Vitro Corp. of America

National Labor Relations Board - Board Decisions

Jan 23, 1963

140 N.L.R.B. 790 (N.L.R.B. 1963)

790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization as a condition of employment, as authorized and only as authorized
by said section.
HOISTING AND PORTABLE ENGINEERS,
LOCAL 4, INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
Dated------------------- By-------------------------------------------
(ALCIDE G. MORRELL, Business Representative)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Union members or others may communicate directly with the Board's Regional
Office, 24 School Street, Boston, Massachusetts, Telephone No Lafayette 3-8100,
if they have any question concerning this notice or compliance with its provisions.
Vitro Laboratories , Division of Vitro Corporation of America
and International Brotherhood of Electrical Workers, AFL-
CIO. Case No. 12-CA-0210. January 23, 1963
DECISION AND ORDER
On August 21, 1962, Trial Examiner William F. Scharnikow issued
his Intermediate Report it the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Intermediate Report.
Thereafter, the General Counsel and the Respondent filed exceptions
to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record, and
adopts the findings,' conclusions, and recommendations of the Trial
Examiner.
[The Board dismissed the complaint.]
I The General Counsel requested the Board to overrule the Trial Examiner's credibility
findings However, it is established Board policy not to overrule a Trial Examiner's
credibility findings unless they are clearly erroneous Such a conclusion is not warranted
here. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F. 2d 362 (C.A 3)
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint in the present case was issued on January 5, 1962, on the basis of
charges and amended charges which had been filed by the International Brotherhood
of Electrical Workers, AFL-CIO, herein called the IBEW, on November 27, 1961,
140 NLRB No. 72.
VITRO LABORATORIES, DIV. OF VITRO CORP. OF AMERICA 791
and January 5, 1962, respectively. As amended before and during the hearing, the
complaint alleges, but the Respondent in its answer denies, that: (1) since approxi-
mately June 1, 1961, the Respondent has interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed by Section 7 of the National Labor
Relations Act, and has thereby committed unfair labor practices within the meaning
of Section 8(a)(1) of the Act, by certain acts, statements, and threats of its super-
visors; and (2) in the approximate period from June 23 to 26, 1961, the Respondent
also committed unfair labor practices within the meaning of Section 8(a)(1) and
(3) of the Act by selecting 16 named employees for discharge, by discharging them,
and by thereafter failing and refusing to reinstate them, because these employees
joined or assisted International Union of Electrical, Radio and Machine Workers,
AFL-CIO, herein called the IUE, or engaged in other union activity or concerted
activities for the purpose of collective bargaining or other mutual aid or protection.
Pursuant to notice, a hearing was held before Trial Examiner William F. Schar-
nikow at Tampa, Florida, from February 19 to April 3, 1962. The General Counsel
and the Respondent appeared by counsel and the IBEW by its representative and were
afforded full opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing upon the issues. At the conclusion of the hearing, the
parties waived oral argument. Since the hearing, I have received briefs from the
General Counsel and the Respondent.'
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a New York corporation licensed to do business in the State of
Florida, is engaged, and has been engaged at all times material to the present case,
in the operation of radar missile tracking stations in the Eglin Gulf Test Range, in-
cluding Eglin Air Force Base at Pensacola, at Site D-4 at Anclote Point, Tarpon
Springs, Florida, and approximately 18 other sites along the west coast of Florida.
During the year preceding the issuance of the complaint the Respondent derived a
gross income of more than $100,000 from contracts relating to the national defense
and for the operation of its Florida bases, purchased and procured goods of a value
of $50,000 from outside the State of Florida.
I find that the Respondent is engaged in a business affecting commerce within the
meaning of the Act and that it will effectuate the policies of the Act for the Board
to entertain jurisdiction in the present case.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical, Radio and Machine Workers, AFL-CIO, is, and
has been at all times material to the present case, a labor organization within the
meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
This case arises out of roughly contemporaneous IUE organizational activity
among the Respondent's employees at Site D-4, Anclote Point, Tarpon Springs,
Florida, and the Respondent's discharge of about 20 employees at that site in the
course of a reduction in force during the months of May and June 1961.
The General Counsel and the IBEW, which filed the charges basic to the complaint,
contend that, beginning on June 1, 1961, and daily for several weeks thereafter. I
number of the Respondent's employees openly solicited IUE membership applica-
tions, signed such applications, and wore IUE buttons at Site D-4; that, from this,
'An unopposed motion to correct the record, filed on July 18, 1962, by counsel for the
Respondent with certification of service upon the General Counsel and the IBEW, Is
granted with direction that the corrections requested be made on the official transcript.
On May 22, 1962, pursuant to leave granted by me at the hearing, the General Counsel
also submitted photostatic copies of excerpts from the Respondent's contract with the
Air Foice, a balky, complete copy of which had been masked at the hearing as Respond-
ent's Exhibit No 44, for identification, although only certain clearly relevant portions
had been admitted in evidence during the hearing. In accordance with the permission
I granted to the General Counsel at the end of the hearing, I now admit in evidence the
additional excerpts from the contract which the General Counsel has submitted, as
General Counsel's Exhibit No. 45.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent became aware, on and after June 1, 1961, not only of the IUE or-
ganizational activity but also of the identity of employees supporting the IUE, that
the Respondent attempted to suppress this activity by threats of reprisal made by its
supervisors; and that the Respondent selected 12 of the employees at Site D-4 for
discharge and discharged them, because these employees had joined the IUE or had
engaged in its organizational activities.2 The General Counsel and the IBEW also
contend that, departing from an announced and established personnel policy, the
Respondent further discriminated against these 12 employees because of their IUE
membership and activities, by failing to transfer them to other available jobs instead
of discharging them, by failing to recall them to other jobs as they later became
available, and, in the cases of four of them (Thomas Mathers, Thurlow Gleason,
John J. McCormack, and Daniel N. VanDine, Sr ), by failing and refusing to re-
employ them in September and October 1961, when they applied for jobs advertised
by the Respondent in Tampa and St. Petersburg newspapers on September 10 and
October 15, 1961.
The Respondent disputes these contentions. It denies that there was any visible
IUE activity involving its employees, or at least any of which its officials were aware,
until IUE handbills were distributed on the access road outside Site D-4 on June 9,
1961. It contends that so far as its officials or supervisors observed, no IUE buttons
were worn until June 12, 1961, the day the Respondent delivered notices of termina-
tion to the employees it had decided to discharge. It denies that it interfered with
the employees' organizational activities. It asserts that its reduction in force at Site
D-4 was required by changes in the manning tables under its contract with the Air
Foice tor the fiscal year beginning July 1, 1961; that negotiation of these changes
began on March 15, 1961; that, on May 16, 1961, the contractual changes had for
the most part been settled; and that its selection of the employees to be discharged
was made before it learned of the IUE activities and without knowledge of, or refer-
ence to, the organizational activities of any of the employees it discharged. It denies
that it had established such a broad personnel policy (as asserted by the General
Counsel) as would entitle the employees who were discharged to transfer to other
jobs, as would require the Respondent to recall them to fill future job openings, or as
would afford them an overriding preference over other applicants upon actually ap-
plying for reemployment. It denies that it refused to rehire Mathers, Gleason,
McCormack, and VanDine on their September and October 1961 applications be-
cause of their IUE activities Finally, in addition to denying that it had discrim-
inated against McCormack in discharging and refusing to reemploy him, it contends
that McCormack was not an employee but was a supervisor within the meaning of
the Act.
The evidence upon the issues and subissues raised by these opposing positions of
the parties was given in great detail, presents a vast background for testing the
mainstream of the evidence, and poses numerous questions of credibility. All of this
I have considered. For convenience and clarity, I shall set forth and discuss the
substance of this evidence and make my factual findings under the following general
headings:
B. The reduction in force and its execution at Site D-4
C. The Respondent's failure to recall or rehire any of the alleged discriminatees
D. The Respondent's personnel policy
E. McCormack's status
F. The substance and plausibility of the reasons asserted by the Respondent for
its discharge of the persons named in the complaint
G. The IUE activities of the Respondent's employees, the Respondent's knowl-
edge, and its reaction
The manner and topical order in which I deal with the evidence under these
headings are dictated by the practical necessity of breaking down the mass of
2 The 12 employees who the General Counsel and the IBEW thus assert were dis-
criminatorily discharged were Max G Allen, Connellv 0 Chastaine, Harlan Cox, William
Fields, Mary Geyer, Thurlow Gleason, Thomas W. Mathers, John J McCormack, Andrew
T Patton, Jr, Tiieophilos J Samarkos, Joseph L Tyson, and Daniel N VanDine, Sr
The complaint as amended before and at the hearing also alleged that the Respondent
diseriininatorily discharged four other employees At the beginning of the hearing, the
General Counsel received permission to strike the name of one of these four, Milton D
Saxman At the end of the General Counsel's case, I granted the Respondent's motion
to strike the navies of the other three (Michael A Cook, Gilbert Munoz, and Bobby W
McBride) for lack of evidence that they had joined the IUE or hod engaged in any IUE
activity, or that the Respondent had any reason to believe that they had done so.
VITRO LABORATORIES, DIV. OF VITRO CORP. OF AMERICA 793
evidentiary detail so that conflicting as well as uncontradicted evidence may be con-
sidered and clear and definite findings may be made as the evidence is summarized
under each heading. But, although thus set forth for clarity under each heading,
my findings and resolutions of conflicting evidence are the product not only of my
consideration of the evidence summarized in the particular section and my appraisal
of the contributing witnesses' reliability, but also of my consideration of the factual
context and the index to the witnesses' credibility provided by all the evidence dis-
cussed in the other sections as well. To reflect this, so far as it is possible to do so,
I shall deal with the evidence in what I regard to be both the logical order for its
consideration and an order which permits the development of the contextual factor
upon which I rely in part in resolving the conflicting evidence discussed in the later
sections. Accordingly, I consider first (in sections B and C, below) the evidence
as to what the Respondent did; then (in sections D, E, and F) the evidence relating
to the explanations and justification which the Respondent offers for its conduct; and
finally (in section G), the evidence as to the employees' WE activities and the Res-
pondent's knowledge and reaction, upon which the General Counsel primarily relies to
show a discriminatory motive on the Respondent's part in selecting and discharging the
12 persons named in the complaint
B. The reduction in force and its execution at Site D-4
In the late fall of 1958, the Respondent was awarded a contract by the Air Force
for the operation and maintenance of missile tracking bases which were then being
constructed by another contractor on the west coast of Florida as part of the Eglin
Gulf Test Range (EGTR) in contemplation of a novel use of a master computer
at the Eglin Air Force Base at Pensacola with data fed in from approximately 20 sites
in the chain. One of the sites, all of which were designated by number and the
prefix A (for uprange) or D (for downrange), was Site D-4 at Anclote Point, Tarpon
Springs, approximately 450 miles southeast of Eglin.
Early in 1959, before construction and installation of equipment at the sites were
completed, the Respondent assigned some of its technical staff to the sites to
familiarize themselves with the equipment without interfering with its installation
During 1960, the installing contractor ran out of funds, the Respondent under-
took completion of installation, and the Air Force decided to accept the equipment
already installed and to look to the Respondent for completion The Respondent
thereupon staffed the sites, including Site D-4, and continued with installation and the
training of its personnel. The first checkout mission took place in October 1960.
As the sites became operational, 24-hour-a-day service was required at each site,
including Site D-4, from the guard sections and the microwave sections which op-
erated the Respondent's communication system. Only one 8-hour shift was at first
needed in the other sections. But in December 1960, a supplement to the contract
between the Air Force and the Respondent required an increase in the service pro-
vided by these other sections. Accordingly, by February 1961, the Respondent had
established and was operating two shifts at Site D-4 for all sections except the guard
and microwave sections which still provided 24-hour service with three shifts.
The Respondent's operations at Site D-4 are directed by a site chief under general
orders and instructions from the Respondent's departmental officials at Eglin Air
Force Base. Since the end of January 1961, G W Jackson has been site chief and
George Sayre (his immediate predecessor in the job) has been assistant site chief
From February 1961 through June 1961, the site employed approximately 120
engineers, operators, technicians, laborers, guards, and clerical employees, who were
divided on shifts among 12 sections according to the work they performed. The func-
tions of three of these sections (the guard, office, and supply sections) are self-
evident and require no description. A fourth section, the facility maintenance sec-
tion, maintained the grounds and buildings at the site and the general facilities such
as diesel generators and air-conditioning equipment. The remaining sections per-
formed maintenance or operating functions, or both, which are peculiar to a missile
tracking and data gathering system Thus each of the following seven sections main-
tained and operated the specialized receiving, transmitting, indicating, or recording
equipment directly used by it in performing its particular function a 14-man telem-
etrv section which recorded information received from the test items flown on the
gulf test range; an 8-man FMIC section which monitored the frequencies used on
the range for the purposes of detecting interference, of checking performance on
the chosen frequencies and of providing information for the possible future use of
other frequencies; an 11-man C-band radar section and a 6-man S-band radar sec-
tion which tracked the missiles and drones flown on the range; a 15-man data
section which received information through the C-band and S-band radars and
recorded it on maps placed on the plotting boards and also on magnetic tapes; a
794 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
13-man operational support section which not only maintained the underground
cable system to the main frames in the foregoing sections, but furnished timing, count-
down, voice communication, signal, and control functions to the other sections dur-
ing missions; and a microwave section which maintained and operated a communica-
tion system for the transmission of data up and down the range. Finally, in addition
to these sections, Site D-4 employed a 3-man operations section which received notice
from Eglin of the times missions were scheduled on the range, advised the site chief
and the sections so that the necessary supporting work shifts could be arranged,
briefed the sections on their roles in each mission, and then, during the missions,
controlled and coordinated the operations of the various operating sections.
On March 16, 1961, the Air Force and the Respondent began negotiations for
a new contract to become effective on July 1, 1961. These negotiations were based
upon an initial request and several later revised requests for proposals, made by
the Air Force to the Respondent and contained suggested manning tables for each
site. To each of these requests, the Respondent submitted the proposal sought by
the Air Force, including the indicated manning tables. Under the exchange of the
Air Force's original request of March 15, 1961, and the Respondent's corresponding
proposal of April 15, 1961, the manning tables contemplated a continuance of the
2-shift basic operation at Site D-4 and a full 1-shift operation at Site D-8, which
is located near Key West and at that time had only 12 employees and was not yet
operational. Then, on May 16 and 17, 1961, the Air Force made requests for
further revised proposals. According to the May 16 request, Site D-4 (except the
guards and microwave section) was to be reduced from a two-shift to a one-shift
operation. According to the May 17 request of the Air Force, the FMIC van,
which had been operated as one of the sections at Site D-4, was to be eliminated
entirely. The Respondent agreed to these requests on June 1 and on June 12, 1961,
the contract was signed. But shortly thereafter, on June 22 and July 7, the Air
Force made two further changes which affected the layoffs and retentions of em-
ployees in the present case: On June 22 the Air Force informed the Respondent that
Site D-8 was, after all, not vet to be made operational And on July 7. it instructed
the Respondent that operation of the FMIC van at Site D-4 was to be continued,
although on a single shift and not on a double shift, as theretofore.
Thus on May 16, 1961, it first appeared from the Air Force's request of that date
that Site D-4 was to be reduced to one shift. On that day, Robert Coulter, technical
assistant to the Respondent's department head for EGTR at Eglm, telephoned G. W.
Jackson, site chief at Site D-4. He told Jackson that there was likely to he a cut-
back to one shift and instructed Jackson to start rating his personnel in each section
On May 16, 1961, shortly after he received this call, Jackson held one of his
periodic meetines with the supervisors of the sections at the site Although the
General Counsel contends that John McCormack was a "eroup leader" in the data
section and an employee and not a supervisor, it is undisputed that McCormack
ordinarily attended these supervisors' meetings and that he attended the meeting
on May 16, 1961. Tt also appears clear from Jackson's testimony and the testimony
of other men who attended this meeting on May 16, 1961 (including McCormack'),
that Jackson told them of the likelihood of a layoff on Tuly 1. Furthermore, although
McCormack testified simply that he could not recall being asked by Jackson to rate
the men in the data section, Jackson and the supervisors of the other sections
testified, and I find, that at this meeting, Jackson asked the men to rate all the
employees in their respective sections for layoff purposes upon a cone;derat;on of
the follrwina factors: (1) Each employee's ability to do his iob: (2) his ahil;ty to
get alone wi'h fellow emnlovees: (3) his educational backs-round; (4) the possibility
of his future growth with the Respondent; and (5) seniority.
