Schreiber Manufacturing Co, Inc.

National Labor Relations Board - Board Decisions

Jul 22, 1982

262 N.L.R.B. 1196 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schreiber Manufacturing Co., Inc. and Local 299,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America
and Ricky Allen Flury, William Wade Mooney,
Charles James Mooney, Gregory James
Chalmers, William Joseph Davis, Richard Ro-
benault, R. F. Farris, and Ernest A. Farris.
Cases 7-CA-18007, 7-CA-18238, 7-CA-
18259(1), 18259(2), 7-CA-18259(3), 7-CA-
18405, 7-CA-18469(2), 7-CA-18928, 7-CA-
18929, and 7-CA-19242
July 22, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On March 24, the Administrative Law Judge
Bernard Ries issued the attached Decision in this
proceeding. Thereafter, the General Counsel' and
the Respondent filed exceptions and supporting
briefs. The Respondent also filed an answering
brief in support of the Administrative Law Judge.
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,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
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, as modi-
fied below, and hereby orders that the Respondent,
Schreiber Manufacturing Co., Inc., Clawson,
Michigan, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order as so modified:
1. Substitute the following for paragraph 1(b):
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
We hereby deny as lacking in merit the Respondent's motion to
strike the General Counsel's exceptions.
2 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.
262 NLRB No. 154
2. Insert the following as paragraph 2(c) and re-
letter the subsequent paragraphs accordingly:
"(c) Expunge from its files any reference to the
discharge of Windle D. Pinkston, Sr., and Dennis
J. Brewer on August 4, 1980, and notify them in
writing that this has been done and that evidence
of this unlawful discharge will not be used as a
basis for future personnel actions against them."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT discourage membership in
Local 299, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organi-
zation, or interfere with the protected concert-
ed activities of employees, by discharging em-
ployees who have engaged in a strike and who
are qualified for reinstatement to employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights under Section
7 of the National Labor Relations Act.
WE WILL offer to Windle D. Pinkston, Sr.,
and Dennis J. Brewer immediate reinstatement
to their former job or, if such jobs no longer
exist, to substantially equivalent jobs, without
prejudice to their seniority and other rights
and privileges, and WE WILL make each of
them whole for any loss of earnings and bene-
fits he may have suffered by reason of our dis-
crimination against him, with interest.
WE WILL expunge from our files any refer-
ences to the disciplinary discharge of Windle
D. Pinkston, Sr., and Dennis J. Brewer, on
August 4, 1980, and WE WILL notify them that
this has been done and that evidence of this
unlawful discharge will not be used as a basis
for future personnel actions against him.
SCHREIBER MANUFACTURING CO.,
INC.
1196
SCHREIBER MANUFACTURING CO.
DECISION
STATEMENT OF THE CASE
BERNARD RIES, Administrative Law Judge: This con-
solidated proceeding was heard in Detroit and Pontiac,
Michigan, on 8 days in June, August, and October 1981.
Interim settlements of various aspects of the several com-
plaints have considerably reduced the issues to be decid-
ed.
The pleadings establish that it is appropriate for the
Board to exercise jurisdiction over Respondent. While
Respondent has refused to concede that the Union in-
volved in this case, Local 299, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a "labor organization" within the meaning of
Section 2(5) of the Act, the record leaves little doubt
that the Union enjoys such a status; in any event, that
question is relevant only to the technical issue of wheth-
er certain conduct by Respondent violated Section
8(a)(3), in addition to Section 8(a)(l), of the Act. l
Respondent has filed a brief; the General Counsel has
not. On the basis of the entire record,2 including my rec-
ollection of the demeanor of the witnesses, and after
careful consideration of the brief filed by Respondent, I
make the following:
FINDINGS OF FACT
I. THE SETTING
Respondent, which employs perhaps 90 or 100 em-
ployees working on two shifts, manufactures machinery
and related products in Clawson, Michigan. On July 25,
1980, a labor dispute at Respondent's plant erupted into a
walkout, and picketing ensued until August 4, 1980,
when the employees returned to work. The Union got
involved in the strike and circulated authorization cards,
and thereafter filed a petition for election. While such an
election was eventually held on March 26, 1981, the rep-
resentation question apparently remains unresolved due
to the existence of challenged ballots and election objec-
tions.
This case, as reduced by settlement, presently involves
the propriety of the discharge of four employees and the
validity of a no-access rule.
11. THE DISCHARGES OF PINKSTON AND BREWER
The complaint alleges that Respondent's refusal to re-
instate Windle D. Pinkston, an employee with 7 years'
tenure, and Dennis J. Brewer, a 2-month employee, at
the conclusion of the strike on August 4, 1980, violated
Section 8(a)(3) and (1) of the Act. For purposes of this
case, the General Counsel concedes that both employees
occupied the status of economic strikers. 3
Respondent put into evidence a copy of the Teamsters Local 299
newspaper, the contents of which strongly suggest that the Union is, in
fact, a labor organization, and also introduced evidence of charges filed
by it against the Union under Sec. 8(b) of the Act, which is applicable to
"labor organizations." Respondent's brief does not argue that the Union
is not a labor organization.
2 Certain errors in the transcript are hereby noted and corrected.
3 The complaint had alleged that Brewer was an unfair labor practice
striker.
On August 4, both employees received the following
mailgram from Respondent: "You are hereby suspended
pending advisability of discharge arising from your acts
of misconduct in connection with the picketing at
Schreiber's including the throwing of rocks." Although
the record does not discloses that the suspensions were
ever formally converted into discharges, neither employ-
ee had been reinstated to employment at the time of the
hearing.
The law protects strikers from employees who seek to
discipline them in the belief, however, genuine, that they
have engaged in misconduct in the course of the strike,
when in fact they have not done so. In N.LR.B. v.
