Alside Supply Co.

National Labor Relations Board - Board Decisions

Jul 23, 1975

219 N.L.R.B. 447 (N.L.R.B. 1975)

ALSIDE SUPPLY CO. 447
Alside Supply Co. and Walter G. Eyerman. Case
CA-7747
6- conclusion is predicated upon his further findings
July 23, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND KENNEDY
On April 14, 1975, Administrative Law Judge Paul
Bisgyer issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief and Respondent filed a reply
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent consistent herewith.
The Administrative Law Judge recommended that
the complaint be dismissed insofar as it alleges a vio-
lation of Section 8(a)(1). Contrary to the Administra-
tive Law Judge's conclusions, we find that statements
made by Supervisor George Gartley interfered with
the employees' right to organize as guaranteed in
Section 7, and therefore violated Section 8(a)(1).
We agree with the Administrative Law Judge's
finding that Foreman Gartley was at all times mate-
rial a supervisor within the meaning of Section 2(11)
of the Act.' We further agree with his finding that
Gartley made the remarks attributed to him by the
employees. Such remarks consisted generally of ref-
erences to the adverse impact which unionization
would have on the employees' working conditions.
During several discussions with employees, for exam-
ple, Gartley repeatedly indicated that if a union
came in, the warehouse would become a strict shop;
the employees would be required to pay for their
benefits; a timeclock would be installed; and, if the
Company wanted to, it could start laying off people.
Gartley added that in a slow season such as winter
the Company could lay off employees and nothing
could be done about it. Finally, when Gartley was
informed that authorization cards had been executed
by all of the employees, he replied, "What did you do
that for, you are going to f- up a good job."
The Administrative Law Judge concluded that
these statements did not violate Section 8(a)(1). This
1 No exceptions were taken by the parties to this finding.
that as a working foreman Gartley was a low-level
supervisor who was on friendly terms with the em-
ployees, and was merely expressing his own personal
opinion. Accordingly, the Administrative Law Judge
concluded that since the employees did not consider
Gartley to be "speaking on behalf of management"
they were not coerced within the meaning of Section
8(a)(1).
Contrary to the Administrative Law Judge we find
considerable evidence on this record to support a
finding that Gartley's remarks did in fact interfere
with the free exercise of the employees' rights. It
should be initially pointed out that this case differs
from Las Vegas Sun, 209 NLRB 240 (1974), relied
upon by the Administrative Law Judge. In that case
the Board found that the remarks made by a supervi-
sor occurred in one isolated conversation and were
made to a small group of unit employees. In the case
before us, employees testified that Gartley's anti-
union comments were made on numerous occasions
to nearly all unit employees extending from the ini-
tial attempt to organize in January 1974 until August
29, 1974, the night before the authorization cards
were presented to the Respondent and a demand for
recognition was made. Such conduct cannot, in our
judgment, be viewed as isolated.
The instant case is more akin to Strydel Incorporat-
ed, 156 NLRB 1185 at 1189-90 (1966), in which a
minor supervisor stated to an employee that "if the
Union ever got in it was going to give us more work
... that it is going to be hard on everybody." On
another occasion, the supervisor made another state-
ment to three other employees concerning the laying
off of union sympathizers and bringing in new help.
The Board concluded that statements by a "low-level
supervisor implying more onerous working condi-
tions and layoffs in the event of union organization"
were violative of Section 8(a)(1).
We also disagree with the Administrative Law
Judge's finding that the statements made by Supervi-
sor Gartley were not understood by the employees to
be those voiced by a representative of management.
In our view, the record does not support the Admin-
istrative Law Judge's implicit finding that the em-
ployees viewed Gartley more as a fellow worker than
as a supervisor. The "Apache Lounge" incident is
illustrative. The record indicates a general consensus
regarding the events of that evening. Employee Eyer-
man and Gartley engaged in a loud argument over
the need for a union. One employee present testified
that Eyerman was screaming at Gartley regarding
the antics: "[H]e had pulled in the past and you
know time cards, going home early, making other
people stay late, just because they came in a quarter
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after 6 they have to stay until 5." Gartley responded
by stating: "I was the supervisor. I will do what the
f- I want to do, you know. I run the place down
there. I will do what I want to do." Finally, Eyerman
responded by saying: ". . . it's all going to stop, you
know, we got the cards in. This is all going to stop."
In our judgment, this conversation not only ne-
gates any finding of camaraderie between Gartley
and the employees, but also constitutes an overt ex-
pression by Gartley to the employees of his superior
position as a supervisor. He explicitly established
himself as the boss, and not just a fellow employee.
Furthermore, such a conversation indicates that
Gartley's behavior not only was coercive, but also
may have served as a catalyst for the employees' or-
ganizing efforts. This conclusion is supported by
Eyerman's comments, which indicate that the at-
tempt to organize was due largely to what the em-
ployees viewed as inefficient and unfair supervision
on the part of Gartley. We must conclude from these
findings that the employees viewed Gartley not as a
fellow employee but rather as their supervisor repre-
senting management .2 See Pacific Southwest Airlines,
201 NLRB 647 (1973).
The employees' affirmative efforts to prevent
Gartley from becoming aware of their union activi-
ties during the crucial final stages of organization in
late August further buttress this conclusion. The rec-
ord indicates the existence of general discussions re-
garding union organization in the spring and early
summer commonly referred to as "shop talks" by the
employees. Although Gartley was never denied an
opportunity to participate in these discussions, he
was never invited to enter them. Employee Frisco
testified that Gartley would casually work his way
into the conversations with "small talk" and then
eventually come out with his antiunion statements. It
is rather clear though, as described by employee
Heenan, that as soon as the discussion became "seri-
ous business" the employees took affirmative steps to
prevent any information concerning the Union from
reaching Gartley. For example, the employees felt
that another employee, Frisco, was "too tight" with
Gartley. As a result, they curtailed any discussions of
the Union when Frisco was around. Frisco testified
that: "[H]e [Eyerman] approached me but he was not
letting me know what was going on [referring to
union acitivities] . . . in certain conversations or at
work if I was by George [Eyerman] the subject was
dropped."
