CPE Industries, Ltd.

National Labor Relations Board - Board Decisions

Mar 29, 1973

202 N.L.R.B. 782 (N.L.R.B. 1973)

782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CPE Industries , Ltd. and Arthur Merkle. Case
29-CA-2824
March 29, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On November 29, 1973, Administrative Law Judge
Harry H. Kuskin issued the attached Decision in this
proceeding. Thereafter, counsel for the General
Counsel filed exceptions and a supporting brief, and
a brief in opposition to Respondent's exceptions; and
Respondent filed exceptions, a brief in support
thereof and of the conclusion of law dismissing the
complaint, and an answering brief.
Pursuant to the provisions) of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions' of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
I As there is no basis in the record for concluding there was a causal
connection between Merkle's discharge and his desire for union member-
ship, we need not pass on the Administrative Law Judge's conclusion that
Merkle's activity was not protected by the Act
DECISION
STATEMENT OF THE CASE
HARRY H. KUSKIN, Administrative Law Judge: This case
was heard at Brooklyn, New York, on July 19 and 20,
1972. A complaint issued herein on May 31, 1972, based on
a charge filed on April 4, 1972, by Arthur Merkle, an
individual, against CPE Industries, Ltd., herein called
Respondent. It alleges that Respondent violated Section
8(a)(3) and (1) of the Act by discharging and thereafter
failing and refusing to reinstate Merkle, its employee,
because he desired to join and assist Local 638, United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the U.S. and
Canada, AFL-CIO, herein called the Union, and engaged
in other concerted activity for the purpose of collective
Referred to as Kold-Flow Refrigeration by the General Counsel in his
brief Neither it nor Electro-Flo Installations, Inc , is named as a respondent
bargaining and mutual aid and protection . In its answer,
Respondent denies that it has violated the Act as alleged
herein.
Upon the entire record , including my observation of the
witnesses , including their demeanor while on the witness
stand , and after due consideration of the briefs of the
General Counsel and of Respondent , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, and Respondent admits, that
Respondent is a New York corporation with its principal
office and place of business in Farmingdale, New York,
where it is engaged in the manufacture, sale, and
distribution of refrigeration equipment and related prod-
ucts; that during the past year, which is a representative
period, it purchased and caused to be transported and
delivered to its Farmingdale plant refrigeration parts and
equipment, and other goods and materials, of which in
excess of $50,000 worth came directly from outside the
State of New York. I find, upon all the foregoing, that
Respondent is an employer as defined in Section 2(2) of
the Act, and is engaged in commerce and in operations
affecting commerce as defined in Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, and Respondent further admits,
and I find, that Local 638, United Association of
Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the U.S. and Canada, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Some Background Facts
Respondent manufactures refrigeration and air condi-
tioning units at its only plant in Farmingdale, New York.
Among Respondent's officers are George Camas and
Leonard Martin, the assistant secretary and vice president,
respectively So far as appears they and one Richard
Rauch, another officer, whose title is not disclosed by the
record, are the owners of Respondent. Camas appears to
be in overall charge of the Farmingdale facility. During the
period from October through part of December 1971, Max
Mermelstein was supervisor of the facility. He was
replaced for about a month or so by an individual not
named in the record. Since February 1972, and at least
until the time of Merkle's discharge, Martin served in such
supervisory capacity.