Burnup and Sims. Inc., 379 U.S. 21, 23 (1964), the Su-
preme Court approved the following formulation:
In sum, § 8(a)(1) is violated if it is shown that the
discharged employee was at the time engaged in a
protected activity, that the employer knew it was
such, that the basis of the discharge was an alleged
act of misconduct in the course of that activity, and
that the employee was not, in fact, guilty of that
misconduct.
As set out in General Telephone Company of Michigan,
251 NLRB 737, 738-739 (1980), the Board has evolved
the following procedure for applying the foregoing prin-
ciples in the case of discharge economic strikers:
The law is clear that when an employer disci-
plines an employee because he has engaged in an
economic strike, such discipline violates Section
8(a)(3) and (1) of the Act. An employer may defend
its action by showing that it had an honest belief
that the employee disciplined was guilty of strike
misconduct of a serious nature. If the employer is
able to establish such a defense, then the General
Counsel must come forward with evidence that
either the employee did not engage in the conduct
asserted, or that such conduct was protected. The
burden then shifts back to the employer to rebut
such evidence. o
i' Rubin Brothers Footwear, Inc., 99 NLRB 610 (1952): Ameri-
can Cyanamid Company, Inc., 239 NLRB 440 (1978). See. general-
ly, NLR.B. v. Burnup & Simns Inc., 379 U.S. 21 (1964).
As indicated, the "honest belief' which the employer
has to establish as a predicate for requiring the General
Counsel to adduce proof of employee innocence must
relate to "strike misconduct of a serious nature," General
Telephone Company, supra. The Board and courts have
uniformly held that "[N]ot every impropriety committed
in the course of a strike deprives an employee of the pro-
tective mantle of the Act," Cornet Casuals, Inc., 207
NLRB 304 (1973), and, as the Board stated in General
Telephone Company, supra, "[T]he seriousness of each act
of misconduct alleged must be analyzed and the cases of
mere 'animal exuberance' differentiated from those in
which the misconduct is so flagrant or egregious as to
require subordination of the employee's protected rights
in order to vindicate the broader interests of society as a
1197
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whole." On brief, Respondent acknowleges the principle
that only those economic strikers "who engage in serious
picket line misconduct" forfeit their right to reinstate-
ment.
It is not enough, therefore, for an employer to assert
its "honest belief" that a striker engaged in some sort of
conduct which the employer thought to be disagreeable.
If an employer states that he discharged a picketer be-
cause of an "honest belief" that the employee had
dropped a toothpick on the plant premises, no obligation
would devolve upon the General Counsel to disprove
that allegation. I stated in Bromine Division, Drug Re-
search, Inc., 233 NLRB 253, 260 (1977), enfd. 621 F.2d
806 (6th Cir.), Judge Kennedy dissenting on this issue,
"([]n order for the burden to shift, the employer must
prove a good-faith belief that the employee had engaged
in conduct of sufficiently serious magnitude as would ob-
jectively disqualify him from the remedial rights ordinar-
ily due him as an unfair labor practice striker."
On the morning of August 4, the last day of the strike,
a rowdy group of 50 strikers was gathered at a gate to
Respondent's premises. Two security guards hired by
Respondent during the strike, Gerald Packman and John
Williams, testified that at or about 9:30 a.m., as they pa-
troled the parking lot adjacent to Respondent's office en-
trance, they saw Brewer and Pinkston, who were stand-
ing apart from the massed picketers, in quick succession
throw some sort of missles in the direction of the office
entrance from perhaps 40 yards away.4
Neither guard was able, at the hearing, to identify the
nature of the objects thrown. Packman, however, said
that, as he stood some 40 yards away from a Cadillac
(owned by Respondent's vice president) parked in front
of the offices, he "observed" the first object, thrown by
Brewer, hit the Cadillac. He did not see the second
object, thrown by Pinkston, strike anything, but he heard
it make a "pinging sound, like it might have been a piece
of metal or an object of a wheel cover or something like
that." Williams gave similar testimony. In addition to the
Cadillac parked directly in front of the offices, other
automobiles were parked at a somewhat greater distance
from the office entrance.
A few hours later, Williams and Packman made an in-
spection of the asphalt parking lot to search for the
thrown objects. According to Williams, the only suspect
item they found was an oversized ball bearing the sort
used in the plant; this was discovered in the "area" of
the Cadillac. On the advice of Packman, the police were
called, but no arrests were made.
Under the case law summarized above, the first ques-
tion to be answered is whether Respondent has estab-
lished that it had "an honest belief that the employee dis-
ciplined was guilty of strike misconduct of a serious
nature," General Telephone Company, supra. The record
shows that Manufacturing Manager Steven L. Toth
spoke to both guards about the incident soon after it oc-
curred. Although neither guard was able at the hearing
to identify the substances thrown by Pinkston and
Brewer, it would appear that they told Toth that the
4 Without detailing all the testimony on the subject, I am satisfied that
the two guards, in subsequent consultation with Manufacturing Manager
Toth, made an accurate identification of the two employees.
missles were rocks. Both guards made affidavits about
the incident; only Williams' affidavit is in evidence.
Dated August 4, it states that Williams "observed" Pink-
ston "throw a rock and hit one of the cars" in the park-
ing lot, and that he "saw" Brewer "throw a rock at and
hit another vehicle." At the hearing, however, Williams
testified that he did not "see" the object thrown by
Brewer "hit anything," but he heard the "noise of it
striking something . . . directly behind me." He gave
similar testimony about the second throw: "I heard it
. . . I did not see. I was watching them."