Thus, the employees not only avoided Gartley dur-
ing this state of their organizing, but went a step fur-
ther and excluded Frisco, a fellow employee, from
2 See Pacific Southwest Airlines, 201 NLRB 647, 651 (1973).
many of their plans because of his apparent close
association with Gartley.
Eyerman's desire to prevent Gartley from obtain-
ing union information is further indicated by the fol-
lowing incident. On the evening of August 29, 1974,
while at the Apache Lounge, Frisco wanted to dis-
cuss Eyerman's avoidance of him regarding union
matters, so they stepped outside. Gartley looked out
the door and wanted to know what was going on.
Eyerman replied, "it was none of his business." Gart-
ley made reference to the subject matter being the
Union and went back inside. There is no question
that Eyerman wanted Gartley to be unaware of the
final stages of organization in fear that the supervisor
would in turn inform the rest of the management. As
Eyerman testified, he did not want to tell Gartley
about the Union because he "[F]igured he [Gartley]
would go back down and he would tell, like blab to
Izzy or Al or Mr. Rose [higher level supervisors]
about the Union, that it was going to come in ...."
Eyerman's fears were justified because as soon as
Gartley found out about the authorization cards he
went straight to his superiors with the information.
This entire scheme of activities to avoid any informa-
tion leaking to Gartley hardly seems necessary unless
the employees viewed Gartley as a supervisory repre-
sentative of management rather than as a fellow em-
ployee.
Upon viewing the record as a whole we find that
the statements made by Supervisor Gartley inter-
fered with the employees' right to organize as guar-
anteed in Section 7, and therefore violated Section
8(a)(1).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. General Teamsters, Chauffeurs and Helpers
Local 249 affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing
employees in the exercise of their rights guaranteed
them by Section 7 of the Act, the Respondent has
engaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
5. The Respondent has not engaged in any other
unfair labor practices alleged in the complaint.
ALSIDE SUPPLY CO. 449
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board orders that Respondent, Alside Supply
Co., Pittsburgh, Pennsylvania, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees for engaging in union
activity.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their right to self-organization, to form labor organi-
zations, or to refrain from any or all such activities,
except to the extent that such right may be affected
by an agreement requiring membership in a labor
organization as a condition of employment as au-
thorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at its offices and facilities in Pittsburgh,
Pennsylvania, copies of the attached notice marked
"Appendix." 3 Copies of said notice, on forms pro-
vided by the Regional Director for Region 6, after
being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other materi-
al.
(b) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed insofar as it alleges
violations not found herein.
3In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees for engaging
in union activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their right to self-organization, to
form labor organizations, to bargain collectively
through representatives of their own choosing,
to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or
protection, or to refrain from any or all such
activities, except to the extent that such right
may be affected by an agreement requiring
membership in a labor organization as a condi-
tion of employment as authorized by Section
8(a)(3) of the Act.
ALSIDE SUPPLY CO.
DECISION
STATEMENT OF THE CASE
PAUL BISGYER , Administrative Law Judge: This proceed-
ing, with all the parties represented, was heard on Decem-
ber 10 and 11, 1974, in Pittsburgh, Pennsylvania, on the
complaint of the General Counsel issued on October 29,
1974,1 and on the answer of Alside Supply Co., herein
called the Respondent or Company. The questions repre-
sented for decision are (1) whether the Respondent, in vio-
lation of Section 8(a)(3) and (1) of the National Labor Re-
lations Act, as amended,2 discriminatorily laid off and
refused to recall employee Walter G. Eyerman because of
his protected union and concerted activities, and (2) wheth-
er the Respondent otherwise interfered with, restrained,
and coerced employees in the exercise of their statutory
rights in violation of Section 8(a)(1) of the Act. At the close
of the hearing, the parties waived oral argument but subse-
quently filed briefs in support of their respective positions.
Upon the entire record, and from my observation of the
demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a division of Alside, Inc., a Delaware
1 The complaint is based on a charge filed by Walter G. Eyerman on
September 10, 1974, a copy of which was duly served on the Respondent by
revered mail on the same day.
Sec. 8(a)(1) of the Act makes it an unfair labor practice for an employer
"to interfere with, restrain , or coerce employees in the exercise of the rights
guaranteed in section 7," Insofar as pertinent , Sec. 7 provides that
"[elmployees shall have the right to self -organization, to form. join or assist
labor organizations , to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection ...."
Sec. 8(a)(3), with certain qualifications not material herein , prohibits an
employer "by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage member-
ship in any labor organization
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
corporation with its principal office at Akron, Ohio. Al-
side, Inc., is a wholly-owned subsidiary of the United
States Steel Corporation. The Respondent is engaged in the
nonretail sale of aluminum and steel siding and other relat-
ed building materials for installation on private homes. It
operates 40 such facilities throughout the United States,
one of which is located in Pittsburgh, Pennsylvania, and is
solely involved in this case. In the course and conduct of its
business operations, the Respondent during the past 12
months directly shipped goods valued in excess of $50,000
from its Pittsburgh facility to points outside that State.
The Respondent admits, and I find, that it is an employ-
er engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that General Teamsters, Chauffeurs and
Helpers Local 249 a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. Introduction ; the issues
As indicated above, the Respondent is engaged princi-
pally in the nonretail sale of aluminum and steel house
siding at its Pittsburgh warehouse. This facility, together
with its Cleveland and Buffalo operations, is under the
overall supervision of Executive Sales Supervisor Philip
Rose whose office is located in the Respondent 's headquar-
ters in Akron, Ohio. In charge of the Pittsburgh facility is
Sales Manager Al Nieman whose primary concern is sales
and the supervision of salesmen. Under him is Office Man-
ager Isadore (Izzie) Goldberg who handles the administra-
tive functions pertaining to the warehouse and warehouse
personnel. George Gartley is the warehouse foreman 7 who
directly supervises the work of the truckdrivers and the
warehousemen and is responsible to Goldberg and Rose.
