Nixdorf Computer Corp.

National Labor Relations Board - Board Decisions

Jul 18, 1980

250 N.L.R.B. 771 (N.L.R.B. 1980)

NIX)()RF COMPUTER CORPORA IO()N
Nixdorf Computer Corporation and Local Union No.
3, International Brotherhood of Electrical
Workers, AFL-CIO. Case 2-CA-16084
July 18, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENEI. 10, AND
TRUESDAI.E
On January 22, 1980, Administrative Law Judge
Irwin Kaplan issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
i The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products. Inc.. 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings.
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge: This case
was heard in New York City, New York, on July 5 and
6, 1979. The charge which gave rise to this proceeding
was filed by Local Union No. 3, International Brother-
hood of Electrical Workers, AFL-CIO (herein also re-
ferred to as Local 3 or the Union), on December 12,
1978, and the complaint thereon issued on January 31,
1979. In essence the complaint alleges that Nixdorf Com-
puter Corporation (herein called Respondent or Nix-
dorf), placed David Loperena, its employee on proba-
tionary status on November 20, 1978. and then terminat-
ed him on November 29, 1979, because of his activities in
support of Local 3 and that Respondent thereby violated
Section 8(a)(3) and (1) of the National Labor Relations
Act, as amended (herein the Act).
250 NLRB No. 111
Respondent filed an answer conceding, inter alia. juris-
dictional facts but denying all allegations that it commit-
ted any unfair labor practices.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after careful consid-
eration of the post-hearing briefs, I find as follows:
FINDINGS OF FACT
I. JURISI)I( I ION
Respondent, Nixdorf Computer Corporation, a Massa-
chusetts corporation, is engaged in the manufacture, sale.
and leasing of computer equipment and related products.
At all times material herein. Respondent has maintained
its principal office in Burlington, Massachusetts, as well
as offices and places of business in New York City and
New Hyde Park, New York. During the calendar year
ending December 31, 1978, and at all other times materi-
al herein, the Respondent. in the course of its operations
noted above, purchased and received at its New York
City and New Hyde Park, New York, locations goods
and materials valued in excess of $50,000 directly from
points outside the State of New York. Respondent
admits, and I find, that it is an employer within the
meaning of Section 2(2), (6), and (7) of the Act.
Respondent admits, and I find. that Local Union No.
3, International Brotherhood of Electrical Workers,
AFL-CIO, is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
It. THE AIA.EGED UNFAIR l.ABOR PRACTICES
A. The Setting
Local 3 commenced organizing Respondent's techni-
cians and dispatchers (approximately 28 in number) em-
ployed at its Hyde Park. Long Island, location and its
New York City location in early 1978.1 These employees
are principally engaged in servicing Respondent's cus-
tomers in the New York area which involves the installa-
tion and repair of computer products manufactured by
Respondent. The Union's organizational efforts culminat-
ed in a certification in July after a Board election which
was conducted the previous month.
David Loperena, the alleged discriminatee, and a unit
employee (field engineer), was employed by Respondent
from September 1974 until November 29, 1978, at which
time he was discharged. Loperena was not instrumental
in the Union's organizational campaign, learning about it
relatively late, about I month before the election. How-
ever, he testified that he made his prounion sentiments
known to management at a company-held election meet-
ing in late May or early June. At this meeting which was
held at the Hyde Park facility and attended by almost all
of the Long Island field engineers and dispatchers, Lo-
perena challenged, inter alia, the accuracy of a statement
made by Mel Shapiro, vice president of field engineering,
regarding the amount of monthly union dues that em-
ployees would have to pay if the Union became their
I All dates hereinafter refer to 1978 unless otheru. se indicailed
771
DI)CI tS()NS ()F NA I I()NAI. I.AB()R RI LA I I()NS B()ARD
bargaining agent. Loperena also testified that after this
meeting Regional Manager Stanley Grodin took him
aside and told him that Shapiro wanted to talk to him.
According to Loperena, Shapiro and Grodin expressed
surprise that he, Loperena, "a quiet person" was sudden-
ly making statements supportive of the Union. Loperena
testified that he told Shapiro and Grodin, inter alia, that
"the Company [had] done all it could for its employees
that wxe should give the Union a chance now."
