absence; thus he was in no
danger of being disciplined. In January 1996, Freid was late
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767MEADEN SCREW PRODUCTS
14 The findings in this section are based on the credible and largely
uncontested testimony of Obert.
15 This refers to an incident when an employee left the worksite
after he was upset with a performance review that he had received.
16 At the hearing Freid initially testified that he responded to this
comment from Meaden by saying that he felt that he had been
comminicating with Obert but that Obert did not have the technical
knowledge neccessary to understand the operation of the department.
However, when Freid was presented with the affidavit that he had
supplied to the Board during the investigation of the charge in this
case, and the affidavit did not contain any reply to Meaden’s com-
ment, Freid recanted this testimony.
17 This is based on the testimony of Schreiner which I conclude
is fully credible in this regard.
or left early only three times; he had accumulated only one
point. The General Counsel and Respondent stipulated that
other leadpersons did not have the attendance problems that
Freid had. Also, as more fully described above, Freid re-
ceived a written evaluation in June. In that evaluation he re-
ceived the highest rating in dependability, the category meant
to cover attendance.
F. Communication Problems14
Prior to the Union’s organizing campaign Freid had co-
operated well with Obert in terms of communicating to Obert
what was happening in the CNC department. Thereafter,
Freid became less communicative. When Obert asked a ques-
tion, he would get a short, abrupt answer. Obert felt that he
had to pry information out of Freid. Obert raised the problem
with Freid, asking him what had changed. Freid responded
that he did not feel there had been any change. Obert testi-
fied ‘‘But there was no more made of it than that.’’ Obert
communicated this matter to Meaden and Gonzales.
G. The Termination
On February 2, at approximately 30 minutes before his
shift was scheduled to end, Freid was summoned to
Meaden’s office. Freid had been working on the C7 machine
and he was unable to complete the set up of that machine
due to the meeting that ensued. Present in Meaden’s office
with Freid were Meaden, Obert, and Schreiner. Meaden said
that he felt that Freid’s work performance was not good and
that production in the CNC department was declining.
Meaden said that Freid’s attendance was very poor and that
Freid ‘‘showed no emotion when another employee walked
off the job.’’15 Meaden also said that Freid did not com-
pletely communicate with his supervisor, Obert, explaining
that Freid did not relate the details of what was going on in
the CNC department to Obert.16 Meaden concluded by say-
ing that Freid’s services were no longer needed. Obert es-
corted Freid to his locker, and as they were leaving the
building Freid asked if he could go back to Meaden’s office,
and Obert and Freid returned to Meaden’s office. Schreiner
was still there. Freid told Meaden that he strongly disagreed
with the reason given for his discharge and that he would ex-
amine different avenues to pursue the matter. Meaden said
that he understood and that Freid had to do what he had to
do.
Prior to his termination Freid had never been issued any
written discipline. On one occassion in 1993 Freid was given
a verbal warning to improve his setup times. At the hearing
Obert testified that he thought that overall Freid had been a
good leadperson. Obert, Freid’s direct supervisor, was not
consulted concerning the decision to discharge Freid; instead,
he was simply advised of the decision on the day of Freid’s
termination.
Meaden, Respondent’s president and chief operating offi-
cer, made the decision to discharge Freid. Meaden, who had
been employed by Respondent for 25 years and has occupied
his current position for 15 years, has a degree in mechanical
engineering, and has the ability to run some of the machines
in the CNC department. He testified that he discharged Freid
for three primary reasons: lack of communication, poor pro-
ductivity, and absenteeism. He made this decision a day or
two before Freid was fired.
Before Freid was fired Meaden conferred with Respond-
ent’s attorney, Schreiner, on approximately three occasions.
During those discussions Meaden stated that production in
the CNC department had been terrible and Freid was respon-
sible for that. Meaden said that he suspected that this was
deliberate on the part on Freid, although he had no ‘‘hard
evidence’’ to prove this. Meaden said that there was no other
reasonable explanation. Meaden said that combined with the
complaints regarding Freid’s lack of communication, he felt
that Freid may have been intentionally causing the problems.
Schreiner counseled Meaden that while he understood that
Meaden’s perception of deliberate misconduct by Freid
would play a role in determining whether discipline short of
discharge would be appropriate, ‘‘I don’t think we should go
in and do a lot of needless finger pointing over issues that
you suspect but you don’t have hard evidence of.’’17
H. Sabotage
On the day of his discharge Freid was working on the T-
7 machine in the CNC department. This machine had been
added to the department in September 1995. Sometime after
Freid was fired the T-7 machine ‘‘crashed’’ when an em-
ployee attempted to operate it. The crash was apparently the
result of incorrect programming. It caused damage and the
machine was unusable for at least a day.
