Peer Enterprises, Ltd.

National Labor Relations Board - Board Decisions

Jun 27, 1975

218 N.L.R.B. 987 (N.L.R.B. 1975)

PEER ENTERPRISES , LTD. 987
Peer Enterprises , Ltd. and Paulette Hawrita and
Edward Meitz. Cases 13-CA-13463 and 13-CA-
13529
June 27, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On January 15, 1975, Administrative Law Judge
Herbert Silberman issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief and Respon-
dent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the consolidated complaint be,
and it hereby is, dismissed in its entirety.
MEMBER FANNING, dissenting:
In this case the General Counsel has alleged that
employees Hawrita and Meitz were discharged and
laid off, respectively, because they had complained to
the U.S. Department of Labor that Respondent had
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 respect 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 F2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings
2 Contrary to our dissenting colleague , we agree with the Administrative
Law Judge that the statements attributed to Gauss by Mertz, as described in
fn. 7 of the Administrative Law Judge's Decision, did not counterbalance
the evidence upon which he based his finding that Hawnta' s discharge was
for cause and not pretextual. In the first place, we, like the Administrative
Law Judge, entertain serious doubts as to the reliability of Meitz' report
about the matter when the relevant evidence is considered as a whole.
Giving due regard to the Administrative Law Judges characterization of
Meitz as being less credible than Gauss where both testified about similar
matters, we note, inter alia, that Gauss explicitly testified that the only
conversation he had with Meitz about the OSHA complaint occurred about
August 18 , 1974, within a day or two after OSHA advised Respondent that
the employees' complaint had been found to be without meat; and that
Mertz' testimony, supra, purports to describe an August 2 conversation. But,
more important to our assessment of the total evidence relevant to the
violation issues is the existence of credited evidence that Gauss had made
created a safety hazard by locking the front door of
its premises so that employees could not enter or
leave unless somebody first pressed a buzzer.
Hawrita was hired on July 23, 1974. On August 1
Plant Manager Gauss was informed that she intend-
ed to file the above-mentioned complaint. Hawrita
was summarily fired the same day. Although Re-
spondent contends that she was an unsatisfactory
employee, there is no evidence that she was warned
that failure to improve her performance would result
in her discharge. When she was fired she was told by
Gauss that she was not "producing enough pro-
duction and also that I talked too much." The next
day Gauss told Meitz that Gauss "had got rid of this
person because they were going to call the cops on
him about the door and he thought they were a
troublemaker, so he got rid of her." Although Gauss
was a witness for the Respondent, he was not asked
whether he had made, and did not deny making, the
above statement. Meitz' testimony stands uncontra-
dicted on the record. In these circumstances, I must
accept Meitz' testimony as true and therefore find
that Gauss' statement constitutes an admission by
him that Hawrita was discharged because she was
"going to call the cops on him." I find unpersuasive
my colleagues' conclusion that such an admission
may be ignored because Meitz' testimony was not
corroborated by others. Surely, the damaging nature
of his testimony must have been recognized by Gauss
and Respondent. Nevertheless, Gauss was unable or
unwilling to contradict Meitz.
With respect to Meitz, the record shows that he
joined Hawrita in filing the. complaint, but asked
OSHA not to reveal this fact to Respondent.
Respondent's president, Silverman, learned for the
first time on August 26 through a Board investigator
that Meitz had signed the complaint. That evening he
was laid off and told that there was not enough work
up his mind to terminate Hawnta as an unsuitable employee candidate even
before Hawrita had made any mention about the locked door ; that the
credible evidence-independent of that provided by Gauss' testimony-
established that Hawnta had not proved to be a satisfactory, cooperative
trainee; that there is no record warrant for inferring that Hawnta's
deficiencies as an employee had been tolerated in any other employee and
would have been tolerated in her case, but for her activity in filing an OSHA
complaint. We note also that there is affirmative evidence that Respondent
wanted to retain Mertz in its employ despite knowlege of his having joined
Hawrita in filing an OSHA complaint, and also despite the fact that it had
no work for Mertz to do at the time in the job classification assigned to hum
on hire. In sum, it appears that General Counsel would have us find the
violations here alleged solely on the basis of the uncorroborated testimony
of a witness-Mentz-who has been found unreliable in other respects, and
where testimony has been either explicitly or implicitly contradicted. This
we are not willing to do. Cf e.g., Kaydee Metal Products Corporation, 195
NLRB 687, 691 (1972); Raymond Buick, Inc., 173 NLRB 1292 (1969); Hot
Point Ca, a Division of the General Electric Company, 120 NLRB 1768
(1958). Accordingly, we conclude, as did the Administrative Law Judge,
that the General Counsel has failed to establish by a preponderance of the
evidence that Respondent in fact committed the alleged violations of Sec.