According to their credible testimony and that of Jackson, the supervisors of
the sections other than the data section prepared and, by May 22, 1961, had sub-
mitted and secured Jackson's approval of lists in which they rated the employees in
their respective sections. According to Jackson's testimony and that of Service
Manager Robert Boudreaux, Jackson himself rated the office personnel after dis-
cussing the matter with Boudreaux. Although (as I have noted) McCormack
testified that he did not recall Jackson's asking him to rate the employees in the
data section, Jackson credibly testified, and I find, that, at Jackson's request,
McCormack submitted a list rating these employees on May 17: that Jackson dis-
agreed with some of McCormack's ratings because, in his opinion, they did not
give proper weight to ability and cooperation; that Jackson asked McCormack to
prepare another list; and that, when McCormack failed to do so. Jackson, being
familiar with the men and their performance, prepared his own ratings for the data
employees on May 22
Up to this time, there had been no determination how many employees would be
laid off. On May 22, Departmental Assistant Coulter telephoned Site Chief Jackson
VITRO LABORATORIES, DIV. OF VITRO CORP. OF AMERICA 795
from Eglin, informed Jackson of the number of employees to be laid off in each
section, and gave instructions that range operators (die lowest paid and least
experienced classification) should be laid off first. Then, in a series of telephone
conversations during the rest of the week through Friday, May 26, Coulter and Jack-
son (according to their credible testimony) discussed the people who should be
laid off, concluded that Site D-4 should lay off about 25 people taken from each
section in the previously agreed number, and specifically selected those employees
who were lowest in the ratings made by Jackson, himself, for the office and the data
section and those made by the supervisors for their respective sections with Jackson's
concurrence.3
In sum, according to Jackson's testimony and the consistent testimony of the
supervisors (all of which I credit), Coulter and Jackson decided that, in the sec-
tions including employees who the complaint alleges were discriminatorily selected,
the Respondent would lay off: (a) Daniel VanDine, an alleged discriminatee em-
ployed as one of the Respondent's three mission coordinators in the operations
section; (b) Mary Geyer, an alleged discriminatee employed in the office; (c) four
specifically named employees in the data section, including alleged discriminatees
Connelly Chastaine and Theophilos Samarkos; (d) two specifically named employees
in the supply section, including alleged discriminatee Thurlow Gleason; (e) seven
specifically named employees in FMIC, including alleged discriminatees Andrew
Patton and Joseph Tyson; (f) seven specifically named employees in the telemetry
section, including alleged discriminatees Max Allen, William Fields, and Thomas
Mathers; and (g) two specifically named employees in the facility maintenance
section, including alleged discriminatee Harlan Cox.4
Although as will appear, written notices of discharge were dated June 8, 1961,
and were not given to the persons involved until June 12, 1961, Site Chief Jackson
testified, and I find, that, sometime during the workweek from Monday, May 22,
through Friday, May 26, he told McCormack of the data section and the supervisors
of the other sections to notify the employees in their respective sections that they
were being laid off on July 1, 1961, because of a cutback in personnel. But the
evidence as to whether and when such early oral notices were given to the employees
is tangled and confusing.
McCormack gave no testimony as to whether he was instructed by Jackson to
give such oral notices or whether he had done so. Jackson, however, testified that
on or before May 26, he himself orally notified Coordinator Daniel VanDine as
well as three of the four men who were to be laid off in the data section, i e.,
Chastaine, D G. Burkell, and L. E. (Butch) Murray, but not Samarkos According
to Jackson, he also attempted to give such an oral notice to office employee Mary
Geyer on Friday, May 26, but she had left work early that day and, because she
was injured in an automobile accident that weekend, did not return to work until
June 12 Jackson further testified that in the meantime he visited Geyer's home three
or four times, but that she was not at home and he left no messages for her because
he felt he should speak to her personally about her discharge
Only one of the supervisors actually testified that he had given his men early
notices of their discharges Thus, Supervisor George Wischmeyer of the telemetry
section testified that on May 16, having had his ratings of his men approved that
day by Jackson, and having then been told by Jackson that half of the 14 men in his
3 The Respondent was unable to produce Jackson's and the supervisors' lists upon the
basis of which Jackson and the supervisors testified the selections for discharge were
made The General Counsel questions both the existence and the content of such rating
lists But Jackson and Service Manager Boudreaux testified that they destroyed the lists
by burning them sometime between June 5 and 15 because, by that time, the lists had
served their purpose, there were unsettling rumors among the employees as to how each
of them had been rated and whether they were next on the list for discharge, and
Jackson and Boudreaux wanted to avoid the possibility of the employees' questioning and
challenging the supervisors as to their ranking in their sections I accept Jackson's
and Bondreaux's testimony as to the existence of the lists and their content, the burning
of the lists, and the reasons therefor
A Jackson and his supervisors testified that, in addition to the 11 alleged discriminatees
listed in the text, the 13 other employees who were thus originally selected for discharge
were data section employees Don Burkell and L F (Butch) Murray, supply section
employee Mrs D E Pappas; FMIC employees K B Spencer, A G. Paiker, M L. King,
It L Barnes, and E C Johnson ; telemetry section employees J D Langley, Bobby
McBride, J II Myers, and J D IIydu ; and facility maintenance employee D. J. Collins
As will later appear, the Respondent decided to discharge John W McCormack, the
twelfth and remaining alleged discriminatee, only on or about June 26, 1961.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
section would be discharged, notified 6 of the men of their coming layoff (Mathers,
Fields, Allen, J. D. Langley, Bobby McBride, and J. H. Myers) and then, on Monday,
May 22, notified J. D. Hydu, the seventh employee who was to be discharged from
the section, at the employee's home .5 The other four supervisors who testified
(Feagley of FMIC, Daniels of the supply section, Britton of the maintenance section,
and Wilson of operational support) testified merely as to their preparation of the
rating lists approved by Site Chief Jackson. Although one of these men (Supervisor
Feagley of FMIC) also testified that on May 16, he told his men that there was
likely to be a layoff of one shift, he did not testify, nor was he asked, whether
he then or later told particular employees they were to be laid off.
Six of the eleven alleged discrimina,tees gave testimony at the hearing: VanDine,
Samarkos, Gleason, Fields, Mathers, and Patton Only with respect to Coordinator
VanDine, was there a square conflict in the evidence as to whether the Respondent
gave oral advance notices of their discharges to the alleged discriminatees As I
have noted, Site Chief Jackson testified, but VanDine in his testimony denied, that
during the workweek from May 22 to 26, Jackson notified VanDine he would be
discharged on July 1. On this particular conflict, I credit Jackson's testimony. With
respect to Theophilos Samarkos (who testified) and Mary Geyer and Harlan Cox
(who did not testify), it is clear from the evidence, and I find, that they were
not notified until June 12 or later.6
On the other hand, the testimony of Gleason, Fields, Mathers, and Patton, the
remaining four dischargees who appeared as witnesses, indicates, and I find, that each
of them was in fact orally notified of his coming discharge sometime before June
12 when the written notices were handed out. Thus, although Thurlow Gleason
initially testified that he first learned of his discharge upon receiving written notice
on June 12, he admitted during his cross-examination that he may have learned
of his discharge in a conversation with Supply Supervisor Daniels in the beginning
of June and possibly on May 31, 1961 Similarly, William Fields of the telemetry
section, whose record shows him to have been on sick leave from May 25 to June 7,
1961, inclusive, testified that he was absent during this period and undergoing
a hernia operation because he knew of this impending layoff and wanted to take
advantage of his sick leave and insurance before he was laid off 7 Thomas Mathers,
also of the telemetry section, testified that, although Supervisor Wischmeyer had
previously told him merely that it appeared there would be a layoff, Wischmeyer
did tell him on June 9 that Mathers was among those selected for discharge Finally.
although Andrew Patton of FMIC testified that Feagley, his supervisor, told him on
June 5 that only three people would be retained in the section but that he did not
know who they would be, Patton further testified that on June 7, Jackson told
him he was being discharged and thus prompted Patton to file a written resignation
on June 8, in reliance upon getting another job which he thought he had secured in
a job interview the preceding weekend.
On Monday, June 12, Sire Chief Jackson and several of the supervisors handed
out termination letters, which had been prepared by General Manager Erickson
at Eglin, dated June 8, 1961, and informed the employees to whom they were
given that . [your] services are no longer required beyond Friday, July 7,
1961. . Your supervisor has already informed you as to the reasons for this
reduction " s Then, on Friday, June 23, 1961, Site Chief Jackson and Service Man-
s Wischmeyer claimed he was able to fix the date of his notice to IIvdu (the last of
the men lie notified) because he drove to Hydu's home in his car winch he remembered he
had just painted over the weekend of May 20 and 21 To support this Wischmeyei pro-
duced his dated receipt on his purchase of the paint used by him
8 Reference has already been made to Jackson's testimony that notice of discharge was
first given to Geyer on June 12. Not only did Samarkos deny receipt of an oral notice
but as I have also noted in the preceding portion of the text, Samarkos was the only data
section employee whom Site Chief Jackson did not claim lie had orally notified As to
Cox, the Respondent's records show that he was on leave from work from May 23 through
June 22. 1901, and Jackson specifically testified that no discharge notice was given to
Cox until June 23, 1961
a Fields' testimony thus confirmed the testimony of Supervisor Wischmever that Fields
had made a statement to this effect upon being notified of his layoff and before taking
his sick leave
Service Manager Boudreaux of Site D-4 testified that he and Jackson picked up a
package containing these letters at the Tarpon Sprines bus station on June 10. 1961, and
that the package had arrived by Greyhound bus The General Counsel contends that this
delivery could not have been made in the manner and at the time asserted by Boudreaux,
in view of the testimony of Fred Thompson, vice president of Gulf Coast Motor Lines,
VITRO LABORATORIES, DIV. OF VITRO CORP. OF AMERICA 797
ager Boudreaux delivered another letter to each of the employees whom the Re-
spondent was discharging, stating that "Because of the reduced work load at Site
D-4, your services will not be required beyond 23 June 1961," but that the Respond-
ent would pay the discharged employees 2 weeks' wages (i.e., until July 7) in lieu of
notice
With the exception of its later discharge of John McCormack and two other em-
ployees on June 27, 1961, the Respondent completed its reduction in force at Site
D-4 with the delivery of this second set of terminal letters on June 23, 1961. It ap-
pears from uncontradicted evidence and a stipulation entered into by counsel at the
hearing, that Max Allan, Connelly Chastaine, William Fields, Mary Geyer, Thurlow
Gleason, Joseph Tyson, and Daniel VanDine were given the June 8 letter on June 12
and the June 23 letter on June 23. It also appears that the June 23 letter was de-
livered on that date to Harlan Cox 9 and Thomas Mathers On the other hand, it
is also undisputed that Andrew Patton was given neither the June 8 letter nor the
June 23 letter because, upon learning he was to be discharged, he had handed in his
written resignation, effective on June 23, 1961. There is dispute, however, as to
whether, as Site Chief Jackson testified, Theophilos Samarkos was given the June 8
letter on June 12 and the June 23 letter on June 23, or, as Samarkos testified, that he
was given only the June 8 letter on June 23. And finally, there is also dispute as to
whether Mathers was given the June 8 letter on June 12 or as Mathers testified, only
on June 14. But, despite these uncertainties in the record, it is undisputed that all
11 of these employees, who the complaint alleges was discriminatorily discharged but
who Site Chief Jackson testified had been nondiscriminatorily selected in the end
of May, were in fact terminated on June 23, 1961, and were finally checked out by
the Respondent at the close of that working day.
In all, the Respondent discharged 19 employees at Site D-4 on June 23, 1961.10
Included in this number were the 11 alleged discriminatees but only 4 of the 13 other
employees in the alleged discriminatee's sections who, according to Site Chief Jack-
son, had also been selected for discharge in May.ll Thus, contrary to the original
selections in May, the following nine employees were not discharged on June 23
data section employee L. E. (Butch) Murray; supply section employee D. E. Pappas;
FMIC employees E. C. Johnson and R L. Barnes; telemetry section employees Bobby
Inc, whom the General Counsel produced as a rebuttal witness Thompson testified that
Tarpon Springs is served only by his bus company ; that all bus shipments for Tarpon
Springs which originate with other bus lines, are transhipped at either Tampa or
Clearwater to Gulf Coast, which then makes the deliveries to Tarpon Springs ; that
Tamiami Trailways (but not Greyhound) serves Eglin and delivers its freight to Gulf
Coast at Tampa for terminal delivery by Gulf Coast at Tarpon Springs ; and that Gulf
Coast had no records or receipts for any deliveries of packages during the month of
June 1961, fiom the Respondent at Eglin to the Respondent or any of its agents (includ-
ing Boudreaux or Jackson) at Tarpon Springs According to Thompson, had there been
such a delivery, Gulf Coast would have in its possession a copy of the waybill, receipted
by the consignee But Thompson also testified that, although Greyhound did not serve
Eglin, it did serve Crestview, about 20 miles from Eglin ; that Gulf Coast also made
terminal deliveries of Greyhound's freight from Crestview to Tarpon Springs ; but that,
on a prepaid (as distinguished from a "collect") shipment, Gulf Coast would not have a
record of,the shipment or its delivery isince under its arrangement with Greyhound it was
required to send receipted, prepaid Greyhound waybills to Greyhound's office at Lexington,
Kentucky In view of this, I do not regard Thompson's testimony as providing a con-
vincing refutation of Boudreaux's testimony that the June 8 letters were shipped to
Site D-4 via Greyhound and were picked up by him and Jackson at the Tarpon Springs
bus station on June 10, 1961.
9 Cox did not testify As I have already noted, his record shows that he was on leave
from May 23 through June 22, 1961 (See footnote 6, above ) I credit Jackson's testi-
mony that on Cox's return to work on June 23, he was given not only the June 23 letter
but also the June 8 letter.
10 General Counsel's Exhibit No 29A, which was prepared by the Respondent from its
records, shows the discharges of 16 employees in the reduction in force effective on July 7,
1961, and also the "resignation" of Patton (one of the alleged discriminatees) on June 23,
1961 However, the exhibit does not refer to two other employees (Gilbert Munoz and
Milton D. Saxman) whom the complaint also originally listed as having been discrimina-
torily discharged at this time but whose names were struck from the complaint during
the hearing (See footnote 2, above )
11 In addition to the discriminatees, the Respondent's June 23 discharges from these
sections included only data section employee Don Burkell and FMIC employees K E.
Spencer, A. G. Parker, and M. L. King.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McBride, J. H Myers, J. D. Langley, and J. D. Hydu; and facility maintenance em-
ployee D. J. Collins. It is true that Bobby McBride, one of this group, was dis-
charged 3 days later in the Respondent's completion of its reduction in force. But,
of the four employees who are not named as discriminatees in the complaint but who
were also discharged on June 23, two of them (FMIC employees A. G Parker and
M. L. King) were reinstated on July 10.
To explain the Respondent's June 23 retention of the eight employees originally
slated for discharge (other than McBride) and to explain also the Respondent's re-
instatement of the two FMIC employees, Site Chief Jackson referred to various
changes in circumstances and instructions from the Air Force after June 1, offered
these as the explanations of the retention or reinstatement of the particular em-
ployees, and denied that a desire to discriminate against union supporters played
any role in his decisions or actions. Thus, Jackson testified that data section em-
ployee L. E. (Butch) Murray was removed from the discharge list because a vacancy
had been created by the resignation of another employee during the week beginning
June 5; that Pappas was removed from the list because of a heavy clerical workload
in the supply section due to difficulties in changing over to -an IBM card system; that
FMIC employees E C. Johnson and R. L. Barnes were retained and assigned to
vacancies due to resignations in the microwave section, because they (unlike any of
the alleged discriminatees) had had previous microwave experience, and that telem-
etry section employees J. D. Langley and J D Hvdu were removed from the dis-
charge list because Assistant Manager Coulter decided that some of the low paid
range operators could, and should, be retained as "overages" to do odd jobs, includ-
ing menial work, rather than have the higher paid men do this work. And Facility
Maintenance Supervisor John Britton testified that it was decided that employee D. J
Collins, a handyman, should be retained in his section for the same reason. But the
Respondent's witnesses offered no explanation why telemetry section employee J. H.
Myers, was retained, although Supervisor Wischmeyer had testified that Myers was
among those originally scheduled for discharge.
Wi.h respect to Parker's and King's reinstatement, Jackson testified, and was
corroborated by FMIC Supervisor Harry Feaglev, that Parker and King were rein-
stated on July 10 because on July 5, the Air Force decided that, contrary to its
earlier plan, the FMIC van was not to be discontinued at Site D-4, but that the
Respondent was to continue operating the van on a single shift, and that this neces-
sitated the recall of two FMIC employees. In this connection, Supervisor Feaoley
testified that, on consultation with Jackson, he decided to recall Parker and King
after also considering Joseph Tyson, one of the alleged discriminatees who had
also been discharged, but that he did not consider recalling Andrew Patton, the other
alleged discriminatee, because, as I have noted, Patton had resigned.
The last three discharges with which we are concerned in the present case oc-
curred on June 27, 1961, and consisted of the discharges of John McCormack (the
12th alleged discriminatee whose supervisory or nonsupervisory status in the data
section is in dispute), and employees Bobby McBride of the telemetry section and
E. A Zeak of the operations support section. According to the testimony of the
Respondent's witnesses, these three additional discharges were necessitated by the
Air Force's announcement on June 22 that Site D-8 at Key West was not to be
made operational but was to be maintained on a "caretaker basis."