Manager Toth testified that guard Packman had told
him that he had seen Brewer and Pinkston "throwing
rocks or hard objects and that he had seen one of the
company vehicles struck and had found damage, that an-
other car had been hit but didn't know which one." I
suspect that Toth's memory fails him in thus recalling a
reference by Packman to "damage." Neither guard nor
any other witness testified to discovering any damage to
the Cadillac or any other vehicle; in a case as meticu-
lously litigated as this one was, I cannot believe that, if
some actual damage had been discovered, there would
not have been extensive direct testimony on the subject.
In addition, although Packman testified at the hearing
that he saw or sensed two impacts, he also testified that
he only told Toth that "there were incidents of rock
throwing and that a car out in the parking lot, one of the
cars had been hit."
However apparently inaccurate the report given to
Toth by Packman, as contrasted to the testimony of the
guards at the hearing, it may be that the essence of the
report-that "rocks" were thrown and that they struck a
car or cars-satisfies the requirement that Respondent es-
tablished an "honest belief of strike misconduct of a seri-
ous nature," thereby shifting the burden to the General
Counsel to "come forward with evidence that either the
employee did not engage in the conduct asserted, or that
such conduct was protected." It could, on the other
hand, be argued that the report was too sketchy a foun-
dation for such an "honest belief," since it is possible that
some rockthrowing, even when contact with cars is in-
volved, may not amount to misconduct of a "serious
nature." A pebble thrown underhanded, which rolls up
to and nestles against a tire, is an example.
It appears to me, however, that it may be fairly said
that, in the end, the evidence does not establish that the
two employees engaged in conduct of a disqualifying
kind.
The litigation of this issue did not hew to the neat pro-
cedural scheme envisioned by General Telephone Compa-
ny. Instead of waiting for Respondent to establsh its
honest belief of serious misconduct, counsel for the Gen-
eral Counsel called Pinkston and Brewer as witnesses in
his case, and, reasonably responding to the message in
the mailgrams they received, had them deny that they
"threw any rocks" in connection with the picketing. On
cross-examination, counsel for Respondent broadened the
inquiry and elicited their denials to his questions about
whether they had thrown any "hard objects" during the
strike. Neither employee was particularly impressive, and
1198
SCHREIBER MANUFACTURING CO.
I preferred the testimony of the two guards they they
had seen the employees launch something into the air.
The difficulty is that it is impossible to know what the
employees threw, how hard they threw, and at what
they were throwing. The guards were unable to identify
the objects. An inspection of the asphalt parking lot 3
hours later turned up a single ball bearing and no other
suspicious objects. 5
Not every act of throwing during the heat of a strike
is automatically disqualifying. In Mosher Steel Company,
226 NLRB 1163, 1168 (1968), the Board held that throw-
ing a rock at a momentarily stopped truck with three oc-
cupants, where the rock hit the flatbed and caused no
damage, was not conduct beyond the pale. In MP Indus-
tries, Inc., 227 NLRB 1709, 1716 (1977), the discharge of
a striker was held not justified despite the fact that, on
two separate occasions, she threw a "pebble the size of a
nickel" and a "stone" at the departing car of a non-
striker, and struck another car with an umbrella. In Gid-
dings & Lewis Inc., 240 NLRB 441, 451 (1979), the Ad-
ministrative Law Judge held that the "lobbing" of some
"hand-sized" rocks over a fence, perhaps damaging an
already battered parked car, by a "very intoxicated"
striker, was insufficient." In Southern Florida Hotel &
Motel Association, 245 NLRB 561, 564 (1979) (Member
Murphy dissenting), it was held "not sufficiently serious"
when a striker threw a rock at a taxicab, apparently in-
flicting no damage. See also American Cyanamid Compa-
ny, 239 NLRB 440, 442-443 (1978).
The circumstances here indicate that the objects pro-
pelled by the two employees were not large. No damage
to any cars is indicated; it would seem that a ball bear-
ing, thrown hard at a car, would have left its imprint.
The sounds reported could have been made by pebbles.
While Williams testified that he heard the sound of
"metal against metal," his affidavit, referring only to
"rocks," obviously contradicts that aural recollection. It
seems probable that the discovery of the ball bearing in-
fluenced the memory of the guards as to the sounds ac-
companying the events.
There is no reason to believe that the missiles were
aimed, from 40 yards away, to break the windows in the
offices, or that there was any likelihood of their having
done so. The circumstances do not suggest that missiles
were aimed at the guards. Packman testified that neither
object landed near him; Williams, who appears to have
been standing about 20 yards from the offices, testified
that the objects went over his head, thus suggesting that
they were lofted, rather than thrown hard.
Thus, the record shows that some, possibly very small,
objects were thrown, and does not show that they were
thrown for any reason other than to chivy the guards. I
hasten to go on record as being fervently opposed, in a
strike or almost any other situation, to the hurling of any
object which might reasonably be foreseen as threatening
damage to person or property. The cases cited by Re-
I The evidence. which is quite clear on this point, simply provides no
basis for Respondent's references in its brief to two ball bearings.
I Because the parties had agreed to a settlement of this portion of the
cuse, the Board did not directly review the merits of this holding.
spondent7 are all, I think, distinguishable from this one
because the proven indicia of malicious intention and
predictable danger in those cases are not present in this
record. Here, given the absence of a showing of what
was thrown, how hard it was thrown, and at what it was
thrown, and the inferences to be drawn as to those issues
from (a) the lack of physical damage, (b) the recovery
from the parking lot of only one item of notable size
(whose presence in the parking lot can in no persuasive
way be attributed to Pinkston or Brewer), and (c) the
distance involved, I cannot conclude that Pinkston or
Brewer engaged in acts implicating wanton or willful
disregard for person or property. On this evidence, I do
not believe that Respondent was entitled to require these
strikers to forfeit their jobs.8
There is an additional string to Respondent's bow with
respect to Pinkston. Guard Williams testified that on
August 1, while driving his car in escorting a truck
through some pickets into the plant, the man he later
came to know as Pinkston, from some 4-5 feet away,
"picked up a solid object and threw it against the
window of my car." Williams did not mention this inci-
dent to any official of Respondent until he was reporting
the August 4 occurrence, when he told Manufacturing
Manager Toth. Pinkston generally denied, as previously
noted, having thrown any hard object during the strike.