At the time of the significant events herein, there were
some eight employees employed as truckdrivers and ware-
housemen in the Pittsburgh warehouse.
Although no evidence of an antiunion background or
union animosity on the Respondent's part was presented,
except that which might be inferred from Foreman
Gartley's conduct, later to be discussed, the Respondent is
charged with discriminatorily laying off and refusing to
recall Walter George Eyerman , an active participant in the
union movement . In defense , the Respondent strenuously
insists that its action was necessitated by poor economic
r Although it appears that prior to September I, 1974, Gartley was a
working foreman who performed manual work in addition to supervisory
duties, there is no question that he was at that time and subsequently a
supervisor within the meaning of Sec 2 ( 11) of the Act . According to Gart-
ley, on September I he was made a full-fledged supervisor without manual
functions when a full crew was working.
conditions at the Pittsburgh facility and that it selected
Eyerman for layoff solely because he had the lowest service
seniority. Also in issue is the question whether Gartley en-
gaged in coercive organizational effort. We review the evi-
dence.
2. The advent of the Union; the representation
proceeding
Because of dissatisfaction with their terms and condi-
tions of employment, the truckdrivers and warehousemen,
since the early part of 1974,4 if not before, discussed among
themselves at various times the advisability of organizing.
However, nothing came of these conversations 5 until
about July or August when the employees began to give
more serious thought to the idea of union representation.
Taking an active part in these discussions was Eyerman,
who was then a warehouseman. These discussions took
place in the warehouse during working hours, as well as
after work away from the facility. Apparently, the employ-
ees made no effort to conceal their union interest or activi-
ty and, for all that appears, the Respondent tolerated their
discussions or, at least, did not prohibit them on the ware-
house premises. Indeed, on several occasions Foreman
Gartley himself participated in such exchange of views.
A favorable sentiment for union representation having
developed among the employees, Eyerman on August 29
visited the Union's office where he informed Organizer Leo
Heckman of the employees ' union interest . Heckman
thereupon furnished Eyerman with authorization cards for
the employees to sign. Upon his return to the warehouse
the same day, Eyerman signed one card and secured signa-
tures from two employees in the warehouse. The next
morning (August 30), Eyerman signed up the remaining
five employees in the warehouse. Eyerman was the only
employee who engaged in this solicitation.
Having obtained signed authorization cards from all the
warehousemen and truckdrivers, Eyerman communicated
this fact to Heckman who promptly came to the warehouse
parking lot and received the executed cards from Eyerman.
On the same day, Heckman proceeded to the Board's Re-
gional Office where he filed a petition for a representation
election (Case 6-RC-6943), which was subsequently
amended to cover "all warehousemen and warehouse
truckdrivers." Upon learning that the employees had
signed union cards and that the Union had filed a repre-
sentation petition, the Respondent decided that, since the
employees had a right to join a labor organization if they
desired, it would maintain a position of neutrality and re-
frain from conducting an antiunion campaign to defeat the
Union. Accordingly, the Respondent instructed its supervi-
sors to avoid making antiunion statements to employees or
otherwise becoming involved in union discussions with
them. On September 19, the Respondent and the Union
4 Unless otherwise indicated , all dates refer to 1974.
5 According to employee Steve Frisco, a witness for the General Counsel,
in the early part of 1974 he was interested in bringing a union into the
warehouse and several times planned on visiting a union 's office to secure
authorization cards. However , he testified , his intentions never materialized
either because he did not have time, or was dissuaded by Foreman Gartley,
or was afraid of losing his job
ALSIDE SUPPLY CO.
executed a stipulation for certification upon consent elec-
tion. On September 30, an election was held, which the
Union won, resulting in its certification on October 8. It
appears that at the time of the hearing contract negotia-
tions were in progress.
3. Foreman Gartley's efforts to dissuade employees from
unionizing; the Apache Lounge incident
As indicated above, on a number of occasions in July
and August, before the Union's appearance at the Pitts-
burgh facility, Foreman Gartley joined in the union discus-
sions which the employees had initiated in the warehouse
and on the dock during working hours. Apparently, the
employees did not object to Gartley's participation nor do
his remarks appear to have been uttered in an unfriendly
tone. Four witnesses for the General Counsel presented
testimony concerning Gartley's statements , although it is
not clear whether any of this testimony related to the same
conversation. Thus, Eyerman testified that on different
days in July and August Gartley joined the conversations
which he (Eyerman) was having with other employees re-
garding the advantages and disadvantages of union repre-
sentation. According to Eyerman, Gartley stated that a
union would not be good for the employees and, when the
employees asked why, Gartley said that the employees
would have to work "harder" and keep "stricter hours"
and that they would end up having a timeclock, which the
Company did not then have in the warehouse. Eyerman
further testified that Gartley also said that, if the ware-
house were unionized , the employees would lose benefits
and layoffs would result. Eyerman, however, conceded that
he favored the installation of a timeclock in the warehouse
because he believed that the time worked by the employees
was not being accurately recorded by Gartley, thus causing
problems and arguments. Moreover, as will later be dis-
cussed, on July 25, prior to the advent of the Union, Akron
officials had initiated steps for the installation of a time-
clock in the Pittsburgh facility in order to improve the pro-
cessing of timecards.