Until the Air Force's decision on June 22, the Respondent had planned, in accord-
ance with its earlier instructions from the Air Force, to transfer three employees
from Site D-4 to Site D-8. Site Chief Jackson testified that he first offered the
transfers to four of the alleged discriminatees, i e., McCormack, VanDine, Samarkos,
and Gleason, but that each of them reiected the transfer. According to Jackson,
he had intended transferring McCormack to D-8 as data section supervisor because
McCormack, though weak in technical knowledge and performance, was a good
administrator. which was what would then be needed at D-8 Jackson further
testified that he selected VanDine for transfer because it would avoid the necessity
of laving off VanDine and also because Vanl)ine's experience as coordinator would
be helpful in getting the status records, ROCP failure reports, and various other
forms in shape at D-8 Similarly, accordine to Jackson, his offers of transfer to
Gleason and Samarkos were made to avoid laving them off and also because of
Gleason's familiarity with the Respondent's supply system, and Samarkos' experience,
which, though limited. would be greater than that of a newly hired employee. It is
undisputed that the offers of transfer were in fact made and reiected by these men.
except in the case of VanDine who denied that he had been offered this alternative
to discharge 12 On this conflict, I credit Jackson's testimony and find that he was
12 McCormack did not testify whether he had been made an offer to transfer to D-8.
Samarkos testified that in the middle of June, Jackson said to him, Don Burkell, and
VITRO LABORATORIES, DIV. OF VITRO CORP. OF AMERICA 799
offered a transfer to D-8. In any case, Jackson finally decided to transfer telemetry
section employee Bill Hampton to Site D-8 as telemetry section supervisor along
with data section employee K. J. Lovelace and operational support section employee
B. L. Myers.
On June 23 , Site Chief Jackson was notified that Site D-8 was not to be made
operational , but was to remain in "caretaker status." Assistant Manager Coulter
at Eglin testified that he instructed Jackson that the three transfers were to be
rescinded and that a saving of three equivalent salaries was to be ettected . Jackson
testified in substance that, in the situation which thus confronted him, he decided
to discharge McBride, Zeak , and McCormack rather than the three men whom he
had expected to transfer to D-8, for the following reasons:
(1) Since Hampton, a telemetry section employee , could not be transferred to
Site D-8, another telemetry employee at Site D-4 had to be laid off, and, in the
absence of Supervisor Wischmeyer , R. G. Sawyer ( Wischmeyer 's assistant ) recom-
mended the discharge of McBride who had originally been rated by Wischmeyer
for layoff from that section.
(2) Zeak had been Jackson's choice for transfer from Site D-4's operational
support section but, because Zeak's wife was then undergoing surgery, Myers, an-
other employee in the section , had agreed to go in his place. When the transfer
was rescinded , Jackson chose Zeak rather than Myers for discharge for this reason
and also because Zeak was classified as a communications engineer at $625 a month
(although he was performing only a technician 's work ) and his discharge would
thus reduce the strain on the departmental budget.
(3) Finally, since Lovelace was a data section employee, Jackson chose Mc-
Cormack rather than Lovelace for discharge from that section at Site D -4, because
McCormack 's salary of $ 129 a week was more than that of the other men in the
section and cost was an important consideration , and also because, in view of the
change from a two-shift to a single-shift operation at Site D-4, McCormack's ad-
ministrative ability was no longer as important as it had been, the expected stress
being rather upon technical knowledge and ability in which McCormack was weak.
In accordance with this decision , the Respondent , on June 27 , 1961, delivered
letters to McCormack , Zeak , and McBride notifying them of the termination of
their employment . On the same day, or within a few days thereafter , the Respondent
appoin .ed Dale Kok, another data section employee, to succeed McCormack in
his job.
Counting the last 3 discharges on June 27 , 1961, but excluding the earlier dis-
charges of Parker and King who were reinstated shortly thereafter when it was
decided to continue 1 shift in the FMIC section , the Respondent reduced its force
at Si.e D-4 by discharging a total of 20 people. The evidence which I have sum-
marized leaves no doubt, and I find, that the Respondent reduced its staff by this
number in accordance with the changes in its contract with the Air Force. Further-
more, the evidence discussed up to this point, requires , in addition to and in summary
of the detailed findings already made , the following broad conclusions and findings.
The Respondent, on the basis of the comparative ratings given for the employees
in the data section by Site Chief Jackson ( since he found McCormack 's ratings
unsatisfactory ) and for the employees in each of the other sections by their respective
supervisors , made its original selections of the personnel to be discharged during
the week ending May 26, 1961 . Among the persons thus selected were all 11 of
the alleged discriminatees other than John McCormack . Although written notices
of termination were not given until June 12 and 23, 1961, oral advance notices were
given, with few exceptions , to the employees before June 12. Of the 11 alleged
discriminatees , Daniel VanDine and Connelly Chastaine received such oral rotices
from Site Chief Jackson in the week of May 26, 1961 ; Thomas Mathers, William
Fields, and Max Allen received their oral notices on May 17, 1961 , from Telemetry
Supervisor Wischmeyer whose testimony on this point is credited ; Thurlow Gleason
received his oral no . ice, according to his own testimony, in the beginning of June
and possibly on May 31, 1961 , and Andrew Patton, according to his own testimony,
received his oral notice from Jackson on June 7 Of the 11 alleged discriminatees,
only Theophilos Samarkos , Mary Geyer , Harlan Cox, and Joseph Tyson (about
whom there was no testimony on this point ) received no notice of their discharges
before June 12 All 11 of the alleged discriminatees received letters of termination
on June 12 and 23, 1961, except Andrew Patton, who submitted his resignation,
and Harlan Cox, who, because of his absence from work , received both letters only
on June 23.
Connelly Chastaine, who were working together, "You three are volunteering to go to
D-8 " Gleason testified that within a week after June 12, Supervisor Daniels asked him
whether he wanted to transfer to Site D-8 and that Gleason said, "Hell, no 11
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition to the foregoing, the evidence summarized and discussed in this section
of the report shows, and I find, that following its original selections for discharge,
the Respondent made a number of changes in the discharge list to which Site Chief
Jackson testified in detail. Among these changes were the discharges of John
McCormack and two employees on June 27, 1961. Without again going into the
detail which I have already summarized, I find upon the evidence that the circum-
stances which led to these changes were those to which Jackson testified, and his
reasons for making these changes appear to be substantial and plausible
C. The Respondent's failure to recall or rehire any of the
alleged discriminatees
The Respondent has not recalled or rehired any of the 12 persons named in the
complaint although 4 of them (Mathers, McCormack, VanDme, and Gleason)
applied for reinstatement or rehire in answer to newspaper advertisements placed
by N. D. Blue, the Respondent's employment manager at Eglin Air Force Base, in
the Tampa Tribune on September 10, 1961, and in the St. Petersburg Times on
October 15, 1961. The other people named in the complaint neither made any
application to return nor were any of them recalled by the Respondent
Both the Respondent's advertisements referred to "Job opportunities" for graduate
electrical engineers, radar technicians, and electronic technicians; stated that the
main base of operations was at Eglin with other locations at Fort St Joe, Tarpon
Springs (the locus of Site D-4), and Naples; mentioned laboratories in New Jersey
and Maryland; and invited qualified applicants to send resumes to Blue, as the Re-
spondent's employment manager, at Eglin Air Force Base.
Blue testified that he had decided to place these advertisements because the Re-
spondent needed three engineers and a few radar technicians in the Eglin area to
replace losses and also because, not having advertised for some time, there were
few (and these rather old) applications in the Respondent's file for general electronic
technicians so that Blue felt "we should get some up-to-date applications . . to
replenish or rebuild ... our active employment file."
Mathers made his application to Blue by letter dated September 10, 1961. He
referred to his 18 months' service with the Respondent, his layoff, and a letter of
General Manager Erickson in his file stating that Mathers was eligible for rehire On
this basis, Mathers asked for "reconsideration" of his qualifications and stated that
salary was not a "prime consideration " Employment Manager Blue, in a form
letter, acknowledged receipt of the application but stated that, "We regret that we
do not have a suitable opening to offer you at this time. We shall hold your applica-
tion for review should a position become available which may interest you "
In his testimony, Blue stated that he took this action with respect to Mathers after
reviewing Mathers' personnel file and concluding from its contents that Mathers
did not have the necessary technical competence and that "his ability to work with
his associates was not good " Blue then specifically referred to the following papers
in the file as the basis for his conclusion: a memorandum from Site Chief Jackson to
Personnel Manager E W Drake and a letter of General Manager A J Erickson
to Mathers, dated June 29, 1961, in reply to a letter from Mathers dated June 9
1961. Both Site Chief Jackson's memorandum and General Manager Erickson's
letter based Mathers' discharge upon incidents of Mathers' unsatisfactory work
performance which, as I shall note below, in section III, F, of this report, were given
by Telemetry Supervisor George Wischmever as the reason for his selection of
Mathers for discharge in the reduction in force
McCormack's, VanDine's, and Gleason's applications were made orally by them
on a joint visit by them to Site D-4 sometime in October 1961, and there is
essentially no dispute as to what occurred.13 The three men spoke, through
McCormack, to Service Manager Boudreaux in the presence of Site Chief Tackson
and General Manager Erickson who were also in the office McCormack said
that they had come to apnly for the jobs which had been advertised and that they
had priority on rehire Boudreaux said that Blue had inserted the advertisement,
that Boudreaux did not know about it. and that there were no openings at Site D-4
Boudreaux asked the men to file applications but they refused, saying they already
had applications on file.
According to Boudreaux, he called Eglin after the three men left and was told by
Cox of the engineerine department that the iob onenings were in the Eglin area
Boudreaux further testified that Blue later called him and asked whether the men
l3 The following findings concerning this application are based cation a (Onirocite of the
conci,tent testimony of McCormack, VanDine, Gleason, and Service ''lana_er Boudreaux
VITRO LABORATORIES, DIV. OF VITRO CORP. OF AMERICA 801
were interested in jobs anywhere but Site D-4; that Boudreaux said his impression
was that they were interested only in D-4; and that Blue said that the advertisement
stated that applicants were to get in touch with him.
The Respondent made no further contact with McCormack, VanDine, or Gleason
nor did any of these three men pursue their application.
From the foregoing facts, it appears that McCormack, VanDine, and Gleason
applied for rehire or reinstatement at Site D-4, and that Boudreau did not hire
them because there were no openings I find that the Respondent refused to hire
them for this reason and not because of their IUE activities.
D The Respondent's personnel policy
As I have noted, the General Counsel contends, but the Respondent denies, that
it was the Respondent's established and announced policy to transfer employees
to other available jobs rather than to lay them off or discharge them in a reduction
in force, to recall employees to fill future job openings, and to give former employees
an overriding preference over other applicants upon their actually applying for re-
employment. The General Counsel rests this contention upon a series of seven
brochures given to new employees to acquaint them with the Respondent and the
general terms, conditions, and advantages of employment by the Respondent, and
also upon statements made by the Respondent's interviewers of job applicants.
The brochures describe the operations of the Respondent and its associated com-
panies, including not only its operations on the Eglin Gulf Test Range, but also its
laboratories in West Orange, New Jersey, and Silver Spring, Maryland. They picture
the Respondent and its various operations as constantly expanding. They describe
the "career opportunities" of the Respondent's employees, the general terms of
employment, and the employees' benefit, retirement, and group insurance plans. All
in all, they impress the employees with the facts that the Respondent's operations
are vast and still expanding, that the employees are well treated, and that employees
may expect promotions and "careers" with the Respondent. But by no reasonable
interpretation do the brochures assure employees that they will not be laid off or
discharged should circumstances force a reduction in the Respondents' operations,
nor that, in such a situation, the Respondent will transfer them to other jobs, or
recall or rehire them should jobs later become available There is thus no basis
piesented by the brochures for finding, as the General Counsel contends, that the
Respondent had established, and announced in the brochures, any policy of transfer-
ring employees to avoid their layoff or discharge in a reduction in force, of recalling
them to jobs which might later become available, or giving them a preference over
other applicants in the future
Nor does the testimony of the General Counsel's witnesses concerning statements
made to them by the Respondent's interviewers when they applied for their jobs,
show that the Respondent had, or created a reasonable impression that it had, such
a policy Some of this testimony was to the effect that the Respondent's interviewer
told the applicants simply that he would have a good future with a young, growing
company, that promotions were good and that it was a good place to work; or
that Vitro was a big $50 million company and planned further expansion. The
remaining testimony was to the effect that the job interviewer told the applicants that
Vitro was a young organization in which people could be transferred to other
locations including the laboratory at Silver Spring, Maryland. that Vitro was a large
organization, the job would be "permanent," and even if the range was shut down,
the personnel could he absorbed elsewhere, that Vitro was a large company with
many sites and employment was "rather secure" because people could be transferred
from site to site and "more or less absorbed"; and that job-permanency was assured,
there were excellent opportunities for advancement, and there was no problem
about employment. None of these statements in my opinion could reasonably be
regarded as assuring the applicant that he would not be laid off or discharged in a
reduction in force but would be transferred to another job, nor that, if he were laid
off, he would be either recalled or given a preference on application for rehire.
Much less can they be regarded as evidencing such a policy on the part of the
Respondent.
On the question of what the Respondent's policy actually was, the Respondent
presented the testimony of Vance Rainsford, its administrative manager in charge
of personnel. and Robert Boudreaux, service manager at Site D-4 Rainsford
testiii'd that the Respondent's policy with respect to intersite transfers was that it
would make such a transfer only on the application of the employee, his agreement
'o nay his moving expenses, and the approval of the supervisor of the site to which
he asked to be transferred As to rehire or reinstatement of a former employee,
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rainsford testified that it was the Respondent's policy to treat the former employee
as a new applicant and that he would be given preference over other applicants only
if his technical ability were equal to that of the other applicants and he lived
in the area in which the job opening existed. To this, Service Manager Boudreaux
added in his testimony that, as a condition to the rehire of an employee, his former
supervisor's approval was also required, and, unless his reinstatement occurred
within a short time of his discharge, he was required to fill out a new application.
Upon consideration of the foregoing, 1 conclude, contrary to the General
Counsel's contention, that the Respondent had no established policy either of trans-
ferring employees to other lobs to avoid layoffs or discharges in the course of a
reduction in force, of recalling when and if jobs again became available, or of giving
them an overriding preference against other applicants upon their later applying
for rehire.
E. McCormack's status
One of the issues in the case is whether, at the time of his discharge, John Mc-
Cormack was a "supervisor" or an "employee" within the meaning of the Act
McCormack's job had been previously held by Thomas Mathers, another one of the
alleged discriminatees, from January 1960 to the beginning of July 1960, when
McCormack succeeded him. Then, upon McCormack's discharge on June 27, 1961,
Dale Kok was appointed to the job in McCormack's place, and still held it at the
time of the hearing. So far as the record shows, there were no changes during this
entire time in the job, its title, its functions, its authority, or its responsibilities.
The Respondent bases its contention that McCormack was a "supervisor" upon
evidence provided by its personnel records and the testimony of its site chief, its
assistant site chief, and a number of the employees that McCormack was designated
and known, and regarded himself, as the "supervisor" of the data section at Site D-4,
and that he possessed and exercised substantial elements of the authority and re-
sponsibility referred to in the definition of "supervisors" set forth in Section 2(11)
of the Act The General Counsel bases his opposing contention that McCormack
was an "employee" and not a "supervisor," principally upon McCormack's and
Mathers' tetimcny that each of them had been designated by the Respondent, and
had generally been referred to, not as a "supervisor," but as "group leader" of the
data section, sand that neither of them had any such authority or responsibility which
would have made them "supervisors" within the meaning of the Act But, in spite
of the position thus taken by the General Counsel with respect to McCormack and
in seeming inconsistency with the apparent fact that Kok took over McCormack's job
without change, the General Counsel stipulated with the Respondent at the hearing
that Kok, like the men who were concededly supervisors of the other sections at Site
D-4, was also "supervisor" of the data section at the site within the meaning of the
Act.
1. McCormack 's classification as a "supervisor ," a title by which he was generally
known on the site
One of the matters in dispute is the light , if any, cast by the Respondent's classifica-
tion and payroll records upon McCormack 's status in the job he he 'd when he was
discharged. Before Mathers , McCormack , and Kok had been appointed to this job,
each of them had served in the data section with the classification of "senior elec-
tronics technician " Upon their respective promotions to the job, each of them
retained his classification . Mathers' weekly salary of $ 125 remained unchanged but,
within several months after their promotions , McCormack's weekly salary was
increased from $105 to $ 129 and Kok's from $ 120 to $129 In spite of their com-
parable salaries and the apparent fact that the functions and responsibilities of the
job remained the same, Mathers was transferred from the Respondent's salary group
I into group II , but McCormack and Kok were kept in group I.
According to the Respondent 's "Personnel Policy Manual " group I indrded all
employees who were "non-exempt" and group II included all employees who were
"'exempt' from the overtime provisions of the Fair Labor Standards Act of 1938 (as
amended )." The manual further provided , however, that, in addition to group I
employees , group 11 employees who earned less than $130 a week should also be
paid time and a half for overtime and that group II employees earning $130 a week
or more should be paid overtime at the rate of $4.85 per hour. Under the Respond-
ent's manual , therefore , Mathers , McCormack, and Kok were entitled to, and
presumably were paid, time and a half for overtime while each of them held the job
from which McCormack was discharged, although Mathers was classified in group II
and McCormack and Kok only in group I.
VITRO LABORATORIES, DIV. OF VITRO CORP. OF AMERICA 803
The General Counsel contended at the hearing that, by classifying McCormack in
group I, the Respondent showed that it regarded McCormack as being merely an
"employee" and not a "supervisor." As I understand it, his argument is that, by
keeping McCormack in group I, the Respondent necessarily indicated that he was not
employed in an "executive, administrative [or] professional capacity" within the
meaning of Section 13 of the Fair Labor Standards Act, and was therefore not only
covered by the overtime provisions of Sections 6 and 7 of that Act, but was an "em-
ployee" ,and not a "supervisor" within the meaning of the National Labor Relations
Act.