Reliance on this item suffers from the same defect as
earlier discussed. Williams at first carefully identified the
missile as a "solid object"; he later referred to it as a
"rock"; he then qualified his statement by saying that it
was a "hard object" or a "solid object," and that he did
not know whether it was a rock or not. He did say that
it made a "loud noise" as it hit the bulletproof wind-
shield of his car; for all we know, it may have been a
piece of styrofoam. Williams did not say that the object
landed on that portion of the windshield near the driver's
seat, nor that his speed at the time of impact was such
7 Alcan Cable West, A Division of Alcan Aluminum Corporation, 214
NLRB 236, 247. 248 (1974) (throwing of rocks at administration building,
breaking windows, held "additional disqualifying conduct"); Ohio Power
Company, 216 NLRB 348, 349-350, 354 (1975) (slingshot fired from 20
feet which broke glass panel next to window of office where employee
was sitting); Bromnine Division, Drug Research. Inc. supra, 233 NLRB at
259 (breaking window in restroom with slingshot and propelling another
rock through broken window after supervisor looked out of it); Alkahn
Silk Label Company, 193 NLRB 167 (1971) (assorted violence, including
the swinging of baseball bats and the throwing of rocks at moving vehi-
cles); Gold Kist, Inc.. 245 NLRB 1095, 1103 (1979) (throwing rock at
moving bus with passengers from distance of 2 feet); Giddings a Lewi
Inc.. supra, 240 NLRB at 448-452 (throwing rocks at moving vehicles);
Georgia Kraft Company. Woodcraft Division. 258 NLRB 908 (1981)
(throwing rock at supervisor's moving vehicle passing through picket
line).
a In conformity with the General Telephone Company procedure, it
may be said that even if Respondent properly established an "honest
belief' of serious misconduct, the General Counsel successfully, if prema-
turely, carried the burden of presenting "evidence that either the employ-
ee did not engage in the conduct asserted, or that such conduct was pro-
tected," by virtue of the testimony of Pinkston and Brewer. Even though
I ultimately have discredited their denials of having thrown something,
their uncontradicted evidence as of the conclusion of the General Coun-
sel's case clearly shifted the burden "back to the employer to rebut such
evidence." But in presenting the testimony of the guards for that purpose,
Respondent failed to establish that the employees had engaged in serious
strike misconduct, as discussed above.
1199
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that a distraction could have endangered him or bystand-
ers.9
I conclude, therefore, that Respondent violated Sec-
tion 8(aX3) and (1) of the Act by discharging Pinkston
and Brewer on August 4, 1980.
III. THE DISCHARGE OF RICHARD ROBENAULT
Richard Robenault was discharged on February 6,
1981. The complaint alleges that the reasons for his ter-
mination were "his activity in circulating and presenting
to the Employer an employee petition protesting the sus-
pension of employee David Aylor" and his "sympathies
for, and activities on behalf of, the Charging Union."
From the time he began employment in 1973 until he
was discharged on February 6, 1981, Robenault had
worked in the maintenance department. During the strike
in July 1980, he had taken part in the picketing, and
thereafter he openly wore a union hat and button at
work, as did, the record shows, many of the employees.
Robenault testified that, after the strike, company repre-
sentatives held frequent meetings with the employees,
and, at one such meeting in December 1980 or January
1981, Robenault had expressed his preference for union
representation. t 0
R6benault further said that a few days prior to his dis-
charge, as he passed Superintendent Sanzio Piacentini
while walking through the shop, Piacentinin said, appar-
ently referring to Robenault's display of union emblems,
"You don't believe all that stuff is going to help you
save your job." Although Piacentini was not called as a
witness, Respondent brought out on cross-examination of
Robenault that his pretrial affidavit, given on February
24, 1981, attributes to Piacentini the more innocuous and
ambiguous remark, "Wearing all that stuff isn't going to
do you any good." Despite Robenault's insistence at the
hearing that Piacentini had referred expressly to his
"job," I believe that his freshly recorded recollection
only 3 weeks after the encounter is probably a more
faithful version of the statement.
On February 6, a petition circulated among the em-
ployees asking Respondent to reconsider certain disci-
pline meted out to an employee for engaging in a fight.
Although he did not originate the petition, Robenault
was the last to sign it (about 40 other employees also
signed), and he handed the petition to Respondent's
president, Karl Thiele, at or about 2 p.m., saying that he
would "appreciate it if he would look it over and consid-
er it." At quitting time that day, Piacentini gave Roben-
ault a layoff slip.
The slip stated, "You are being permanently laid off
because your position has been permanently abolished by
consolidation with another position." When Robenault
asked Piacentini how the plant could function without a
maintenance employee, since he was the only one so en-
gaged, Piacentini said that he could talk to higher man-
agement if he wished. Robenault went to see Manufac-
turing Manager Toth, who told him that Alexander But-
' Williams testified that he and the truck were "trying to make our
way through the crowd."
l0 Manager Toth said that he recalled no such statement by Robenault.
In view of Robenault's notorious display of his sympathies, such an ex-
pression might have seemed superfluous.
terfield was returning to the maintenance shop and that
no one else would be needed.