Employee Michael Tharp gave the following account of
Gartley's involvement in one warehouse conversation in
August during working hours in which Tharp and other
employees were participating : That morning Gartley said
that he did not think that a union was any good . Referring
to a strike at Akron which lasted 3 or 4 months, Gartley
noted that ultimately the employees received only a 12-cent
increase . Gartley also stated that, if the Pittsburgh employ-
ees were unionized , the Company would be hard on them
as far as work was concerned and it "would be stricter";
that it would probably take away some of the paid benefits
the employees were then enjoying; and that, if a union
succeeded in getting the employees a good increase, that
most likely the Company would lay somebody off to make
up for the increase . Regarding a timeclock , Gartley re-
marked that one would be installed, thereby eliminating
lateness.6
6 Tharp testified that this was the occasion when employee Hunt, whose
resignation will be subsequently discussed, expressed to Tharp his disdain
for these remarks and his intention to quit. The above incident, therefore,
451
According to employee Steve Frisco, in the summer,
while he and other employees were discussing unioniza-
tion, Gartley would approach the group and volunteer his
views. In some of these discussions, Gartley would state
that, when a union came in, the warehouse would become
"a strict shop"; that the employees "would have to go by
the rules"; that the employees would be required to pay for
their benefits; that perhaps a timeclock would be installed;
and, if the Company "wanted to be pricks," it could start
laying off people, adding that in a slow season and with
winter coming the Company could lay off employees and
nothing could be done about it.
Employee James Heenan testified that on several occa-
sions Gartley participated in conversations in which he
(Heenan) and other employees were engaged . Heenan al-
luded to one specific discussion on the dock in which a
number of other employees were present when Gartley told
the employees that, if a union came in, the employees
would lose benefits referring, in particular, to company
paid Blue Cross and Blue Shield insurance ; that a time-
clock would be installed; that probably the employees
would lose overtime; that working conditions would be
"stricter"; and that there was a possibility of layoffs. Heen-
an also testified that on several occasions during the period
when a union was being seriously considered by the em-
ployees (probably in August) Gartley told him that he
wanted to join the Union and that he would do anything to
get into it, even if it means becoming a truckdriver. More-
over, Heenan testified that on a number, of occasions when
Gartley expressed a desire to loin a union other employees
were present'
Gartley categorically denied that he made any of the
above remarks regarding the consequences of unionization
to which the General Counsel's witnesses testified. I find,
however, Gartley was far from being a candid and reliable
witness . Indeed, his credibility was seriously impaired, not
only by inconsistent statements made in the course of his
testimony, but by the obviously untrue assertions he made
in a pretrial affidavit he had given to a Board agent, which
even his own testimony at the hearing contradicted.s On
the other hand, the testimony of the General Counsel's wit-
nesses was mutually corroborative in substantial respects
and impressed me as a more accurate recollection of what
transpired during the July-August discussions than
Gartley's denial. Accordingly, I credit the above versions
given by the General Counsel's witnesses.
On August 29, the following incident occurred at the
Apache Lounge, a local tavern. About 9 o'clock in the eve-
ning, after Gartley and employee Frisco had completed a
company delivery and assignment, they visited this bar.
When Eyerman and employees Tharp and Heenan saw
them , they, too, entered the tavern. At Frisco 's suggestion,
probably occurred in the middle of August
7 Gartley confirmed Heenan that in the course of some of these union
discussions when the subject of joining the Union was raised he expressed a
desire to do so because he was then a working foreman
9 As, for example , his statement in the affidavit that he first became aware
of the employees' interest in unionizing on August 29, 1974, is clearly un-
true Similarly false is his statement that when he was informed by Eyerman
on that date at a local tavern (Apache Lounge incident later to be discussed)
about the employees' union interest , he (Gartley) did not recall making any
comment or what else happened
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eyerman and Frisco stepped outside on the balcony where
Frisco took Eyerman to task for excluding him from cer-
tain union discussions in the warehouse and for not ap-
proaching him to sign a union authorization card. Eyer-
man explained that Frisco, who was a friend of Gartley,
might carry union information to the latter. As for the
union cards, Eyerman stated that he was soliciting the
"sure votes first." At this point, Gartley poked his head
through the doorway and inquired what they were doing.
Eyerman told him that they were talking about the union
and to leave them alone, which Gartley then did, asserting
that he was not interested anyway. Shortly thereafter Eyer-
man and Frisco returned to the bar and a few minutes later
Frisco departed?
It was not long before Eyerman and Gartley, in the pres-
ence of employees Heenan and Tharp, became involved in
an angry argument in which Gartley expressed the view
that a union was not good for the employees who would be
making a mistake if they brought one in, and in which
Eyerman criticized Gartley for the way he was handling
timecards and was treating the employees. Gartley de-
clared that he was the boss and could do anything he want-
ed to do with respect to the timecards. Eyerman disagreed,
declaring that this condition would soon cease since he had
already turned in signed union cards to the Union 10 and
the Union was going to come in . Gartley admitted that
when Eyerman informed him that the employees had
unionized he asked why Eyerman had done it since such
action was going to mess up a good job. In the course of
the argument the subject of employee Turman was raised
with Gartley charging that Turman was taking advantage
of his fellow workers and would stab them in the back. ll
The Gartley-Eyerman exchange ended with Eyerman
punching Gartley in the jaw. Gartley then left the tavern
and, while walking down the street, Eyerman caught up
with Gartley and asked him to forget the incident.12
About 8:30 or 9 o'clock the next morning (August 30),
Gartley advised Office Manager Goldberg that he had met
three employees, including Eyerman and Heenan, at the
Apache Lounge and was informed by them that the men in
the warehouse had already signed up for the Union. Ac-
cording to Gartley, he did not tell Goldberg that Eyerman
was the source of his information." Goldberg promptly
called the Akron headquarters and, since Executive Sales
9 The foregoing narration reflects credible portions of the testimony of
Eyerman , Frisco, and Gartley. Whatever variances there are in their re-
spective accounts , they are of no significant consequence.
10 Actually, as indicated above , this was not true as Eyerman completed
his solicitation the next day, August 30 , when he delivered the signed au-
thorization cards to the Union.
111 have serious doubts that on this occasion Gartley asked Eyerman to
hold off bringing the Union into the warehouse until the Company could
get nd of Turman, as Eyerman testified . None of the other employees pre-
sent at the argument mentioned such a request . Moreover, Eyerman 's pretri-
al affidavit states that a request of that nature was made in the warehouse,
although Eyerman testified that Gartley repeated it at the Apache Lounge.