In my opinion, this argument of the General Counsel is unsound since it ignores
both the Respondent's group I classification of Kok whom the General Counsel
concedes to be a "supervisor," and the significance of the overtime provisions in the
Respondent's manual. Presumably the Respondent has included all its nonsuper-
visory, nonprofessional employees in group I and has thus complied with its statutory
obligation to pay them the time-and-a-half overtime rates prescribed by the Fair Labor
Standards Act. But, in addition, it has also apparently included some supervisors
(such as Kok) in group I and has voluntarily undertaken to pay the same overtime
rate to them as well as to other supervisors and professional employees whom it has
placed -in group II, provided their base pay is not $130 or more per week. Thus, it
cannot be said, as the General Counsel in effect contends, that the Respondent has
precisely equated its group I classification with the "non-exempt," rank-and-file
employee classification of the Fair Labor Standards Act. Nor, therefore, can it be
inferred from its continuance of McCormack in group I during his Last job, that the
Respondent thereby indicated that it regarded McCormack to be an "employee"
rather than a "supervisor" within the meaning of the National Labor Relations Act.
On the contrary, from the Respondent's records it appears that the Respondent
listed McCormack, not as a rank-and-file employee, but as "supervisor" of the data
section at Site D-4 Thus, in its personnel listings for October 1, 1960, land June 1,
1961, the Respondent designated a "supervisor" for the supply section and each one
of the maintenance and operating sections at Site D-4 and, in doing so, listed
McCormack as "supervisor" of the data section. Furthermore, in an organizational
or functional chart which it adopted for the entire range in February 1961, it showed
Jackson and Sayre to be the site chief and assistant site chief, respectively, with the
names of their immediate subordinates in charge of each of the sections at D-4, and
again it listed McCormack as heading the data section at the site
In spite of this, McCormack, Mathers, and VanDine testified that McCormack's
job title was "group leader" or "working group leader" and that McCormack was
generally referred to by either of these titles at the site. McCormack further testified
that he always referred to himself as "working group leader" or "group leader" and
never as a "supervisor" but that he had no idea by what title he was carried on the
Respondent's payroll; that at tames the employees and the Respondent's officials on
the site referred to him as "supervisor of the data section"; that, in performing his
duties he regularly filled out forms of reports with the mimeographed designation
of "supervisor"; and that he also signed and submitted special memorandums which,
after he had prepared his own handwritten drafts, were typed for him in the office
with the typed designation of "supervisor." To explain this, McCormack stated in
substance that he always regarded himself as a "working group leader"; that, in the
handwritten drafts of memorandums, he never used the title "superviror"; and that
he wined the typed copies of these memorandums and also the mimeographed
reports in both of which the title of "supervisor" had been inserted, simply because
they were presented to him in this form for his sienature by the Respondent.
There are other indications in the record that, although McCormack and the men
who headed the other sections directly under the site chief and assistant site chief
were designated on the Respondent's personnel records as "supervisors," they were
also sometimes referred to on the site as "group leaders" or "working group lead-
ers " 14 Thus, Assistant Site Chief Sayre testified that on one occasion he may have
referred to McCormack as the "working group leader" of the data section. Tn addi-
tion, McCormack's post during missions was called the "group leader's rack " And
1i McCormick's job, as well as the jobs of his counterparts in the other sections, was
also listed as that of "crew chief" in the manning tables submitted by the Air B of ce as
the basis of its contract negotiations with the Respondent But the Respondent apparently
never used this title to describe McCormack or the other section supervisors Instead,
the title "crew chief" was actually used by the Respondent and its employees to refer to
technicians who served in each section as crew leaders on their respective shifts and were
concededly assistants of, and subordinate to, McCormack and the other section supervisors.
681-492-63-vol 140-52
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on one form of request for authorization of overtime work, which he submitted to
the site chief, McCormack included himself as "the group leader "
But the great weight of the credible evidence clearly indicates that, consistent
with the Respondent's personnel records and organizational plan, McCormack was,
in fact, generally known and treated by the Respondent and the employees on the
site as the "supervisor" of the data section. Thus, from McCormack's testimony, as
well as from a large number of his reports and memorandums which were received
in evidence, it appears that the Respondent expected and required McCormack to
sign, and he did sign, his reports and memorandums to his superiors as "supervisor"
of the data section, whatever his opinion of the accuracy of the title may have been.
In addition, it is undisputed that the Respondent also required McCormack, as repre-
sentative of the data section, to attend the periodic so-called "supervisors' meetings"
with the site chief along with the men wno the General Counsel concedes were
supervisors of the other sections. To cap all this, there was what I believe to be the
credible evidence of Site Chief Jackson, Assistant Site Chief Sayre, and all four of
the data section employees who testified directly on the point other than McCormack,
Mathers, and VanDine,is to the effect that they regarded McCormack, and referred
to him, as the data section "supervisor" and also that McCormack referred to him-
self by that title. Upon this evidence, as well as the Respondent's personnel records
and organizational plan, I find and conclude that: (1) the Respondent had in fact
designated McCormack as a "supervisor"; (2) this was the title by which he was
generally known by the Respondent and the employees on the site; and (3) under
the circumstances shown by the evidence which I have lust discussed and contrary to
McCormack's testimony, McCormack knew that he was classified by the Respondent
as a "supervisor" and that he was so regarded and referred to by the Respondent's
officials and the employees on the site.
Of course, it does not necessarily follow from this that McCormack was a "super-
visor" within the meaning of the Act. The test of his status is whether he actually
possessed any of the specific elements of authority and responsibility set forth in the
definition of "supervisor" in Section 2(11) of the Act. But McCormack's title as
"supervisor of the Data Section" and the fact that he was known and generally re-
ferred to by this title, are nevertheless relevant and important in evaluating and re-
solving the detailed testimony of the witnesses concerning the nature and extent of
McCormack's authority and responsibility.
2 The equipment in the data section and McCormack's responsibility
McCormack testified that on July 5, 1960, George Sayre (who was then site chief
but later assistant site chief under Jackson) notified McCormack that he "had been
chosen to head up the data section," thus succeeding Mathers in the job "because
they felt that Tom Mathers could be best used to help ovei come some of the problems
they were faced with at that time electronically." In generally describing the re-
sponsibility thus conferred upon him, McCormack further testified that, "I was re-
sponsible for the operation of and maintenance of the equipment, keeping it ready
for the missions at all times. To make sure the equipment was operational during
the missions and did not break down while we were trying to obtain data "
Tne equipment for which McCormack was thus admittedly responsible was highly
specialized and complicated electronic equipment of several types. By its use, the
data section at Site D-4 received, recorded, and transmitted positional information
concerning the missiles and drones flown on the range from its own radar when the
items were within their scope and, beyond that, from the data transmission of other
sites The associated equipment devoted to each missile or drone was known as a
missile or drone complex and involved, for each complex, a combination of.
(1) A "P to C" and a "C to P" computer which converted the radar signals re-
ceived by the site from Polar Coordinates to Cartesian Coordinates and then fed
them in the latter form to the recorders
(2) Two plotting boards and a height recorder, each of which recorded the radar
information on a map, thus providing an immediate visual check of the information
and the general functioning or malfunctioning of the associated equipment in the
particular complex. Since the plotting boards furnished incomplete and less exact
data than the tape recorders, the plotting boards comprised what was known as
the "secondary data system."
(3)A "primary data" recorder which recorded the radar signals directly on mag-
netic tape for eventual shipment to Eglin The tape afforded highly accurate and
complete data in its original form, hence the term "primary data "
15 1 e , Brotiierton , Owen, Huhn, and Grei,ing
VITRO LABORATORIES, DIV. OF VITRO CORP. OF AMERICA 805
(4) A microwave transmitter and receiver which respectively received data on
the item from other tracking sites, and transmitted to other sites and Eglin the data
received by Site D-4 when the item was within the range of D-4's radar.
During McCormack's time on the job, the operational , and therefore available
equipment for the complexes apparently consisted of at least five computers, eight
plotting boards, three primary data recorders , and three transmitters and receivers.
While Mathers had headed the section , there had been only four employees in the
section. When McCormack took over , there were 7 data technicians ( including
McCormack) and, with the addition of the second shift during the last 6 months of
McCormack's tenure, the number was increased to 15 (again including McCormack),
the largest number of any section on the site . Two of these men assisted McCormack
as "crew chiefs " The remaining 12 men were divided equally between the 2 shifts
Between missions , McCormack' s only superiors on the site were the site chief
and the assistant site chief . But during missions the operations of the entire site,
including those of the data section , were subject to the control of the mission con-
troller or coordinator ( during this period, Angelo Dannessa ). Even then , although
subject to the controller 's orders, McCormack , according to his own testimony, was
responsible for the operation of the equipment
3. McCormack's work, authority, and responsibility
In addition to the question of whether McCormack had any supervisory authority
over the men in his section, a question is raised by the evidence as to what, if any,
manual or physical work McCormack himself performed in operating and maintain-
ing the equipment According to Mathers, he had worked along with the other three
technicians who had then been in his section, by operating and maintaining the
primary data converter recorders and assisting when necessary in operating each
secondary data system According to VanDme, who worked in the section under
McCormack when there were 15 men, McCormack also performed "numerous jobs,"
including not only "paper work" and the operation of the plotting boards during a
mission, but also the same work correcting malfunctions in the equipment that
VanDine did. But McCormack testified that, although he performed some bench-
work, such as "trouble shooting" the plotting board amplifiers and replacing the de-
fective parts, "Outside of filling sandbags [on several occasions during hurricanes],
and changing a few tires [on one occasion 1, T did very little manual work" And
Sayre, under whom McCormack first served as site chief and then as assistant site
chief, testified that McCormack did "no physical or manual [work) other than the
paper work" involved in making reports and various memorandums In view of
McCormack's testimony, I believe and find that if McCormack performed any manual
work like the other technicians in the section it involved no substantial portion of
his working time and would not be a factor tending to show that he was an "em-
ployee" rather than a "supervisor" within the meaning of the Act
We come finally to a consideration of the evidence as to whether McCormack
possessed and exercised "supervisory" authority within the meaning of the Act
Ti is undisputed that he did not have authority to hire or discharge employees But
McCormack's possession of most of the other elements of supervisory authority set
forth in Section 2(11) of the Act is in dispute All of this was gone into in great
detail by counsel on both sides In my opinion, however, the evidence on M, -
Cormack's authority in a few of its important aspects, is sufficient to show that he had,
and exercised, authority which made him a "supervisor" tinder the definition in
section 2(11) of the Act. Accordingly. I shall limit my discussion to the evidence
bearing directly upon these particular subjects, i e . McCormack's direction of the
work of the employees in the section, his assignment of work, and his role in assign-
ing employees to shifts, crews, and overtime and in the grant of wage increases
Concerning the breadth of authority given to McCormack, Assistant Site Chief
Sayre testified that when, as site chief, he appointed McCormack to the job in July
1960, he told McCormack
fHle would be responsible for the supervision of the personnel within the
unit, he would be responsible for the operation and maintenance of the equip-
ment in the Data unit, he would have all of the administrative functions of his
unit. vmekeepine. all of the requisitions would have to come through him and
he submitted and signed off by him for parts for his unit, he would be responsible
for assigning the duties of the personnel within his Data unit, he was responsible
for cross training: he was responsible for moving personnel from one piece of
equinrnent to another, and from one complex to another complex; he would
attend the supervisors' meetings
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Both Sayre and Jackson, his successor as site chief in January 1961, testified that
Jackson, in January or February 1961, informed McCormack and the supervisors
of the other sections at a meeting called for the purpose, that system chiefs had been
appointed for the range as superiors of the site chiefs, and that the supervisors (in-
cluding McCormack) were completely responsible for their sections and should
not bring problems to Jackson "unless it was something they definitely could not
lick within their own capability."
In his testimony, McCormack denied having received or exercised any such broad
authority over the employees in the section. He admitted only that he occasionally
transferred employees from one piece of equipment to another for a short period
not exceeding an hour or so, without consulting the site chief. But he insisted that
he had no authority to assign work to employees for longer periods nor to direct
the daily work of the technicians. In substance, he testified that he merely made
reports to the site chief as to "the status of the equipment, operational and non-
operational, [and] the breakdown of the equipment ."; that he did not direct
"the duties" of the technicians since "that was done almost automatically by the
P.M.I. program," i.e , instructions issued as "Preventive Maintenance Instructions";
that it was not his duty to make sure that the technicians had made all necessary
premission checks of the equipment; and that he merely relayed to the men orders
that were given to him by his superiors, the site chief, the assistant site chief, and
the mission controller.
With respect to other important disputed elements of supervisory authority,
McCormack also testified that, although he made recommendations and reports, the
site chief or the assistant site chief made the decisions; that McCormack merely
executed them; and that when he made recommendations or reports they were not
always adopted. With this qualifying explanation, McCormack admitted that:
(1) He conferred with the site chief about all changes in regular work assignments.
(2) He suggested the men to be assigned, attempting, with the site chief, to
couple experienced with inexperienced men on the same crew and shift.
(3) He made suggestions as to who his crew chiefs should be.
(4) Upon notice from the mission controller of the hours during which the section
was to operate in support of missions, he made up the section's weekly work schedules,
setting forth the hours of each shift, the crew chief, and the names of the men on
each crew.
(5) On forms provided for the purpose, he submitted requests for necessary
overtime.
(6) He filled out, signed, and submitted forms of an "Employee Performance Ap-
praisal " in which he rated the performance of each employee in the section every
6 months.
(7) fin the anniversary date of each employee's hire, he also signed and submitted
a "Salary Review," in which he evaluated the employee's "possible future with the
Company," compared his performance with that of other employees in like jobs, and
made comments as to why the "employee deserves special consideration."
Mathers was not examined in such great detail as to his and McCormack's authority
on the job According to his testimony, when he held the job, he assigned the
technicians to particular operations and moved them from operation to operation
according to their abilities. He further testified that, "Mv authority was merely one
of-I h"te to use the term `supervision' but I'm afraid I'm going to have to-in a
very limited sense, supervision . . . you might say in that sense, assign men to
various tasks. If I felt there was an area in which some work was needed, I
would ^ug"ert this area be investiisated by a certain man and he perform work in
that area of this nature." From Mothers' testimony, it would appear that, when he
later served under McCormack in the section, McCormack followed this same mild,
suggestive approach, rather than issue orders or even request that particular work
he done b" individual employees 16 For Mathers testified that "Mr McCormack
took over fin the data section] and he and I had a discussion at which time I assured
him of my wholehearted cooperation After that, it was not necessary for him to
19 This perplexing distinction between "asking" and "requesting" or "ordering" an em-
plovee to perform particular work, was asserted and tressed by the General Counsel in
objecting to a question put by Respondent's counsel to Mothers during the course of cross-
e'amination The question was, "Did you follow whatever request Air McCormack
may have made noon you0" In stating his objection, the General Counsel said, "lie
[McCormack] didn't request [The witness] said he would ask you. . There is a dif-
ference whcn you request somebody It has a different type of connotation I think
if you ask someone would you take care of something like that or when you told him
something; like that, but when you request them you are giving them an order That is
the way I understand it. I think that is the way this witness understands it "
VITRO LABORATORIES, DIV. OF VITRO CORP. OF AMERICA 807
request or inquire of something of me. He would come up to nie and ask me and
I would do it . That is the terms under which we operated . It never came down to a
formal request or requirement that you do something."
But in spite of McCormack 's general denials of any substantial authority and
regardless of the proper interpretation of Mathers ' testimony , the rest of the evidence
convinces me that, consistent with McCormack 's admitted responsibility for the
maintenance and operation of the complicated equipment in the section , McCormack
had been granted substantial authority over the employees who worked on the
equipment and did in fact assign and direct them in their daily work. If this had
not been so, the largest number of employees in any section on the site would have
required direct supervision by the site chief or the assistant site chief who were in
charge of the entire site, although , as the General Counsel concedes , the employees
in each of the other sections were supervised directly by their own section supervisors.