Almost all of the field engineers including Loperena
attended the first two bargaining sessions which were
held in August and September, respectively.2 Loperena
who was not a member of the union negotiating team
had a number of brief chance encounters with Grodin at
the Long Island facility whereby the former blamed the
Company and the latter the Union for the lack of prog-
ress at the bargaining table. In October or November,
Loperena gave out form post cards to several of Nix-
dorfs customers addressed to Respondent's board of di-
rectors. These post cards contained printed information
critical of Respondent's labor relations policy and ex-
horting it to negotiate a contract in good faith (G.C.
Exh. 3). Loperena obtained these post cards from Union
Business Representative John Crowley who also gave
such cards to other employees to distribute to Respond-
ent's customers, Respondent's district field manager,
John Gerrity, admitted receiving some of these cards but
denied any knowledge as to involvement of Nixdorfs
employees in the distribution thereof. It was Gerrity who
recommended that Loperena be discharged, allegedly be-
cause of his unsatisfactory job performance.
Gerrity began his employment with Nixdorf in Sep-
tember 1978, after the Union had already become the ex-
clusive certified bargaining agent and after negotiations
for a collective bargaining contract had commenced. He
did not participate in any of the negotiating sessions. Ac-
cording to Gerrity, immediately after he was hired as
District Field Service Manager, he conducted a thor-
ough management analysis of all aspects of the district's
performance vis-a-vis the Company's ability to service
customers and discovered inter alia that employees were
taking too long to respond to customer calls for assist-
ance. This gave rise to two documents which were dis-
tributed to all district field engineers and dispatchers
around the last week in September setting forth company
procedures concerning inter alia overtime, standby
status,3 and mandatory notification requirements on the
part of these employees to management. (Resp. Exhs. I
and 2.) In addition, Gerrity evaluated the employees'
Al the lime of the instant hearing the Union and Respondent had not
yet arrived at an agreement on an initial contract.
:' Standby duly is a form of overtime which relates principally to emer-
gency calls after normal working hours (5 p.m to 8:30 a.m.) It is a serv-
ice providing for continuous availability of a service engineer on compa-
ny products An engineer served on olandby status approximately I week
each month Overrtime generally is that period that is carried beyond the
normal workday (after 5 p.m.) and insolses essentially preventative main-
lenance Employees were required to call at the end of each workday to
learn if there was an overtime assignmell. While it is undisputed that
overtime work was mandatory in the fall of 1978 there is some conflict-
ing testimony which I do not deem material as to whether ii was manda-
tory before Gerrity became district manager
performance in terms of productivity 4 and informed
them that because the district was maintaining a large
service call backlog he would continue to monitor their
work. According to Gerrity, by October he evaluated
Loperena's performance as unsatisfactory and informed
him of this at an informal counseling session on or about
October 17 with instructions that he improve. Loperena
denied that there was a problem and complained about
doing his job without having a contract. Gerrity testified
that Loperena had complained about the same subject to
Regional Director Art Cavaliere (Gerrity's immediate su-
perior) at a group meeting at the Long Island facility in-
volving unauthorized absences several weeks earlier. Ac-
cording to Gerrity, Loperena asserted that he and the
other engineers could not see any reason to be motivated
to work or provide a 100-percent effort without a con-
tract. Gerrity recalled that Loperena stated that he was
in favor of the Union and not pleased with the Compa-
ny's negotiating position.
According to Loperena he made reference to the diffi-
culties of working without a contract on only one occa-
sion, and that occurred at a counseling session with Ger-
rity in late October or early November.5 Gerrity told
Loperena with or without a contract he expected him to
do a full day's work and advised that he would continue
to monitor his work.
It is undisputed that Loperena was a good worker
prior to the advent of the Union. Loperena concedes,
however, that the number of daily service calls he made
in the fall months had fallen off from the previous spring
while correspondingly the number of recalls had in-
creased. He attributed this largely to the pressure of
working without a contract which assertedly caused him
to lose a lot of sleep. Gerrity asserted that Loperena's
productivity did not appreciably improve over the next
several weeks. This was largely confirmed by Loperena
who testified that the number of calls "stayed the same
more or less." In addition, Gerrity asserted that he re-
ceived two customer complaints about Loperena and
that the latter refused two overtime assignments. The
customer complaints came from General Electric (GE)
and Service Bureau Corporation (SBC), both companies
requesting that Loperena no longer be dispatched to
their respective installations to service equipment.
Loperena acknowledged that GE was "mad" at him
but he asserted that there were mitigating circumstances.
According to Loperena, he was unable to complete the
4 This consisted largely of the number of service calls per day and the
rate of recalls A recall occurs essentially when the engineer returns to
the customer within 30 days to repair the same problem in the system
that he had worked on previously.