Wayne Weichinger worked as an operator in the CNC de-
partment with Freid. On February 2, the day Freid was fired,
Weichinger started work at 4 p.m. Weichinger learned from
another employee that Freid had already been fired.
Weichinger called Freid from work and asked him why he
had been fired; they talked for about 5 minutes. The record
does not otherwise directly reveal what Freid and Weichinger
discussed during this 5-minute period. Although records
show that Weichinger was not assigned to work on the T-
7 machine, when Weichinger returned to work after the tele-
phone call to Freid, he worked on the T-7 machine. In the
affidavit that Weichinger provided to the Board during the
investigation in this case Weichinger stated that he had not
been scheduled to work on the T-7 machine on the day Freid
was fired, and later in his examination Weichinger finally ad-
mitted that no one assigned him to work on the T-7 machine
that day; he asserted at that point that it would have been
a normal part of his routine to work on the T-7.
Weichinger testified that he downloaded the programs
from the computer onto the T-7 machine, that he did not per-
form any production on the T-7 nor did he notice any prob-
lems with that machine. Previously, he had received some
training from Freid on how to operate that machine. When
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768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Weichinger appeared for work the following Monday he was
told that there had been a problem with the program on the
T-7. Weichinger testified that when he examined the machine
he discovered that on the previous Friday when he was
downloading the program he accidentally erased it and that
in the process of correcting the problem he accidentally load-
ed the wrong program.
Weichinger was a supporter of the Union and had ‘‘Union
yes’’ sticker on his car. He admitted that he never told any
supervisor that he was responsible for the error on the T-7.
This was despite the fact that about month later he had heard
that there was an allegation that Freid had sabotaged the T-
7 machine and he heard from a union representative that
Freid had admitted to sabotaging machines. Weichinger de-
nied that Freid ever asked him to sabotage equipment or ever
counseled him on how to do so.
On February 28, the Union filed an unfair labor practice
charge alleging, inter alia, that Freid’s discharge violated
Section 8(a)(3) and (1) of the Act. In an effort to settle that
case and to prepare for the impending hearing on Respond-
ent’s objections, Cooper, grand lodge representative for the
Union, met with Freid. Prior to meeting with Freid, Cooper
has discussed the case with Schreiner, who had voiced Re-
spondent’s position that Freid had engaged in sabotage. Dur-
ing the discussion with Freid, Cooper conveyed to him Re-
spondent’s contention and asked about that. Freid responded
with a pause. Cooper said that if he was going to be able
to help Freid, he needed to know the truth, and he asked
Freid if Freid did do the sabotage. Freid said no, he did not
do it. The conversation then turned to other matters. A few
minutes later Freid said, ‘‘I did not sabotage the machine. I
had someone else do it.’’
At the hearing Freid denied that he ever sabotaged any of
Respondent’s equipment. He also denied that he ever coun-
seled employees to sabotage Respondent’s equipment; he
likewise denied that he ever told anyone that he had done
so. Freid admitted that he had met with Cooper to explore
the evidence concerning Freid’s supervisory status. Freid also
conceded that during the course of the meeting he was asked
whether he had engaged in sabotage while employed by Re-
spondent. Freid testified that he responded by denying that
he had sabotaged equipment or that he ever said that he
‘‘had someone else do it.’’
III. ANALYSIS
A. The Supervisory Issue
Respondent contends that Freid is a supervisor as defined
in Section 2(11) of the Act and thus is not entitled to the
protection that the Act accords to employees. The Board has
long held that the criteria enumerated in Section 2(11) are to
be read in the disjunctive; if an individual possesses a single
attribute listed in that section, that individual is a supervisor.
Florence Printing Co., 145 NLRB 141, 144 (1963). How-
ever, the exercise of otherwise supervisory authority in a
merely routine, clerical, perfunctory, or sporadic manner does
not confer supervisory status on an employee. J. C. Brock
Corp., 314 NLRB 157, 158 (1994). The Board has recently
restated that in enacting Section 2(11) Congress stressed that
only persons with genuine management prerogatives, as op-
posed to ‘‘straw bosses’’ and other minor supervisors, should
be considered supervisors and that the Board has a duty not
to construe supervisory status too broadly because that would
deprive individuals of the protection of the Act. Cassis Man-
agement Corp., 323 NLRB No. 68 (Apr. 14, 1997). The bur-
den of proving supervisory status is placed on the party mak-
ing that assertion. Bowne of Houston, 280 NLRB 1222
(1986). Particularly important in this case is the Board’s
holding that exercise of authority which derives from a work-
er’s status as a skilled craftsman does not confer supervisory
status because that authority is not the type contemplated by
Section 2(11). Adco Electric, 307 NLRB 1113, 1120 (1992).