In addition , even McCormack testified that he temporarily transferred men from op-
eration to operation . Mission Controller Dannessa testified that he observed Mc-
Cormack make such shifts Donald Owens, data crew chief under McCormack,
testified as to specific instances of work assignments made by McCormack . And data
section employees Brotherton , Logston, Samarkos, and Gleason testified concerning
instances in which McCormack told them what tasks they were to perform and shifted
them about on the equipment . Finally, in support of Jackson's and Sayre 's testimony
as to the breadth of McCormack 's authority over the employees in his section, the
Respondent introduced in evidence a carbon copy of a typed description of Mc-
Cormack's job, which bore the carbon impress of McCormack 's signature and was
produced by the Respondent from a file of job descriptions based upon drafts
prepared and submitted by every employee and supervisor on the site . 17 The descrip-
tion of McCormack 's job which was dated December 8 , 1960, states that the "primary
duties" of McCormack as "Data Supervisor" were "To direct the daily activities of
technicians and operators assigned to this department" by making sure that all equip-
ment was at all times fully operational or reporting it; by requiring daily, premis"on,
and postmission equipment checks; by requiring obedience to housekeeping , safety,
and security regulations ; by executing his superiors ' orders; by encouraging sug^es-
tions from the employees to improve efficiency ; by training and instructing emplovees
in the Respondent 's method of operation ; by briefing the men on missions ; by taking
steps to correct malfunctions during missions ; and by holding "dc-briefing" se-ions
with the men after the missions , "at which time all aspects of the mission , good and
bad, shall be discussed and evaluated for future use "
Turning now to the role played by McCormack in crew and shift assignments. I
have already noted McCormack 's testimony that, upon receipt of notice from the
mission controller of the hours during which the section was to support missions,
he made up the section 's weekly work schedules , setting forth the names of the men
on each crew and the shift hours of the crew. Accordine to McCormack , before
these schedules went into effect, he submitted them for the site chief 's necessary
approval . He further testified that when a chanee was made in a man's crew and
shift, he also first suggested and discussed the ch"nee with the site chief and -ecnred
the latter 's approval . But Donald Owens testified that, while serving under Me-
"The present finding is based upon my consideration of the following evidence con-
cerning the carbon copy of job description In evidence*
Mission Controller Dannessa testified that the job description in evidence was typed
from McCormack ' s handwritten draft, with only minor editorial changes and no chance
in substance , and that at the time of the hearing lie could not find either 'McCormack's
draft or the original typed copy The carbon copy in evidence bears what appears to be
a carbon impress of McCorinack ' s usual signature with slashes which may have been
either part of McCormack' s usual flourish or an effort to cancel the writing ( For ex-
ample, compare McCormack ' s apparent signature on the job description which is Respond-
ent's Exhibit No 9. with his admitted signature and flourish on a "Salary Review"
memorandum admitted in evidence as Respondent ' s Exhibit No 19 ) Crew Chief Donald
Owens testified that he was with McCormack when the typewritten original and copies of
a lob description were given to McCormack, and that he saw McCormack sign it
McCormack , on the other hand, denied in his testimony that the exhibit was a copy of
his handwritten draft which he asserted made no mention of his authority to direct the
work of the employees He also testified lie could not say whether the writing shown
on the exhibit was a carbon of his signature
I credit Dannessa ' s and Owens ' testimony and therefore have concluded , not only that
the copy of the job description in evidence was adopted and retained by the Respondent
in its files as reflecting McCormack ' s authority , but also that the description corresponded
in substance to the draft prepared by McCormack and that McCormack signed the original
typed copy and, by carbon impress, the copy in evidence
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cormack as crew chief, McCormack and he would discuss shift and crew assign-
ments, make the assignments and change previous assignments on the work sche-
dules, and, without discussing these matters with the site chief, notify the men of their
assignments. I credit Owens' testimony and find that McCormack assigned the men
in his section to the crew and shift on which each of them was to work.
McCormack's role with respect to the assignment of overtime work presents a
more complicated situation Until January 1961, permission had to be secured by
the site chief from the Respondent's departmental heads at Eglin Air Force Base
for all overtime work. After that date, permission was necessary only when over-
time exceeded 5 hours. McCormack admitted that he signed and submitted to the
site chief prescribed forms of requests to hold a specific number of men for specific
periods of overtime. But he testified that he did so in each instance on the site
chief's or assistant site chief's request and, on this basis, denied that he recommended,
or had the authority to recommend, overtime. He also denied that he selected the
particular men who worked overtime, asserting in this connection that there was
no necessity for such a selection since all the men working on the complex during
the mission continued at their posts during the overtime period. Assistant Site
Chief Sayre testified merely that he approved requests made by McCormack and,
when necessary, secured Eglin's approval. Since most of the overtime was required
for extended or delayed missions when the need was probably apparent and since
Sayre's testimony was not specifically directed to other instances, the substantial
question raised by the conflict in McCormack's and Sayre's testimony is not whether
McCormack made independent and effective recommendations that some men be
kept overtime, but rather whether McCormack, exercising his independent judgment
on the basis of his knowledge of the section's operation, effectively recommended
the number of men to be kept overtime and actually selected them.
Contradicting McCormack's testimony, Owens testified that, while he was crew
chief, all the men who worked on a particular complex during a mission were not
kept at work when the mission continued into overtime and that McCormack selected
the men who received the overtime and released the others In brief, Owens testified
that after the equipment in each complex had been checked and calibrated prepara-
tory to supporting a mission, only the plotting boards and the primary data
recorders were actually operated by the men during the mission. The computers
and the transmitters and receivers operated automatically with the result that,
although several men had given each of these pieces of equipment their necessary
premission check and preparation, only one man stood by on each of them to correct
possible malfunctions Even the one or two plotting boards in the complex, which
required from two to four men for their premission check and calibration, required
only one man as an operator for each board during the mission, with the other men
standing by to give assistance on malfunctions According to Owens, McCormack
selected the men for these various posts and when the mission went into overtime,
the number of men on the complex was kept to a minimum and McCormack selected
those who were to continue working and released the others On this conflict with
McCormack's testimony, I credit Owens' testimony and find that not all of the men
who worked on a complex during a mission continued to work when it ran overtime
and that McCormack decided which of the employees would work during the over-
time period
With respect to McCormack's role in the processing of wage increases for the
section, I have already referred to McCormack's testimony that at 6-month intervals
he prepared and submitted for each employee in the section an "Employee Per-
formance Appraisal" in which he rated the employee's performance, and also, on the
anniversary date of each employee's hire. a "Salary Review" in which he compared
the emnlovee's performance with that of other emplovees and made comments as
to "why the employee deserves special consideration " On its face, neither the
"Performance Appraisal" nor the "Salary Review" purports to be a recommendation
as to whether the employee should be given a wage increase But, althon"h
McCormack in his testimony professed not to see the connection, and although the
wage increases granted depended upon the site chief's and the department head's
signing further forms of specific recommendation, it appears clear that McCormack's
fnvnrahle ratings and appraisals were also essential to wage increases and thus con-
stituted his recommendations Furthermore, in the examples presented in evidence,
the site chief's recommendations included verbatim McCormack's rating and com-
ments in his "Salary Reviews" of the particular employees And. although Mc-
Cormack denied it. Jackson and Savre testified that McCormack had also made oral
recommendations to them for raises in specific amounts for partic'ila" emnlove°s
which were granted Unon this testimony of Tackvon and Sayre and also nnnn the
evidence concerning McCormack's submission of his "Performance Appraisals" and
VITRO LABORATORIES, DIV. OF VITRO CORP. OF AMERICA 809
"Salary Reviews," I conclude that McCormack had authority to recommend, and
did recommend , wage increases for the employees in his section
4. Conclusions as to McCormack's supervisory status
Upon the foregoing considerations, I conclude and find not only that McCormack
was classified and generally regarded on the site as "supervisor of the Data Section,"
but that he possessed and exercised authority responsibly to direct the work of the
employees in the section, to assign work to them, to assign them to a particular crew
and shift, and to select and assign them to overtime work, and also the authority to
effectively recommend wage increases I further find that the exercise of this author-
ity was not of a routine or clerical nature, but required the use of independent
judgment. Accordingly, I conclude, in agreement with the Respondent, that Mc-
Cormack was a "supervisor" within the meaning of Section 2(11) of the Act
F The substance and plausibility of the reasons asserted by the Respondent for its
discharge of the persons named in the complaint
As I have already found, the evidence shows that, in accordance with changes
in its contract with the Air Force, the Respondent cut down its staff at Site D-4 by
discharging 20 people, including 12 persons named in the complaint. The Respond-
ent denies that any of these 12 people were selected for discharge with knowledge of,
or because of, any IUE organizational activities in which they may have engaged.
Instead, it advances a variety of other reasons which it contends were the actual
reasons for its inclusion of these people in the reduction in force, even though they
might not ordinarily have been regarded as grounds for discharge It is therefore
necessary to consider the substance and plausibility of the reasons asserted by the
Respondent.
No real problems are presented in the cases of five of the alleged discriminatees.
None of them testified nor did the General Counsel present any evidence contra-
dicting the substance of the Respondent's evidence as to the reasons for their being
selected for discharge rather than other employees Upon the testimony and evidence
given by the Respondent's witnesses. I find and conclude that there was substantial
and plausible reason for the Respondent's selection of the following five employees
for discharge in the course of the reduction in force • (1) Mary Geyer, an office
employee who served as Site Chief Jackson's secretary, in that she was nervous,
flighty, and, at times, very uncooperative, (2) Connelly Chastaine, a data section
employee, in that he had limited experience; (3) Max Allen, a telemetry section
employee, in that, according to Telemetry Section Supervisor Wischmeyer's uncan-
tradicted testimony, his performance was inferior to that of other employees in
the section; (4) Joseph Tyson, an FMIC section employee, in that he had been in
the section only 21/2 months, having previously been a clerk in the supply section;
and (5) Harlan Cox, a handyman in the facility maintenance section, in that, accord-
ing to Section Supervisor Britton's unchallenged testimony, either Cox or another
handyman named Collins was the logical employee to lay off in the section and
that Britton selected Cox because Cox had refused to take over certain boilerroom
duties is
In the cases of the remaining seven alleged discrimmatees. however, the Respond-
ent's asserted reasons for their selection were set forth at greater length and, in
some instances, fully litigated
William Fields
William Fields was hired at Site D-4 in April 1960, but was transferred in May or
June 1960 to Site D-5 at MacDill Airfield. According to his own testimony, he
was sent back to Site D-4 in January 1961 as "incompetent," although he was never
told why He then worked in the operational support section at Site D-4 under
Supervisor Tim Wilson until the middle of March 1961. when he was transferred to
the telemetry section at Site D-4 under Supervisor Wischmeyer He was on sick
leave, undergoing a hernia operation, from May 25 to June 7, 1961, inclusive.
18 This finding as to Cox is based in part upon one of the corrections of the transcript
which, on the Respondent's unopposed motion , I have already directed should he made
(See footnote 1, above ) The particular correction occurs in the testimony of Supervisor
John F Britton , at page a354 , line 1, and involves the substitution of the name "Cox"
for "Collins " I have irrianted the motion for this correction as well as the others, not
only because the General Counsel has not notified me of his opposition although Respond-
ent Counsel's motion certifies that lie was served with the motion , but also because the
sense and context of Britton ' s testimony require the correction
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Site Chief Jackson testified that his decision to discharge Fields as part of the
reduction in force was based upon Supervisor Wischmeyer's rating of Fields as 11th
in ability and performance in the 14-man telemetry section. Wischmeyer testified
that he rated Fields so low (and thus within the group to be discharged) because
of Fields' short period in the telemetry section and because, from his own observa-
tion and the reports made to him by his crew chief, Thomas Saunders, Fields lacked
initiative and ability. In support of this conclusion, Wischmeyer, Saunders, and
Supervisor Wilson (Fields' former supervisor) all testified to illustrative incidents
of inccmpetence and lack of initiative on Fields' part, which I do not believe it
necessary to describe, since no evidence to rebut this testimony was submitted by
the General Counsel either through Fields or any of the other witnesses.
Crediting this testimony, I conclude that the reasons given by the Respondent for
selecting Fields as one of the men to be discharged in the reduction of force had
substantial basis in fact and are plausible.
Thurlow Gleason
Thurlow Gleason was hired by the Respondent on February 15, 1960, as a guard at
Site D-4, although he was classified as a "Range Operator." In June 1960, about
2 weeks before McCormack became head of the data section. Gleason was transferred
to the data section at Site D-4, where he worked on the plotting boards, checked and
repaired amplifiers, and served as janitor for the section. On or about March 1, 1961,
he was again transferred at his own request to the supply section under Supervisor
Daniels and was working in that section as a clerk, although still classified as a "Range
Operator" on the Respondent's records, at the time he was discharged 19 Gleason
admitted that he requested the transfer to the supply section because of difficulties
with Crew Chief Owens and employee Dale Kok in the data section. He received
one pay increase, from his original weekly wage of $60 to $70, in September 1960.
Site Chef Jackson testified that he relied upon Supervisor Daniels ' selections in
deciding to discharge Gleason; that he considered transferring Gleason to Site D-8
when that was a possibility, or retransferring him to the data section in Site D-4;
but that Gleason rejected the transfer to D-8,20 and McCormack refused to take
Gleason back in the data section Supervisor Daniels testified that he decided to
release Gleason from the supply section because Gleason was on loan from data
in order to help the supply section catch up on a backlog, and therefore did not have
any considerable background or knowledge of the supply section's operations in
filling out reports and in the handling of requisitions. McCormack testified that
Jackson told him he was discharging Gleason and asked McCormack for a statement
"to hui'd up a good case against Mr Gleason," and thus avoid any criticism by the
Air Force which might -arise because of Gleason's years of service in the Air Force.
According to McCormack he refused to write the "strong report" requested by
Jackson but, instead, gave Jackson in writing a "truthful statement," in which he
referred to Gleason's having undergone an operation, his transfer to the supply
section at his own request because of a "health problem more or Jess." his desire to
be relieved of the strain in the data section, and his own realization "that he was
having trouble getting along with his fellow workers because of this nervous condi-
tion " McCormack concluded this statement with the remark. "As far as Mr.
Gleason's returning to the data section at this time, I would like to point out that at
present we have other people about to be laid off that would be more acceptable,
due to their more extensive electronic background in this type of work "
According to Gleason there were two other employees (Mrs. Pappas and "Hoak"
Jackson) in the supply section when he transferred into the section and another
employee (Abe Miller) was transferred to the section on the same day with Gleason.
None of these three people in the section were discharged in June 1961, although
Mrs. Pappas had originally been selected for discharge by Jackson along with
Gleason. Gleason testified that during his brief service in the section he helped
"Hoak" Jackson by showing him how to read the color code on resistors and how
to look up Air Force stock numbers on the resistors. He admitted, however, that
"Hoak" Jackson also explained to him the lettering system used on the bins in
the supply section
Gleason also testified concerning a series of separate conversations he had with
Supervisor Daniels and Site Chief Jackson In substance, he testified that in the first
conversation he asked Daniels why he had been discharged and Daniels said he had
10 Gleason testified that McCormack had told him he had been reclassified as a "Junior
Electronics Technician," but the Respondent's records still carried him as a "Range
Operator "
20 See the finding which I have already made to this effect in section III, B, above
VITRO LABORATORIES, DIV. OF VITRO CORP. OF AMERICA Si I
nothing to do with Gleason's selection and could not give any reason. In a second
conversation the same day, according to Gleason, he asked Jackson the reason for
his discharge and Jackson said that he was satisfied with Gleason's work and per-
sonality but the Respondent did not have a job for Gleason any longer. Gleason
testified that he returned to Daniels, asked Daniels whether he was being laid
off because of an argument he had with Radar Supervisor Borkenhagen, and that
Daniels said that was so but that Daniels had not selected Gleason for layoff. Finally,
according to Gleason, he had two more conversations with Jackson on each of the
2 succeeding days in each of which he asked about and protested the possibility
that he was being discharged simply for an inconsequential argument with Borken-
hagen and pointed out that employees with less service were being retained. Accord-
ing to Gleason, in the first of the conversations Jackson said the Borkenhagen
incident was the basis for Gleason's selection for discharge. Still according to
Gleason, he asked Jackson in their last conversation whether "union affiliations" were
the reason for his discharge, but Jackson, without answering the question, said
merely that Gleason was being discharged because his work was inferior to that of
some of the other employees.
On direct and cross-examination, Gleason testified that these conversations occurred
on June 12, 13, and 14. Then, on his redirect examination during the next day
of the hearing, he explained that he had not felt well the preceding day and that the
conversations to which he had already testified occurred on June 5 and 7. In again
recounting these conversations in detail, he omitted his previous references to any
statement by Daniels denying responsibility for Gleason's selection and also to any
question put by him, and avoided by Jackson, as to whether "union affiliations"
were the reason for his discharge. But, before the redirect examination was
concluded, Gleason said that he also had separate conversations wi.h Daniels and
Jackson on June 12 when he had received his termination letter from Daniels
and that in his last conversation with Jackson on this occasion, he asked Jackson
whether his discharge was "because of my connection with the union" and Jackson
said it was because Gleason's "work was considered inferior to that of some of his
younger coworkers."
Daniels testified merely that he notified Gleason of his selection for discharge
in the first part of June, and that Gleason asked why he had been selected for
discharge. Daniels did not testify any further as to this conversation or any other
conversation with Gleason.
But Jackson testified that he had three or four conversations with Gleason about
his layoff, from June 5 to June 8 or 9 In the June 5 conversation, according to
Jackson, Gleason asked why he was being laid off and Jackson said he felt the
Respondent had better qualified men.
Jackson further testified that Gleason then "asked me about his experience in
Data" and that Jackson said he would consult McCormack about the possibility
of Gleason's transfer back into the data secaon. According to Jackson, he may
also have said in substance during this conversation that, although the Respondent
was satisfied with Gleason's ability and personality, it just did not have a job for
him any longer. He denied, however, that he had any conversation with Gleason
in which the Borkenhagen argument was mentioned or in which Gleason asked
him whether his union affiliation was the cause of his being fired.
Upon weighing the garbled testimony given by Gleason and the testimony of
Daniels and Jackson, I see no basis for finding any more than that, as Jackson
testified, he told Gleason that Gleason had been selected for discharge because
the Respondent had better qualified men even though he also told Gleason that
the Respondent was satisfied with his ability and personality Moreover, upon
consideration of Daniels' and Jackson's testimony, as supported by McCormack's
testimony, I conclude that the reasons given by the Respondent for discharging
Gleason from the supply section and refusing to return him to the data section have
apparent substance and are plausible reasons.