Respondent operates with a small complement of
employees and as extra help is needed such help is
obtained from two interconnecting companies, namely
Electro-Flo Installations, Inc, and Cold Flow Refrigera-
tion.' Thus, until the time that Merkle, the alleged
discriminatee, was hired by Respondent to do the work of
herein
202 NLRB No. 116
CPE INDUSTRIES, LTD 783
a refrigeration mechanic, namely, soldering, brazing,
flaring, and joining the tubing to the other components of
the condensing units, such work was being done for
Respondent by an employee or employees of Cold Flow
whose regular duties for that company consisted of
working as field employees in the installation of refrigera-
tion equipment. Apparently, during Merkle's tenure of
employment, Respondent obtained such help from Cold
Flow only when it had a "heavy workload." With specific
reference to the size of Respondent's complement at all
times material herein, Mermelstein testified that the entire
production force of Respondent during his tenure consist-
ed, once Merkle was hired, of Harvey La Flamme,2 Gus
Taftduterer, and Merkle. And so far as appears, just before
Merkle was discharged, the entire production force
consisted of Martin, La Flamme, and Merkle 3
Respondent's employees are unrepresented by any labor
organization. And, although the complaint alleges, as
noted above, that Respondent discharged Merkle because
he desired to join and assist the Union, the record shows,
and I find, that there was no organizational activity in
progress or pending at any time material herein in behalf
of the Union or its sister local, 638B, which apparently is
the local to which refrigeration mechanics belong. It is also
clear from the record, and I find further, that Merkle was
not a member of the Union or this sister local when hired,
and although, as will appear in more detail herein, Merkle
testified, in substance, that Camas promised to put him
into the Union if he proved satisfactory during a trial
period; and, further, that joining the Union was very
important to him, there is further testimony by him that he
has never, during his tenure of employment, been in touch
with the Union or its sister local concerning gaining
membership therein
B. Merkle's Employment History with Respondent
Upon Mermelstem's recommendation of Merkle to him
for employment, Camas interviewed Merkle, in the
presence of Mermelstefn, early in November 1971. After
inquiring as to Merkle's background andjob qualifications,
and after getting Merkle to fill out an application, which
was returned to him by Merkle within a half hour, Camas
hired Merkle at that time as a refrigeration mechanic on a
trial basis for 30 days, with the further understanding that
if the relationship proved satisfactory to both of them
Merkle would be retained. There is further testimony by
Merkle that Camas said that, if he were retained, "he
(Camas) would put [him] into Local 638," the Union
herein. Mermelstem testified along similar lines; however,
according to him, Camas said that Merkle "would be put
into the union," if retained, making reference only to the
refrigeration union and not any union local by number. In
contrast to the above, Camas denied that there was any
union discussion during this employment interview.4 I am
satisfied that Merkle and Mermelstem, whose testimony
was in large part mutually corroborative, were more
reliable witnesses than Camas. Accordingly, I infer, and
find, that Camas made it clear that he "would put" Merkle
into the craft union which had jurisdiction over refrigera-
tion mechanics in that geographical area and that Merkle
reasonably understood Camas to be referring to the Union
herein, i.e., Local 638, or to its sister local, Local 638B.
It is apparent from the fact that Merkle continued in this
employment for a period of more than 4 months that he
proved to be a satisfactory employee during his trial
period. And it is also apparent from the record that
Respondent did nothing with respect to putting Merkle
into the Union or Local 638B, despite Merkle's efforts, at
the end of his trial period and thereafter, to have
Respondent do something in that regard. Thus, Merkle
testified to the following efforts on his part: .(1) On
December 15 or 16, he had a conversation with Mermel-
stein in the latter 's office and inquired as to when he
(Merkle) was going to get into the Union and get
hospitalization benefits, to which Mermelstem replied that
he would speak to Camas about the matter.5 (2) Thereafter,
