General Films

National Labor Relations Board - Board Decisions

Apr 30, 1992

307 N.L.R.B. 465 (N.L.R.B. 1992)

465
307 NLRB No. 67
GENERAL FILMS
1 The Respondent has requested oral argument. This request is de-
nied as the record, the exceptions, and the brief adequately present
the issues and the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In his decision, the judge spelled Joan Supinger’s name incorrectly
as ‘‘Suppinger.’’
General Films, Inc. and Glass, Molders, Pottery,
Plastic and Allied Workers International
Union, Local 45B, AFL–CIO–CLC. Cases 9–
CA–26842, 9–CA–26976, 9–CA–27220, and 9–
RC–15400
April 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 6, 1991, Administrative Law Judge Rich-
ard A. Scully issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, General Films, Inc., Cov-
ington, Ohio, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
IT IS FURTHER ORDERED that Case 9–RC–15400 is
severed and remanded to the Regional Director for Re-
gion 9 with the direction that, within 14 days of this
decision, he open and count the ballots of employees
Michael Barga, Dennis Cantrell, and Mike Smith,
serve upon the parties a revised tally of ballots, and
thereafter issue the appropriate certification.
Eric A. Taylor, Esq., for the General Counsel.
Daniel C. Mccarthy Esq., of Greenwood, Indiana, for the Re-
spondent.
Mary L. Crangle, Esq., of Haddonfield, New Jersey, for the
Union.
DECISION
RICHARD A. SCULLY, Administrative Law Judge. On
charges filed by Glass, Molders, Pottery, Plastics and Allied
Workers International Union, Local 45B, AFL–CIO–CLC
(the Union) on September 25 and November 6, 1989, and on
January 30, 1990, the Regional Director for Region 9, Na-
tional Labor Relations Board (the Board), issued a complaint
on November 9, 1989, and consolidated amended complaints
on December 21, 1989, and March 8, 1990, alleging that
General Films, Inc. (the Respondent) committed certain vio-
lations of Section 8(a)(1), (3), and (4) of the National Labor
Relations Act (the Act). The Respondent filed timely answers
denying that it had committed any violation of the Act.
A hearing was held in Dayton, Ohio, on August 7 and 8,
1990, at which all parties were given full opportunity to par-
ticipate, to examine and cross-examine witnesses and to
present other evidence and arguments. Briefs submitted on
behalf of all parties have been given due consideration. On
the entire record and from my observation of the demeanor
of the witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
At all times material, the Respondent was a corporation
engaged in the manufacture and sale of plastic packaging
materials and related products at its facility in Covington,
Ohio. During the 12-month period preceding November
1989, a representative period, the Respondent, in the course
and conduct of its business, sold and distributed from its
Covington, Ohio facility products, goods, and materials val-
ued in excess of $50,000 directly to points located outside
the State of Ohio. The Respondent admits, and I find, that
it is an employer engaged in commerce within the meaning
on Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that at all times mate-
rial the Union was a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent manufactures industrial packaging mate-
rials consisting of various types of plastic bags which are
produced on machines in its extrusion department. Approxi-
mately 20 percent of its output undergoes further processing
in its conversion department. Because of the continuous na-
ture of the manufacturing process, the extrusion department
runs 24 hours a day, 7 days a week, utilizing two work
crews working 12-hour shifts. There are four crews in this
department working a schedule of 3 days on and 2 days off.
The converting department works two shifts per day, Mon-
day through Friday.
The Union filed a petition seeking to represent certain of
the Respondent’s employees on September 30, 1988, and the
Board conducted an election on November 15, 1988. After
a hearing, the Board resolved challenges to the ballots of
several employees, including four extrusion operators, by de-
termining that they were not supervisors and were eligible to
vote in the election. The Board also had determined that the
Union’s objections to the election should be sustained, result-
ing in another election being held on August 25, 1989.
Thereafter, the Board overruled the Employer’s challenges to
the ballots of extrusion operators Michael Barga, Dennis
466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Hereinafter, all dates are in 1989 unless otherwise noted.
2 E.g., Rolligon Corp., 254 NLRB 22 (1981); Intertherm, Inc., 235
NLRB 693 fn. 6 (1978). Roeth’s remark was not alleged to be a vio-
lation of the Act; however, even conduct which does not violate the
Act can be used to show union animus on the part of a respondent.
Best Products Co., 236 NLRB 1024, 1025 (1978); Sun Hardware
Co., 173 NLRB 973 fn. 1 (1968).
Cantrell, and Michael Smith and ordered that the challenge
to the ballot of Joan Supinger be set for hearing.
B. The 8(a)(1) and (3) Allegations
The complaint alleges that the Respondent violated Section
8(a)(1) and (3) of the Act by issuing disciplinary reprimands
to employees Michael Smith and Andrew Farrier, by sus-
pending Farrier for 7 days and by discharging employee
Timothy Chappie because of their protected activities and
support for the Union. The Respondent contends that all of
these actions were taken for cause. Under these cir-
cumstances, where the employer’s motivation is an issue, the
Respondent’s actions must be analyzed in accordance with
the test outlined by the Board in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (lst Cir. 1981), cert. denied
455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983). This requires that
the General Counsel make a prima facie showing sufficient
to support the inference that protected activity by its employ-
ees was a motivating factor in the Respondent’s decision to
take disciplinary action against them.
1. Andrew Farrier and Michael Smith
Smith testified that he contacted the Union about rep-
resenting the Respondent’s production and maintenance em-
ployees in June 1988. Thereafter, he solicited signatures on
authorization cards and returned them to the Union. He testi-
fied that he wore a union button in the plant for over a year
and was observed doing so by several supervisors. He at-
tended the Board hearing on the challenged ballots and sat
at the counsel table with the Union’s representatives. Smith
testified to several conversations with management personnel
concerning his involvement with union organizing. In 1987,
during an organizing drive by the Teamsters, he was asked
by Supervisor Larry Weikert why he was attempting to orga-
nize only the ‘‘downstairs people’’ and why he felt a union
was needed. At about the same time, Company President
John Roeth asked him if he was doing the right thing by get-
ting a union in there. Roeth also called him in about a week
before the election in 1987 and asked what the employees
wanted. Smith testified that on ‘‘Employee Appreciation
Day,’’ about a month or two before the election in 1988,
Roeth spoke to him in the plant, saying, that he saw they
were going to bump heads again and he thought that he had
kicked Smith’s ass good enough the first time that he would
not try it again. Roeth asked why Smith didn’t just go ahead
and quit if he was so unhappy with the place and Smith re-
sponded that he planned on retiring from there.
Andrew Farrier testified that he attended union meetings
and that he indicated his support for the Union by wearing
a union button on his jacket at the plant for 2 weeks and by
displaying the words ‘‘Union Yes, 45B’’ on his tennis shoes
which he wore to work everyday. About a week before the
election in 1988, he had a conversation with Roeth in which
he said he was sorry to hear that Farrier thought a union was
needed to solve his problems. Farrier testified that he at-
tended the Board hearing on the ballot challenges in April
1989 and sat with the Union’s representatives. About a
month later, Production Manager Norman Slade spoke to him
in the warehouse at the plant. Slade told Farrier that he
wasn’t doing his work properly and that he was a bad em-
ployee. Slade said that Farrier had a bad attitude and that he
didn’t know anyone in his right mind that would take a
whole day off to sit at a hearing that was none of his busi-
ness. Slade also told Farrier that if he did not change his atti-
tude he was going to write him up or worse.
On June 14, 1989,1 the Respondent issued a written warn-
ing to Farrier for being in the plant without authorization
during his nonworking time. The warning notice also stated
that in the event of another similar violation he would be
suspended for 7 days. Farrier had come into the plant during
his off-hours to bring some sandwiches to Michael Smith
who was working. In September, Farrier was issued a written
warning and notice of a 7-day suspension for again being in
the plant without permission during his nonwork time. Far-
rier had been on sick leave and came into the plant on Sep-
tember 19 to repay some money he owed Smith. As he was
leaving he encountered Slade who was entering the plant. A
day or two later while at the plant Farrier was called in by
his Supervisor Larry Huber who gave him the warning and
suspension notice. Farrier served the 7-day suspension before
returning from sick leave in October. On September 21,
Smith was issued a written warning and a notice of a 1-day
suspension for allowing Farrier to come into the plant on
September 19. Smith has never served the 1-day suspension.
The credible and uncontradicted testimony of Smith and
Farrier establishes that they were active supporters of the
Union and that the Respondent was aware of that support.
I find that there is evidence of union animus on the part of
the Respondent based on the Respondent’s opposition to the
Union’s organizing campaign and Roeth’s statements to both
Smith and Farrier indicating his unhappiness with their sup-
port for the Union. I also find evidence of animus in Roeth’s
remark to Smith while discussing the Union that if he was
unhappy working for the Respondent he should quit. The
Board considers such statements to be unlawful threats of
discharge since they imply that support for a union and con-
tinued employment with the employer are incompatible.2 I
also find evidence of union animus in Slade’s remark to Far-
rier that he had a ‘‘bad attitude’’ during the same conversa-
tion in which he criticized Farrier for attending the hearing
on election challenges. Although Slade said he did not recall
saying anything to Farrier about attending the hearing, he did
admit to having a discussion in which he criticized Farrier’s
work and threatened to write him up. Slade did not specifi-
cally deny referring to Farrier’s attitude. I credit Farrier’s ac-
count of the conversation which was quite detailed and be-
lievable and which Slade’s testimony does not really con-
tradict. I find that the conversation occurred as Farrier de-
scribed it. Under the circumstances, it appears that the term
‘‘attitude’’ was being used by Slade as an indirect reference
to Farrier’s union activities or sympathies. See Virginia
Metalcrafters, 158 NLRB 958, 961–962 (1966); Winn-Dixie
Greenville, 157 NLRB 657, 662 (1966).
Based on this evidence, I find that the General Counsel
has made out a prima facie case that the disciplinary actions
467GENERAL FILMS
against Smith and Farrier violated Section 8(a)(3). Under
Wright Line, supra, the burden shifts to the Respondent to
show that it would have taken the same action even in the
absence of protected activity.
The Respondent contends that Farrier was disciplined for
violating a longstanding rule prohibiting employees from
coming into the plant without permission when they were not
working. There is undisputed evidence that Michael Smith
was given a written warning for violating this rule in Feb-
ruary 1988. Extrusion Department Manager Larry Huber tes-
tified that this rule has been in effect for at least the 4 years
that he has been at the plant. He testified that in May, prior
to the time that Farrier received his first warning, he was in-
formed that Farrier was coming into the plant during his off-
hours without permission. Huber spoke to Smith and told
him that he was not to let Farrier come in when he was not
working. His testimony is unclear as to whether he also
spoke to Farrier about it. However, at that time Huber posted
a notice, dated May 18, on a bulletin board where he fre-
quently posted things stating that no one who was not work-
ing was to visit the plant during off-hours without permission
except during a specified period on Thursdays for picking up
paychecks. When he subsequently learned that Farrier has
been in the plant without permission, he gave him a written
warning and told him that if it happened again he would be
given a 7-day suspension. He also spoke to Smith about it,
but did not give him a warning at that time. When Farrier
came into the plant a second time without permission, Huber
suspended him for 7 days.
Michael Smith testified that the notice concerning the rule
was not posted on the bulletin board until a month after Far-
rier was written up and suspended for violating it in Sep-
tember. According to Smith, when the notice was posted
someone wrote the date it was posted on the notice which
was later crossed out by the Respondent. Farrier also testified
that the notice was not posted at the time he was first written
up and was not put up until late October or November. He
said that when he received the first warning he complained
about it because no such rule was posted and other people
were doing the same thing. Based on this, counsel for the
General Counsel contends that Farrier was disciplined for
violating an unpublished rule. I do not agree. I found Huber
to be a credible witness and I believed his testimony that he
had posted a notice about the rule in May. Huber credibly
testified that at the time employee Randy Pritchard was given
a written warning for violating the rule in June, the notice
was on the bulletin board and he pointed it out to Pritchard.
At a later time when someone removed the notice, he got a
copy from the office files and reposted it. I find that the evi-
dence establishes that the Respondent had in force a rule pro-
hibiting employees from being in the plant during off-hours
without permission and that the rule was posted in the plant
prior to the time Farrier was first disciplined for violating it.
Consequently, the Board’s decision in Northern Wire Corp.,
291 NLRB 727 (1988), cited by the General Counsel, is in-
apposite.
Counsel for the General Counsel also contends that the
rule against being in the plant during nonworking time was
applied to Farrier in an unduly harsh and disparate manner.
I do not find that the evidence establishes that to be the case.
It is clear that when Farrier was given the warning for vio-
lating the rule in June, he was specifically told that if he vio-
lated the rule again he would be given a suspension. The fact
that Huber testified that he felt 2 or 3 days would have been
enough is immaterial. He testified that Slade determined the
length of the suspension and that he informed Farrier that it
would be 7 days, if there were another violation, at the time
he gave him the warning. There is no evidence tending to
show that the length of the suspension was inordinate given
Farrier’s flagrant disregard of the rule and his first warning
or that other employees were treated more leniently. The fact
that when Pritchard was given a written warning for violating
the same rule the warning form he received did not state the
penalty for a subsequent offense does not amount to more le-
nient treatment. Huber’s credible and uncontradicted testi-
mony was that at the time Pritchard was given the warning
he told Pritchard that a second violation would result in a 7-
day suspension. That statement was not a belated assertion,
as the General Counsel suggests, but was a part of his direct
testimony. In any event, there is no evidence that Pritchard
or anyone else received a lesser penalty than Farrier for a
second violation of the rule.
The evidence also fails to establish that the Respondent
applied the rule in a disparate manner. Although Smith and
Farrier testified about other employees being in the plant
without permission and not being disciplined, neither estab-
lished that he had knowledge that they were, in fact, there
without permission or, if they were, that a supervisor was
aware of their presence. Further, none of the instances they
described involved circumstances comparable to those which
led to the disciplinary action against Farrier. There was evi-
dence that employee Wilbur Sink was often in the plant out-
side of his regular working hours. However, the credible tes-
timony of Slade and Huber was that Sink was the Com-
pany’s maintenance man who was authorized to be in the
plant at any time it was necessary to repair or work on
equipment. Farrier testified that he had pointed out to Huber
that employees Ted Hardenbrook and Tim Garland were in
the plant during off-hours without anything being done.
Huber credibly testified that he only recalled Farrier asking
about Garland who was in the plant during the daytime. He
asked Garland what he was doing there and was told that he
was there to get some insurance papers in the office. Garland
asked Huber if he could come back and visit and Huber told
him that he could not. As discussed above, Randy Pritchard
was reported to have come into the plant without permission
on a Sunday and he was given a written warning. Although
the alleged visits to the plant by employee Tony Slade, the
son of Supervisor Norman Slade, were not explained by any
of the Respondent’s witnesses, in the absence of any evi-
dence establishing that he did not have permission to be
there, I find that his presence in the plant, without more, is
insufficient to establish that Farrier was the victim of dis-
parate treatment. On the contrary, it appears that Farrier was
disciplined after he had deliberately entered the plant during
his off-hours without permission with the knowledge that he
was violating the rule and exposing himself to further dis-
ciplinary action. It also appears that Smith was given a warn-
ing but not suspended after he took no action to prevent Far-
rier from visiting him at the plant after being specifically told
not to allow Farrier to do so. Considering all of the cir-
cumstances, I find that the Respondent has established that
it would have taken the same action with respect to Smith
468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and Farrier even in the absence of prounion activity on their
part. I shall recommend that these allegations be dismissed.
2. Timothy Chappie
Timothy Chappie was employed by the Respondent as an
assistant operator in the extrusion department and worked on
the same shift as Michael Smith. Chappie testified that he
was a union supporter, that he had signed an authorization
card for the Union, attended some union meetings, wore a
union button to the plant one time and handed out union
leaflets outside the plant on one occasion before the election
in 1988.
On the night of January 18, 1990, Chappie had some dif-
ficulty with the machinery that he was operating which re-
sulted in his producing a large amount of scrap. Chappie tes-
tified that as his frustration with the machinery grew he
wrote a series of comments on an inspection data sheet (IDS)
which is used to record information concerning production
and any problems encountered. According to Chappie, he
wrote the following on the IDS that night: ‘‘We need new
management or burn it down and start over again without
Jack, Norm and LW’’ and ‘‘The edge guide is a piece of
shit.’’ Sometime during the night Chappie crossed out the
entire comment about management and the word ‘‘shit’’ be-
cause ‘‘I didn’t think they would appreciate me criticizing
management.’’ When Chappie reported for work on January
22, his next scheduled workday, he was summoned to
Roeth’s office where Roeth, Slade, and Weikert were
present. Roeth showed him the IDS and asked him if he
knew who had written the comments that had been crossed
out. Chappie said that he did not. Roeth said that Chappie’s
name was on the paper and that it came from his shift so
that someone on that shift had written it. Roeth said that be-
cause Chappie would not say who wrote the comments he
was being terminated and handed him a termination notice.
Roeth also told him if he knew who did it to give him a call.
Smith testified that on January 22 he was called to Roeth’s
office, shown the IDS with the crossed out comments and
asked if he has written them or if he knew who had. When
Smith said that he did not, Roeth told him what he thought
the comments were and said that someone was going to be
fired for writing them and it was probably going to be Tim
Chappie because his name was on the IDS. Smith was sent
to another office to wait and was later called back to Roeth’s
office. Roeth told him that they considered the writing on the
IDS to be a serious threat and that Chappie was going to
take the blame although he had not confessed unless some-
one else admitted doing it. Later that night Smith had a con-
versation with Weikert and Ron Chappie, Tim Chappie’s
brother. Smith testified that Weikert talked about Tim Chap-
pie being dismissed and said that he knew Smith’s shift had
problems because of Smith’s involvement with the Union
and that he had spoken to Roeth about it and told him to
be more fair as he had been unfair with them just because
of Smith’s involvement with the Union.
The evidence establishes that Chappie was a union sup-
porter and that the Respondent was aware of that fact. Slade,
although denying that he had actually seen Chappie and his
brother handing out leaflets for the Union outside the plant,
admitted that it was brought to his attention at the time and
that he was probably aware of Chappie’s involvement in the
leafletting. Beyond that knowledge on the Respondent’s part,
there is little to connect Chappie’s discharge to the limited
union activity in which he had engaged over a year before.
I do not credit Smith’s testimony that on the night of Chap-
pie’s discharge Weikert made a remark to Smith and Ron
Chappie that Roeth had been unfair to the D shift, which in-
cluded Tim Chappie, because of their support for the Union.
Weikert testified that he spoke to them that night but said
that he told them that while he did not always agree with
Roeth’s disciplinary actions, he felt Chappie had made a
threat that should be treated as a serious matter and that his
discharge was justified. He also said that he asked them to
get past the problems they had and to get on with the busi-
ness of making plastic. He denied saying anything about tell-
ing Roeth that he needed to be more fair with their shift.
Ron Chappie’s testimony tends to corroborate that of Smith
concerning Weikert’s alleged comment about Roeth’s being
unfair to their shift. According to Chappie, Weikert said that
he had told Roeth he was coming down hard on the D shift
and ‘‘to back off.’’ However, he failed to mention Weikert’s
making any reference to the Union.
Counsel for the General Counsel argues that ‘‘it borders
on the ludicrous’’ for the Respondent to construe what Chap-
pie wrote on the IDS as a threat; consequently, his discharge
on that basis was a pretext and that this is further evidence
of unlawful motivation. The Board recognizes that the weak-
ness of an employer’s reasons for an adverse personnel ac-
tion can be ‘‘a factor raising a suspicion of unlawful motiva-
tion.’’ Raysel-IDE, Inc., 284 NLRB 879, 880 (1987);
Briarwood Hilton, 222 NLRB 986 (1976). I do not agree that
the Respondent was unjustified in considering the writing on
the IDS to be a threat. Any evaluation of the Respondent’s
actions must look at them from its perspective and consider
them in the light of the information available to it at the
time. The writing on the IDS is difficult to make out given
the fact that it has been crossed out, but the words ‘‘this
place’’ and ‘‘burn it down’’ can be discerned. It simply can-
not be said, as the General Counsel contends, that it is appar-
ent that it is nothing more than criticism of management by
a temporarily disgruntled employee. Roeth credibly testified
that when he was shown the IDS, he interpreted what he
could make out as a threat to burn down the plant. He was
‘‘appalled’’ that an employee would make such a threat and
would write it on a production paper. He considered it a seri-
ous matter and felt that even if the writer had had second
thoughts and crossed it out, the next time he got that angry
he might carry out the threat. Roeth said that he did not
think it was a chance he could afford to take.
It may well be that had Chappie told Roeth exactly what
he had written on the IDS and why, when he was confronted
with it, Roeth’s fears that the plant was in danger could have
been allayed. However, when he was given that opportunity,
Chappie denied any knowledge of the writing or who had put
it there, in the face of substantial circumstantial evidence that
he had written it. If anything, his actions could only serve
to increase Roeth’s apprehension. Under the circumstances,
I find that it cannot be said that the Respondent’s reaction
to the writing on the IDS or treating it as a serious threat
was unjustified or unreasonable.
Notwithstanding the evidence of the Respondent’s knowl-
edge of Chappie’s support for the Union and the evidence of
animus on its part, I find that the General Counsel has not
made out a prima facie case that Chappie’s discharge was
469GENERAL FILMS
motivated by that animus. On the contrary, it appears the Re-
spondent found itself faced with a potentially dangerous situ-
ation and took reasonable and appropriate action to protect
itself. The situation arose entirely from Chappie’s juvenile
actions and was exacerbated by his refusal to acknowledge
and explain those actions. I find there is no evidence of any
connection between this matter and the prounion activity of
Chappie or any of the other employees. I shall recommend
that this allegation be dismissed.
3. The 8(a)(1), (3), and (4) allegations
The ballots of the Respondent’s four extrusion operators
were challenged by the Board agent at the first election be-
cause their names were not on the list of eligible voters. The
Respondent maintained that the operators were supervisors
within the meaning of Section 2(11) of the Act. While the
ballot challenges were pending before the Board, on March
13, the Respondent issued a memorandum to each of the op-
erators which purportedly outlined his ‘‘authority, respon-
sibilities and opportunities’’ as a ‘‘shift supervisor.’’ This
memorandum notwithstanding, the operators were determined
not to be supervisors in the hearing officer’s report, to which
no exceptions were taken, and their ballots were opened and
counted. In the second election, the Respondent challenged
the ballots of extrusion operators Michael Barga, Michael
Smith, and Dennis Cantrell on the grounds that they were su-
pervisors. The Regional Director found that there was no evi-
dence to cast any doubt on the accuracy of the previous de-
termination that the operators were not supervisors and con-
cluded that they were not. The Respondent filed exceptions
to that determination which were overruled by the Board.
While its exceptions were pending, the Respondent distrib-
uted another copy of the memorandum concerning the re-
sponsibilities of a shift supervisor to each of the operators
and to two employees in the converting department along
with a letter from Roeth, dated October 31, which stated,
inter alia, that while the Respondent considered them to be
supervisors, some of them had ‘‘continued to deny that area
of [their] responsibility.’’ The employees were asked to indi-
cate whether they wanted to remain as supervisors. If any did
not, he or she would be reassigned ‘‘to a shift that has an
opening for you with appropriate adjustment in your pay and
benefits commensurate with that position.’’
Michael Smith testified that he was called into Roeth’s of-
fice and was asked to sign a paper acknowledging that he
had read the list of supervisory responsibilities and accepted
those responsibilities as the supervisor of his shift. Roeth told
him that if he did not sign he would be given another job
and that it would probably be as a helper because there were
no assistant operator jobs available. Smith told Roeth that he
did not want to sign because he wanted to be in the Union.
A week or so later, Huber came to him and told him that
he had to sign that day. Smith was hesitant but did so be-
cause he did not want to give up the extra money he was
making as an operator. Michael Barga testified that he was
called into Roeth’s office where several management offi-
cials were present and asked to sign a similar paper. Weikert
told him if he did not accept the supervisory position he
would be demoted, he would have to take a cut in pay and
he could end up on a different shift. Barga asked for a week
to think about it. A few days later Huber asked if he had
made a decision. Barga said he signed the paper and accept-
ed the position because he could not afford a cut in pay and
did not want to go back to the night shift.
Smith testified that he had been an operator for a year and
a half and had previously served in that position at another
of the Respondent’s plants. He testified that at the time that
he received the memorandum outlining the shift supervisor’s
responsibilities he had not previously exercised any of them
with the exception of the first which called for him to ‘‘man-
age people and production . . . to maximize quality produc-
tion’’ and another which called for attendance at manage-
ment meetings. That did not change after he received the
memorandum. Barga testified that he had been an operator
for 6 or 7 years and that he had not performed any of the
duties outlined in the memorandum except for being respon-
sible for production on his shift and attending meetings. Jef-
frey Kiser became an operator in October when Cantrell left.
He had worked as an assistant operator for 2 years and had
filled in as an operator many times. Kiser testified that he
had performed none of the duties outlined in the memo-
randum except that relating to being responsible for produc-
tion on his shift since becoming an operator or before when
he filled in in that capacity.
The operators’ credible testimony indicates that the ‘‘man-
agement meetings’’ they attended after the memorandum was
issued concerned routine matters and that their recommenda-
tions at these meetings were paid little attention. Smith de-
scribed one meeting in which the purchase of a new bagging
machine was discussed. All of the operators agreed that the
one they already had was no good and they should not get
another similar one. The Respondent went ahead and pur-
chased the second machine anyway. Their testimony also in-
dicated that on the few occasions that they were called on
to perform the duties outlined in the memorandum it was
usually at the direction of one of the management officials
and not on their own initiative.
The Respondent offered some generalized testimony from
Roeth to the effect that its extrusion department was expand-
ing and that a new and expensive piece of equipment had
been installed and that this had resulted in an expansion of
the extrusion operators’ responsibilities. However, there was
nothing that tended to dispute or discredit the mutually cor-
roborative testimony of the three operators that they did not
exercise most of the duties and responsibilities listed in the
memorandum referred to above. Likewise, there was nothing
in terms of specific detail to support Roeth’s self-serving tes-
timony that the operators were failing to carry out their al-
leged supervisory responsibilities. There was no evidence
that any of the operators were counseled or disciplined for
this alleged dereliction of duty. It does not appear that the
warning given to Smith at the time Farrier was suspended for
being in the plant without permission was premised on his
failure to perform any supervisory function. On the contrary,
Huber, who gave Smith the warning, testified that Smith was
warned for disregarding Huber’s specific instruction that he
was not to allow anyone to come into the plant without first
getting permission from Huber, Slade, or Weikert. If any-
thing, the incident points up the lack of any real discre-
tionary authority on the part of the operators.
The burden of proving supervisory status is on the party
alleging that such status exists. Soil Engineering Co., 269
NLRB 55 (1984); RAHCO, Inc., 265 NLRB 235, 247 (1982).
In this case it is the Respondent. In making determinations
470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 I find there was no violation in the case of Joan Suppinger be-
cause she was a statutory supervisor as is discussed, infra. I find
there is insufficient evidence to determine whether there was a viola-
tion in the case of operator Phil Chappie.
concerning such status, it is important not to construe that
status too broadly lest an employee be denied rights which
the Act is intended to protect. Westinghouse Electric Corp.
v. NLRB, 424 F.2d 1151, 1158 (7th Cir. l970). I find that the
Respondent has not established that the operators were super-
visors within the meaning of Section 2(11) of the Act. From
all that appears, the operators merely acted a conduits relay-
ing orders from management to the other employees on their
shifts. They exercised no independent judgment or discre-
tionary authority and had no responsibilities beyond seeing
that work continued in an orderly fashion when management
was not present.
I find that the operators were not supervisors at the time
the memorandum designating them as such was issued in
March and that there had been no significant change in their
status or duties up to the time that they were required to sign
papers, in which they acknowledged that they were super-
visors, under threat of being demoted to lower paying jobs.
The same is true of Michael King who worked in the conver-
sion department. The evidence fails to establish that he per-
formed any supervisory functions which required the exercise
of independent judgment. King testified that before he signed
the paper acknowledging his supervisory status he had not
exercised any of the responsibilities listed in the attached
memorandum. Accordingly, I find that the Respondent’s in-
sistence that the operators and King sign these acknowledge-
ments had no legitimate purpose. The Respondent’s posttrial
assertion that in so doing it was lawfully altering its super-
visory structure and transferring certain employees out of the
bargaining unit amounts to a sham given the evidence that
there was no significant change in the operators’ duties or re-
sponsibilities. It is also contrary to Roeth’s testimony that the
memorandum merely amounted to a ‘‘reaffirmation of the
duties and responsibilities that the people were already sup-
posed to be carrying out.’’
Based on the foregoing, I find that the Respondent vio-
lated Section 8(a)(1) of the Act by unlawfully coercing em-
ployees Michael Smith, Jeffrey Kiser, Michael Barga, and
Michael King3 to sign papers acknowledging that they are
supervisors while they continued to perform their old, non-
supervisory jobs. Regency Manor Nursing Home, 275 NLRB
1261, 1277 (1985). Under the circumstances, it is unneces-
sary to decide whether the Respondent’s actions also con-
stituted violations of Section 8(a)(3) and (4).
IV. BALLOT CHALLENGE IN CASE 9–RC–15400
The Union challenged the ballot of Joan Suppinger on the
ground that she is a supervisor within the meaning of the
Act. Suppinger has been employed by the Respondent for 23
years and has been in the position of ‘‘converting super-
visor’’ for the past 3 years. I find that the evidence estab-
lishes that Suppinger has the authority to effectively rec-
ommend the hiring, firing, and discipline of other employees
and that she responsibly directs the employees under her
using her independent judgment.
In her testimony, Suppinger obviously attempted to down-
play her supervisory role and indicated that all of her actions
were taken only at the direction of Plant Manager Norman
Slade. She testified that if there is an opening in the con-
verting department she talks to the applicants and if she con-
siders an applicant a good prospect for the job she tells Slade
and sees if he wants her to hire the person. According to
Slade, when there is an opening in converting, he takes any
applications that are on hand and gives them to Suppinger
to contact and interview any likely prospects. Once
Suppinger finds someone she feels is good enough, he au-
thorizes their hiring on the basis of Suppinger’s rec-
ommendation. Neither Suppinger or Slade could recall any
instance in which he had rejected someone Suppinger had
recommended for hiring.
The record contains warning notices signed by Suppinger
which indicate that she had suspended former employee Rob-
ert Ward on several occasions for tardiness and absenteeism.
Suppinger testified that while she would normally discuss
writing up an employee with Slade before doing so, he has
always deferred to her judgment, telling her, if she thinks
they should be written up she should do so. Slade testified
that it is Suppinger’s responsibility to discipline her employ-
ees although they usually discuss what form of discipline is
appropriate. If there is a problem with someone in her de-
partment, Suppinger ‘‘usually takes it upon herself to do
something about it,’’ but if he sees something wrong or that
needs to be corrected, he brings it to Suppinger’s attention
and does not usually deal directly with her employees. There
is also a dismissal notice in the record, signed by Suppinger,
which states that she had dismissed Ward ‘‘because of insub-
ordination toward your supervisor and failure to follow in-
structions.’’ Suppinger testified that she learned that Ward
had worked two consecutive shifts, something the Respond-
ent does not permit and about which she had warned him be-
fore. She reported this to Slade and recommended that Ward
be fired because he had been warned about it before. Slade
went along with her recommendation. Although Slade’s testi-
mony was that he had discovered that Ward had worked two
shifts and decided to fire him, I credit Suppinger’s version
since she appeared to have a much better recollection of
what actually happened.
Suppinger’s testimony implied that she had little say in di-
recting the work of the employees in her department. She
said she consulted with Slade about what machines to put
employees on and later said the employees choose the ma-
chines they want to work on based on seniority. She also tes-
tified that she has no authority to give raises and has never
recommended any employee for a raise. I do not credit this
testimony. Slade testified that Suppinger assigns the work to
her employees and that he has no input as to what persons
she puts on particular machines or what jobs she assigns
them. Robert Ward testified that when he worked in the con-
verting department he was not assigned to the same job or
location every day, that Suppinger made the daily work as-
signments and sometimes changed his assignments during the
course of the day. He said that Suppinger checked the work
of all department employees about once every hour. Slade
testified that Suppinger has input into decisions concerning
wage raises of employees in her department and that he
would not give a raise without first discussing it with her.
It is not necessary for an individual to possess all of the
criteria listed in Section 2(11) of the Act in order to be con-
sidered a supervisor. Possession of one or more of these cri-
471GENERAL FILMS
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
5 If 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 a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
teria is sufficient to establish an individual’s supervisory sta-
tus and the Board will not engage in ‘‘balancing the super-
visory aspects of the job with the nonsupervisory in order to
determine [such] status.’’ Gurabo Lace Mills, 249 NLRB
658 (1980). I find that the evidence establishes that
Suppinger has authority to effectively recommend the hiring,
firing, and discipline of the employees in her department and
that she exercises independent judgment in directing the ac-
tivities of those employees on a daily basis. Although Mi-
chael King has the same title as Suppinger, on another shift
in the same department, the evidence does not indicate that
he has the same degree of authority as Suppinger. Based on
the foregoing, I shall recommend that the challenge to the
ballot of Joan Suppinger be sustained on the ground that she
is a supervisor within the meaning of Section 2(11) of the
Act.
CONCLUSIONS OF LAW
1. The Respondent, General Films, Inc., is an employer
engaged in commerce within the meaning of Section 2(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 violated Section 8(a)(1) of the Act by
coercively requiring employees Michael Barga, Michael
Smith, Jeffrey Kiser, and Michael King to acknowledge that
they are supervisors, while remaining in the same non-
supervisory positions they previously held, in an effort to un-
dermine support for the Union.
4. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. The Respondent did not engage in those unfair labor
practices alleged in the consolidated complaint not specifi-
cally found herein.
6. The Union’s challenge to the ballot of Joan Suppinger
on the ground that she is a statutory supervisor has been sus-
tained.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent coercively required cer-
tain of its employees to acknowledge that they are super-
visors, under threats of demotion to lower paying jobs, while
they remained in the same nonsupervisory positions they pre-
viously held, I shall recommend that it be required to rescind
its letter of October 31, 1989, to those employees and to ad-
vise them that this is being done and that they will not be
obligated to accept any lesser positions or loss of pay as a
result.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, General Films, Inc., Covington, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively requiring nonsupervisory employees to ac-
knowledge that they are supervisors, while they remain in the
same nonsupervisory positions they previously held, in order
to undermine support for the Union.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind its letter of October 31, 1989, to employees
Michael Barga, Michael Smith, Jeffrey Kiser, and Michael
King, in which they were designated as supervisors, advise
them that this is being done and that they will not be obli-
gated to accept any lesser positions or loss of pay as a result.
(b) Post at its facility in Covington, Ohio, copies of the
attached notice marked ‘‘Appendix.’’5 Copies of the notice,
on forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the consolidated complaint is
dismissed insofar as it alleges violations of the Act not spe-
cifically found herein.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT coercively require employees to acknowl-
edge that they are supervisors, while they remain in the same
nonsupervisory positions they previously held, in order to un-
dermine support for Glass, Molders, Pottery, Plastics and Al-
lied Workers International Union, Local 45B, AFL–CIO–
CLC.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL rescind our letters of October 31, 1989, to Mi-
chael Barga, Michael Smith, Jeffrey Kiser, and Michael
King, designating them as supervisors and WE WILL advise
them that this is being done and that they will not be obli-
gated to accept any lesser positions or loss of pay as a result.
GENERAL FILMS, INC.