Theophilos Samarkos
Theophilos Samarkos was hired at Si'e D-4 on September 12, 1960, as a "Range
Operator," a classification he held until his discharge on June 23, 1961, slightly
more than 9 months later. He worked for approximately 6 weeks, in secondary
data: then for about 2 months on the telemetry decoders which at that time were
in the data section; and then, apparently from sometime in January 1961 until his
discharge, he worked on the P to C and C to P computers. At the time of Samarkos'
discharge, L E. (Butch) Murray, another range operator, was retained in the
data section although, as I have already noted, Murray had originally been on
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the layoff list. Murray was Samarkos' senior in service with the Respondent,
having been hired on July 5, 1960, but, according to Samarkos, Murray had less
service in the data section
Samarkos testified that he worked on the computers with Daniel VanDine, a
"Senior Electronic Technician," until VanDme became a mission coordinator in
March 1961, and that he then succeeded to VanDine's duties on the computers.
He further testified that Cal Howrigan, the Respondent's drone instrumentation chief
from Eglin, complimented him on the "real nice job you're doing on the computers."
VanDine testified that, before leaving the data section in March 1961, he "broke
in" Samarkos on the computer equipment for "quite a few weeks" and that, several
times before his transfer, VanDme told Site Chief Jackson that Samarkos "was
doing very well, he was picking it up very nicely. Just how long VanDine spent
"breaking in" Samarkos, however, is questionable since, when questioned on the
basis of the Respondent's shift records, VanDine admitted that from February 27 to
March 15, 1961, it was possible that he and Samarkos did not work on the same shift.
Site Chief Jackson testified that he originally listed both Samarkos and Murray
for discharge because they were both "Range Operators" with limited experience
but that he later decided to retain Murray, rather than Samarkos, when a resignation
occurred in the section, because Murray had attended night school where he had
taken and completed work in electronics and in mathematics. On the foregoing
evidence I conclude that the Respondent's asserted reasons for selecting Samarkos
for discharge were not without substance and that they were plausible.
Andrew T. Patton, Jr.
Andrew T. Patton, Jr., was hired by the Respondent at its main office at Eglin
Air Force Base on June 22, 1959 He served first as a radar operator at Range
52 until September 1, 1959, then at Site D-3 until February 15, 1960, and finally at
Site D-4 until sometime in May 1960. In May 1960, he was transferred to the
FMIC equipment at Site D-4 where he remained until, upon being notified he would
be laid off, he submitted his resignation in June 1961. Throughout his employment,
Patton was classified as a "Senior Range Operator." From sometime in October
or November 1960, Harry Feagley was his supervisor as head of the FMIC section.
A. G Parker and M. L King, two other range operators in the FMIC section with
less seniority than Patton, were also laid off in June 1961, but were recalled in July,
as I have already found in section III, B, above.
Site Chief Jackson testified that in deciding to lay off Patton and telling him so,
he relied upon the selections made by Supervisor Feagley He also testified, as I
have already noted, that when he recalled Parker and King on the reinstatement of the
FMIC van, he did not consider recalling Patton because Patton had resigned
Supervisor Feagley testified that he selected Patton for discharge because of
general lack of proficiency, inattention to work, and an inability to get along with
fellow employees as shown by: (1) his improper operation of the radar equipment,
(2) his failure to enter sufficient information in the logs which he was required to
keep; (3) his reckless driving to and from work, which made it inadvisable that he
be permitted to drive the FMIC chase vehicle; (4) his failure (unlike other employees)
to study technical manuals during idle time at the site: (5) his reading of magazines.
instead; (6) his frequent arguments with other employees while they were engaged
in their work; and (7) his need for constant supervision
In support of this appraisal of Patton as an employee, Feagley testified in detail
concerning specific incidents as well as Patton's general conduct The General
Counsel submitted no evidence in rebuttal either through Patton or any of the
other witnesses. I therefore credit Feagley's testimony and accept his appraisal of
Patton as an unsatisfactory employee. I also conclude that the Respondent's as-
serted reasons for selecting Patton as one of the men to be discharged were sub-
stantial and plausible.
Daniel N. VanDme, Sr.
Daniel N. VanDine, Sr, was hired as an "Electronic Technican" at Site D-4 on
February 17, 1960, before the site became operational. After serving briefly as a
guard, he was assigned in March 1960 to the data section In March 1961, by which
time he had become crew chief with the classification of "Senior Electronic
Technician" and was working on the computers in the data section, he was made the
Respondent's third mission coordinator (the others being Angelo Dannessa, who
served as mission controller, and William Babis) upon his understanding with Site
Chief Jackson that if the Respondent should cut back to two coordinators, he would
be permitted to return to the data section. In view of VanDine's brief period
of service as a coordinator, there is no contention that the Respondent should have
VITRO LABORATORIES, DIV. OF VITRO CORP. OF AMERICA 813
retained him in this job and have released either Dannessa or Babis. The real issue
is whether the Respondent discriminated against VanDine by failing to return him
to his former job in the data section.
According to VanDine, when he received his letters of termination on June 12
and 23, he asked Jackson on each occasion why he had been selected for discharge.
He testified that on June 12 Jackson first told him that he had no time to talk
and walked away, but that, upon VanDme's repeating the question later that day or
the next day, Jackson said "something about [VanDine's] experience being mostly in
manufacturing and not in operation and maintenance work." As to the June 23
conversation, VanDine testified that he asked Jackson for "a specific reason as to my
being laid off" and whether it had anything to do with "the union activities or . . .
poor work," to which Jackson replied, "I don't have to give you a reason. Let
us just say there is no job for you at Vitro." Jackson did not deny VanDine's version
of their conversation on June 12 He did deny that there was any such conversation
as that described by VanDine as having taken place on June 23.
As a matter of fact, Jackson's testimony as to why he did not retain VanDine
and return him to the data section, is consistent with VanDine's testimony as to what
Jackson told him on June 12. For Jackson testified that he did consider putting
VanDine back into the data section and decided against it, after comparing VanDine
with the two computer technicians (Crawley and Weinman) and a range operator
(L. E. Murray), one of whom Jackson would have had to release from the data
section if he retained VanDine. According to Jackson, VanDine's previous electronic
experience, as shown by his employment application, was limited to production work,
whereas Crawley had been data supervisor at Site D-7 and was recognized as the
best secondary data man on the range, and Weinman, in addition to having 7 years'
experience in the electronics field, had taught electronics and had scored high on the
electronics examination he had taken when he applied for his job with the Respondent.
On his comparison of VanDme with Murray, Jackson testified that he had decided to
retain Murray as a matter of economy, since Murray's salary was only $60 or $65
a week as against VanDine's salary of $105 or $115.
Upon this evidence, I conclude that the Respondent's reasons for deciding to dis-
charge VanDine rather than to retain him in the data section, as they are set forth in
Jackson's testimony, have apparent substance and are plausible.
Thomas W. Mathers
Thomas W. Mathers was hired as a "Senior Electronic Technician" by the Re-
spondent at Eglin Air Force Base on November 9, 1959, before the sites became
operational For about 2 months he worked with a planning group at Site A-13.
On January 23, 1960, he was transferred to Site D-4 where he worked until his dis-
charge in June 1961. As already noted, he preceded McCormack as supervisor of
the data section at D-4, took a course at Eglin for a week on primary data recorders,
and then trained the men in the data section. When McCormack succeeded him as
supervisor of the data section in July 1960, Mathers worked under McCormack on the
telemetry decoders which were then in the data section. In the end of March 1961,
Mathers was transferred with the decoders to the telemetry section where he worked
under Telemetry Supervisor George Wischmeyer until his discharge.
As shown by a summary of his experience taken from the Respondent's files,
Mathers had been employed in apparently responsible positions in the electronics
field for approximately 15 of the 20 years preceding his discharge by the Respondent,
having previously served in the Air Force and with various missile and aircraft com-
panies including several at Cape Canaveral. To indicate his ability and qualifications,
Mathers also testified at some length concerning the projects he worked on for the
Respondent at Site A-13 and also in the data section at Site D-4 before he was
transferred to the telemetry section But even according to his testimony, the
recommendations he made in the course of this work as to wiring configurations,
relays, and modifications in the positions of test points on the decoders to make them
more accessible, were either not approved by the Respondent's engineering staff or
were still awaiting approval at the time of his discharge. In any case, it is his
allegedly unsatisfactory work performance just before and after his transfer into
the telemetry section under Wischmeyer that the Respondent asserts was the principal
reason he was included in the reduction in force.
Site Chief Jackson testified that in discharging Mathers he relied upon Supervisor
Wischmeyer's selections And Wischmeyer testified that he "rated Mr Mathers so
low on the list because of his technical inability to, perform work in the Telemetry
Unit, in addition to work with and get along with fellow workers within the Unit "
In the latter connection, Wischmeyer testified that it was necessary for him to trans-
fer one of his men to another job because of difficulties with Mathers and that he
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also had reports from his crew chief, Rufus Sawyer, that Mathers was not following
instructions given him by Sawyer. But the reason stressed by Wischmeyer for select-
ing Mathers for discharge in the reduction in forcF, was Mathers' unacceptable
performance in maintaining and repairing the decoders. Wischmeyer's specific criti-
cisms of Mathers' work and technical ability were based upon Mathers' mass substi-
tution of tubes in the output converters, his use of a power supply in excess of the
amperage for which the equipment was designed, his inability to repair these power
units which had become defective because of an overload, his failure to trace short
circuits, and his removal and failure to repair large numbers of printed circuit cards
(each of which cost from $300 to $500) and output converters.
Mathers and Wischmeyer agreed in their testimony that, to correct difficulties in
the operation of the decoders, Mathers had substituted approximately 40 new tubes
in the output converters without first using an oscilloscope at test points to locate
the defective stage in the equipment. They also agreed that the trouble in the decoder
was eventually found to be, not in the tubes in the output converters, but in a de-
fective diode in the sync detector Mathers insisted in his testimony that it was
"common practice" and "always an easier and less time-consuming [task] to remove
tubes, check them on a reliable tube tester and ascertain whether they themselves are
bad or not, and once you have ascertained they are bad there is no argument...."
Wischmeyer, on the other hand, testified that the standard practice and procedure
was to use the oscilloscope to locate the defective stage and not to make a mass
substitution of tubes throughout the equipment
With respect to Wischmeyer's criticism of Mathers' use of an excessive bower
supply in the telemetry decoders and his failure to trace short circuits, there is no
dispute that, from August or September 1960 until sometime in March 1961, Mathers
had substituted power packs with 5-ampere ratings for the packs with 0 2 ampere
ratings for which the equipment was designed, and that, even then, the power packs
burned out because of an overload. Wischmeyer testified that, when the telemetry
section took over the decoders. he asked Mathers why the pack called for by the
design o' the equipment could not be used; that Mathers said it would continually
burn out the power pack unit; that, after learning from other telemetry supervisors
that they had no such trouble, Wischmeyer told Mathers to measure the leg current
drawn from the power supply; but that Mathers did not do so. Aceordmg to Wisch-
meyer and Saunders, his crew chief, they then measured the leg current, found a
100-percent overload, traced the trouble to a short circuit in a console, removed
the short, replaced the supply unit, and made the unit operational as originally
designed Operational Support Supervisor James Wilson, in whose section the main
rack of the shorted console was located, corroborated Wischmeyer's and Saunders'
testimony as to the elimination of the short circuit and further testified that this was
the first time the matter was called to his attention although it was Mathers' re-
sponsibility to do so
Mathers, on the other hand, testified in substance that he had substituted the 5-
ampere power rack to meet an overload on the system; that he had discussed with
Supervisor Wilson the possibility of a short in the wiring on the main and inter-
mediate from: s of the consoles; that Wilson explained that, because of time require-
ments, it would not be possible to get into the consoles and clear up the matter; and
that Mathers had therefore temporarily substituted the higher power pack to handle
the load.
Upon consideration of these conflicts in the testimony, I credit Wischmeyer's,
Saunders', and Wilson's testimony and find, not only that for a period of approxi-
mately 6 months Mathers had used an excessive power pack in the decoders (as
Mathers admitted) but that during this time he failed to trace and correct the real
troub'e causing the overload as was his responsibility.
Wischmeyer's criticism of Mathers for his inability to repair equipment relates
to the repair of the same power units in the decoders which had been burned out
because of the overload As to this repair, Mathers did not testify and Wischmeyer's
testimony is uncontradicted and therefore credited. According to his testimony,
Wischmeyer obtained the necessary parts and instructed Mathers to repair the units.
But, although Mathers worked on them for 2 or 3 weeks, he did not repair any of
them In attempting to do so, he put in transistors backward and changed the
wiring from its original configuration Finally. Wischmeyer had the repairs made
bv_ Saunders. who repaired two of the units within an hour and another the same day
Finally, we come to a consideration of Wischmeyer's criticism of Mathers for his
removal,and failure to repair large numbers of printed circuit cards and output con-
verters. Mathers admitted that he had a number of these items on his desk awaiting
repair but, although he gave no estimates, he denied that there were as many as 22
modular output converters or more than "several" circuit cards out of commission
at any one time. But Wischmeyer testified that at one time he saw about 40 circuit
VITRO LABORATORIES, DIV. OF VITRO CORP. OF AMERICA 815
cards and about 21 or 22 output converters stacked on Mathers' desk. Crew Chief
Sawyer testified that he saw 21 or 22 output converters which were out of com-
mission. And Crew Chief Saunders testified that he saw more than 20 output
converters and about the same number of printed circuit cards on Mathers' desk.
I credit Wischmeyer's, Sawyer's, and Saunders' testimony.
Upon consideration of the foregoing, I conclude that the Respondent's asserted
reasons for Mathers' selection for discharge in the reduction in force, as set forth
in Supervisor Wischmeyer's testimony, have substantial basis in fact and are plausible
reasons for the selection
John J. McCormack
The reasons asserted for John J. McCormack's selection for discharge in the re-
ductson in force were given by Site Chief Jackson in his testimony and have already
been summarized in section III, B, above. I conclude that these reasons had sub-
stantial basis in fact and that they are plausible re cSOns.
G. The tUE activities of the Respondent's eniploivices, the Respondent's knowledge,
and its reaction
Up to this point, I have set forth and considered the evidence relating for the
most part to what the Respondent did in effecting the reduction in force in accordance
with the changes in its contract with the Air Force; when it selected and notified the
employees of their discharges; and whether the rea°ons asserted by the Respondent
for these selections had substantial bases and were plausible. All of this has been
presented to provide the context which will permit a proper consideration and evalu-
ation of the evidence of the employees' JUE activities at Site D-4 and the Respond-
ent's alleged reaction thereto, as well as the General Counsel's contention on the
basis of this evidence that the Respondent selected and discharged the 12 employees
named in the complaint after, and because, these employees had overtly engaged in
these activities on the site.
From an overall consideration of the evidence and contrary to doubts expressed by
Respondent's counsel during the hearing, it appears to me that some of the
Respondent's employees began soliciting IUE memberships at Site D-4 as early as
June 1 or 2, 1961, and secured a number of signed applications from their fellow
employees 21 Fu;thermore, it is undisputed that on June 9, 1961, the IUE distributed
organizational handbills and cards on the access road leading to the site as the em-
ployees came to work and that Service Manager Robert Boudreaux and Site Chief
Jackson received one of these handbills that morning But, otherwise, the evidence
relating to the course of the IUE organizational campaign at the site and the Re-
spondent's possible or actual knowledge and general reaction presents four broad
substantial factual issues: (a) whether any of the employees openly solicited or
signed IUE membership applications or wore IUE buttons at the site before June 12,
when the first written discharge notices were handed out by the Respondent; (b)
whether, from these or other indications, Site Chief Jackson became aware of the
TUE activity at the site at any time before June 9, or of the participation of any of
the dischargees before the written notices of discharge were handed out generally
on June 12 or (in McCormack's case) on June 27; (c) whether, following the
distribution of the IUE handbills on June 9, the Respondent instructed its supervisors
to remain neutral or to report the names of employees whom they saw engaging in
organizational activities at the site; and (d) whether the Respondent's supervisors
interrogated or made remarks or threats to any of the employees based upon their
WE activities.