That Robenault, an employee with 8 years' service,
handed in a petition at 2 p.m. and was in turn handed a
permanent layoff slip 1-1/2 hours later is the kind of co-
incidence which often gives rise to unfair labor practice
findings. Despite the exquisitely suspicious character of
these circumstances, I conclude that Respondent's inno-
cent explanation of the events should be accepted.
The record shows that Alexander Butterfield became
supervisor of the maintenance shop in 1976, and from
that time until September 1980, he and Robenault per-
formed virtually all maintenance work in the plant."
Manager Toth testified that, in September 1980, Butter-
field accepted the additional responsibility of supervising
the machine department, replacing a supervisor who had
left.
According to Toth, on January 30, Superintendent
Piacentini told him that Butterfield had expressed a wish
to once again limit his responsibilities to the maintenance
department. Toth thereupon began a search for a new
machine shop manager and, at 9 a.m. on Friday, Febru-
ary 6, hired one Dwayne Wesley for that position.' 2
Toth testified to a management decision on February 4
by himself, President Thiele, and Vice President Ravis
that, in transferring Butterfield back to full-time mainte-
nance duty, it made no sense to retain Robenault, since
the latter had demonstrated, in the 5 months in which he
had worked alone in the maintenance department, that
the work required only one employee. Toth further testi-
fied that it was company practice to withhold informing
employees of a layoff until the last moment, to avoid the
lack of productivity and destruction of morale engen-
dered by such news. In addition, Toth said that Butter-
field was a more valued employee than Robenault be-
cause of his capabilities in the area of complete machine
teardown and repairing digital readouts.
The record shows that, by and large, Robenault and
Butterfield were the only employees performing mainte-
nance work prior to Butterfield's assumption of supervi-
sion of the machine shop. There was a helper whose
duties included assisting with maintenance work, such as
sweeping the floor, putting oil in the machines, and
cleaning, but Toth did not regard him as strictly a main-
tenance employee. Another employee named Ward had
been hired after September 1980 to do some sort of spe-
cial maintenance work on the night shift about which
Toth evinced uncertainty, but he had been released prior
to February 6. The weight of the evidence, therefore, is
that, between September and February, Robenault had,
indeed, successfully performed virtually all of the plant
maintenance work by himself.' 3
i' Although Robenault gave some rather confusing testimony on this
subject, he seemed to have regarded Butterfield as his superior for most
of this period. Another witness for the General Counsel, R. F. Farris, in
being cross-examined about the July 1980 strike of which Butterfield had
been an acknowledged leader, testified that he had understood Butterfield
"to be the person in charge of the maintenance department."
12 Notes on the hiring process made by Toth on February 5 and 6 are
in evidence and corroborate his testimony. Wesley was to start work on
Monday, February 9.
is Robenault testified that, at the time he was let go, he "was the only
person in maintenance."
1200
SCHREIBER MANUFACTURING CO.
It therefore seems reasonable for Respondent to have
concluded, in considering Butterfield's request to confine
himself to maintenance work, that it was pointless to
retain two men to do a job which one could perform.
The reasons given for choosing Butterfield over Roben-
ault are uncontradicted. 14 Also not controverted is
Toth's testimony, given on October 27, 1981, that, since
February 6, no new employees had been hired into the
maintenance department.
It could be argued, of course, that the foregoing array
of facts does not necessarily eliminate the possibility that
Robenault was purged because he handed the petition to
Respondent's president. One might speculate that if Re-
spondent had tolerated for 4 years the employment of
two men in a one-man job, the decision to change the sit-
uation sprang from hostile motivation. But equally con-
vincing is the explanation stated by Toth that it was a
case of neglect which was pinpointed by Robenault's
demonstrated success at doing the job alone. Toth fur-
ther said that business was in decline, which could also
account for a closer look at such matters.
All things considered, I am not persuaded that the dis-
charge of Robenault may be attributed to his activities
on behalf of the Union or his involvement in the Febru-
ary 6 petition. Respondent's explanation of the discharge
simply makes sense. Accordingly, I recommend that the
allegation as to Robenault be dismissed.
IV. THE DISCHARGE OF R. F. FARRIS
The complaint alleges that the suspension of R. F.
Farris on February 9, 1981, and his subsequent discharge
were responsive to his membership in, sympathies for,
and activities on behalf of the Union, and therfore viola-
tive of Section 8(a)(3) and (1).
Farris, who began employment with Respondent in
January 1979, worked on the day shift in the machine
department. After the strike, he testified, he wore a
union hat and button at work, and he further "held meet-
ings in the shop at noon and on the parking lot I talked
to the employees" about the Union.
Farris gave uncontradicted testimony about some con-
versations with Superintendent Piacentini. On one occa-
sion, in January 1981, the month in which a representa-
tion election was scheduled,' 5 Piacentini asked Farris to
explain his support for the Union effort; after he did so,
Piacentini, citing Farris' influence, asked Farris to talk
the employees out of voting for the Union, to which
Farris replied, "Absolutely no way." Farris further told
of an incident on the day before the scheduled January
election in which Piacentini had tried to convince him
that it made no "sense" to have a union. Farris replied
that he had no time to talk about the matter, because
they were on "company time." When Piacentini assured
Farris that he could "talk to [him] here," Farris complied
'4 Furthermore, since Butterfield, although apparently a supervisor,
had overtly led the July strike, there seems to have been no particular
reason for Respondent to have favored him.
"' The election was canceled by order of the Board, on January 29,
upon a showing by Respondent that Butterfield's participation in the col-
lection of authorization cards had tainted the showing of interest submit-
ted by the Union with its representation petition. The Union thereafter
filed a new petition on February 3, and an election was held on March
26
with Piacentini's insistence that he try to convince him
that he would be benefited by union representation.