I I found Loperena's testimony regarding this incident disjointed, in-
consistent. unlresponsive. and lacking candor For example, he denied that
he told Gerrity that he would not work hard without a contract. Howev-
er. even accepting his account of what he told Gerrity, it strongly sug-
gests otherwise Thus as testified by Loperena, he told Gerrity "some-
thing to the effect that until we got it all straightened out. the contract. I
wasn't going to be able to naturally. in other words. I was upset You
just can'l work"
On the other hand. I found Gerrity to be generally consistent and
forthright For these reasons and others noted in/ja. including my obser-
vation of their demeanor. I credit Gerrity over L operena in all critical
areas where thier testimony conflic.
772
NIXD)RF C()MPITFER CORPI')RATI()N
disputed call at GE in I day because he did not have a
"CPU," which was needed to repair the indicator lights
in the machine. He left a message on the machine for
Howard Norris, operations manager of GE promising
that he would return the following morning at 10:30 to
complete the repair. At approximately 9 o'clock the next
morning Loperena appeared at Respondent's Long
Island branch and picked up the "CPU" for the indicator
lights but was directed by Area Manager Mike Vacar-
relli to go to another customer, Preferred Electric. Lo-
perena objected because he had not completed the GE
job but when told by Vacarrelli that he would send
someone else to GE, Loperena went to Preferred Elec-
tric to carry out the new assignment. Approximately 3:30
to 4 p.m. that same day, and after Loperena had com-
pleted his work at Preferred Electric, he called his home
office as required only to learn that no one had taken
care of the GE job. Loperena raced over to GE and it
took him approximately 5 minutes to install the the
"CPU." By that time the machine already had an extra 8
hours of downtime and the customer was unhappy. Al-
though Loperena was not satisfied that the machine
would function the way it ought to, it was usable and ac-
cordingly he decided to leave GE rather than work fur-
ther on the machine.
On the other hand, I found Gerrity to be generally
consistent and forthright. For these reasons and others
noted, infra, including my observation of their demeanor,
I credit Gerrity over Loperena in all critical areas where
their testimony conflict.
With regard to the SBC matter which occurred in No-
vember. Loperena again contended that there was some
mitigating circumstances. Loperena testified that the
repair job for SBC included a new system for which he
had not been trained.
The overtime incidents also occurred in November
and involved two other customers, Hanover Data (Han-
over) and Melrose Yarn (Melrose). Loperena denied that
he refused to work overtime at Hanover but asserted
rather that what happened in effect was a lack of com-
munication between himself and management. There is
little disagreement as to what actually occurred. Thus, it
is undisputed that Loperena called Gerrity at or about
4:30 p.m., from the Hanover installation as he was re-
quired and that Gerrity was unavailable at that moment. 6
Loperena testified without contradiction that he left the
phone number at Hanover where he could be reached
and about 5 minutes later he heard from Area Manager
Blase Chrasztek on an unrelated matter. Loperena asked
for and was given permission by Chrasztek to go home.
In the meantime, Gerrity had directed that Loperena be
called with instructions to work overtime until the Han-
over problem was resolved, but when the call was made,
Loperena had already left Hanover for his home. Several
days later on November 17, the Melrose incident oc-
curred.
As with the Hanover incident, there is little dispute re-
garding the facts at Melrose. Loperena called Gerrity
from the Melrose location and told him that without
" The rec' rd di ,clos,,' that pending climin ation l f the r,,rici . c.ll
hacklog. New Nork distrclt pcrsnillel ,rc rCquircd to s, rk o .CcrtIII ll
unles personallull relC,;lcd h (errilt (ScC (i C I ,h 4. p I)
help he was unable to fix the machine. He asked Gerrity
if he could send Vacarrelli (Loperena's area manager) to
the installation for assistance hut was told by Gerrity
that no one was available at that time. Gerrity also in-
structed l.operena to call back in 30 minutes. According
to Loperena, he got involved in trying to resolve the
problem and some 3 hours passed before he realized that
he forgot to call Gerrity back. When he did. Gerrity be-
rated him and told L operena that he had to stay at the
machine until the problem was fixed even if it meant
overtime and working on Saturday. Gerrity pointed out
that the customer already had complained that it was
taking too long to fix the machine. Loperena protested
that Gerrity was changing the policy by making over-
time mandatory and he threatened to file an unfair labor
practice charge. The following Monday, November 20(),
Loperena was placed on probation.