he checked with Mermelstein and was told that Camas said
that "he would take care of it."s (3) On January 1, 1972,7 a
day on which he worked for 5 hours on an overtime basis,
he met Camas on the parking lot of the Farmingdale plant
and inquired from him "about getting into the Union"; to
this, Camas replied that he would have to wait until the
Richmond Hill plants which was then closed, would
resume operations with its full complement and would be
"in the swing." (4) At the end of February, he told Martin
in the latter's office in the Farmingdale plant that his wife
was very sick, and that he had to get into the Union and
get the hospitalization because the doctor treating her was
going to hospitalize her Martin's response was that he had
nothing to do with getting into the Union or hiring, and
that he would talk to Camas. (5) On the Monday or
Tuesday following the above conversation with Martin, he
talked to Martin again, asking whether Martin had spoken
to Camas. Martin reported that he had done so, and that
Camas "would look into it." In addition, Martin advised
him that he (Martin) had asked the office manager to see
about getting the papers for the hospitalization so that his
wife would also have such coverage.9 (6) On March 6,
2 The record shows that La Flamme was a supervisor and had such
authority over Merkle at times material herein
3 In this connection , I find rather strange Camas ' and Martin 's claimed
lack of knowledge as to the names of Respondent's production employees,
let alone their inability to fix the precise size of the production complement
4 Camas did not testify with respect to the content of the interview
5 Mermelstem corroborated Merkle's above testimony
6 While Camas denied that Mermelstein ever spoke to him about a union
in regard to Merkle, I am persuaded, in the light of Merkle's above
testimony and the further testimony of Mermelstein that he did see Camas
after the inquiry by Merkle and Camas said that he would take care of the
matter and let him (Mermelstem) know, here too , the testimony of Merkle
and Mermelstefn are more reliable than that of Camas, and I credit them
rather than Camas
I All the dates hereinafter are in 1972, unless otherwise indicated
8 The record shows that Cold Flow Refrigeration and Electro-Flo
Installations , Inc , were headquartered there and that Camas had his offices
there
9 It would appear , and I find, that employees of Respondent were
provided with hospitalization benefits for themselves by virtue of their
employment , and that additional coverage for a spouse could be obtained
by any employee by making application therefor and paying for the extra
coverage
Although Martin denied that he ever discussed with Merkle the question
of joining a union, he left undenied Merkle's testimony about the discussion
between them as to the illness of Merkle's wife and Merkle's need to get for
(Continued)
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Merkle left the following message, addressed to Camas,
with Judith Cohen, Respondent's office manager: "Would
like an appointment at your earliest convenience, to
discuss raise to Refrigeration Machenic (sic) scale, as per
talk in November, I enjoy working the factory as opposed
to field work and would like to stay here as a permanent
member of C.P.E." About 2 1/2 weeks later, i.e., on Friday,
March 24, he heard from La Flamme, the plant foreman,
that Martin had called to say that Camas would see him
(Merkle) at the Richmond Hill plant about the above
message. Thereupon, he went to that plant, arriving at
about 4:30 p.m., and spoke with Camas, in the presence of
Rauch, who was at the other end of the office from both of
them. After some general conversation, Camas asked him
why he had refused to sign, at the request of management,
a statement saying that he had seen Mermelstein place
company tools into his station wagon and, in effect, steal
them. His reply was that he had never seen the document
which Camas was showing him. To this, Camas replied,
"Well, you see it now, are you going to sign it?" When
Merkle refused to sign the statement, Camas talked about
a court proceeding at which Merkle would have to take the
witness stand and tell the truth. Merkle rejoined with the
remark that he would go to court then and tell the truth,
adding that the content of the statement is not true. After
some additional conversation, during which Camas' effort
to get Merkle to sign proved abortive, Merkle inquired
about his "memo" to Camas of March 6. Whereupon, the