The event which led to Farris' discharge occurred on
February 6, when Farris made a visit to the plant during
the nigh shift. There is conflict in the testimony about
the precise sequence of events here, and I am disinclined
to give credence to the testimony of Farris. Although
the initial testimonial impact he made was a good one,
that impression had worn somewhat thin by the end of
his appearance at the hearing. In addition, Farris' testi-
mony was contradicted in some respects by employee
Clayton Cobb, a witness for the General Counsel, and by
Robert Haselhuhn, a night leader who testified for Re-
spondent and whose evidene was convincingly present-
ed.
Farris testified that, when he arrived home on Febru-
ary 6, he discovered that the battery on his second car
needed charging, and his wife told him that she had
called employee Cobb, a night-shift employee who re-
sided nearby, to borrow his charger. Cobb had assertedly
authorized Farris to go to his house and pick up the
item, but Farris found Cobb's garage locked, and so pro-
ceeded to drive for 40 minutes to the plant to get Cobb's
garage key.
Once there, Farris entered a side door of the plant,
around 8 p.m. Farris testified that he walked about 3 feet
into the plant; that he was seen by Cobb, who came
"running up to the door, handed me the keys," "ex-
plained to me what to do . . . with the keys when I was
finished with them," and then walked away; that there
was only one other person present during his brief en-
counter with Cobb; that night leader Haselhuhn walked
up and told him, "R.F., you have to leave," to which
Farris said, "You are right, right. I am leaving"; and that
he thereupon exited, having been in the plant for perhaps
3 minutes. "
Cobb, however, testified that he saw Farris as Cobb
was on his way to the toolcrib, and asked him what had
happened to Robenault earlier that day. Farris then
asked for the key to Cobb's garage, which Cobb gave
him.17 By that time, "four or five other people" had
gathered around, and when Cobb went about his busi-
ness, some 3-4 minutes after first encountering Farris,
they were still there. A couple of minutes later, leaving
the toolcrib, Cobb saw Haselhuhn heading toward
Farris, and he observed the two men speaking "for a
minute or two." Cobb conceded that he "went back to
work because there were already too many people gath-
iS On cross-examination, Farns expanded his version of the conversa-
tion with Haselhuhn, saying that he jokingly told the latter that he would
"leave before you call the police." This, as will be seen, adumbrated Ha-
selhuhn's later account of the incident. Although Farris testified on cross-
examination that Haselhuhn "did not repeat himself" in asking Farris to
leave, he conceded, 50 pages later on recross, that Haselhuhn had "re-
peated the direction to [me} to leave more than once."
17 Cobb appeared to contradict Farris' testimony that the latter's wife
had talked to Cobb about borrowing the battery charger At one point.
Cobb answered negatively the question. "And you didn't know that he
wanted your battery charger or your keys, did you?" and. at another
pont, he replied, "no" to the question, "Before you came to work on the
evening of February 6 and saw Mr. R F. Farris did you have any idea
that he wanted to borrow your battery charger?"
1201
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ered around Mr. Farris," and he estimated that Farris
was present "at the high side 10 minutes."
Haselhuhn testified that, when the assembly leader no-
tified him that Farris was in the plant, he took 3-4 min-
utes to shut down his machine and then walked over to
Farris, around whom four other employees had gathered.
When he told Farris that he would have to leave, Farris
asked if Haselhuhn "was going to call the police." Hasel-
huhn reiterated that Farris had to go, and told the other
employees to return to work; Farris again challenged,
"Do you want to call the cops." Once more, Hasellhuhn
ordered Farris to leave. The confrontation, which in-
cluded a reference by Farris to "something about keys,"
took 7 or 8 minutes.
The following Monday, Haselhuhn reported the inci-
dent to Toth. On that day, Farris worked 4 hours and
then went to see a doctor. That evening, he received a
mailgram from Respondent, which stated:
On February 6, 1981, you violated company rule by
entering the plant work floor, when not scheduled,
during the working hours of other employees. Dis-
pite [sic] prior warnings you have failed to comply
with the company rules accordingly you are sus-
pended pending advisability of discharge. Should
you desire to pick up your tools you must call for
an appointment as will [sic] not be allowed on the
premises unless you have an appointment.
On February 14, Farris received another mailgram ad-
vising him of his discharge, and asserting as the reason
that, although he had been "repeatedly warned against
disturbing other employees on their working time and
disrupting production," he entered the plant on February
6 "when you were not scheduled and interfered with the
work of employees during their working time."
Respondent's printed "Shop Policy," which is given to
all new employees, recognizes three categories of "viola-
tions" according to gravity. The first group, which "may
subject the employee to immediate discharge," includes
such items as theft and fighting. The second group,
which "may subject the employee to disciplinary action,
ranging from written warnings to discharge, depending
on the circumstances," includes such violations as refusal
to obey orders and possession of weapons. The final cat-
egory (rule 9) states that employees in violation thereof
"shall first be given a verbal and then a written warning
by the Company. Continued violations thereafter may
subject the employee to disciplinary action, including
discharge." Pertinent to the present inquiry is item (h):
"Disturbing other employees on their jobs, so as to dis-
rupt production."
Manager Toth testified that he made the decision to
terminate Farris after his entry into the plant on Febru-
ary 6.18 Toth testified to two prior violations by Farris
of the rule prohibiting "Disturbing other employees." He
said that on December 12, 1980, Superintendent Piacen-
tini told him that Farris had "interrupted production of
other employees," and that Toth had thereupon instruct-
'i Toth testified that he spoke to Farris in the course of his investiga-
tion of Haselhuhn's report. Although Farns gave no hint of such a con-
sultation in his testimony. he was not recalled to testify to the contrary.
ed Piacentini to issue a verbal warning. Respondent's Ex-
hibit 19 is a printed "Verbal Warning Record" dated De-
cember 12, addressed to Farris and describing the offense
as "Violation of Company Rule 9 h Disrupting Produc-
tion." Toth testified that he wrote out the body of the
exhibit, and it bears Piacentini's initial.