12 The foregoing findings are gleaned from parts of the testimony of Eyer-
man, Heenan , Tharp, and Gartley which, in my judgment , indicate what
probably transpired at the Apache Lounge.
17 Gartley testified that he did not tell Goldberg about the assault in this
morning conversation but did later in the day . According to Goldberg,
Gartley mentioned that he had been punched but stated that he did not
know who of the three employees did it.
Supervisor Rose was in Acapulco at that time, he informed
Attorney Bussman that the men had joined the Union.
Bussman answered that he knew that and told Goldberg
not to influence the men in any way against the Union.
The same day, when Rose telephoned Akron from Acapul-
co, Bussman conveyed the information to him that the men
in the Pittsburgh warehouse had unionized.
4. The Respondent's asserted need to reduce expenses
and lay off employees; decision to lay off Eyerman
To demonstrate that Eyerman's layoff was justified by
economic considerations, the Respondent presented testi-
mony of Executive Sales Supervisor Rose, corroborated in
significant respects by Office Manager Goldberg, and sup-
ported by documentary evidence, regarding the financial
situation at the Pittsburgh facility. The evidence is summa-
rized below.
When Rose returned to his Akron office in the spring
following a 3-month absence, he reviewed the Pittsburgh
facility's financial records which showed a consistent pat-
tern in 1974 of the facility exceeding its current expense
budget and its costs of the preceding year. In an initial
attempt to reduce costs, Rose directed Goldberg starting in
May and June to cut out free doughnuts and coffee for
customers; to lay off two employees in the window depart-
ment and two employees employed on the gutter truck; to
reduce lighting expenses; and to discontinue the use of a
company car assigned to Goldberg.
Although these cost-cutting measures were promptly put
into effect, they did not prove to be sufficient. On July 12,
Rose received in Akron the Expense Ledgers for June,14
which showed that the expenses of the Pittsburgh facility
were even higher over budget than in the prior month of
May. For this reason , Rose, on July 26, visited the Pitts-
burgh facility and discussed with Goldberg the continued
operating cost problems. Rose proposed that, in addition
to the four employees previously laid off, more employees
be laid off. Goldberg, however, succeeded in persuading
Rose to take other steps in lieu of further layoffs. These
included decreasing the Saturday work complement from
eight to four employees;15 efforts to avoid overtime; elimi-
nation of Saturday truck deliveries; and changing the
warehouse business hours from 7 a.m. to 5 p.m. to 7:30
a.m. to 4:30 p.m., thereby eliminating 5 hours from the
workweek. The next day, Goldberg started to implement
these measures.
On August 12, as a result of his review of the July ex-
pense ledgers, Rose learned that the July operating costs
exceeded the budget more than the June costs exceeded the
June budget. Rose thereupon called Goldberg and in-
formed him that the latest measures did not solve the prob-
lems; that the costs were too far over budget; and that he
was under pressure from his superiors to remedy the situa-
14 For accounting purposes , the Respondent operates on the basis of a
fiscal month ending on the 25th or 26th of each month. The monthly ex-
pense ledgers are normally available for review on the 12th of the following
month
15 Saturday is an overtime day
ALSIDE SUPPLY CO.
tion. Rose, accordingly, directed Goldberg to lay off two
people in the warehouse, who were not identified, by Au-
gust 30.
On August 16, Goldberg telephoned Rose and apprised
him that employee Hunt was voluntarily leaving at the end
of August, adding that this departure would take care of
"one of our problems." At this point, Rose stated that he
also wanted Connie Gahagan,l an office clerk, laid off.
According to Rose, he thus intended that, besides Hunt,
another warehouseman and Gahagan were to be laid off,
thereby reducing the facility's employee complement by
three. Goldberg, on the other hand, testified that he inter-
preted Rose's instructions to mean that Gahagan was the
designated second warehouse employee to be laid off on
August 30 and that no other warehouseman was to go.
Consequently, in compliance with what he believed to be
Rose 's instruction , Goldberg on August 30 laid off only
Gahagan, while Hunt left the Respondent's employ the
same time. On this day, Rose was in Acapulco, returning to
the Akron headquarters on Thursday, September 5, when
he soon became preoccupied in staff meetings. On Monday
morning, September 9, after checking with the Akron per-
sonnel office whether Goldberg had carried out his layoff
directive, Rose learned for the first time that the second
warehouseman had not been laid off. Thereupon, Rose
conferred with the Respondent's president and Attorney
Bussman concerning the permissibility of laying off anoth-
er warehouseman in view of the fact that the Union had
filed a representation petition in the interim (August 30).
Upon concluding that it was permissible to proceed with
the layoff because the decision had been made long before
the Union's appearance at the warehouse, Rose telephoned
Goldberg at the Pittsburgh facility but spoke to Sales Man-
ager Nieman because Goldberg was sick at home. Rose
inquired why a second warehouseman had not been laid
off. When Neiman responded that he did not know, Rose
ordered him to ascertain who was the man with the least
seniority in the warehouse and to lay him off and inform
that employee that the action was necessitated by lack of
business and that he would be rehired when business im-
proved. Nieman checked with Foreman Gartley who told
him that Eyerman had the least service seniority among the
warehouse employees, which was a fact. Later in the morn-
ing, Nieman called Rose and conveyed this information to
him and Rose directed Nieman to proceed with the layoff.
The evidence indicates that the operating costs in Pitts-
burgh in August, September, October, and November con-
tinued to exceed the budget allocations and that the total
product sales were far below the projected sales for the
July through November period.17
16 Her name is misspelled in the transcript of testimony . Although Gold-
berg testified in his direct examination that Rose instructed him on August
12 to lay off Gahagan , he testified , under cross-examination , that he re-
ceived this directive on August 16 , as Rose testified . I find that Goldberg
was originally in error and that Rose actually issued the directive on August
16 when Goldberg called Rose to inform him of Hunt's resignation.
17 Rose testified that since about October some 26 or 27 employees were
laid off at the Respondent 's other facilities, including 5 in Buffalo and 2 in
Cleveland.