discussion turned to the memo. According to Merkle, two
topics were discussed, namely, whether he would get a raise
to the wage scale of refrigeration mechanic, and whether
he would be able to get into the Union. As to the former,
Camas said that Respondent gives raises only in June and
January. And as to the latter, the following occurred: He
indicated to Camas that he "was having problems, [he]
needed to get into the Union, [he] needed all [his
benefits]"; and he also reminded Camas that "you told me
that by the first of the year I would be able to go into the
Union." Camas answered, saying that, "I will have to look
at the contracts to see what I can do." To this, he replied
that, unless he got into the Union, "[he is] going to hand in
[his] notice because [he] can't go on like this." The
conversation ended with Camas saying that he "would
look into the contract" and that he (Merkle) would hear
from Camas "within a week one way or the other." io
her the hospitalization protection which would be available if he were a
member of the Union Accordingly, in view of the nature of Martin's denial
and his failure to give his version of these two episodes, which episodes, I
am satisfied, did occur, I find that Martin was less than forthright in this
respect and that Merkle gave the more reliable testimony, Accordingly, I
find that these episodes occurred in the manner testified to by Merkle
10 Camas did not testify with respect to the above episode I credit
Merkle's undenied testimony
ii Office Manager Judith Cohen testified, on direct, that she overheard
the conversation between La Flamme and Merkle and that, upon being told
of his discharge by La Flamme, Merkle became "very, very angry and
upset" and threatened , in effect , to see to it that Martin was either killed,
run over by an automobile, or beaten up However, she testified further,
during cross-examination , that all she knew about Merkie's discharge was
that La Flamme discharged Merkle at a time when she was "out in the
shop," but that she did not hear the conversation between the two of them
Noteworthy, too, in this regard, is her acknowledgement, during such cross-
C. The Notification to Merkle That He Was
Discharged
Exactly I week after the aforesaid conversation between
Merkle and Camas at the Richmond Hill office, Merkle
was discharged. According to Merkle's uncontradicted
testimony, which I credit, Thursday of that week was
payday. Prior thereto, he had inquired from La Flamme
whether he (La Flamme) had heard anything from Camas.
La Flamme said that he had not heard anything, and that,
in all probability, he (Merkle) would find a note from
Camas in his pay envelope As he did not find such a note
in his pay envelope that Thursday, he so informed La
Flamme, and La Flamme answered that he (Merkle) would
probably hear something by the next day, Friday. This
proved to be so, as he did hear around 2 p.m. from La
Flamme that "a call" had been received by La Flamme
and that he was laid off. When he inquired from La
Flamme as to the reason for the layoff, La Flamme
answered that he "had no idea." 11
D. The Aftermath of Merkle's Discharge
Merkle took the early leave offered by La Flamme and
proceeded to Richmond Hill on the afternoon of his
discharge However, his efforts to see, first, Camas and,
then, Martin, in order to learn the reason for his discharge
proved unavailing, as he was told by Cohen, the office
manager, that both of them were "gone for the day." He,
thereupon, inquired from Cohen as to whom he could see
concerning the reason for his discharge and was referred to
one Roy, the accountant. 12 Roy's answer was that he could
not furnish him (Merkle) a termination slip because he was
unaware of the reason; and that he (Merkle) would have to
return on Monday next.13 On that Monday, he tried again
to see Camas but was told by the switchboard operator
that Camas was very busy and was not available. She
added that he should see one Kay, an office employee. He
did, thereupon, see Kay and received a termination slip
from her.14 Thereafter, he inquired unsuccessfully a second
time from the switchboard operator about seeing Camas,
being told that Camas was going to be in conference
almost all day. Upon leaving, he asked the switchboard
operator to make an appointment for him to see Camas on
the coming Thursday when he would be in to claim his
pay. He returned as he had planned to do, but did not see
Camas. In the interim, on April 4, as heretofore found, he
filed the charge herein.