1. The beginning of the IUE campaign
Although John McCormack testified that he began talking with various employees
of the Respondent at Site D-4 about enlisting the aid of the TUE in the beginning
of May 1961, it appears from his testimony and from the rest of the evidence in the
case that the first contacts with IUE Representative Joseph Considine at Clears-ter
were made later that month by employees Ed Huff and C E Urwiller. About this
time (on May 5, 1961, to be exact) Urwiller's employment with the Respondent
terminated, and Huff resigned from his job on June 22, 1961 No connection between
21 Two of the Respondent 's employee witnesses so testified and, to this extent , supported
the testimony of the General Counsel 's witnesses Thus Evangelos Crikis testified that
his membership application wag solicited by Theophilos Samarkos in the plotting room on
the site on May 'it and Dale Kok, who was called as a witness by both the Respondent
and the General Counsel , testified that he began soliciting IDE membership on the site
on June 1, 1901 , while he was a data section employee
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the termination of the employment of either of these two men and their role in
starting the IUE movement among the Respondent 's employees is shown by the record
in the present case.22
After Huff and Urwiller had first conferred with Considine , McCormack and
Daniel VanDine ( two of the alleged discriminatees ) also met with Considine on
several occasions But there were inconsistencies between the testimony of Mc-
Cormack and VanDme and that of Considine as to when Considine first met with
McCormack and VanDine , and as to whether Considine gave them IUE cards and
buttons with which ( according to their testimony ) they began organizing the site on
June 1. According to McCormack 's testimony , Huff brought Considine to Mc-
Cormack 's home in the middle of May and they then discussed their plans for
organizing the site. McCormack and also VanDine testified that, following this
meeting, they both met with Considine and Huff at the Terrace Club in Clearwater
sometime during the weekend from May 20 to 22 ; and that it was decided at this
meeting that the organizational campaign should come out into the open on June 1
with the solicitation of membership applications and the wearing of IUE buttons
at Site D-4 Finally, McCormack testified that he had two more meetings with
Considine at Considine 's Clearwater apartment on May 29 or 31 and June 1; that
at the first of these two meetings on May 29 or 31 , Considine gave McCormack and
VanDine a number of IUE cards and buttons ; and that at the next meeting on the
evening of June 1, he reported to Considine what the employees had done that day in
starting the organizational campaign at the site.
But in his testimony , Considine fixed Monday , June 5, as the date of his first
meeting with McCormack, said that he did not meet VanDine until even later
in June. and also differed with McCormack as to when he had had his initial meetings
with Huff and Urwiller. Thus Considine testified that his first meeting with any of
the Respondent 's employees was with Huff and Urwiller on May 22, 23 , or 24; that
he (Considine ) made a trip to New York on May 27 and returned to Clearwater on
June 4; that , during his absence Parker, his assistant , gave Huff and Urwiller some IUE
cards and buttons on May 30 or June 1; that Considine met McCormack for the first
time on June 5, although Huff and Urwiller had previously told him McCormack had
suggested that the IUE should be asked to organize the Respondent 's employees;
that it was still later before Considine met VanDine; and that he did not give
McCormack any cards or buttons until the second or third week in June.
In evaluating these inconsistencies in the testimony , it should be noted that em-
ployees Thomas Mathers and Dale Kok testified that they received cards and but-
tons from Huff at the site on or about June 1 From this testimony , and Considine's
testimony as to his assistant's delivery of cards and buttons to Huff on May 30 or
June 1, it would appear that IUE cards and buttons were in fact made available to the
employees at the site on June 1. But, if Considine 's testimony is credited , McCormack
could have received the cards and buttons , which he testified he used at the site in
the early part of June , only through Huff and not directly from Considine On this
point, alone, there is a square conflict between Considine 's and McCormack 's testi-
mony But the more important conflicts in the testimony are between Considine's
testimony and that of McCormack and VanDine as to when Considine first met with
any of the Respondent 's employees and when he first met with McCormack and
VanDine and gave them the materials for the IUE campaign which they assert they
began using an June 1.
Upon consideration of these conflicts in the testimony. I credit Considine 's testi-
monv and find , contrary to McCormack's and VanDine's testimony , that the first
meeting between Considine and any of the Respondent 's employees occurred no
earlier than May 22; that McCormack did not meet with Considine until June 5; that
22 Neither Huff nor Urwiller testified nor was any evidence given as to the circum
stances under which their employment terminated Furthermore no attempt was made
by the General Counsel to link their terminations to their visit to Considine in May 1961
or their other activity on behalf of the TUE , until the 25th day of the 27-day hearing in
the present case Then, although the General Counsel had long since submitted his evi-
dence on his case-in-cldef and although the Respondent was about to complete its defense
with the testimony of IUE Representative Considine as one of its last witnesses the
General Counsel asked Considine on cross-examination whether T 'rwiller had told Con-
sidine of the reason for his layoff I sustained the Respondent's objection to the question
and on the Respondent 's further objections , also rejected the General Counsel 's offers to
prove by Considine 's testimony " that Mr Urwiller was laid off because lie had been talk
-ng union " and "that Mr Urwiller ' s separation from Vitro was occasioned by union
activities on the part of Mr Urwiller and that lie [ Considine ] advised \ir Urwiller at
one time . to come to the Board and file a charge"
VITRO LABORATORIES, DIV. OF VITRO CORP. OF AMERICA 817
VanDine did not meet Considine until later in June; that no buttons or cards were
delivered directly to McCormack by the IUE until the third week in June; and that,
if McCormack and VanDine solicited IUE memberships and wore and distributed but-
tons on the site on or after June 1 but before they later actually met with Considine,
the cards and buttons they used had been procured by Huff or Urwiller and not by
McCormack or VanDine. What is more important to the general decision in the
case, Considine's credible testimony on these points reflects unfavorably upon the
general reliability of McCormack's and VanDine's testimony as to other details and
the early and continuing prominence of their roles in starting and getting the IUE
campaign underway on the site on June 1
2. The participation of the alleged discrimina t ees in the IUE campaign and the
Respondent 's alleged knowledge thereof
According to their testimony , five of the alleged discriminatees in the present
case ( McCormack , VanDine, Mathers , Patton, and Samaikos ) began soliciting IUE
memberships and passing out 1UE buttons to their fellow employees at Site D-4
on June 1. They testified , in substance , that approximately 23 employees signed
cards at the site during the first few days of June , including the 5 solicitors them-
selves and 4 of the other alleged discriminatees , i.e , Allen, Chastame , Gleason,
and Tyson . 22 In addition , if the testimony of the same five witnesses is to be
credited , they and the other four alleged discriminatees who signed IUE cards in
these early days in June immediately began wearing their IUE buttons in plain view,
either on their shirt or jacket fronts or (in the cases of McCormack, Chastame, and
Tyson ) on the front belt loops of their pants , and continued to wear the buttons
in this fashion as they worked at the site from June 1 or 2 until their employment
ended in the last week of June 24 But the remaining three of the alleged discrimina-
tees ( Fields , Cox, and Geyer ) were absent fiom work during the first week in
June. Furthermore , two of them (Cox and Geyer ) did not testify at the hearing.
Thus, although the General Counsel ' s witnesses testified that each of these three
employees signed IUE cards at the site and thereafter wore IUE buttons , Fields
could not have done so until June 8, Geyer until June 12 , and Cox until June 23,
that is, until the respective dates they returned to work.
Site Chief Jackson and Service Manager Boudreaux testified that the only orga-
nizational activity which they saw at the site was the IUE's distribution of handbills
just outside the site on June 9 and the wearing of IUE buttons by some of the
employees on and after June 12 , the day they handed out the first written notices of
discharge . In support of this testimony of the Respondent 's two top representatives
at the site , data section employee Gary Long testified that he saw no membership
solicitations at the site and five of the other employees 25 testified that the only
membership solicitations observed by them were made by Theophilos Samarkos
behind the racks or in a back room at times when Site Chief Jackson was not
present . With respect to the wearing of buttons , Boudreaux testified that the only
employees he saw wearing IUE buttons were Allen , Fields , Gleason , Samarkos, and
VanDine on and after June 12 and Mary Geyer on June 20 Five other supervisors 26
and 17 employees 27 generally confirmed Boudreaux 's testimony as to the visible
In addition to these 9 alleged discriminatees, the General Counsel's witnesses named
14 other employees who also signed IUE cards, apparently during these first few days of
June. William Babis, A G Parker, John Britton, Jack Cost F N Mote John Greising,
Eugene Zeak, W. L Clark, M L Londakos, B L Myers, D 0 Culbreth, Don Burkell,
Angelo Dannessa, and Dale Kok
"+ To support this testimony of the five alleged discriminatees that the employees wore
their IUE buttons at the site from the beginning of the campaign, the General Counsel
produced the testimony of Mal James E. Jardon, the An Force's representative at the
site Major Jardon testified that he saw VanDine and employee Samarkos both wearing
IUE, buttons at the site as early as May 30 and 31 and also a union card posted on the
bulletin board on May 30 Major Jardon's attention was not called to the fact that
May 30 was a holiday In any case, his testimony was in substance that TUE buttons
were worn at the site and a union card had been posted on the bulletin board before
June 1, the earliest day which any of the other witnesses fixed for the beginning of the
IUE campaign at the site
2i Glen Brotherton, John Greising, Thomas Wineman, Evangelos Crikis, and Dale Kok
20 Assistant Site Chief George Sayre and Supervisors Wiscluneyer, Feagley, Wilson, and
Dannessa
27 Brotherton, Long, Langley, Parker, Huhn, Saunders, Rufus Sawyer, Charles Sawyer,
flyers, Greasing, English, Wineman, Johnson, Leslie, Kok, Miller, and Rice
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wearing of buttons at the site.28 Two of these employees testified that McCormack
briefly and guardedly displayed an JUE button and that several other employees
named also by Boudreaux wore buttons about this time which might possibly have
been before June 12. Thus data section employee John Griesing testified that he
saw McCormack, Samarkos, and VanDine wearing buttons during the second week
in June but that McCormack was then wearing his button under his belt and showed
it only briefly to Greising. And data section employee Dale Kok testified that in the
early part of June, McCormack took an IUE button out of his desk drawer, put it
on under his lapel, and then returned it to his drawer. The remaining supervisors
and employees who testified on the subject for the Respondent stated either that
they saw none of the employees wearing IUE buttons at the site or that the earliest
time they saw buttons worn was on June 12 or the "middle of June." Except for
Greising's and Kok's testimony as to McCormack, none of them testified that they
had seen buttons being worn by any of the employees other than those named
by Boudreaux. Indeed, when they spoke about, or were specifically asked, whether
they had seen particular alleged discrimmatees wearing IUE buttons, their testimony
was uniformly to the effect that they had never seen McCormack, Chastaine, Cox,
Mathers, Patton, or Tyson wearing IUE buttons. Finally, there was testimony by
some of these witnesses which, if accepted, would show that Samarkos did not in fact
wear an TUE button until June 12. Thus employees Brotherton, Parker, Leslie,
and Kok all testified that on that day, after the discharge notices had been handed
out, Samarkos put on his IUE button and remarked, in substance, to each of these
witnesses, that he no longer had anything to lose by wearing the button because he
had received a discharge no'ice.
Upon consideration of this testimony, I credit the testimony of Site Chief Jackson,
Service Manager Boudreaux, and the Respondent's other witnesses. Accordingly I
find, contrary to the testimony of the General Counsel's witnesses, that, until June 12,
the day the employees were given their discharge letters, none of the employees
solicited memberships or wore their IUE buttons in plain view on the site, that
neither Jackson, Boudreaux, nor any of the Respondent's supervisors saw any IUE
membership solicitations or any IUE buttons being worn by the employees, and that
-the Respondent's representatives therefore knew nothing about the identities of the
iUE supporters or adherents among the employees.
3 The Respondent's general awareness of the union activity at the site and its
instructions to its supervisors
But even though Site Chief Jackson did not see any employees soliciting TUE
memberships or wearing TUE buttons at the site until June 12, he himself testified
that, in conversations with Supervisor Wilson and one of the employees on June 1, 2,
or 5, he did hear something "about a union trying to move into Site D-4"; that this
was his "first information concerning an attempt of a union-not knowing which
union-to organize Site D-4; and that he talked with several of the supervisors about
it With respect to his conversation with Supervisor Wilson, Jackson testified (and
Wilson corroborated his testimony) that Wilson told Jackson merely that there
was a note posted on the bulletin board saying "Let's go union and get rid of `Bones'
[Jackson"; but that when they then looked at the bulletin board they found no
such note As to his conversation with the employees later that day or the next day,
Jack on testified that the employees told him that "there was a bunch of union cards
on the Site." but did not say they were being signed on the site; and that Jackson. as
a matter of fact, did not see any union cards until sometime after June 9 Finally.
with respect to Jackson's admittedly speaking to several of his "supervisors" within a
day or zo af'er his conversation with Wilson, there is no doubt from the evidence
that he did in fact speak to McCormack and to Coordinator William Babis Further-
more, there is no dispute as to the substance of these conversations as given in
McCormack's and Babis' testimony since in his testimony, Jackson admitted the pos-
sibility that he spoke to McCormack althoueh he could not recall that particular
conversation, and specifically confirmed B^bis' version of their conversation about
the same time It appears from this testimony that Tackson asked McCormack
whether the latter knew anything about the signing of union cards at the site that day
hilt that, before McCormack could answer, Jackson was called away and did not
r'turn. And from Babis' and Jackson's testimony as to their conversation. it
Although the Respondent proffered additional employee-witnesses to how the secretive
manner in which membership solicitation was conducted at the site and the limited and
rite display of IUE buttons I rejected the offer as cumulative.
VITRO LABORATORIES , DIV. OF VITRO CORP . OF AMERICA 819
appears that Jackson asked Babis if he had heard anything about a union trying to
organize the site; that Babis said there were rumors of a union movement; that
Jackson asked if Babis knew "who it was"; that Babis said he knew only that it was
the IUE; that Jackson then asked how Babis felt about a union and Babis said his
only experience was with unions in the American merchant marine service and he
personally had no use for that type of union; that Jackson thereupon asked Babis
if he would join a union and Babis replied that he would join "if it meant keeping
my job at the Site"; and that the conversation ended with Jackson's remark "that
the present situation had him scared and that he was afraid of unions ." 29 The only
variations in the testimony related to the times when these two conversations occurred.
McCormack and Babis fixed the times of their conversations with Jackson as June 1
or 2. Jackson testified that the conversations he had with Babis and also his con-
versation with McCormack ( if it in fact occurred ) took place on or about June 5.
From Jackson 's testimony concerning these conversations with Wilson , McCormack,
and Babis , it appears clear that although Jackson did not see any organizational ac-
tivity nor know which employees were involved , he knew at least by June 5 that
there was some IUE activity taking place among the employees at the site . Accord-
ing to Jackson's and Service Manager Boudreaux 's testimony , Jackson gave no in-
structions to his supervisors as to what their attitude should be, until June 9 when he
and Boudreaux received one of the IUE handbills which were distributed that day.
Then, and again on June 12, when ( according to Jackson 's testimony ) he first saw
IUE buttons being worn , Jackson called meetings of his supervisors and talked to
them about the situation.
According to Jackson and Boudreaux , Jackson told the 11 men (including Mc-
Cormack ) who attended the supervisors ' meeting on June 9 that it appeared that
a union was trying to organize Site D-4 and that, as supervisors , they should adopt
a neutral attitude ; but that , although it was all right for the employees to organize
before and after working hours and on the parking lot and during lunch time and
coffee breaks , they could not organize on company time and that, if such an attempt
were made , the supervisors should break it up and report the employees to Jackson
and Boudreaux. Jackson and Boudreaux further testified that he told the supervisors
at the June 12 meeting that they were not to say anything to the men about wearing
union buttons, that it was the employees ' right to wear them , and that the super-
visors "would be neutral about these buttons as [they ] . had been about the
entire union movement to this time ." Telemetry Supervisor Wischmeyer corroborated
Jackson's and Boudreaux 's testimony as to the "neutrality" instructions given to the
supervisors at the June 9 and 12 meetings . FMIC Supervisor Feagley also testified
that these instructions were given to the supervisors at the June 9 meeting and added
that , although he did not attend the June 12 meeting, Site Chief Jackson told him
about that time that he was not to speak to the employees about their wearing union
buttons. According to Boudreaux , these were the only instructions given to the
supervisors concerning the employees ' union activities until , at a supervisors ' meeting
which Site Chief Jackson called in September 1961 , but then left, Boudreaux told
the supervisors to get copies of the Union's literature so that the Respondent might
counter the " lies and accusations " which they contained , explain to the em-
ployees "the benefits that the Company had," and thus take "a stand to fight" the union
coming onto the site.
McCormack gave no testimony as to whether he attended the supervisors ' meetings
on June 9 or 12. But the General Counsel introduced the testimony of two other
witnesses as to the instructions given to the supervisors by the Respondent concern-
ing the Union , i.e., Mission Controller Angelo Dannessa , who testified as the first
witness at the hearing , and Mission Coordinator William Babis who later testified
both during the General Counsel 's case-in-chief and again on the General Counsel's
rebuttal during the next-to -last day of the hearing.
Dannessa , in his testimony , was not at all clear as to when particular supervisors'
meetings occurred. This was apparently due, in part, to the confusing manner in
which questions were put to him by the General Counsel ( who asserted that Dan-
nessa's testimony varied from the substance of his pretrial affidavit ) and, in part also,
to the haziness of Dannessa 's recollection concerning dates and times. When ques-
tioned as to what Jackson said at a supervisors ' meeting which he said was held in
the end of May or the beginning of June, Dannessa explained that there were so many
meetings , he was confused . He testified , however , that Jackson told the supervisors at
such a meeting in the end of May or the beginning of June, that there would be a cut-
' The quoted language is taken from Bahia' testimony which Jackson admitted set
forth the substance of their conversation.