Respondent's Exhibit 20 is a "Written Warning" form,
with Farris' name on it, dated January 9, 1981. The
handwritten description of the conduct in violation of
rule "9-H" reads, "Disturbing other employees on their
jobs, so as to disrupt production." Toth testified that this
form was prepared on the date shown, after Piacentini
had told him that Farris had "disrupted production of
our employees" and Toth had instructed Piacentini to
"issue a written warning to Mr. Farris."
Farris was not recalled to testify about the alleged
events on the two given dates. When he was asked on
cross-examination in the General Counsel's case-in-chief,
however, whether he had been "specifically warned
during day shift time about leaving your machine and
disrupting others at work," he denied having received
such a warning. He did say, however, that on one occa-
sion, perhaps in January 1981, Piacentini informed him
that Vice President Ravis had seen him out of his depart-
ment and had instructed the superintendent to "tell me to
stay on my machine." But when Farris reminded Piacen-
tini that he had sent Farris to the other department, Pia-
centini decided to let the matter drop, saying, "He told
me to write you up, but I'm not going to do it."
Respondent's failure to produce Piacentini, or to ex-
plain his absence, as a corroborative witness for Toth, is
a decidedly unsettling circumstance. Having given that
omission careful consideration, I am nonetheless inclined
to credit the testimony of Toth in this area. As noted,
Farris showed himself to be an unreliable witness in his
description of the February 6 incident, and there is no
particular reason to extend him credit with respect to the
present matter. Toth seemed a straightforward and con-
sistent witness, and it is difficult for me to believe that
his testimony about the two consultations with Piacen-
tini, and his physical participation in drawing up the first
warning, was sheer fabrication. I find it equally difficult
to conclude that Respondent's references in its mailgrams
to "prior warnings" were simply plucked out of the air
for the purpose of creating a false predicate for the dis-
charge of Farris. Thus, even if it were true that Piacen-
tini had told Farns that he was not going to give him a
warning, as ordered, the information known to Toth on
February 9, on which he acted, was that two warnings
had been officially issued to Farris.
The evidence as found shows, therefore, that, prior to
his February 9 suspension, Farris had received a verbal
warning in December and a written warning in January
for violating rule 9(h), and his February 6 alleged viola-
tion of that rule put him at risk, under the terms of the
rule, of "disciplinary action, including discharge." How-
ever, while counsel for the General Counsel has not filed
a brief in this case, I infer from the evidence he present-
ed that his position is that Farris' conduct on February 6
would not ordinarily have been considered a breach of
company rules.
1202
SCHREIBER MANUFACTURING CO.
Farris testified to a "minimum of four" occasions prior
to February 6 on which he had entered the plant during
the night shift and engaged in conversations with work-
ing employees. Three such instances he recalled specifi-
cally. On the first occasion, in September 1980, he en-
tered the plant with his wife, daughter-in-law, and grand-
children, walked around for 30-45 minutes talking to em-
ployees, and was not only seen by Haselhuhn but "[i]n
fact he walked with us some in the shop." The second
time, in December 1980, he spent "over an hour" speak-
ing to night-shift employees and also talked to Hasel-
huhn. The third visit he remembered was in January
1981, when he entered during the "lunch break" of the
night shift, spent 20 minutes, and spoke to some "superi-
ors."
Clayton Cobb testified broadly that, since he started
employment in October 1979, he has seen off-duty em-
ployees enter the plant, and has done so himself. Further
examination, however, showed his experience to be of
limited applicability. The one occasion on which he re-
turned to the plant while off duty was during the strike,
for the purpose of determining whether it was operating.
The only other instances cited by Cobb were his knowl-
edge of a day-shift leader who occasionally came into
the office on the night shift to change his clothes, and an
employee whose car once broke down outside the plant
and who moved in and out of the plant in the course of
repairing it. Although he recalled "numerous times"
when off-shift employees entered, Cobb could not be
specific; he also conceded that it is possible for someone
to enter the extremely large plant without being seen by
a supervisor.
Haselhuhn testified that he was not aware of any occa-
sions on which nonscheduled employees have entered
the plant and engaged other employees in conversation.
The thrust of the evidence given by Farris on this
score was, one would suppose, designed to establish in-
consistent treatment by Haselhuhn of Farris' nocturnal
visits, and thus arouse suspicion about the differing con-
sequences of the February 6 visit. But the other three
visits described by Farris, which were assertedly tolerat-
ed by Haselhuhn and other superiors, supposedly oc-
curred in September and December 1980 and January
1981, all long after the Union effort began and after
Farris had identified himself openly with that campaign.
If such visits did in fact take place, and Haselhuhn did
not object to them, there is no particular reason to be-
lieve that his reaction to the February 6 visit was unlaw-
fully motivated, other than by indulging in speculation as
to a late-blooming union animus for which the record
provides no support.
It seems rather unlikely to me, moreover, that Farris
in the past had been allowed free rein to wander around
the plant speaking to employees while they worked. The
record contains suggestions that the plant did not run
that way. Cobb, as indicated, testified that he walked
away from the group on February 6 because "There
were already too many people gathered around Mr.