453
5. Eyerman's employment and layoff; the Respondent's
use of temporary help and overtime
Eyerman was employed by the Respondent on March 26
as a truckdriver and after a few weeks was transferred to a
warehouseman's position.18 During his entire period of em-
ployment he worked under the supervision of Foreman
Gartley. On September 3, Eyerman was reassigned to a
truckdriver's job. At the time of his layoff he was paid
$3.15 an hour and time and a half for overtime.
On Monday afternoon, September 9, Sales Manager
Nieman summoned Eyerman to his office and informed
him that, on orders from Akron, he was being laid off be-
cause of lack of work. Nieman also stated that he was se-
lected because he had the least seniority among the ware-
house employees but that he would be recalled when
business picked up.19 Eyerman, however, retorted that his
layoff was really due to his union activities. Nieman denied
the accusation and Eyerman departed.
On the day of Eyerman's layoff and during the rest of
that week, the Respondent utilized the services of tempo-
rary employees furnished by Substitute Personnel, Inc., a
manpower organization 20 These temporary employees per-
formed jobs which Eyerman and other warehouse employ-
ees regularly performed.
It is clear that Substitute Personnel for the past 2 years
has been supplying temporary help to the Respondent at
its request when the need for such services arises at a cost
of $3.25 per employee hour.21 The record also shows that
from July through November 1974 there was a dramatic
decline in the Respondent's monthly utilization of the serv-
ices of Substitute Personnel as compared with the services
furnished by Substitute Personnel during the same periods
in 1973.22 It thus appears that Substitute Personnel for a
18 Warehousemen load and unload the Company 's delivery trucks, un-
load common carriers transporting materials from the Company's Akron
plant; store stock , pull stock to fill customer orders, and keep the ware-
house clean Truckdrivers primarily load and unload company trucks and
make deliveries . However, both classifications frequently interchange func-
tions.
19 The Personnel Action Notice form, dated 9-9-74, states that Eyerman
was "laid off-lack of work . Eligible for rehire " However , the personnel
card on file in the Akron Personnel Office recites the above reason for the
layoff but the item "Rehirable " has no "yes" or "no" notation in the appli-
cable space; it only has a dash Rose explained that at the time when the
card was prepared, the personnel clerk probably did not have the informa-
tion to complete that item
20 Specifically , the record shows the following . on September 9, there
were six Substitute Personnel employees , each of whom worked 8 hours; on
September 10 there were four Substitute Personnel employees, each of
whom worked 8 hours; on September 11, the Respondent used four Substi-
tute Personnel employees , each of whom worked 8 hours, on September 12.
three such employees were utilized 4 hours; and on September 13, three
Substitute Personnel employees each worked 8 hours . Thus, for the week of
September 9, Substitute Personnel employees worked for the Respondent a
total of 148 hours
21 According to Executive Sales Supervisor Rose, the cost of such services
is not treated as an operating expense of the Pittsburgh facility but rather
enters into the cost of materials shipped by the Akron plant by common
carriers which Substitute Personnel employees unload . Rose also testified
that temporary help is also used at all of the Respondent 's other warehouse
facilities.
22 Thus, as compared with the corresponding month in 1973, there was a
decrease in services of 42 percent in July 1974, 35 percent in August; 58
percent in September , 79 percent in October ; and 48 percent in November.
Continued
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
long time prior to the advent of the Union has been an
established source of temporary help required by the Re-
spondent in its normal operations and that Substitute Per-
sonnel has also experienced substantially reduced earnings
as a result of the Respondent's declining business.
Notwithstanding, it is undisputed that following
Eyerman's layoff the warehouse employees resented and
complained about the presence of Substitute Personnel em-
ployees in the warehouse, especially if they performed
warehouse work which Eyerman was fully capable of
doing and which he had performed in the past. As a result,
the Respondent issued orders that Substitute Personnel
employees were to be utilized solely to unload Akron trail-
ers but were not to be used for other jobs unless permission
was received from Executive Sales Supervisor Rose or, in
his absence , from Attorney Bussman . Apparently these or-
ders are being observed and only occasionally have Substi-
tute Personnel employees been assigned jobs otherwise re-
stricted.
The General Counsel also relies on overtime worked by
employees both before and after Eyerman's layoff to dem-
onstrate the discriminatory nature of his layoff and the
failure to recall him. However, there is no question that
overtime which, among other things, includes the 4 hours
regularly worked on Saturday, time not used for lunch, and
time truckdrivers need to complete deliveries and return to
the warehouse, has been an established condition of em-
ployment at the facility since long before the time Eyerman
was laid off. Indeed, as noted previously, four other layoffs
not claimed to be discriminatory were effected in June,
before the appearance of the Union, and yet employees
continued to work overtime thereafter.
6. The Respondent's refusal to recall Eyerman
One day, about a week or so after Eyerman's layoff, the
warehouse was having difficulty taking care of customers
because of an apparent shortage of workers. When Office
Manager Goldberg asked employee Tharp what the trou-
ble was, Tharp stated that it was due to the fact that there
weren't enough men in the warehouse. Goldberg then in-
quired whether it would help matters if Eyerman would be
recalled and Tharp answered in the affirmative. Goldberg
thereupon said that he would telephone Akron and re-
turned to his office. Goldberg then called Rose who vetoed
the idea, attributing the situation in the Pittsburgh ware-
house to a temporary surge in business and to the men's
slowdown and unnecessary absences.