examination , that she swore in her preheating affidavit to a Board agent
that " La Flamme told Merkle (in her presence on the production floor) he
believed he (Merkle) was being laid off for lack of work but that, if he
(Merkle ) didn't really understand why, he should ask management " In the
light of the above variances, I find unreliable Cohen's testimony as to what
La Flamme told Merkle at the time he discharged Merkle And. I find
further that the above-mentioned attribution to Merkle by Cohen of various
threats against the life of Martin on the occasion of his being told by La
Flamme of his discharge, which Merkle denied . is also unreliable
Accordingly, I credit Merkle 's version of the conversation that ensued
between La Flamme and him when La Flamme advised him of his
discharge , and his denial that he made any threats on Martin's life
La Flamme did not testify in this proceeding
12 Cohen did not testify concerning the above
13 Roy did not testify in this proceeding
11 Kay did not testify in this proceeding, and the content of the
termination slip is not apparent from the record
CPE INDUSTRIES, LTD. 785
E. The Reasons Given at the Hearing for
Merkle's Discharge
Both Martin and Camas gave testimony as to the reasons
for Merkle's discharge. Martin testified that the conclusion
that Merkle's termination was required was reached by La
Flamme and him; that he "recorded that to George
Camas, and [that] subsequently [Merkle] was informed
that he was no longer required." He testified further, in
substance, that La Flamme and he faulted Merkle because
of (1) his lateness, (2) his attitude of wanting to do things
his own way rather than as directed by supervision, (3) his
generally poor work habits, (4) his unauthorized coffee-
breaks, and (5) the reports from the field that "workman-
ship in which Merkle was involved" was not up to industry
standards and was causing trouble and difficulty. Howev-
er, Camas' list of reasons also included absences by Merkle
more often than was reasonable.
I shall now consider the merits of all these reasons.
As to Merkle's alleged lateness, Respondent introduced
into evidence timecards for the months of January,
February, and March, which it claimed were Merkle's and
which purported to show that Merkle, whose starting time
was 8 a.m., was repeatedly late for work. Thus, these cards
show that Merkle was late on January 3, 11, 17, 18, 21, and
28; on February 1, 2, 3, 4, 9, 10, 11, 14, 17, 18, 23, 24, and
29; and on March 1, 2, 7, 8, 9, 10, 13, 14, 15, 20, 21, 23, and
27. The lateness in these instances ranged from 1 minute to
42 minutes; and, of the 32 instances of alleged lateness, 13
showed lateness of less than 10 minutes, 10 showed
lateness of between 11 and 15 minutes, 4 showed lateness
between 16 and 20 minutes, I showed lateness of 22
minutes, 2 showed lateness of 26 minutes, 1 showed
lateness of 29 minutes, and 1 showed that Merkle was 42
minutes late However, the accuracy of these cards is open
to question in that (1) the timeclock involved consistently
punched a date in July, irrespective of the month and date
which were current, and registered p.m. hours instead of
a.m. hours, and vice versa, so that the punch-in time for
Merkle showed that his 8-hour day spanned 2 days; (2) the
actual date of the month was shown in ink, and was written
in each day by office personnel of Respondent alongside
the time purportedly imprinted by Merkle on his card on
that date,t5 (3) with respect to the claimed lateness on
January 28, the timecard for that date shows an initial
imprint which was erased and may well have been a time in
advance of 8 o'clock, and then has imprinted below it a
punch- in time of 8 :40, and, in addition, the space alongside
where Respondent customarily wrote in ink only the actual
date, also shows the time, in ink, to be 8.20, (4) with
respect to the claimed lateness on February 24, the
timecard for that date shows that the initial imprint on the
timecard has been crossed out in ink so that it is not
recognizable, and then imprinted below it is a punch-in
time of 8:42, and (5) with respect to the claimed lateness on
March 10, the timecard for that date shows an initial
imprint of 7:56 and a second imprint on top of it of 8:19;
and (6) the physical evidence of tampering on the cards in
the three respects noted above is unexplained in the record.
In all these circumstances, including the admitted deficien-
cies in the timeclock's mechanism, the resulting improvisa-
tions by Respondent in order to compensate for these
deficiencies, and the unexplained tampering with some of
the timecards in evidence purporting to pertain to Merkle,
and in view of Merkle's denial that these timecards were a
true record of his clock-in times during these 3 months,16 I
conclude, and find, that the record does not preponderate
in favor of a finding that the timecards in evidence are
entitled to probative weight.