681-492-63-vol. 140-53
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
back in personnel, and that at the same meeting Jackson may also have referred to,
"griping" among the employees. But he further testified that he could not recall
any reference to a union at this meeting. He did recall that Jackson told the super-
visors they were to be "neutral" with respect to the employees' union activities, but
that the Company did not want a union and they were to keep their eyes and ears open
about people talking union. But he testified that he thought that the meeting or meet-
ings in which references were thus made by Jackson to unions, occurred after he came
back from his vacation in August. On prodding by the General Counsel, he then
admitted statmg in the pretrial affidavit given by nim to the General Counsel just be-
fore the hearing, that, at a supervisors' meeting which "took place just before the
union campaign really got on the way," there were references to "griping" among
employees and that "it was about this time that either Jackson or Boudreaux stated
they understood a union might be trying to get into the site" and "we were also told
we were to keep our eyes and ears open as to who was interested in having a union
and to remain neutral." [Emphasis supplied.] Then, to explain the apparent in-
consistency between this statement and has testimony as to the date of this meeting,
Dannessa testified that, when he signed the affidavit which the General Counsel had
written out for him, he was confused as to the dates of the meetings and that, since
then, he had recalled that the supervisors' meetings at which Jackson spoke about
unions and what attitude the supervisors should take, had actually occurred after
Dannessa's vacation in August and not in May or June.
Babis, on the other hand, testified that at a supervisors' meeting held in the end
of May or the beginning of June (and before June 9) Jackson told the supervisors
that the Respondent was opposed to the unionization of its employees, that it would do
all it could to keep a union out, and that the supervisors were to report employees
who engaged in union activities. Babis testified that he attended both the June 9
and 12 supervisors' meetings, that at neither of these meetings did Jackson and
Boudreaux instruct the supervisors to remain "neutral," and that the first instructions
to this effect were given at a much later supervisors' meeting in August or September.
According to Babis, therefore, the Respondent's instructions to the supervisors at
the outset of the IUE activity and before the selections for discharge were announced,
were merely to report employees engaged in union activities and not simply those doing
so on worktime Furthermore, according to Babis, he first heard instructions to re-
main "neutral" only in August or September. On these two points, his testimony is in
square conflict with that of Jackson, Boudreaux. Wischmeyer, and Feagley.30
Upon consideration of the above testimony concerning the supervisors' meetings of
June 9 and 12, 1 credit the testimony of Site Chief Jackson, Service Manager
Boudreaux, and Supervisors Wischmeyer and Feagley, rather than the contrary
testimony of Babis or any possible interpretation of the confusing testimony of
Dannessa. Accordingly, I find that at these meetings, Jackson instructed the super-
visors to adopt a neutral attitude with respect to the IUE activities of the employees,
not to interfere with the wearing of IUE buttons or with any organizational activities
on the site except during working time, when they were to report the participants
to Jackson or Boudreaux. I further find and conclude that in restricting union
activities to nonworking time, Jackson acted properly and gave no indication of any
intent to restrict or discriminate against employees because of legitimate organiza-
tional activities.
an P,abis' testimony is also in conflict with the pretrial affidavit which Dannessa gave
the General Counsel and to which the General Counsel, in questioning Dannessa in the
earliest stage of the hearing, insisted that Dannessa adhere For as I have noted in this
affidavit Dannessa stated in part that "just before the union campaign really got on the
way," either Jackson or Boudreaux instructed the supervisors "to remain neutral " To
add to the confusion, the General Counsel later attempted to support Babis' testimony
that the words "remain neutral" had not been used in instructions given to the super-
visors until sometime in August or September He did this by making an offer to prove
through Babis' testimony during the General Counsel's rebuttal that, in interviewing both
Dannessa and Babis the day before the hearing, the Respondent's attorney agreed with
Babis and attempted to convince Dannessa he was wrong in saying that the particular
words had been part of the instructions given the supervisors before the discharge I re-
jected the offer, which was made by question and answer, on the ground that the proffered
answers, if received and credited, would not support any material inference in the case
because attorneys necessarily Interview witnesses in preparing their cases for trial and
any understanding of the facts which they reach in the course thereof is necessarily
tentative and subject to revision, Is not to be regarded as an admission, and is therefore
not of any probative value in deciding the issues at the trial.
VITRO LABORATORIES, DIV. OF VITRO CORP. OF AMERICA 821
4. Interrogation, remarks, and threats allegedly made by the Respondent's
supervisors to employees relating to the IUE activities
It has already been found, upon Site Chief Jackson's as well as McCormack's
and Babis' testimony, that Jackson had learned sometime in the first 5 days of June
that some of the employees were engaged in organizational activities and had asked
McCormack and Babis what they knew and thought about it. It has also been found,
upon the testimony of Jackson and his supervisors, that, having seen the IUE hand-
billing on June 9 and having seen some of the employees wearing IUE buttons on
June 12, Jackson instructed the supervisors to remain neutral with respect to the
employees' IUE activities and not to interfere with their wearing the buttons, but
that he also instructed them to report employees who engaged in organizational
activities on company time. But there is squarely conflicting testimony as to whether,
in incidents not yet considered, Jackson or his supervisors interrogated several of
the alleged dlscriminatees concerning their knowledge of and participation in the
union activities, expressed the Respondent's disapproval, warned them that partici-
pants in such activities would be reported to the site chief, and threatened discharge.
The following summary sets forth the substance of this conflicting evidence.
(1) Employee Thomas Mathers testified that on June 5 or 6, he asked Telemetry
Supervisor George Wischmeyer how he felt about "this union stuff"; that Wisch-
meyer said "he wouldn't care to join the umon, it might mean his . . job", and
that, upon Wischmeyer's asking Mathers how he felt, Mathers said he "intended to
work for the union." But Wischmeyer denied that any such conversation had taken
place
(2) Employee Theophilos Samarkos testified that while he was distributing union
literature outside the site gate in the second or third week in June and wearing an
IUE button, Site Chief Jackson said to him, "Hey, you Greek bastard, if I ever catch
you talking union on company time I will fire you out the gate." Jackson denied
that there was ever any such incident.
(3) Samarkos also testified that when he was given the letter terminating his
employment on June 23, he showed Site Chief Jackson and Service Manager
Boudreaux his IUE button and asked, "is it because of this button9", that Jackson
replied that it was Samarkos' "prerogative" to do as he liked, and that either Jackson
or Boudreaux added that it was their "prerogative" to discharge Samarkos Both
Jackson and Boudreaux agreed that this conversation had taken place except that
neither of them had made the last statement that it was the Respondent's "preroga-
tive" to discharge Samarkos.
(4) FMIC employee Andrew Patton testified that, in the end of May or the
beginning of June 1961, FMIC Supervisor Harry Feagley said to him, "Andy, I just
came from a supervisors' meeting where the discussion was brought up of griping,
grumbling among employees. I was informed by the person heading the supervisors'
meeting to be on the lookout for the union trying to organize here on the Site and
we were ordered or told to keep our eyes and ears open for anyone speaking for the
union and to turn in names"; and that, upon Patton's asking whether Feagley would
turn in the names of such employees, Feagley replied that he did not know what he
would do. Feagley denied that he ever made any such statements to Patton. He
testified that, in the only conversation which he had with Patton in which a union
was mentioned, he told Patton "to stop engaging the personnel in arguments while
in Mission Support or Maintenance . . about qualifications . . after the notifi-
cation of layoff . to act in the same manner as other personnel being laid off"
and to do a "good job" as the rest of them were; that it was Patton who then "men-
tioned the word `union card' "; and that Feagley thereupon stopped Patton by saying,
"I was talking about his work . . . land] would not discuss any further with him
on anything of that nature "
(5) Patton further testified that on June 7 he asked Site Chief Jackson whether
it was true that he was being laid off; that Jackson said, "Before you go any further,
T would like to know have you signed a union cards"; that Patton said, "Yes", that
Jackson then said Patton was on the layoff list: that, upon Patton's referring to his
good work record and prompt attendance, Jackson said, "Well, you are still on [the
layoff list] but we are losing men with as much seniority as you have, some with more
time"; that Patton asked, "What is the real reason behind it?" and that Jackson said
there was a reduction "in our appropriations for the program and FMIC would be
closed down completely." But Jackson denied that there had been any such con-
versation between him and Patton.31
si Patton also testified concerning an alleged conversation in May 1960, with George
Sayre , Jackson's predecessor as site chief . Patton 's testimony as to this conversation,
which occurred more than 6 months before the charges were filed in the present case, was
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(6) John McCormack testified that on June 14 or 15, Site Chief Jackson asked him
how he felt about the Union; that McCormack said he thought it was a pretty good
idea and would do everything in his power to put the Union in; and that Jackson
shook his head and walked away. Jackson denied that there had been any such
incident.
(7) McCormack also testified that on June 19 or 20, Site Chief Jackson said that
be had put McCormack in for a "good increase in pay"; and that, following Mc-
Cormack to Coordinator Daniel VanDine's desk, said that he (Jackson) had "been
forced to leave his last three jobs when [a ] union came in . that he did not
intend to leave his job, . that he would do everything in his power to stop a
union from coming in, and that [McCormack ] had better do the same , or else."
According to VanDine , Jackson said in this conversation "that he had lost his
last three jobs because of unions. He had no intention of losing this job because
of a union , and he stated to Mr . McCormack that if he was smart , he would go
along with him in fighting the union." Jackson denied both that he had told
McCormack he had recommended a raise for McCormack and that he had made
the other remarks attributed to him by McCormack and VanDine.
(8) McCormack also testified to three related conversations he said he had on the
following day with Supply Supervisor W. W. Daniels, Assistant Site Chief Sayre,
and Jackson . In the first of these conversations , according to McCormack , Daniels
made a delivery of small stores to McCormack with the comment, "I've been told
to bring these out . . . to the head union agitator," and said that Jackson had
referred in this manner to McCormack in conversations which took place while
they were riding together to and from work. McCormack further testified that
shortly after this conversation , Sayre drew him aside and said that Jackson had
.definite information McCormack was "the head union agitator at Site D-4 and that
Sayre was warning McCormack "for [his] own good" but would deny having done
so if McCormack repeated the substance of this warning to anyone else. Finally,
McCormack testified that he thereupon went to Jackson and asked whether it was
true that Jackson had called McCormack "the head union agitator " but refused to
.disclose the source of his information , and that Jackson said merely , "What if it is?"
Daniels and Sayre each denied that he had the conversation with McCormack to
which McCormack had thus testified. Jackson testified simply that he could not recall
any conversation in which McCormack asked him whether he had called McCormack
the "head union agitator."
The General Counsel's evidence as to these alleged remarks and threats, it will
be noted, was given by Mathers, Samarkos, Patton, VanDine, and McCormack, not
simply to show a course of general interference by the Respondent with the IUE
organizational activities of its employees which would in itself be a violation of
Section 8 ( a)( 1 ) of the Act, but also to support their special claim that the Respond-
ent discharged them because of their IUE activities, that the Respondent thereby
violated Section 8(a)(3) of the Act, and that, under the Board's usual remedies
for this violation, they are entitled to reinstatement and backpay. The self-interest
of these five witnesses in giving this testimony is therefore apparent . Moreover,
throughout this report , I have considered and rejected testimony given by these men
on other matters and have rejected it as unreliable and contrary to the great weight
of the Respondent 's evidence . In all these other areas , it has appeared to me, for
reasons which I have fully set forth, that the credible evidence indicates that the
Respondent, in effecting the reduction in force because of a reduction in its opera-
tions, selected these particular people for release, not because it knew that they had
engaged in any IUE activities, but for other substantial and plausible reasons In this
setting and in view of the square denials by the Respondent's witnesses, I see no
reason for regarding the testimony of the General Counsel's witnesses as being any
more reliable on the points now under consideration. I therefore credit the denials
by the Respondent's supervisors of the remarks and threats attributed to them by
the General Counsel's witnesses.
Upon the foregoing considerations, I conclude that the evidence does not support
the General Counsel's contention that the Respondent, by statements and threats
made by its supervisors, interfered with, restrained, or coerced its employees in the
exercise of their organizational rights, nor that it thereby committed unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
presented by the General Counsel as background to support the testimony of his witnesses
as to the Respondent's attitude toward unions and the threats of discharge allegedly made
by the supervisors in May and June 1961. Thus, Patton testified that, on this early
occasion in May 1960, Sayre said he heard Patton had been talking about unions and
warned Patton that he might lose his job, because the Respondent "did not want a union
in at any time." Sayre, however, denied that he had any such conversation with Patton.
VITRO LABORATORIES, DIV. CI VITRO CORP. OF AMERICA S23
H. Conclusions
In the course of this report , I have already reached and set forth in detail the
basic findings and conclusions which, in my opinion, require a dismissal of the
complaint in this case and i believe it unnecessary to repeat them at length. Brief
references will be sufficient:
(1) The Respondent 's reduction of its staff at Site D-4 by 20 people was occasioned
by the changes in its contract with the Air Force ( section B , above).
(2) McCormack , 1 of the 12 persons alleged by the complaint as having beer
selected and discharged for his IUE activities , was a supervisor and not an employee
within the meaning of the Act, and was 1 of 3 members of the staff whom the Re-
spondent decided to discharge and did discharge on June 27 , 1961 ( sections B and E).
(3) The other 11 alleged discriminatees were selected for discharge by the Re-
spondent during the week ending May 26, 1961 , on the bases of comparative ratings
of the employees with respect to factors having no relation to their possible union
activities ( section B).
(4) These 11 alleged discriminatees received letters of termination on June 12
and again on June 23 , 1961, but all of them except Samarkos , Geyer, Cox , and Tyson
were given oral advance notices on or before June 7 ( section B).
(5) The reasons asserted by the Respondent for selecting and discharging all 12
persons named in the complaint (including McCormack ) had no relation to any
possible union activities on their part, were supported by substantial bases in fact,
and are plausible ( section F).
(6) The IUE activities at Site D-4 began on June 1, 1961, but the identities of none
of the employees became known to the Respondent until some of them began openly
wearing their IUE buttons on June 12, 1961, the day they received their discharge
letters ( section G, 2).
(7) The Respondent became aware that some union activities were underway, but
not of the identity of any of the participants , on June 5 when an anonymous note
was posted on the bulletin board, and again on June 9, 1961 , when the IUE dis-
tributed handbills at the site ( section G, 3).
(8) The Respondent did not interfere with, threaten , or make any antiunion re-
marks to the employees and, on June 9 and 12, instructed its supervisors not to do
so, although it also then properly instructed its supervisors to report such activities
if they occurred during working time ( section G, 3 and 4).
(9) The Respondent had no policy of transferring employees to avoid layoffs, nor
any policy of recalling employees or giving an absolute preference to former em-
ployees on application for rehire ( section D).
(10) The Respondent refused to rehire Thomas Mathers for substantial and plaus-
ible reasons , and not because of his IUE activities ( sections C and F).
(11) The Respondent refused to rehire McCormack , Gleason, and VanDine or.
their applications for rehire at Site D-4 because there were no job openings and not
because of their IUE activities ( section Q.
The conclusion that McCormack was a supervisor within the meaning of the Act
would in itself require dismissal of the allegation of the complaint based upon his
discharge But, in any event, the conclusions which I have reached upon the evi-
dence would require the same result even if he had been an employee, for the evidence
does not support any finding of discrimination or interference violative of the Act.
Thus, upon my view of the evidence as shown by the conclusions I have drawn the
Respondent not only did not interfere with the employees ' IUE activities even when
it learned of them, but took steps to keep the supervisors from doing so. Further-
more , its selections of the 11 persons named in the complaint other than McCormack
were made before the IUE activities started on the site and even the advance oral
notices and the first letters of termination were given to these employees before any
of the employees had displayed their IUE support by wearing IUE buttons . Finally,
the Respondent's reasons for its selections of the employees to be discharged in the
reduction in force are substantial and persuasive and would in themselves be strong
indication that the selections were not based upon any attempt to select employees
because of union activities.
Accordingly, I find no violation by the Respondent of either Section 8 ( a)(1) or
(3) of the Act and will recommend that the complaint be dismissed in its entirety.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Vitro Laboratories, Division of Vitro Corporation of America,
a New York corporation, is engaged in commerce within the meaning of the Act.
:824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. International Union of Electrical , Radio and Machine Workers , AFL-CIO,
-is a labor organization within the meaning of the Act.
3. John J. McCormack, until his discharge by the Respondent on June 27, 1961,
was a supervisor within the meaning of Section 2 (11) of the Act.
4. The Respondent has not engaged in unfair labor practices within the meaning
,of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact , conclusions of law, and the entire
record in the case, it is recommended that the complaint herein be dismissed in its
entirety.
Dancker & Sellew , Inc. and Lawrence E. Clark and Office Equip-
ment Employers Association , Party in Interest
Local 210, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Lawrence E. Clark
and Office Equipment Employers Association , Party in Inter
-est.Cases Nos. 12-CA--8615 and 2-C, B-3465. January 04, 1963
DECISION AND ORDER
On September 18, 1962, Trial Examiner George J. Bott issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed, as
set forth in the attached Intermediate Report. Thereafter, the Gen-
eral Counsel and the Respondent Union filed exceptions to the Inter-
mediate Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases, and, as it finds merit in the exceptions of the General Coun-
sel, adopts the findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent herewith.
There is no dispute as to the facts, which, in summary, show that
in June 1958, approximately 14 employers, including the Respondent
Employer, formed the Office Equipment Employers Association.
Some of these employers had previously bargained separately with the
Respondent Union as the representative of their warehouse employees,
but the Association thereafter assumed the function of bargaining with
the Respondent Union on behalf of its employer-members on an as-
sociationwide basis.
On February 26, 1959, the Association and the Union executed a
contract covering an associationwide unit of warehouse employees.
The contract included a union-security clause and was for a term end-
ing on July 1, 1961. Simultaneously, the parties entered into a "Sup-
140 NLRB No. 75.