8(a)(1) of the Act. -
218 NLRB No. 155
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for him. The next day Gauss telephoned Meitz and
offered him a job as messenger at the same salary.
There is no explanation in the record for Respon-
dent's failure to make such an offer when Meitz was
laid off the previous day. Meitz refused the job.
In my opinion the above evidence supports the
General Counsel's position that Hawrita and Meitz
were discharged or laid off because they had signed a
complaint with OSHA. Accordingly, I would find,
contrary to my colleagues, that Respondent thereby
violated Section 8(a)(1) and (3) of the Act and I
would provide an appropriate remedy.
DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Administrative Law Judge: Upon
charges filed in each of the above cases on August 2 and
28, 1974, respectively, a complaint dated October 24, 1974,
was issued alleging that Respondent, Peer Enterprises,
Ltd., herein also called the Company, has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the National Labor Relations Act, as
amended. In substance, the complaint, as amended at the
hearing, alleges that on August 1, 1974, Respondent
discharged Paulette Hawrita and on August 26, 1974,
Respondent laid off Edward Meitz because of their
concerted activities in protesting safety and working
conditions in Respondent's plant; and that on August 2
and 19, 1974, Respondent further interfered with its
employees' statutory rights by threatening employees
"about engaging in protected concerted activities." Re-
spondent filed an answer generally denying that it has
engaged in the alleged unfair labor practices. A hearing in
this proceeding was held in Chicago, Illinois, on November
14 and 15,'1974. Pursuant to leave granted at the hearing
posttrial briefs were filed with the Administrative Law
Judge by Respondent and General Counsel.'
Upon the entire record in the case, and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Company, an Illinois corporation, does typesetting
and related work at its plant in Chicago, Illinois. During
the last calendar year, the Company provided services
valued in excess of $50,000 to other business concerns
located within the State of Illinois which businesses
shipped goods valued in excess of $50,000 from the State of
Illinois directly through channels of interstate commerce to
locations outside the State. Respondent admits, and I find,
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
On July 31, 1974, Paulette Hawrita discovered that
because a new locking device had been installed on the
front door of the Company's premises she could not enter
or leave without somebody first pressing a buzzer. She was
of the opinion that this represented a safety hazard and she
spoke to several employees about the subject. The next day
she called the United States Department of Labor,
Occupational Safety and Health Administration, herein
referred to as OSHA, and was advised that she would
receive in the mail complaint forms. Edward Meitz agreed
to join her in filing such complaint. Plant Manager Ray
Gauss on August 1 was informed of Hawrita's intention to
lodge a complaint with a Government agency and spoke
with Hawrita about the subject. Hawnta was discharged
the same evening. On August 4, Hawrita mailed to OSHA
complaint forms which had been filled out by herself and
Meitz. An inspection of Respondent's premises was
conducted by OSHA on August 15. Two days later a
representative of OSHA informed the Company that it had
been determined that there was no safety hazard created
by the locked door, and at the same time informed Plant
Manager Ray Gauss that the complainants were Hawrita
and Meitz. On August 2, Hawrita filed a charge with the
National Labor Relations Board in which she asserted that
her termination on August 1 had been unlawful. On
August 26, an investigator for the Board spoke with Ray
Gauss and also with Company President Robert Silverman
about the matters raised by Hawrita's charge. It was then
that Silverman first learned that Meitz had filed a
complaint with OSHA. Meitz was laid off that evening,
August 26. Hawrita's discharge and Meitz' layoff are
alleged in the complaint to have been unlawful.
Respondent's defense is that Hawrita, who was hired on
July 23, 1974, as a trainee in the typesetting department,
was discharged because her performance had been unsatis-
factory and that Meitz was laid off because there was no
work for him to do.
B. The Status of John Cooper
Hawrita was hired on Tuesday, July 23, 1974, as a
typesetter trainee by Plant Manager Ray Gauss. There
were then only four persons working on the day shift as
typesetters: Hawrita; Rose Newson, another trainee; Mary
Cooper; and her husband, John Cooper. General Counsel
contends that John Cooper is a supervisor within the
meaning of the Act. During the times involved, the only
two experienced typesetters on the day shift were Mary
and John Cooper. Mary Cooper was the more experienced
typesetter. In 1973" both were working for the Company, at
which time Mary was earning more than John. They left
the Company's employ for about a year, but returned
during the payroll period ending July 21, 1974, and
continued with the Company for a period of about 3
months until October 1974. When they were rehired in July
1974, each was paid $4 per hour. Hawrita, as a trainee, was
paid $3 an hour. To the extent that he had time, Cooper
1 No opposition having been filed thereto, the motion to correct the transcript of record attached to the brief of General Counsel is granted
PEER ENTERPRISES, LTD. 989
instructed Hawrita and the other trainee in the use of the
typesetting machines.2 In addition, John Cooper distribut-
ed work to Hawrita and the other typesetter trainee. This
involved no more than selecting from the department's in-
box the simplest copy, which the trainees were capable of
doing, and reserving the more difficult copy for himself
and Mary Cooper. John Cooper spent almost all his time
doing production work. Other than that he distributed
copy to the typesetters, John Cooper possessed none of the
indicia of supervisory authority set forth in Section 2(11) of
the Act. The distribution activity was merely a routine
function which did not require the use of independent
judgment . John Cooper's relationship to the other employ-
ees of the department was no more than that of a more
experienced employee to a less experienced employee .3
Although Plant Manager Gauss testified that John Cooper
was called a department head, I find that John Cooper
duri ng the times involved herein was not a supervisor
within the meaning of the Act.
C. Hawrita's Testimony
With respect to the events leading to her termination,
Hawrita testified as follows: When she arrived at the plant
on July 31, she discovered that she could not enter or leave
the premises unless a buzzer was first pressed which
permitted the front door to be opened. Before work began
that morning she spoke with Louise Johnson, a proofread-
er, about the matter. Hawrita asked Johnson if she had
seen the lock on the door and why it was there. Johnson
replied that there had been a theft the night before and that
she supposed "it was to keep an eye on us." 4 The same day
Hawrita also mentioned her complaint about the door to
employees Rose Newson, Mary Cooper, Barbara A.
Castellano, and a fourth person.
During her lunchbreak the next day, August 1, Hawrita
telephoned the offices of OSHA and arranged for com-
plaint forms to be sent to her home. About 12:10 that day
she spoke with Edward Meitz, who had been hired the day
before, about filing a complaint and Meitz agreed. Hawrita
then went to the typesetting room where she spoke with
Rose Newson. She informed Newson that she and Meitz
were going to file a complaint with OSHA and asked
Newson to join them. Newson refused. When Mary
Cooper came into the typesetting room and inquired what
the problem was, Hawrita explained that she and other
2 Ftawnta testified that she, in turn, gave some instructions to the other
trainee, Rose Newson.
3 The evidence indicates that John Cooper and Mary Cooper had equal
authonty.
4 Louise Johnson testified that Hawrita asked her what she thought
about the door being locked and she replied that she thought it was best.
Hawrita responded that she didn't like it because she felt locked in. Hawrita
also said something to the effect that she was going to file a complaint about
the matter. Johnson did not testify that she had said that the door was being
locked in order that the employees could be more closely watched. Johnson
further testified that almost every day during her employment Hawrita
complained to her about something As examples , on each of the first 3 days
of her employment Hawrita complained to Johnson that it was too cold in
the typesetting room. Twice Johnson lent a sweater to Hawrita . On another
occasion, according to Johnson , Hawrita complained that there was no
place to eat . And later, Hawrita objected to the door being locked.
5 According to Hawrita, during this conversation , Newson complained
that the employees did not have the use of a telephone or a lunchroom and
Hawrita endorsed that complaint.
employees didn't like the door being locked because it
represented a hazard in the event of a fire or other
emergency and that she was going to file a complaint with
OSHA. Mary Cooper sought to explain that the lock had
been installed for the employees' protection.5 John Cooper
came into the typesetting room and was informed that
Hawnta planned to file a complaint about the locked door.
About 20 minutes later, Mrs. Cooper informed Hawrita
that she had told Gauss that Hawrita intended to file a
complaint with OSHA and that Gauss wished to talk to
her. Mary Cooper also informed Hawrita that there would
be a telephone for the employees to use and also they
would be provided with lunchroom facilities in the
retouching room.
About 2 p.m. that afternoon, Gauss spoke with Hawrita.
He told her that there had been some thefts and the lock on
the door was for the employees' protection. Hawrita
complained that they would be locked in should there be a
fire. Gauss said there was another fire exit and showed her
where the doors were. Hawrita asked about the use of a
telephone and Gauss said that the employees could use a
telephone in the event of an emergency.6 He also told her
that the employees could use the retouching room as a
lunchroom.
About 5:30 that afternoon, as Hawrita was leaving work,
Gauss asked her to report early the next morning because
he wished to talk to her. Hawrita insisted that if he had
anything to say to her that he should say it then and there.
Gauss said that the Company would have to let her go
because she was not working out as "[t ]here was a certain
amount of production and I was just not producing enough
production, and also that I talked too much."7
D. Respondent's Defense
Respondent's position is that Hawrita was discharged
because of her bad attitude, her poor performance as a
typesetter trainee, and her lack of initiative and motivation
which indicated that she was not likely to improve.
Company President Robert Silverman 'testified that
shortly after Hawrita was hired he observed her sitting at
the keyboard of a machine doing nothing 8 He inquired
whether she had anything to do. Her response was that she
was waiting for John Cooper. Silverman said that John was
busy in another room and asked whether he could help,
but she responded that she was going to wait for John
6 Gauss testified that he did not speak about a telephone with Hawnta
on August 1, but spoke to her about the subject at an earlier time.
r Edward Meitz testified that about 5:30 p.m. on August 2, at the end of
the day shift, in the foyer of the building, "Mr Gauss indicated that
somebody had made a reference to the door, and in response to that Mr.
Gauss said that the other day he got nd of this person because they were
going to call the cops on him about the door and he thought they were a
troublemaker, so he got rid of her." Gauss was not questioned about this
incident and therefore did not specifically deny Meitz' testimony, although
the tenor of Gauss' testimony is mconsistent with the admission attributed
to him by Mertz. On the other hand, Meitz' testimony is inexplicit and
uncorroborated. He did not describe the context in which the remark was
made, nor did he testify to whom the remark was made , nor how he
happened to overhear the statement . In the circumstances, I find that the
quoted, testimony does not have sufficient probative value to constitute a
violation of Section 8(a)(1) or to overcome the evidence which I credit and
upon which I find that Hawrita was discharged for cause.
a If Hawnta had no production work to do, as a trainee , she was
supposed to be practicing or reading an instruction manual.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cooper. Another time the tape from the machine which
Hawrita was operating9 was spread over the floor. He
inquired whether she knew how to use the winder on the
machine. As she apparently did not, he wound the tape
onto the reel of the machine for her. Shortly thereafter
Silverman returned to the typesetting room and noticed
that Hawrita was working very slowly. He inquired
whether there was something she did not understand, but
she was unresponsive. On a third occasion, Silverman
observed Hawrita pasting pieces of paper in an album
while she was seated at a typesetting machine. Because.she
was engaged in a personal activity while presumably at
work,10 according to Silverman, "I got very hot under the
collar," and went to Gauss and told him, "You get rid of
her and you get rid of her today." Gauss protested that he
wanted to let Hawrita finish out the week and see if things
improved. Silverman replied that he thought it was a bad
idea but deferred to Gauss' wishes in that respect.
Raymond Gauss, who hired Hawrita on July 23 and
discharged her 9 days later on August 1, testified in effect
that during the approximately 7 days that she worked for
the Company she found it difficult to adjust to the plant
environment , performed poorly, and displayed an uncoop-
erative attitude, suggesting small likelihood that she would
improve. On her first day of work, she complained that
there was no formal coffeebreak. Gauss responded that a
coffee dispenser was provided and whenever she had free
time she was privileged to get a cup of coffee. However,
Hawrita insisted she needed a fixed coffeebreak and Gauss
advised her that she had the option of reducing her lunch
period from 1 hour to 45 minutes and taking a 15-minute
coffeebreak whenever she wished. Another time Gauss
observed Hawrita eating in the typesetting room. He
informed her that food crumbs could fall onto the contacts
of the typesetting machines and interfere with their
operation and therefore employees were not permitted to
eat in the typesetting room, but that employees were
permitted to eat in the stripping room where a coffee
machine was kept and a sink was available.
On her third or fourth day of work, Thursday or Friday,
July 25 or 26, Company President Silverman complained
to Gauss that Hawrita was pasting papers into an album at
her place of work. Silverman stated to Gauss that Hawrita
was not worth keeping and that he should discharge her.
Gauss did not terminate Hawrita then. Gauss went to the
typesetting room where he observed that Hawrita was still
engaged in her personal occupation and told her to put the
album away. On another occasion, according to Gauss, he
admonished Hawrita because she was reading a paperback
9 The typesetting machines produce a coded tape.
10 Hawnta testified that she was on her lunchbreak at the time. As the
lunch periods for the employees were staggered , even if that were the case,
Silverman was not likely to have known that she was doing the personal
work on her time rather than on company time.
11 Hawrita denied that she had been admonished by Gauss for reading
while at work . I do not credit Hawrita in this respect . Hawnta's testimony
tended to be digressive and was interspersed with self-serving characteriza-
tions and opinions-Although she has an understandable interest in seeking
vindication of what she believes to have been an unlawful discharge,
nevertheless , she seemed to pursue this purpose with an advocate's zeal. I
suspect that her passionate concern with her mission in this case served to
distort her recollection of the events. I am of the opinion that Hawnta was
an unreliable witness.
book at her machine instead of doing work. Gauss directed
her to read an instruction manual instead of the book."
On still another occasion, Hawrita complained to Gauss
about the fact that a pay telephone was not provided in the
plant premises for the employees' use.12 A final incident
occurred in the afternoon on August 1. John Cooper
reported to Gauss that Hawrita refused to vacate a
machine which Cooper had to use for urgent production
work. Gauss had to go to the typesetting room and ask
Hawrita to move to another machine.13
Gauss further testified that Hawrita's typesetting work
was poor, even for a trainee. Also, according to Gauss,
almost every time he passed by the 'typesetting room he
observed that Hawrita was doing things she should not
have been doing such as "pasting in her book, reading a
book, just kind of staring out of the window or standing
and just holding a job and just looking at it like everything
was zooming past her." On one occasion, he spoke to her
about the poor quality of her work and that the number of
errors was astronomical. She responded that it was not her
fault, but it was the fault of the machine. Gauss told her
that if she struck the proper keys of the machine she would
get the correct reproduction. However, according to Gauss,
there was no improvement in her work.
Gauss testified that on Monday, July 29, he decided to
terminate Hawrita at the end of the week. At the close of
work on Thursday, August 1, he informed Hawrita that
when she came in the next morning he wanted to speak
with her. It was Gauss' intention to inform her that she was
being terminated at the end of the day on Friday, August
2. She insisted that he tell her then and there whether he
planned to discharge her, which he did.
E. Meitz' Layoff
Edward Meitz was hired on July 31, 1974, as an assistant
cameraman. He had no previous experience. His job
consisted principally in helping the cameraman by running
errands and doing such other tasks as he was asked to do.
Meitz received some instruction in the use of camera
equipment. An additional full-time cameraman was hired
on August 20. Thereafter, it is undisputed that Meitz had
almost nothing to do. At the end of the day on August 26,
Mertz was informed that he was being laid off because
there was not enough work for him. The next day Gauss
telephoned Meitz and offered him a job as a walker or
messenger at the same salary. Meitz refused the job.
12 I credit Gauss that this conversation occurred prior to August 1.
13 Hawnta's version of the incident reflects her uncooperative attitude
and if, as she testified , she believed that John Cooper was her supervisor
then it also reflected her insubordinate attitude. According to Hawnta, "Mr.
Cooper came up to me and looked at the floor and ordered me to move
from my [typesetting machine]. I asked him why. He just said, `Move to
another [typesetting machine] .' I told him I wouldn 't do so.... He stated
that there were only two B-S machines in the room, that I was using one,
Mrs. Cooper was using the other, and that he had to get a Sears account out,
would I please move to another ... typesetting machine. 'I told him I was
working a Sears account at that moment, and I would not move. He kept
looking at the floor just repeating, `Please move to another typesetting
machine.' I told him I would not.... .
PEER ENTERPRISES, LTD. 991
F. Conclusions
General Counsel contends that the layoff of Meitz and
the discharge of Hawrita occurred because they had
threatened to and did file complaints with OSHA about the
lock on the front door. With respect to Meitz the evidence
in support of the complaint is very thin. On or about
August 17, Gauss learned from the OSHA inspector that
Meitz had been one of the two complainants. General
Counsel contends that Meitz was laid off on August 26
because on that day Company President Silverman for the
first time learned that Meitz had filed a complaint with
OSHA. If that was the reason for laying him off on August
26, it is wholly inconsistent that the Company would offer
Meitz another job at the same pay the very next day.14 In
the case of Hawrita, the only support for the allegation that
she was terminated because she had threatened to file a
complaint with OSHA is that her discharge took place on
the same day that Plant Manager Gauss learned of her
plan. Balanced against this fact, is the evidence, which for
the most part is uncontradicted and which I credit, that
Hawrita was an unsatisfactory employee who was uncoop-
erative and who showed little promise of developing into a
responsible typesetter. I fmd that General Counsel has
failed to prove by a preponderance of the evidence that
Hawrita was discharged on August 1 and Meitz was laid
off on August 26, 1974, for reasons that violate the Act.
G. Other Alleged Violations
The complaint alleges two additional violations of
Section 8(a)(l) based upon testimony of Edward Meitz.
The first allegation is that on August 2 Gauss threatened
employees about engaging in protected concerted activities
14 This is not a case where an employer hopes to discourage organiza-
tional activity by transferring a union advocate from a position where he
has considerable contact with other employees to a position where the
advocate has tittle contact with other employees . In this case, the alleged
objection to Meitz is that he had filed a complaint with a Government
agency. The new job as a messenger would not have decreased , but would
have enhanced, his opportunity to file additional complaints . Thus, if the
Company wished to remove Mertz from its employ because he had filed, or
by stating that he had fired another employee for having
contacted OSHA concerning a safety condition. The
evidence in support of this allegation and my findings in
regard thereto appear in footnote 7, above. The second
allegation is that on August 19 Gauss threatened an
employee about engaging in protected concerted activities.
In support thereof the only evidence adduced by General
Counsel is the following testimony by Meitz with reference
to a statement to Meitz by Gauss, "Edward, next time you
go filing a complaint come to see me before you do it
because it is against the law for you to do it without seeing
me first, and for your information I also found out that
there wasn't a safety violation. There are two other fire
exits, one in the back and one in the side in the hallway."
Gauss' version of the conversation, which I credit, is that
he "mentioned that the O.S.H.A. inspector was here and
that he found the door to be not a safety hazard, and I
thought that he might be interested, and I further stated if
he has any complaints I would be more than willing to
listen." I do not construe the foregoing to constitute an
unlawful threat, even accepting Mertz' version.
CONCLUSIONS OF LAW
Respondent has not engaged in the violations of the Act
alleged in the complaint.
Upon the foregoing fmdings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby ' issue the following
recommended:
ORDER 15
The complaint herein is dismissed in its entirety.
might again file, a complaint with a Government agency , it is not logical
that the very next day he would be offered the position of messenger.
is In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.