It is contended by Respondent, in effect , that the
claimed lateness, along with the other claimed derelictions
on the part of Merkle mentioned above, were called to
Merkle's attention by management. However, Merkle,
when asked twice during cross-examination by counsel for
Respondent whether he had any conversation about
lateness with any of Respondent's officers or supervisors
(Martin being named specifically at one time), denied
having had any.17 In support of the foregoing contention,
Respondent adduced testimony by both Camas and
Martin. Camas testified that near the end of February or
early March, he "received considerable conversation from
Martin with reference to Merkle being late consistently,
taking excessive coffee breaks and not following the
instructions basically of his supervisor (La Flamme)." He
thereupon told Martin "to work it out and see if he could
get the work done a little better," as Respondent was busy
at the time and could use Merkle during the busy period.
Martin agreed to try to work it out. Martin's testimony, in
this regard, is as follows: Either at the end of February or
during the first week in March he talked to Merkle about
Merkle's lateness, coffeebreaks, and general work habits,
and about the field reports he had of failures or leakages
on finished products on which Merkle had done work for
Respondent. He then told Merkle that he (Merkle) had to
"shape up" because neither his work nor his lateness could
be tolerated, and Merkle replied that he had personal
problems relating to his wife and was "under a load" and
"would try to do his best to bring himself back to the good
graces of [Respondent]."
I find, however, that Camas' and Martin's testimony as
to developments after these alleged conversations cast
doubt on the reliability of all their testimony relating to
their preoccupation with, and steps taken concerning,
Merkle's claimed derelictions. Thus, according to Martin,
he spoke to La Flamme twice during March, i.e.. during
the first week in March and at the end of March; that, on
the first occasion, he told La Flamme of his recent
conversation with Merkle and that he "was going along
with Mr. Merkle's request that he be given so-called second
chance . . "; that La Flamme's opinion was that Merkle's
"work was not good enough for [Respondent's] operation,"
but he (Martin) kept Merkle on despite La Flamme's
15 The parties stipulated that the timecards of all of Respondent's
employees during the period here involved were as described in (1) and (2)
above
lb According to Merkle, he had never been as late as many times as
shown by the timecards He also testified, without contradiction, that there
were times when he spoke to La Flamme and claimed that the timeclock
was 20 to 25 minutes fast, and La Flamme's answer was " that he comes
in early and reads his newspaper and that he puts [the clock ] ahead, and
[not to ] worry about it because this way you beat the traffic going home at
night "
17 He was not asked whether he had conversations as to the other
claimed derelictions
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommendation ; that, on the second occasion, La
Flamme told him that, "although [Merkle's] work had
shown improvement initially, he was back again where he
was before and that he (La Flamme) still recommended his
discharge", and that he (Martin) thereupon reported to
Camas, "[his] immediate superior ," that La Flamme and
he "were of the opinion that [ Merkle ] should no longer be
in [Respondent's] employ." It is noteworthy, in respect to
the above, that Martin made no mention to La Flamme,
during the first conversation with him, of having had a
prior conversation with Camas about Merkle during which
he was told by Camas, as Camas testified, "to work it out
and see if he (Martin) could get the work done a little
better." Indeed, Martin's testimony was, as found above,
that he told La Flamme that he was going along with
Merkle's request that he be given a second chance , and not
that Camas had instructed him to do so because Respon-
dent was then in a busy period. It is also noteworthy that
Martin's testimony makes no reference to having had a
conversation, in the intervening period between the above
two conversations with La Flamme, with Camas concern-
ing Merkle 's claimed derelictions . In this connection, the
testimony by Camas, if believed, undercuts Martin's
testimony that it was not until after his (Martin's)
conversation with La Flamme the second time that steps
were initiated by him with Camas to effect Merkle's
discharge. Thus, Camas testified that, on March 16, he had
another conversation with Martin about Merkle's work
performance, that Martin expressed continued dissatisfac-
tion with Merkle's work and indicated that he would like to
discharge Merkle; that he then agreed with Martin's
recommendation that the discharge should occur at the
end of March; and that the reason for picking that
termination date was "only to complete the work and see if
we could get another man to replace him." And on the
separate question of Camas' credibility, it taxes one's
credulity to believe, as he testified, that he did not "really
know" whether the unsatisfactory work, mentioned by
Martin, related to work performed during the approxi-
mately 2-week period since his prior conversation with
Martin about Merkle or to work performed before Merkle
was to be given the chance "to work it out."