On November 20 Gerrity served Loperena a proba-
tionary memorandum (G.C. Exh. 4) which cited, inter
alia, the above-noted incidents at SBC, GE, Hanover,
and Melrose. In addition, the memorandum reported that
GE and SBC no longer wanted him dispatched to serv-
ice their installations because of his "poor attitude and
performance." He was also accused in the memorandum
by his immediate manager of being "argumentative, and
uncooperative, to an extent not experienced with other
field engineers in the district." Loperena's overall con-
duct was described in the document as "border[ing] on
insubordination." The probationay period was for 6
months commencing that same day, to expire on May 20,
1979. He was warned that his performance would be
closely monitored by Gerrity and "any instance of non-
performance on [Loperena's] part, especially complaints
from customers, will result in [his] immediate termina-
tion." Loperena denied any wrongdoing and disputed the
accusation that GE complained about him. With regard
to the SBC complaint, he wanted to know how much
Gerrity paid that company to make it. 7
During the course of this session Loperena threatened
to contact GE and SBC to disprove the allegations that
they complained about him. Gerrity in turn directed Lo-
perena to stay away from these companies pointing out
that they were already upset and that any further contact
by him would only exacerbate the situation. Two days
later Gerrity learned that Loperena contaced GE and
pressed that company on why it complained about him."
As a result thereof, Gerrity recommended that Loperena
be terminated. However, due to the intervening Thanks-
Loperena denied that he made this remark to (;errll hbut aeiCrtied
that "-it] Vas a cnmm enl that I made to myself" Noting thalt ,peren.l
also coniceded making the remark In Gerrin ', presence. I its st il lnoilhcr
example tending io rCeftCl idtcrere] in his candor
" According ito I oper lena hee ointiactea i (;F hecat l,, he he ard "slte
rumor" thail com plailned ahoul him hut ihai tha i irincidticltt i. urrd a; l ior
aboh u Ihe tillle ni f hi c t ui llacii ling sc-1[il in ()c hl a ,i r alii l iti trr tit pro-
hiali lar. inilteriiC ,IS I opcrclii all 1 1 firt denied thell (tvir ile , I rlitl i lc'.l
hl iit the prllhatioinllr!, IIItL'["l "A, nli to I0 n lTIU1 (}I! l' llA d S Il(. as'\C r.
vh tie l,,k )d I i sllni lII rccr-. -cxAinllnoim n, he i C,,ponded " )[ tll' f n111n111
her lie nligh1t ha c }tc ni g ll h ot I D l nt 'l rLt'( 111. I A Nllt'l " l [111g l Jih l I
ha,.c pr'v.i.utl! dcltclllillm)d thla I t pecliild'% lln , \1 Iktd bN It,
lack I f .11 ll . I I'llrt, lCl I il l [ h l I}1 ilSICl l l I 1.t1 hic lll iit.l (i t
hbefor Ii 1 l i ld lo llt I rt 1 hp llo )tl ill t 1I.t 1\ t1.\l I' Iht I ;1ss ie ,'t I -C .ttitt.l
ril ni1[ al,,) l ti r~ Irtla sil1 1 I t 1 flCtt'd
I)tECISI()NS OF NATIONAL LABOR RELA'I IONS BO()ARD
giving holiday, Grodin, Gerrity's immediate supervisor,
could not be reached. Grodin was contacted the follow-
ing week and concurred with the recommendation and
Loperena was terminated effective November 29. (See
G.C. Exh. 6.)
George Lemus, an employee and cochairman of the
union negotiating committee, testified that in early De-
cember he was invited by Gerrity to accompany him to
the bank and, during the course of the trip, Gerrity ac-
knowledged that he discharged Loperena because of the
latter's outspokenness on behalf of the Union and added
that he would not take that from anyone. Lemus also tes-
tified that Gerrity told him that he was not afraid of any
unfair labor practice charges because he would deny the
statement. According to Lemus he did not make any dis-
cernible response, but in effect merely shrugged his
shoulders. Gerrity, on the other hand, while conceding
that he had been with Lemus at the bank on that occa-
sion, describes the incident differently. According to
Gerrity, he learned through Grodin that Lemus was un-
happy with him because he, Gerrity, had recently been
abrupt when Lemus was trying to tell him about some
problems. This is largely confirmed by Lemus who testi-
fied that he mentioned the fact that Gerrity was ignoring
him to Grodin. Thus, Gerrity asserted that on the day in
question he tried to give his "undivided" attention to
Lemus. Gerrity testified that they discussed, inter alia.