Finally, the secondary indicia of supervisory status are in
themselves not controlling. Consolidated Services, 321
NLRB 845, 846 fn. 7 (1996).
Respondent argues that Freid assigns work and thus is a
supervisor. I conclude, however, that the assignment of work
was not done with sufficient independent judgment to estab-
lish supervisory status. As described above in more detail,
Freid oversaw 6 employees and 11 machines. The production
schedule was established by someone other than Freid and he
sought permission before he deviated from that schedule. As
operators become available, Freid did assign them to work,
using his knowledge of their skills in making the assignment.
However, the skill levels of the employees were, for the most
part common knowledge and easily discernible. That is, they
were either able to operate a particular machine or they are
not. Although some judgment was clearly used by Freid in
assigning work, it does not rise to the level of the exercise
of independent judgment required to constitute supervisory
status. The day-to-day guidance and training that Freid pro-
vided to the other operators is likewise not indicative of true
supervisory status; instead, it appears to flow from his supe-
rior knowledge as a modern day skilled craftsman. The same
can be said for part Freid played in quality control checks
that he performed.
In this regard Respondent relies on Rose Metal Products,
289 NLRB 1153 (1988). In that case the Board noted that
the person at issue assigned tasks to six to eight employees
based on his assessment of the skill level required by the
work order, his knowledge of the skill level possessed by the
individual employees, and the availability of the employee to
work on the task. However, in that case the Board, on the
record before it, concluded that the individual ‘‘utilizes inde-
pendent judgment’’ in assigning work. That is different from
this case, where I have concluded, based on this record, that
there is insufficient use of independent judgment to establish
supervisory status. Thus, Rose Metal is inapposite. NLRB v.
Ajax Tool Works, 713 F.2d 1307 (7th Cir. 1983), cited by
Respondent is also distinguishable because there the court
concluded that the assignments made the supervisor showed
the exercise of some independent judgment, unlike this case.
These cases, like so many in this area of law, are fact spe-
cific and turn on the nuances and inferences from their own
individual records.
Respondent also relies on the role Freid played in perform-
ance appraisals as proof that he is a supervisor. As I have
found above, prior to the union campaign Obert would ask
Freid about an operator’s work performance and that infor-
mation would be used by Obert in giving the operator a per-
formance review. It will be recalled that Obert also relied on
other information from records in reaching his conclusions.
There is no evidence that Freid ever made specific rec-
ommendations much less that any recommendations were ef-
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769MEADEN SCREW PRODUCTS
18 The General Counsel, of course, points to other secondary indi-
cia, such as the fact that Freid punched a timeclock and ate lunch
with the operators, and that no ‘‘supervisor’’ has been hired to re-
place Freid, to argue that Freid is not a supervisor.
19 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982).
fectively relied on by Respondent. Instead, Freid’s role in
this regard was purely reportorial in nature and thus insuffi-
cient to constitute genuine supervisory authority. When Re-
spondent made an effort to engage Freid in a more formal
way in the performance review process after the union cam-
paign was underway, Freid continued to resist providing any
specific recommendations. In any event, Respondent’s con-
duct in this regard were clearly an effort to clothe the
leadpersons, including Freid, with indicia of supervisory sta-
tus to strengthen their position in the representation. Because
it was not clear at the time of Freid’s discharge that the
newly assigned duties were to truly become permanent re-
sponsibilities or whether they were temporary measures de-
signed to last no longer than the conclusion of the represen-
tation case, they are hardly of a determinative nature.
Respondent next argues that Freid’s role in approving
maintenance requests and production reports is indicative of
his supervisory status. To the contrary, the record is clear
that Freid’s approval of those reports was merely routine and
clerical in nature and does not demonstrate supervisory au-
thority. Respondent points out that Weichinger, in his testi-
mony at one point described Freid as his ‘‘supervisor.’’
However, it is axiomatic that mere title does not resolve the
issue of supervisory authority, and there is otherwise insuffi-
cient evidence to show either that Respondent held Freid out
to be a supervisor or that employees regarded him as such.