Following this conversation, Goldberg told Foreman
Gartley, who was in the office at the time, to inform Tharp
that Eyerman would not be recalled. According to Tharp's
credible testimony, Gartley reported to him that Akron re-
fused to call Eyerman back because the Labor Board
would not permit it until Eyerman had a hearing or some-
thing to that effect.23 Gartley did not contradict Tharp,
specifically admitting that he told Tharp that Eyerman
This amounts to a 48-percent decrease in services supplied by Substitute
Personnel to the Respondent over the indicated 22-week period in 1974
23 The complaint does not allege , nor is it contended, that Eyerman was
not recalled for this reason in violation of the Act.
would not be recalled "because of the hearing." However,
Gartley testified that Goldberg did not give him that rea-
son and that he (Gartley) deliberately lied and fabricated
that story because of the employees' resentment and hard
feelings over Eyerman's layoff and the Respondent's con-
tinued use of Substitute Personnel employees. Both Gold-
berg and Gartley denied that Goldberg told the latter that
it was the Labor Board hearing which barred Eyerman's
recall . In this connection, it is noted that the complaint in
this case had not yet been issued at this time. I credit the
denial.
7. Installation of a timeclock in the warehouse
In October, following the representation election previ-
ously mentioned, the Respondent installed a timeclock in
the Pittsburgh warehouse. This was the result of
management 's decision made more than a month before
the appearance of the Union and the filing of the Union's
representation petition. It appears that prior to the installa-
tion of the timeclock, timecards were kept by Foreman
Gartley. Quite frequently employees questioned the accu-
racy of the notations on these timecards which led to argu-
ments with Gartley. On those occasions, some employees
thought that a timeclock would eliminate these dis-
agreements.
On July 25, Administrative Supervisor Sedita requested
authorization from Rose to install a timeclock in the Pitts-
burgh warehouse in order to achieve "better control of the
administrative process of time cards." On August 1, Rose
authorized the installation and on August 16 a request to
repair a used timeclock, which was then stored at the
Respondent's Chicago facility, was initiated. On August
21, the repair of this timeclock was approved and an order
to repair was issued to the Mite Corporation. On October
2, the repair job was completed and the timeclock was sub-
sequently installed at the Pittsburgh warehouse.
B. Concluding Findings
1. With respect to Eyerman's layoff
As previously indicated, the General Counsel contends
that Eyerman was laid off because of his union activities,
whereas the Respondent urges that his selection for layoff
was due solely to legitimate business considerations and
the fact that he possessed the least seniority among the
warehouse employees. From a careful analysis of the evi-
dence, I find that the General Counsel has failed to sustain
his burden of proving unlawful discrimination.
There can be little doubt that there is some evidence
suggesting that. Eyerman's layoff was discriminatorily mo-
tivated. Thus, Eyerman played a prominent role in the
union movement and, in fact, was the one who made the
arrangements for union representation and successfully so-
licited from all the unit employees their signatures to union
authorization cards. Moreover, Foreman Gartley was fully
aware of Eyerman's union sympathies and was informed
by Eyerman on August 29 during the Apache Lounge epi-
sode that the employees had already signed authorization
cards which had been delivered to the Union and that it
ALSIDE SUPPLY CO.
was too late for Gartley to do anything about it. This
caused Gartley to exclaim why did Eyerman do it since it
would mess up their job . Also a suspicious circumstance is
Office Manager Goldberg 's asserted misunderstanding of
Executive Sales Supervisor Rose 's reaffirmed instruction
given to him on August 16 to lay off "another warehouse-
man" in addition to Hunt , who had given a notice that he
was quitting , and Connie Gahagan , an office employee.
On the other hand , there is uncontroverted evidence that
from early 1974 through the remainder of the year the
Pittsburgh facility was experiencing a deteriorating eco-
nomic situation which the Respondent was trying to coun-
teract with various cost-cutting measures and, when the
initial measures proved to be unsuccessful . by resorting to
others , including four layoffs in June , which is not claimed
to be discriminatory . When those steps similarly fell short
of their objectives , Rose on August 12 ordered the layoff of
two warehousemen on August 30 and on August 16 added
Connie Gahagan , an office employee , to the number of
employees to be laid off . It is significant that the latter
decisions preceded the Union 's appearance by more than 2
weeks . While Goldberg failed to lay off a second ware-
houseman because of an asserted misunderstanding of
Rose 's instructions , it does not necessarily follow that such
instructions had not actually been issued . By the same to-
ken, Eyerman 's retention until September 9 when he was
laid off does not inevitably establish that the layoff was
dictated by his intervening sponsorship of the Union. In-
deed , if the Respondent were really discriminatory minded,
it is difficult for me to believe that , having learned of
Eyerman's union involvement , it would not have relied on
Eyerman 's attack upon Gartley as an excuse for promptly
discharging him. Further negating an inference of anti-
union motivation is the fact that Eyerman actually had the
least warehouse seniority which Rose directed Sales Man-
ager Nieman on September 9 to use in selecting the em-
ployee to be laid off in the implementation of Rose's Au-
gust 12 and 16 decisions . The acceptability of seniority as a
criterion for the selection of employees in a legitimate re-
duction in force cannot be questioned in the absence of
strong evidence that it was adopted for a discriminatory
purpose . I find insufficient evidence of such purpose here.
Also indicating that Eyerman's layoff was not improper-
ly motivated is the fact that the record contains no evi-
dence of a background of unfair labor practices or union
hostility on the part of the Respondent . While there is evi-
dence , as the General Counsel points out, that Gartley
made certain remarks to employees concerning the possi-
ble adverse effects of unionization , later to be discussed, I
do not believe that they reflected company policy or atti-
tude . It is undisputed that none of Gartley's superiors or
other company official ever uttered one single word which
could be characterized as antiunion . In fact , not only were
employees permitted to carry on union discussions in the
warehouse without hindrance from the Respondent, but
after the Union filed a representation petition the Respon-
dent consented to an election and maintained a position of
strict neutrality , refraining from waging any campaign to
defeat the Union at the polls.
To support a finding of discrimination , the General
Counsel also relies on the fact that at the time of
455
Eyerman 's layoff and subsequently that the Respondent
utilized temporary help furnished by Substitute Personnel,
Inc., and permitted its own warehousemen and truckdriv-
ers to work overtime at time and a half . I find such reliance
misplaced . As shown above , the Respondent 's utilization
of Substitute Personnel was not a recent innovation to ena-
ble the Respondent to get rid of undesirable employees.