Loperena's discharge and the status of the contract nego-
tiations. With regard to Loperena's discharge, Gerrity
testified that he told Lemus that he took this action be-
cause Loperena's production was down and because of
customer complaints. He denied that he told Lemus that
Loperena's discharge was related to his support for the
Union.
B. Discussion and Conclusions
The record disclosed that Loperena was not a key
union employee otherwise instrumental in the union's or-
ganizational drive. However, the record also disclosed
that Loperena made his prounion sentiments known to
Respondent at a company conducted campaign meeting
approximately I month before the election. Further, the
record disclosed that after the Union obtained its certifi-
cation, Loperena often expressed statements supportive
of the Union and critical of Respondent vis-a-vis their re-
spective bargaining positions. Still further, the record
disclosed that Loperena was one of a number of employ-
ees who gave to Nixdorf's customers union made post
cards to mail to Respondent containing a message there-
on chastising Respondent for its labor relations policy
and urging it to bargain with the Union in good faith.
It is beyond doubt that the aforenoted expressions of
support for the Union are protected by the Act. This
case turns then on whether Loperena's probation and
discharge were predicated on his protected activities.
According to Respondent, Loperena was disciplined be-
cause of poor work, "conduct border[ing] on insubordi-
nation" by refusing, inter alia, to work overtime, and
customer complaints, and not for any protected or union
related reason.
The record reveals that Loperena was an able employ-
ee before advent of the Union. However, after the Union
obtained its certification and after contract negotiations
had begun, Loperena's overall production and work per-
formance slipped. Thus, by his own admission, he made
fewer service calls and was responsible for more service
recalls during the autumn months than he had the previ-
ous spring. This deterioration in Loperena's overall job
performance gave rise to a counseling session in or
around mid-October at which time Gerrity told Loper-
ena that he had to improve. Loperena complained about
working without a contract which assertedly caused him
to lose sleep and be otherwise upset and told Gerrity in
effect that he could not work until this contract matter
"straightened out." Gerrity rejected Loperena's explana-
tion pointing out that the company paid his salary and
would demand adequate performance.9
The record reveals that during the next several weeks
Loperena's work performance did not substantially im-
prove. Thus, he testified that the number of his service
calls "stayed the same more or less." In addition two
customers (GE and SBC) complained about him and re-
quested that he not be sent to service their installations
again. Still, further, he refused to work overtime at Mel-
rose accusing Gerrity of changing the overtime policy
from voluntary to mandatory (in the absence of a good
excuse) and threatening to file an unfair labor practice
charge over the change.i° In this connection it is noted
that Loperena testified that on two other occasions he
objected to working overtime stating that he would first
consult with his attorney. According to Loperena on one
of these occasions he finished the job before 5 p.m. so
that overtime was no longer necessary. With regard to
the other occasion, he could not recall the circumstances
or whether he had actually consulted with his attorney.
On November 20, approximately 1 month after the
counseling session, Loperena was put on probation. Ger-
rity cautioned him that "any instance of non-perform-
ance on his part, especially complaintsfrotn customers, will
result in [his] immediate termination." (G.C. Exh. 4, em-
phasis supplied.) In response thereto, Loperena uttered a
remark (assertedly to himself, but loud enough for Ger-
rity to hear) questioning how much Gerrity paid SBC to
make a complaint about him. He also threatened to con-
tact GE and SBC to further investigate and disprove
their complaints. Gerrity in turn pointed out that any
contact by him with these customers would only further
exacerbate the situation and specifically directed him to
stay away from these customers. When Gerrity learned 2
days later that Loperena contacted GE and ignored his
directive, he recommended that Loperena be terminated
and he was, effective November 29.
According to the General Counsel, Respondent treat-
ed Loperena disparately. He also relies largely on
Lemus' testimony ascribing to Gerrity an admission that
he discharged Loperena because he spoke too much in
favor of the Union and that he would not tolerate such
conduct from anyone.