Respondent’s points to parts of Freid’s job description
which it feels establish supervisory authority. In particular, it
notes that job description indicates that the CNC leadperson
was to make sure that operators were at their work stations
working. While the genuine possession of supervisory au-
thority is sufficient to establish that a person is a supervisor,
even if the authority has never been exercised, the authority
must be real. I conclude that in this instance the purported
authority in the job description was not a genuine devolution
of supervisory authority to Freid. Not only is there no evi-
dence that Freid ever exercised that authority, but the credi-
ble evidence in the record as a whole shows that he never
actually possessed that authority.
Respondent points to the instance when Freid reported to
Obert that an operator was damaging tooling as evidence that
Freid disciplined employees. Sporadic and occasional in-
stances of this type, however, are insufficient to show super-
visory status. In any event, the incident hardly showed Freid
as possessing such authority. The evidence shows that Freid
reported property damage, something that employees might
report to management regardless of status, and that even after
Obert spoke to the operator about the matter, the operator
continued to insist that he was right, but promised that he
would try and ‘‘work things out’’ with Freid. Obert did noth-
ing further. This incident shows that the operator regarded
Freid more as an equal than a superior. Respondent also
points to the Deron Boswell incident that has been fully de-
scribed above. However, that incident also shows that Bos-
well was defiant of Freid’s directions and that Obert actually
upbraided both the Boswell and Freid. These incidents are
not sufficient to meet Respondent’s burden.
Finally, Respondent cites a number of factors pertaining to
Freid that were different from the operators in the CNC de-
partment. It points out, for example, that Freid was the high-
est paid person in his department, that he was evaluated dif-
ferently from other operators and that he began to attend su-
pervisory and management meetings.18 However, these sec-
ondary indicia are not determinative of supervisory status.
I therefore conclude that Respondent has not produced suf-
ficient evidence to meet its burden of establishing that Freid
was a supervisor.
B. The Termination
The analysis set forth in Wright Line19 governs the deter-
mination of whether Respondent violated Section 8(a)(3) and
(1) as alleged. The Board has restated that analysis as fol-
lows:
Under Wright Line, General Counsel must make a
prima facie showing that the employee’s protected
union activity was a motivating factor in the decision
to discharge him. Once this is established, the burden
shifts to the employer to demonstrate that it would have
taken the same action even in absence of the protected
union activity.7 An employer cannot simply present a
legitimate reason for its actions but must persuade by
a preponderance of the evidence that the same action
would have taken place even in the absence of the pro-
tected conduct.8 Furthermore, if an employer does not
assert any business reason, other than one found to be
pretextual by the judge, then the employer has not
shown that it would have fired the employee for a law-
ful, nondiscriminatory reason.9
7 NLRB v. Transportation Management Corp., 462 U.S. 393, 400
(1983).
8 See GSX Corp. v. NLRB, 918 F.2d 1351, 1357 (8th Cir. 1990)
(‘‘By assessing a legitimate reason for its decision and showing by a
preponderance of the evidence that the legitimate reason would have
brought about the same result even without the illegal motivation, an
employer can establish an affirmative defense to the discrimination
charge.’’)
9 See Aero Metal Forms, 310 NLRB 397, 399 fn. 14 (1993).
T & J Trucking Co., 316 NLRB 771 (1995). This was further
clarified in Manno Electric, 321 NLRB 278 (1996).
I now examine the credible evidence in the record to de-
termine whether the General Counsel has met his initial bur-
den. The evidence shows that Freid engaged in union activity
and Respondent knew this. As more fully described above,
Freid contacted the Union and assisted in the organizational
effort. Respondent knew of Freid’s union support by at least
December 1995, when Obert expressed surprise on learning
that Freid had been the person to initially contact the Union.
Indeed, Respondent admitted knowledge of Freid’s union ac-
tivity when, on January 24, it filed objections to the election
wherein it alleged that certain leadpersons, including Freid,
had engaged in active campaigning for the Union. I conclude
that the General Counsel has established the elements of pro-
tected union activity and Respondent’s knowledge of that ac-
tivity. However, these elements alone are insufficient to es-
tablish a prima facie case.
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770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Regarding the element of antiunion animus, I note that it
is significant that the complaint does not allege, nor does the
evidence show, that Respondent has engaged in conduct
independently violative of Section 8(a)(1). Despite the ab-
sence of this normally persuasive evidence of animus, I ex-
amine the record as a whole to determine whether it estab-
lishes Respondent’s animus. There is no doubt that Respond-
ent opposed the unionization of its employees. This is shown
by the fact that it conducted an antiunion campaign. How-
ever, so far as this record shows, the campaign was con-
ducted within the confines of the Act. Respondent voluntarily
agreed to have the Board conduct an election among its em-
ployees. Moreover, after contesting the election results for a
period of time, Respondent withdrew its objections, recog-
nized the Union, and successfully bargained with the Union
to agreement on a new contract. This indicates that Respond-
ent accepted the wishes of the majority of its employees con-
cerning union representation. Respondent also took the posi-
tion that leadpersons, including Freid, were supervisors who
were not protected by the Act or entitled to union representa-
tion. Although I have concluded that Freid was not a super-
visor, Respondent’s position on this issue was reasonably lit-
igable, especially the issue of whether Freid assigned work
using independent judgment. Also, based on my credibility
resolution, I have concluded that Respondent was careful not
to threaten the leadpersons with discharge if they continued
to engage in union activity. I note that Respondent did not
use this issue to delay the representation proceeding, since it
agreed that leadpersons could vote subject to challenge. Fi-
nally, the evidence shows that Respondent and the Union
were able to resolve this issue in a mutually satisfactory
manner. Concerning Respondent’s reaction to Freid’s union
activity, the evidence shows that Respondent displayed a
total absence of hostility or anger. Even after Respondent
learned of Freid’s union activity, he received a favorable per-
formance evaluation in late December 1995. I conclude,
based on the record as a whole, that the General Counsel has
not established that Respondent was so hostile to the union-
ization of its employees and leadpersons that this hostility
would have been a motive for Respondent to unlawfully dis-
charge Freid. Thus, the General Counsel has not yet estab-
lished a prima facie case.
Concerning the timing of Freid’s discharge, although he
was not fired during the critical preelection period or during
the time period immediately after Respondent discovered his
union activity, I note that Freid was discharged approxi-
mately 2 weeks after the election. This timing could show
that Respondent had decided to heighten its antiunion efforts
as part of an effort to resist the unionization of its employ-
ees. However, such an inference is not warranted based on
the record as a whole in this case. Rather than resist the
union efforts of its employees, Respondent withdrew its ob-
jections to the election, recognized the Union, and negotiated
a contract. In the process Respondent resolved the issue of
the status of the leadpersons with the Union. The General
Counsel cites Douglas Aircraft Co., 308 NLRB 1217 (1992),
in support of his argument that unlawful motive can be in-
ferred the timing of a discharge. Although there is no ques-
tion that that can be the case, the facts in Douglas Aircraft
only serve to show why that inference is not warranted in
this case. In Douglas Aircraft the administrative law judge
found that a series of discipline coincided with a continuing
pattern of protected activity. That is unlike the timing of
Freid’s discharge, which seems to coincide with little of con-
sequence when the facts are viewed in their entirety. Thus,
while the timing of Freid’s discharge does add somewhat to
the General Counsel’s case, I conclude that it is insufficiently
persuasive, when considered with the other evidence de-
scribed above, to meet the initial burden that the General
Counsel is required to carry.
Although the General Counsel does not explicitly argue in
his brief that Respondent’s unlawful motive can be inferred
from the allegedly pretexual nature of the reason given to
justify its discharge of Freid, at the hearing such an argument
was made. I shall, therefore, deal with that issue. The Board
has held that when a respondent’s stated motives for a dis-
charge are found to be false, the circumstances may warrant
an inference that the true motive is an unlawful one that the
respondent desires to conceal. Fluor Daniel, Inc., 304 NLRB
970 (1991). Respondent has asserted three reasons for dis-
charging Freid: declining production in the CNC department,
poor attendance, and deteriorating communication. Although
the evidence seems clear that Respondent was at least exag-
gerating Freid’s problems in these areas, I find it unnecessary
to resolve whether these reasons were totally pretextual. As-
suming that were, I still do not draw the inference that the
reason for discharge would therefore be an unlawful reason.
This is so because I have credited Schreiner’s testimony that
Meaden had another reason for discharging Freid that was
not communicated to Freid: that Meaden suspected Freid of
deliberately impairing production in the CNC department. I
conclude that was the reason for Freid’s discharge. I note
that Meaden had a certain amount of knowledge of the work-
ings of the highly technical CNC department, unlike Obert.
Thus it is not surprising that Obert played only a small role
in Freid’s discharge. I have concluded above that Freid’s ex-
planation of the sharp decline in production in the CNC de-
partment did not fully explain that drop. I have further con-
cluded above that Freid’s attitude, as shown by an unwilling-
ness to communicate freely with Obert, declined during the
election campaign and at a time when production was gen-
erally declining. These matters lead Meaden to conclude,
rightly or wrongly, that Freid was deliberately impairing pro-
duction; this caused Freid’s discharge. It does not matter in
this case whether Meaden’s decision was fair or reasonable;
it matters only that the reason was not related to Freid’s
union activity. I recognize that Respondent has not asserted
this as the reason for Freid’s discharge. Normally, I would
be reluctant to find as the reason for discharge a reason not
advocated by the employer itself. However, here Schreiner’s
credited testimony provides an explanation. When Meaden
expressed his concern that Freid was deliberately impairing
production, Meaden admitted that he had no ‘‘hard evi-
dence’’ to prove that assertion. Schreiner then counseled
Meaden not to ‘‘do a lot of needless finger pointing over
issues that you suspect but you don’t have hard evidence
of.’’ Meaden and Schreiner thereafter followed this advise.
Under these circumstances, I decline to infer an unlawful
motive in Respondent’s discharge of Freid.
I, therefore, conclude that the General Counsel has failed
to establish a prima facie case, and I shall recommend that
the complaint be dismissed.
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771MEADEN SCREW PRODUCTS
20 The General Counsel’s brief does not mention this testimony or
address this issue.
21 I do not credit Weichinger’s conclusory testimony, coming after
a series of evasive answers, that he decided to work on the T-7 be-
cause it was part of his normal routine.
22 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
C. Posttermination Events
As indicated above, Respondent argues that even if Freid
was unlawfully discharged he is not entitled to reinstatement
and full backpay due to events that occurred subsequent to
his discharge. Respondent relies on Opryland Hotel, 323
NLRB No. 127 (May 15, 1997), wherein the Board stated,
‘‘[W]here . . . an employee is unlawfully discharged, rein-
statement and backpay are appropriate remedies unless the
employer can show subsequent acts (or discovery of same)
which would have resulted in a lawful discharge.’’ I have
thus far found it unnecessary to resolve that issue because I
have determined that Respondent did not unlawfully dis-
charge Freid. However, in the event that I am reversed on
that finding. I have decided to resolve Respondent’s alternate
argument while the facts of the case and the demeanor of the
witnesses are still fresh. If my finding that Freid was not un-
lawfully discharged is not reversed, then the subsequent find-
ings are unnecessary and should be regarded as such.
I do not credit Freid’s testimony that he did not counsel
other employees to perform sabotage of Respondent’s equip-
ment or that he ever told anyone that he had done so. In-
stead, I credit Cooper’s testimony that Freid admitted that he
‘‘had someone else do it.’’ I find no reason to disbelieve
Cooper’s testimony.20 In addition to Cooper’s convincing de-
meanor, I find it highly unlikely that Cooper, a union agent,
would simply fabricate testimony of this nature.
I also do not credit the testimony of Weichinger that the
‘‘crash’’ of the T-7 machine after Freid’s discharge was due
to Weichinger’s inadvertent error. In addition to my assess-
ment of Weichinger’s demeanor, I rely on the fact that his
testimony was obviously evasive in critical matters such as
whether he was assigned to work on the T-7 on the day in
question. I also consider the inherent probabilities based on
the record as whole. Thus, the evidence shows that shortly
after Freid was fired Weichinger called him from work and
had a 5-minute conversation with him. Thereafter, without
being assigned to so, Weichinger worked on the T-7 ma-
chine, the very machine that Freid had started to work on be-
fore he was fired.21 Subsequently, the T-7 crashed, yet even
after Weichinger discovered that Respondent was suspecting
that fellow employee Freid had sabotaged the T-7,
Weichinger did not tell Respondent that he had innocently
caused the error; instead, he waited until the hearing in this
case to do so.
Based on this testimony I conclude that Respondent has
established that it would have discharged Freid in any event
when it discovered that Freid had counseled other employees
to deliberately damage Respondent’s property. In the event
that Freid was unlawfully discharged on February 2, he
would not be entitled to reinstatement. The amount of back-
pay, if any, to which Freid would be entitled would be deter-
mined in the compliance stage of these proceedings.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent did not engage in the unfair labor alleged
in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended22
ORDER
The complaint is dismissed.
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