Rather , Substitute Personnel for the past 2 years has regu-
larly served the Respondent as a source of supply of tem-
porary help to meet the Respondent 's needs . Moreover, it
is undisputed that , because of the Respondent 's declining
business , Substitute Personnel itself has not been utilized in
1974 to the same extent as it had been in comparable peri-
ods in 1973 . In these circumstances , I fail to see how an
inference of discrimination against Eyerman could be
drawn simply from the fact that at the time of Eyerman's
layoff and thereafter the Substitute Personnel employees
were employed at the facility in reduced numbers . Indeed,
to draw such an inference in this case might well be tanta-
mount to interfering with an employer 's managerial right
to determine for itself how to allocate its labor costs.
Nor can I find a basis for finding discrimination in the
fact that the Respondent 's employees were working over-
time when the Respondent laid off Eyerman . True, there
are circumstances where the use of overtime might cast
doubt on an employer's asserted need to lay off an employ-
ee. However , this does not appear to be the situation here.
The evidence discloses that overtime at the Pittsburgh fa-
cility has been an established condition of employment ne-
cessitated by, among other things , the Respondent's policy
of keeping the facility open on Saturday and the need of
truckdrivers to complete their deliveries . Furthermore,
there is evidence that , when the Respondent laid off four
employees in June because of declining business, it never-
theless permitted overtime to be continued to be worked by
the remaining employees . Accordingly , under the facts of
this case , I do not regard the continuance of overtime to be
a compelling factor supporting an inference of discrimina-
tion against Eyerman.
In sum, I find that, while there are circumstances in this
case that arouse one 's suspicions of the purity of the
Respondent's reasons for Eyerman 's layoff, suspicion is
not an adequate substitute for evidence . Accordingly, I
conclude that the General Counsel failed to sustain his
burden of proving by a preponderance of the evidence that
Eyerman was laid off because of his union activities in
violation of Section 8(a)(3) and ( 1) of the Act. It is there-
fore recommended that the relevant allegations of the com-
plaint be dismissed.
2. With respect to interference , restraint, and coercion
I have found above that Foreman Gartley in July and
August participated in various union conversations in the
warehouse , which employees had initiated among them-
selves, and made certain statements concerning the conse-
quences of unionization . In substance, it has been found
that Gartley told employees that a union would not be
good for them because they would have to work "harder"
and keep "stricter hours ," adding that a timeclock would
be installed in the warehouse . Gartley also stated in these
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversations that, if the warehouse were unionized, the
employees would lose benefits they were enjoying, includ-
ing company-paid Blue Cross and Blue Shield insurance,
and that layoffs could possibly result.24
It is the General Counsel's position that Gartley's state-
ments constitute coercive threats and warnings designed to
impede the employees ' organizational effort , which are im-
putable to the Respondent and therefore are violative of
Section 8(a)(1) of the Act. I do not agree and I find that
Gartley's statements reflect only his own personal views
and opinions and not the Respondent's attitude and policy
and that the employees did not understand his comments
to be otherwise.
In determining whether a supervisor's remarks to em-
ployees are violative of the Act, they must be judged in the
context of the total circumstances and not considered in a
vacuum. Here, at the time Gartley made the statements in
question, which was before the appearance of the Union at
the warehouse, he was a working foreman who, beside per-
forming supervisory functions, physically worked along-
side rank-and-file employees with whom he apparently en-
joyed a friendly relationship. He was the lowest in the
Company's supervisory hierarchy and was the only super-
visor who ever made any comment regarding the advan-
tages or disadvantages of unionization. Yet, despite his de-
clared apprehension over the possible adverse effects of
union representation, it is undisputed that on a number of
occasions Gartley expressed a desire to become a member
even if it meant returning to his job as a truckdriver. Addi-
tionally, the record is absolutely barren of any evidence
that any higher level supervisor or responsible manage-
ment official ever expressed any views on the subject of a
union , much less voiced antiunion sentiments . Indeed, it is
clear that at no time did the Respondent prohibit employee
union discussions in the warehouse during working hours,
24 As previously indicated , employee Tharp testified that in one discus-
sion in which he participated Gartley stated that, if a union succeeded in
getting the employees a good increase , that most likely the Company would
lay off somebody to make up for the increase According to employee Fris-
co, Gartley remarked that, if the Company wanted to be inconsiderate. it
could lay people off and that in a slow season and with winter coming on
the Company could lay off employees and nothing could be done about it
which had been going on since at least the beginning of the
year. Also, when the Respondent learned that the employ-
ees had signed union authorization cards and that the
Union had filed a representation petition, the Respondent
pursued a policy of strict neutrality; consented to a repre-
sentation election; and deliberately refrained from waging
a campaign to defeat the Union at the polls.
Appraising Gartley's remarks in light of the foregoing
facts and circumstances, I am not convinced that Gartley
was doing more than voicing his personal opinion or that
his statements were intended to convey the idea that he
was speaking on behalf of management which was de-
termined to use economic power to force employees to re-
ject union representation, in plain disregard of their statu-
tory rights. Accordingly, I find that the Respondent did
not violate Section 8(a)(1) of the Act by reason of Gartley's
statements in question and the applicable allegations of the
complaint will be dismissed.25
The General Counsel also contends that the installation
of a timeclock in October was in reprisal for the employees'
designation of the Union to represent them and therefore
violated Section 8(a)(1) of the Act. Without repeating the
details previously discussed, it is sufficient to note that the
Respondent's decision to install a timeclock in the Pitts-
burgh warehouse and the action subsequently taken to im-
plement it occurred prior to the advent of the Union and
the filing of its representation petition. Accordingly, no
merit is found in the General Counsel's contention and the
relevant allegations of the complaint will be dismissed.
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 is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent has not engaged in the unfair labor
practices alleged in the complaint.
[Recommended Order for dismissal omitted from publi-
cation.]
25 Cf Las Vegas Sun, 209 NLRB 240 (1974)