' It is i mntd that it it not alleged nlr dos t11t (,icneral Counscl con-
lenid thai t this c ounseling sCs1lln Gstl barbeLX 1 o an'lhing other Ihilll (3erri-
ty's Icgillnnale c locCrl 1 l(to Ip ) opcrnlla'i s Uork pcrformance
, I thie lob dscriprtion for f ield er xice ci plo)cu ill t ,. tllr u/llu tIhit
"orIllltmc I requird" if rcquel d bh Ihe nlanlagcr (Rcap [xh t }
774
NIXIDORF COMPUTER CORPORAI()ON
With regard to the General Counsel's contention that
Loperena suffered disparately, I find that it is misplaced
and not supported by the credible evidence. While he ad-
duced testimony from several employees asserting that
they had refused overtime and violated other company
rules with impunity, I find that such testimony was
largely vague and conclusionary. " For example, em-
ployee Lemus testified that he refused to work overtime
approximately 90 percent of the time. However, when
asked to specify one such occasion he could only recall
that it happened in November but was unable to identify
the supervisor and customer involved. In addition the
type of infractions these employees engaged in never
reached the level of insubordination practiced by Loper-
ena.
On the other hand, Gerrity credibly testified that the
only other employee (besides Loperena) under his super-
vision who refused a direct order to work overtime was
Ricardo Carabello. In late October, Gerrity also put Car-
abello on probation for his failure, inter alia, to follow a
direct order. 1 2 In these circumstances I find that the
credible evidence falls far short of establishing that the
adverse action invoked by Respondent on Loperena was
disparate.
I am also unpersuaded that Gerrity admitted to Lemus
that he discharged Loperena for talking too much about
the Union. According to the General Counsel, Gerrity's
admission was calculated to intimidate Lemus in the per-
formance of his duties as cochairman of the union bar-
gaining committee.
I find, however, that the record is devoid of any evi-
dence tending to support the General Counsel's rationale.
Thus, the complaint does not allege nor does the General
Counsel contend that Gerrity by himself or that Re-
spondent has otherwise violated the Act. Further, as the
record discloses that Gerrity was not involved in the ne-
gotiations, I find it unlikely in the absence of any other
unlawful conduct ascribed to him that he would risk the
consequences of an admission to a key union employee
(cochairman) or that he would otherwise attempt to in-
hibit Lemus vis-a-vis union activities. Moreover, I was
not impressed with Lemus' reliability as a witness (see fn.
11). In this connection it is noted that Lemus testified
that Gerrity made the disputed admission during the first
I I John Iiore. George Leimus, and Larry Ihomoa teslified in support of
this contenlion Insofar as reflecting on the weight of their lestimon 5 it is
noted that these indisiduals were striking employees at the time of the
hearing. The subject of the strike itself .as not htigaled herein. In any
event I was unimpressed with the demeanor of the witnesses and did not
find their testimony reliable
12 The record dlKiloses that John 4hinow. another employee and
member of the union negotiating commilltee. '%.as taken off prohalion h,
Gerritiv
week in December. While the underlying charge alleging
Loperena's unlawful discharge was signed oil December
I and actually filed by the Union on December 12,
Lemus did not deem the admission significant enough to
pass on this information to anyone else until approxi-
mately 4 to 6 weeks later. Lemus asserted that as he 'cas
"part of the union" he did not even respond to Gerrity.
According to Lemus, he first disclosed this information
at the middle or end of January 1979. w\hen the subject
of Loperena's discharge came up at a meeting of field
engineers at which time someone suggested that anyone
with information supportive of the charge go to the
Board and give a statement.
Lemus' account smacks of fabrication and given his
union station does not sound plausible. As I have also
noted that Lemus was not a reliable witness on other
matters, I reject his testimony ascribing to Gerrity the
disputed admission.
In sum I find that the General Counsel has failed to
establish by a preponderance of the credited evidence
that Respondent put Loperena on probation and later
discharged him for reasons violative of Section 8(a)(3)
and (1) of the Act 13 Accordingly, I shall recommend
that the complaint be dismissed in its entirety.
CONCL USIONS OF LAW
1. Respondent Nixdorf Computer Corporation is an
employer within the meaning of Section 2(2). (6), and (7)
of the Act.
2. Local Union No. 3, International Brotherhood of
Electrical Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The General Counsel has not proved by a prepon-
derance of the credible evidence that Respondent has
violated Section 8(a)(3) and (1) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record in these proceedings,
and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 14
The complaint is hereby dismissed in its entirety.
': See, e.g . Carrom Division, .4ffrliated lHJospital Productrs. Inc, . 245
NL.RB No 89, fn 1 (1979)
14 In the esenl no exceplions are filed as provided by Sec 10(2 4t. of
the Rule, and Regulatlons of the National Lahbor Relatilons Board. the
findings. conclusions, and recommended Order herein shall. as provided
im Sec 102 48 of the Rules and Regulations, he adopted h. the Board and
become its findings. conclusions. and Order. and all hobjectirons therelo
shall be deemed waised for all purposes