In further appraising Respondent's claimed preoccupa-
tion with Merkle's work habits, I note the following.
There is absent any evidence as to the manner in which
Merkle demonstrated his alleged attitude of wanting to do
things on his own, rather than as directed by supervision.
Accordingly, I conclude, and find, that the record fails to
sustain Respondent's claim that Merkle had such an
attitude.
As to the claim that Merkle had generally poor work
habits, it would appear that Respondent is attributing to
him not only lateness and unauthorized coffeebreaks, but
also absence from work more often than reasonable. I have
already found that the record fails to establish Respon-
dent's claim of lateness. As to unauthorized coffeebreaks, I
find it unnecessary to decide whether Merkle had, over a
to The timecards in evidence list six absences during January, February,
and the first half of March One is marked "sick " As to the others, Merkle
acknowledged losing I day because of car trouble on the way to work, and 2
days because of court appearances There are no details in the record as to
period of time, taken coffeebreaks at times other than the
10 a m. and 2 p.m. scheduled coffeebreaks , because, apart
from other considerations , Martin testified that there was
an improvement with reference thereto after he spoke to
Merkle about it and other claimed derelictions at the end
of February or the first week in March . It follows
therefrom, and I find , that, assuming without deciding, that
Merkle was for a period guilty of unauthorized coffee-
breaks which became a bone of contention between
Respondent and Merkle , it ceased being such during the
last month of his employment tenure . And, as to absences
by Merkle from work more often than reasonable, Camas
testified that Martin complained about this to him during
their conversation on March 16 . However , Martin made no
mention , during his testimony , of discussing such absences
with Camas in March when the derelictions of Merkle were
allegedly mentioned and considered , nor did he refer
thereto in the course of detailing his alleged conversation
with Merkle at the end of February or early in March
concerning Respondent 's claimed dissatisfaction with his
work and work habits . In view of the above , I conclude,
and find , that the inclusion by Camas of Merkle's
absences18 as one of the operative considerations in the
decision to terminate him was an afterthought . It follows
from all the foregoing , and I find , that the record fails to
establish Respondent 's claim that Merkle 's poor work
habits, including his lateness, his unauthorized coffee-
breaks and his absences from work , were reasons for his
discharge.
As to the further claim that Merkle 's work "was not up
to industry standards and was causing trouble and
difficulty" in the field at the installation stage , notably
leakages of freon gas , the record discloses the following:
Martin testified to having received complaints from the
field that manufactured products on which Merkle had
connected the refrigerating tubing to other components 19
were not made in a gas -tight manner. Yet, (1) neither he
nor any witness for Respondent refuted Merkle 's testimo-
ny, which I credit, that the machines or condensing units
produced by Respondent are not checked for leaks before
they leave the plant and that the only way the unit can be
tested is at the installation stage when the installers, who
have much more sophisticated equipment than Respon-
dent, tie the unit into the refrigeration or cooling system;
(2) neither did Martin nor any witness for Respondent
refute Merkle's further testimony, which I also credit, that
the loss of large amounts of freon gas, which allegedly
occurred , was chargeable to the installers since they should
have tested the equipment for leaks before charging the
unit completely with freon gas; and (3) nor is there any
testimony to buttress Martin 's mere assertion that it was
Merkle who was making the mistakes on these condensing
units concerning which he had complaints from the field.