Farris." Even Farris' first (and discredited) version of his
conversation with Haselhuhn implies subconscious recog-
nition that he was acting against the rules; in describing
his response to Haselhuhn's edict that he had to leave,
Farris did not say that, with surprise, he reminded Hasel-
huhn of his prior uncensured off-duty visits (once cum
family); instead, he portrayed himself as saying to Hasel-
huhn, "You are right, right. I am leaving."' g
I find no basis in the record for believing that Farris'
February 6 entry was conduct which Respondent might
ordinarily tolerate, and I think that it was not unreason-
able for Respondent to conclude that, for the third time
in 3 months, Farris was "disrupting production" within
the meaning of rule 9(h). Accordingly, absent other con-
vincing evidence, there would be no grounds for infer-
ring that Respondent was retaliating against Farris for
his prounion bent; in so saying, I have taken into account
Farris' uncontradicted testimony regarding his conversa-
tions with Piacentini. In a rather troublesome case, the
only remaining argument relates to the severity of the
penalty.
Although rule 9 provides for the possibility of dis-
charge in the case of a third violation (as did the written
warning received by Farris in January), Toth testified
that it is not uncommon for employees to be suspended
for 3 days rather than discharged, as the next step after
receipt of a written warning. The lesser penalty, said
Toth, would be imposed in the case of a "moderate vio-
lation"; he was not asked to explain why he thought
Farris' offense did not fit that category.
It is not the Board's province, however, to second-
guess such judgments, except perhaps where Farris' of-
fense might be considered a patently moderate one or
where the evidence demonstrated that other employees
have received more lenient treatment for conduct no less
grave than Farris'. I am unable to say that Toth was
acting irrationally in concluding that Farris' third viola-
tion was not a "moderate" one, and I have no evidence
before me of consideration given by Toth to other em-
ployees which tends to show disparate treatment of
Farris. 20
Although I have some reservations about the ultimate
disposition of the matter, I feel obliged, for the reasons
given above, to conclude that the General Counsel has
failed to establish, by a preponderance of the evidence,
that the discharge of R. F. Farris in February 1981 vio-
lated Section 8(aX3) and (1) of the Act.
V. THE ALLEGED NO-ACCESS RULE
The remaining issue left unresolved by settlement is
found in paragraph 16 of the consolidated complaint,
which alleges that since "on or about January 20, 1981,
Respondent has promulgated and maintained an unlaw-
fully broad no-access rule which has been posted on its
bulletin board and which restricts employees from en-
gaging in activities on behalf of the Charging Union for
a reasonable period of time before and after their shift
and which prohibits off duty employees from engaging
in activities on behalf of the Charging Union in the Re-
19 Farris conceded on cross-examination that he understood that com-
pany policy "prohibited employees from in any way interfering with
other employees in their work . .[or disrupting that work."
2O That no discipline was administered to the employees who gathered
around Farris does not strike me as an inexplicable inconsistency.
1203
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's parking lot and other exterior areas of the Re-
spondent's facility."
Finding no evidence in the record which supports the
foregoing claim, I recommend that the allegation be dis-
missed. 2 1
CONCLUSIONS OF LAW
i. Schreiber Manufacturing Co., Inc., is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Local 299, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By, on or about August 4, 1980, discharging Windle
D. Pinkston, Sr., and Dennis J. Brewer, Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. Respondent has committed no unfair labor practices
alleged in the complaint except as set out above.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent unlawfully discharged
Windle D. Pinkston, Sr., and Dennis J. Brewer on
August 4, 1980, I shall recommend that Respondent be
required to offer them, if it has not already done so, im-
mediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss
of earnings and benefits they may have suffered by
reason of the discrimination against them, by payment to
them of a sum of money equal to that which they nor-
mally would have earned from August 5, 1980, to the
date of Respondent's offer of reinstatement, less their net
earnings for such period. Backpay shall be computed as
set out in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest as prescribed in Florida Steel Corpo-
ration, 231 NLRB 651 (1977), and see, generally, Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
2 On brief. Respondent renews at length a motion to dismiss which
was denied by me at the hearing. It is Respondent's contention that,
under Board regulations, the service of unfair labor practice charges
upon respondents must be accomplished by charging parties, and that the
timely service of copies of such charges by Regional Offices does not suf-
fice. Having reconsidered Respondent's argument, I reaffirm my ruling,
for the reasons given at the hearing. I have little doubt that, for many
years. the Board has contemplated that the service of charges by Region-
al Offices satisfies the 10(b) requirement of service upon the charged
party, and, until the Board says that its regulations mean otherwise, I
shall continue to indulge that assumption.
ORDER22
The Respondent, Schreiber Manufacturing Co., Inc.,
Clawson, Michigan, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activity on behalf
of Local 299, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization, and interfering with the
protected concerted activities of employees, by discharg-
ing employees engaged in a strike who are qualified for
reinstatement.
(b) In any like manner interfering with, restraining, or
coercing its employees in the exercise of rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Make Windle D. Pinkston, Sr., and Dennis J.
Brewer whole for any loss of earnings and benefits they
may have suffered by reason of Respondent's unlawful
discrimination against them, in the manner set forth in
the section of this Decision entitled "The Remedy."
(b) Offer Windle D. Pinkston, Sr., and Dennis J.
Brewer, if it has not already done so, immediate and full
reinstatement to their former positions or, if they no
longer exist, to substantially equivalent positions, without
prejudice to their seniority and other rights and privi-
leges, dismissing, if necessary, and employees hired as re-
placements, and make them whole for any loss of pay
they may have suffered by reason of Respondent's refus-
al to reinstate them, by payment to each of them a sum
of money equal to what the employee would have
earned from August 5, 1980, to the date of Respondent's
offer of reinstatement, in the manner set forth in this De-
cision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amounts of backpay due
under the terms of this recommended Order.
(d) Post at its Clawson, Michigan, plant copies of the
attached notice marked "Appendix."2 3 Copies of said
notice, on forms provided by the Regional Director for
Region 7, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
2: 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.
'a In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Poated by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1204
SCHREIBER MANUFACTURING CO.
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dis-
missed except insofar as specific findings of violations
based upon the allegations of the complaint have been
made above.
1205