In this connection , I attach no probative weight to a bill, in
evidence as Respondent 's Exhibit 2, from Arco , Inc., a
customer of Respondent , for $276 .87, assertedly expended
by Arco, Inc., for repairing "a leak on a liquid line between
the other two absences listed on the timecards
19 Merkle testified that during his employment tenure he had worked on
some 80 to 100 refrigeration units
CPE INDUSTRIES , LTD. 787
receiver on unit at Valley Farm"; for charging the system
with freon gas; and for adding oil to the compressor. For,
in addition to the considerations mentioned above, I note
that the bill is dated May 26, 1972, about 2 months after
Merkle's discharge, and nowhere does it appear when the
finished machine was shipped by Respondent. It is,
therefore, equally consistent with the probabilities of the
situation to conclude that this whole transaction postdated
Merkle's discharge. In all these circumstances, and even
granting that Merkle made some mistakes during his
employment tenure in the course of working on some 80 to
100 machines, I am unable to find that the record
preponderates in favor of a finding that the mistakes
mentioned by Respondent herein, which Respondent
attributed to Merkle and which allegedly resulted in
complaints from the field, were, in fact, made by him. Of
added significance in this regard is the absence of any
evidence herein as to whether Respondent, after receiving
these complaints from the field, investigated them and
satisfied itself that they were valid and attributable to
Merkle. Accordingly, I find, here too, that this asserted
reason for Merkle's discharge does not withstand scrutiny
and is consequently lacking in merit.
There still remains for consideration Martin's testimony,
on redirect, that another consideration at the time of
Merkle's discharge was that work was slowing up at the
plant. It is noteworthy that this reason was not included by
Martin, on direct, when he listed the reasons for Merkle's
discharge. In addition, Camas did not, during his testimo-
ny, mention this as a reason for Merkle's discharge.
Further, the above testimony by Martin, on redirect, is at
odds with the testimony of Camas that the reason for
deciding on March 16 to discharge Merkle at the end of the
month was "only to complete the work and see if we could
get another man to replace him." In view of the above, I
find that the aforesaid reason also does not withstand
scrutiny and is therefore lacking in merit.
In sum, therefore, in view of the confused state of the
record made by Respondent as to the extent of Respon-
dent's preoccupation with, and the steps taken by it
concerning, Merkle's claimed derelictions, and, in view of
my findings above that the reasons stated by Respondent
for Merkle's discharge are not supported by the record and
are thus lacking in merit, I conclude, and find, that the
reasons asserted by Respondent for the discharge of
Merkle were not the real reasons.
I come therefore to the General Counsel's contention, in
his brief, that the real reason for Merkle's discharge was his
protected activity, namely, "his demands to be put into
Local 638B as promised, a demand last reiterated on
March 24, 1972, and met with the promise that it would be
20 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
resolved `one way or the other' within a week." I cannot
agree, for the following reasons: It is patent, and I find,
that Merkle was not seeking the assistance of Respondent
to gain such membership in order to utilize that member-
ship as a vehicle to change, improve, or modify any of his
conditions of employment; rather, he was seeking thereby
to gain entitlement to the benefits which would derive from
such membership qua member and not qua employee.
Therefore, without passing upon such questions as whether
Respondent had, in promising to put Merkle into Local
638B, undertaken an impossible task, or whether, if
Respondent could have accomplished that task, Respon-
dent would have contravened the Act by so doing, I find
no warrant in the Act for concluding that Merkle's pursuit
of this objective falls within the ambit of concerted or
union activity protected by the Act, and the General
Counsel has cited no authority in Board or court cases
therefor. Accordingly, notwithstanding my findings hereto-
fore that Respondent's asserted reasons for the discharge
were not the real reasons therefor, and notwithstanding the
fact that the real reason is not ascertainable from this
record, it follows, in view of the well-established principle
that an employer may discharge an employee for any
nondiscriminatory reason or for no reason at all, that the
allegations of the complaint herein that Respondent
violated Section 8(a)(3) and (1) of the Act by discharging
Merkle on or about March 31, 1972, have not been
sustained by the record.
Upon the basis of the entire record, I make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce and in
operations affecting 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. Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) and (1) of the
Act by discharging Arthur Merkle on or about March 31,
1972.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
I hereby issue the following recommended:
ORDER 20
The complaint is dismissed in its entirety.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes