Richdel, Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1982

265 N.L.R.B. 467 (N.L.R.B. 1982)

RICHDEL, INC.
Richdel, Inc. and Jmunes A. Cota and United Associ-
ation of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, Local Union No.
350. Cases 32-CA-1637 and 32-CA-1825
November 24, 1982
DECISION AND ORDER
On April 2, 1980, Administrative Law Judge
James M. Kennedy issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed an answering brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
MEMBERS FANNING and JENKINS, dissenting in
part:
Contrary to our colleagues, we find that the
record establishes that Respondent discharged em-
ployee Makert for her protected concerted activity
of soliciting employees' statements or signatures on
a petition in support of her claim that Supervisor
Rivera had been removing name tags from boxes of
parts she had produced.
I We adopt pro formn the Administrative Law Judge's finding that a
remedial order would not be necessary assuming that Supervisor Hunt's
remark to employee Karr that employee Cot· "could get fired" for form-
ing a union was an unlawful threat to discharge an employee for union
activity. Hunt's remark was not alleged to be a violation nor was it the
subject of an exception.
· We agree with the Administrative Law Judge's finding that Re-
spondent decided to discharge Cots for violating work rules before it
became aware of Cots's intention to organize the employees and there-
fore did not violate Sec. 8(aX1) or (3). However, in view of Hunt's com-
ment to Karr concerning Respondent's possible response to Cota's plans
to form a union, we do not adopt the Administrative Law Judge's finding
that there was no evidence of union animus on Respondent's part.
In dismissing the complaint allegations with respect to the discharge of
employee Makert, we find that, even assuming that Plant Manager Rod-
gers relied on Makert's statements that she had sought statements from
other employees in connection with her dispute with Supervisor Rivers,
that does not establish that Respondent would not have discharged her
absent that activity. More importantly, the mere enlisting of other em-
ployees' assistance in furtherance of a personal dispute between an em-
ployee and a supervisor does not draw activity undertaken in furtherance
of that dispute into the protections of the Act. There is no evidence that
other employees had experienced similar problems with Rivera or any
other supervisor, or that Makert was, in any way, acting on behalf of or
in the interest of other employees.
265 NLRB No. 64
The evidence shows that in late April or early
May 1979 Makert and Rivera became involved in a
dispute when Rivera ordered Makert to put her
name tags on boxes of parts which Makert claimed
she had not assembled. Several days later Makert
told Supervisor Coulson that she had contacted an
attorney about the matter and had spoken to three
employees who were willing to state that they had
seen Rivera remove name tags from her boxes.
Coulson reported the conversation to Department
Manager Machado who in turn informed Plant
Manager Rodgers of Makert's remarks. Rodgers
summoned Makert to a meeting and asked her if
she had obtained an attorney against Rivera.
Makert admitted contacting an attorney and Rod-
gers, according to his own testimony, asked her if
she had started a petition or sought statements
from employees concerning Rivera's conduct.
When Makert acknowledged having spoken to em-
ployees, Rodgers informed her she had violated
company policy and was terminated.
The evidence as credited by the Administrative
Law Judge therefore shows that 'Rodgers admitted
discharging Makert after the latter had acknowl-
edged soliciting statements and signatures from her
fellow employees concerning a work problem with
her immediate supervisor. An employee has a pro-
tected right under Section 7 of the Act to consult
with other employees and enlist their support with
regard to a complaint about a supervisor's perform-
ance of her duties. See Dries & Krump Manufactur-
ing, Inc., 221 NLRB 309 (1975), enfd. 544 F.2d 320
(7th Cir. 1976). Makert's complaint against Rivera's
allegedly improper placement and removal of name
tags on boxes of assembled parts concerned a
matter that directly affected her employment status
and related to working conditions in general. Far
from being a personal dispute, Makert's protest per-
tained to Rivera's performance of her supervisory
duties and therefore was of common concern to
her fellow employees. Since Respondent admitted
discharging Makert for this protected activity, we
would find that her discharge violated Section
8(aX1) of the Act.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge: This
case was heard before me at Carson City, Nevada, on
August 2-3 and 14-15, 1979,1 pursuant to two com-
plaints issued by the Regional Director for Region 32 of
the National Labor Relations Board on April 27 and July
12, and which are based on separate charges filed by
James A. Cota, an Individual, and United Association of
'All dates herein refer to 1979 unless otherwise indicated.
467
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, AFL-
CIO, Local Union No. 350 (herein called the Union), on
March 19 and May 29, respectively. The complaints as
consolidated on July 12 allege that Richdel, Inc. (herein
called Respondent), has engaged in certain violations of
Section 8(aXl) and (3) of the National Labor Relations
Act, as amended (herein called the Act).
The Issues
Whether or not Respondent's discharge of James Cota
on January 31 and its discharge of Yvonne David on
May 9 were for union-related reasons; whether its dis-
charge of Ruth Makert on May 8 was for either union
activity or other activity protected by the Act; whether
Respondent engaged in various cts and conduct which
tended to restrain employees in the exercise of their Sec-
tion 7 rights such as: interrogating employees about their
union activity, limiting employees from discussing union-
ization while in the plant, telling an employee (Makert)
she had been denied a promotion to supervisor because
of her union activities, engaging in surveillance, and cre-
ating the impression of surveillance of employee union
activity. Also alleged as unlawful are the refusal to pro-
mote Makert, a 3-day suspension of David, and the issu-
ance of written warnings to both.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent.
Upon the entire record of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent admits it is a Nevada corporation engaged
in the manufacturing business and having a factory locat-
ed in Carson City, Nevada. It further admits that during
the past year, in the course and conduct of its business, it
has sold goods and materials valued in excess of $50,000
to customers outside Nevada. Accordingly, it admits, and
I find, it to be an employer engaged in commerce and in
a business affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Participants
Respondent is the manufacturer of "Lawn Genie" irri-
gation systems. Its factory is located in Carson City,
Nevada, where it fabricates plastic valves and controls
for its systems. During the period in question its plant
personnel ranged between 238 and 500 employees; as of
the hearing it had approximately 438. They are divided
among various departments which include engineering,
tooling, plastic molding, rubber molding, solenoid, valve
and sprinkler assembly, controller assembly, solid state
electronics, and other departments. Its plant manager is
Gerald Rodgers. He is assisted by Assistant Plant Man-
ager Robert West and facility Manager Clint Magner.
All of the incidents to be discussed involve the plastic
molding department. Before his departure in March the
molding department manager was Gary Mozer. During
January and February, Rodgers relinquished his duties as
plant manager to take over the molding department. In
March, Mozer was temporarily assigned to oversee that
department. Also in March Mozer left Respondent's em-
ployment and was replaced as department manager by
Ralph Machado. On the swing shift during the early part
of 1979 the department supervisor was Terry Hunt and
his assistant was John Callahan. On the day shift begin-
ning January 6 mold specialist Ruth Makert became the
assistant department manager. She reported directly to
Mozer. Makert's duties during this period are not clear.
On February 12, consistent with a new organizational
scheme which was then being instituted plantwide, she
was made a day-shift supervisor on a 30-day probation-
ary basis. Respondent's records show she was promoted
to that job from the job of mold operator specialist de-
spite her assistant manager duties.
On February 6 Raymond Dority became a day-shift
supervisor; Leslie Little already held a similar position.
On March 20 two other employees were promoted to su-
pervisor on a probationary basis, Irene Rivera and Lyla
Rodriquez. In late March or early April Little was de-
moted to mold specialist; on April 19 Makert was demot-
ed and on June 13 Dority was too. In early April, Lit-
tle's and Makert's supervisory slots were filled by Sharon
Coulson and Marilyn Horton, also on a probationary
basis.
The employees who were allegedly unlawfully dis-
charged are James Cota, a swing shift molding machine
operator; Makert (previously alluded to above as a pro-
bationary supervisor), and Yvonne David, both of whom
were day-shift molding specialists. Cota was discharged
on January 31; Makert on May 8; and David on May 9.
B. The Discharge of James Cota
Cota was hired on November 1, 1978 and worked for
3 months until he was discharged on January 31. He de-
scribed the job of operating plastic injection molding ma-
chines as very boring. The job is mechanical and routine
consisting of the injection of viscous plastic into mold
presses, waiting for the automatic machine to eject the
completed part and then hand-trimming the "flash" plas-
tic from the part while waiting for a new part to be com-
pleted. The operator must also stack the finished parts
for pickup by the supervisor. There are 26 machines
which vary in size having pressure capabilities ranging
between 25 and 375 tons. The value of the machines
ranges from $20,000 to $1,000,000. The molds themselves
which are utilized in the machine are fabricated else-
where in the plant and are valued at anywhere between
$5 and $75,000 depending on complexity. Some molds
468
RICHDEL, INC.
contain inserts for internal mechanisms within each part;
one example is the screw-thread template.
For the most part while Cota was employed his super-
visor was Terry Hunt, assisted by John Callahan. Cota
testified that in late November an employee who worked
in the regrind operation asked him if he would be inter-
ested in supporting a union in the plant. Cota does not
remember that individual's name or could he recall much
about the circumstances. Later, according to Cota, he
himself spoke to other employees about unionizing the
plant and continued to do so until his discharge. He was
quite vague about these conversations and there is no
evidence that management was aware of them.
In late January Cota, who believed himself to be
among the more competent employees, became upset be-
cause another employee was promoted from mold ma-
chine operator to regrind, a higher pay job. He believed
the decision to be unfair because he was both senior to
that individual and because of his view of their compara-
tive competence. On January 29, during the first break of
the evening, he spoke to four to six employees in the
break room complaining about the promotion of the
other man. He remembers telling those employees "if
there was a union in this place, they would not have
done that." He says it was then that he decided he was
definitely going to bring in a union and he told the other
people at his table that he intended to do so. At the end
of the break he went to his machine. Seeing fellow em-
ployee Tony Karr nearby, he called Karr over. He told
Karr he intended "to unionize the place." He says Karr
replied that he hoped Cota could. Karr corroborates
Cota, though he says he made no reply.
Karr says that because Supervisor Hunt had seen the
two talking he called Karr to the office. Karr, unlike
Cota, was not stationed at a particular machine for he
was a setup man; it was, therefore, more efficient for
Hunt to speak to Karr rather than Cota. Karr testified
Hunt asked him what Cota had said and he replied Cota
had said he was "forming a union." Hunt remarked,
"Cota could get fired for that."
Several days earlier Cota says he had asked for a
transfer from the swing to the graveyard shift. He says
on January 30 Hunt told him his transfer request had
been approved and he would begin working the grave-
yard shift on Monday, February 5.
On January 31 he reported to work at 4 p.m. and
found his timecard had been removed from the rack.
Hunt directed him to see Department Manager Mozer.
Cota testified Mozer told him he was being fired for
reading a book while operating his machine. He replied,
"So what?" and asked if he was really being fired be-
cause he was for the Union. Mozer ignored the question
and continued his explanation saying that in addition he
was firing Cota for making "strange noises."
Supervisor Leslie Little testified that in late January or
early February she had a conversation with Mozer. She
says she is unable to recall the exact words Mozer used
but remembers Mozer saying he intended to terminate
Cota. When she asked on what grounds, Mozer replied,
"For reading a book." She then asked "Why?" and
Mozer said, "He's a union activist and we can't fire him
for that."
Little's testimony here is subject to great doubt. First,
payroll and attendance records show she was on a leave
of absence during the last 3 weeks of January and the
first portion of February. Her description of the conver-
sation indicates that the discussion occurred before Cota
was fired, meaning it took place in January before her
leave of absence expired. The General Counsel did not
recall her to explain how she could have had such a con-
versation if she were not working in the plant. In addi-
tion, she appeared to be angry with Respondent. She
says she quit in April due to the "incompetency of man-
agement and the employees." She was a good friend of
dischargee Makert, though she says Makert's demotion
which occurred about the same time she quit did not
affect her decision to quit. And she did not reveal her
conversation with Mozer to anyone until 3 days before
the instant hearing when she mentioned it to Makert
who in turn reported it to counsel for the General Coun-
sel.
As noted before, Mozer and Hunt are no longer em-
ployed by Respondent. Neither testified. Nonetheless, the
reasons advanced by Mozer to Cota for his discharge do
not seem unlikely. Cota admits he constantly read maga-
zines and books while operating his machine. He also
admits engaging in daily horseplay including throwing
wet wads of paper toweling at fellow employees and
making sudden, loud animal-like noises-wolf howls, pig
squeals, and the like. He confesses to being the worst
transgressor in his area. He claims, however, that Hunt
and Callahan were aware of his disruptive activity and
not only overlooked it, but to some extent participated in
it. He testified they observed him reading regularly and
even asked him what he was reading. He aslo says both
Hunt and Callahan themselves occasionally threw wet
towel wads.
Callahan denies Cota's testimony in this regard. He
says neither he nor Hunt ever threw towel wads and, al-
though they tolerated the loud animal noises, he was un-
aware and believes Hunt to have been unaware that Cota
was regularly reading while operating his machine.
However, he considered Cota to be deficient and disrup-
tive in other respects. Once in December he saw Cota
putting his feet on the machine "gate," risking an auto-
matic premature opening. Should that have occurred, he
said, the part would not have been properly cured and
there was a risk of damaging both the mold and the in-
serts. He says he cautioned Cota against that practice.
Later in December he warned Cota not to open the ma-
chine too early after Cota boasted he could increase pro-
duction by doing so. The same risks to the part and the
molds applied. As noted, the molds and inserts could be
costly to replace.
During the second week in December he told Cota to
stop hollering and making strange sounds as he was dis-
rupting others and to pay more attention to his machine
and less to other operators.
Also at one point in December Callahan was training a
new female employee, Laurie Bauk. They were working
on the machine next to Cota's. Callahan says Cota began
remarking about Bauk's full figure, interrupting them by
saying she was providing "the best show I have had in
469
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
years." Similar gibes continued and she requested that
she be moved to another machine. Callahan complied,
but within minutes she asked to be moved to a third ma-
chine because Cota was still verbally harassing her. Cal-
lahan complied again.
In the third week of December Callahan was nearly
hit by a wet paper towel wad thrown by Cota. Callahan
was busy and did not actually see who had thrown it,
but another employee did and told Callahan, saying
"something ought to be done" because someone could
get hurt. Callahan told Hunt about the incident.2 Wheth-
er Hunt did anything immediately is unclear. Later, in
January, shortly before Mozer took over the swing shift,
Callahan heard Hunt tell Mozer there was a problem
with Cota; he had been distracting other operators.
Mozer said he would keep an eye on Cota when he took
over the swing shift. In mid or late January Mozer
swapped shifts with Hunt and Callahan.
Earlier in January, Mozer had told Callahan he had
observed some swing-shift employees reading books
while operating their machines. Callahan says Mozer di-
rected him to tell the employees to stop that practice and
to advise them that reading while operating the machines
"could be cause for dismissal." At the beginning of the
shift on the following day Callahan carried out his
instructions, calling all the employees together at the
break room. He specifically remembers Cota being
present because Cota sat in the front portion of the
room. He says he told the crew to stop reading books
and that if they continued to do so they could be dis-
charged.
Cota denies such a warning was given and is corrobo-
rated to some extent by fellow machine operator Susan
Mansker. Callahan doubts Mansker attended the warning
session saying she was usually late for work. He is not
positive about her absence. She often came to work with
Karr; Karr did not attend the meeting but learned its
substance from fellow employees. He is certain a warn-
ing was given. Mansker also says while she and other
employees commonly read while working on the ma-
chines, she only saw Cota do it once.
She also agrees with Cota that "everyone" threw wet
paper wads and yelled. She says she even saw supervi-
sors throw wads at each other and at one point Hunt
asked her what she was reading. Callahan says the only
time he asked Mansker what she was reading was once
during a break.
Rhonda Correa says that in November 1978 she was
reading while on a machine and another supervisor, one
Tom (whose last name she does not know), told her to
stop. She says she often saw Cota read in December and
January. Others read too, but less than Cota. She remem-
bers Cota throwing wads and plastic waste. Once Cota
attempted to shock her by placing some brown plastic
waste in her cooling basin. The waste gave the appear-
ance of animal excrement and when she reacted as ex-
pected Cota thought it was quite funny. She admits she
threw paper wads, but says the only person at whom she
threw was Cota and only after he had thrown at her
2 This wus the first Callahan knew of Cots's towel throwing. He saw it
occur on numerous occasions thereafter, but said nothing about it.
first. She is certain the supervisors did not observe them.
She never saw any supervisor engage in that conduct.
Karr also says he does not believe the supervisors were
aware of the towel throwing. In addition Karr reports
that some time after Cota had been discharged Cota told
him he intended to "milk" Respondent for S1 million.
Plant Manager Rodgers testified that, in January and
February, he was so concerned with the plastic molding
department's inefficiency-high employee turnover and
high parts rejection rate-that he temporarily relin-
quished his authority as plant manager and took over
that department. It was he who directed Mozer to take
over the swing shift for a week. Although not directly
stated, it is apparent Rodgers believed the department
was inefficient because of improper supervision and dis-
ruptive elements within the department.
Callahan, accepting counsel's statement, says that in
the "second full week" of January,3 Mozer took over the
swing shift himself, sending Hunt and him to the day
shift. On the first workday after the shift swap ended,
Mozer told Callahan that he had seen Cota reading on
his machine, throwing material, and distracting other em-
ployees; he wanted Cota fired. Within a day or two,
Cota asked Callahan why another employee had been
transferred to regrind, instead of him. Later that evening
Cota groused "if there was a union here, this kind of
thing wouldn't have happened." On the following day
Callahan told Mozer that Cota wanted to know why the
other man had been promoted over him. Callahan recalls
Mozer saying, "Well, don't worry about it; I think we
are going to terminate him anyway." Callahan denies
telling Mozer or anyone else about Cota's remark about
a union.
It is clear that the decision to fire Cota was made by
Mozer, not Hunt or Callahan. On the personnel record
reflecting Cota's discharge, Mozer wrote, "very poor at-
titude, reading books while operating machine, whistling
and hollering distracting other machine operators."
C. Alleged Interference, Restraint, and Coercion
In March a number of incidents occurred which the
General Counsel alleges violated Section 8(a)(1) of the
Act. On March 19, Yvonne David had gone shopping at
a local market where she met a former employee who
advised her that a union was attempting to organize Re-
spondent's plant. In the morning of March 20 she ex-
pressed fear for her job to fellow employee Joyce
Fowle. Fowle thought David's attitude silly but reported
David's fears to Clint Magner without revealing David's
name. Magner mentioned the matter to Rodgers and the
s While Callahan is clear about the sequence of events his recitation of
dates is not accurate. He says Cots was fired on a Friday; it was actually
a Wednesday. Likewise, he says that Cots, 2 days before his discharge,
remarked that if a union were present another employee would not have
gotten the regrind job. When asked the same question another way be
says it occurred midweek of the week he returned to the swing shift. If
the shift swap was the "second full week" of January (the week of Janu-
ary 14), as he said, that places the conversation around January 24, a full
week before Cota's discharge. Even though Callahan is confused on
dates he was credible in all other respects and I we no reason to doubt
him. He nd Cots agree that the union remark was made 2 days before
the discharge and Callahan's dates can be reasonably reconstructed by
working backward from that point.
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RICHDEL, INC.
two called Fowle to the nurses office. Magner asked her
to repeat what she had said. After assuring Fowle that
nothing adverse would happen to the employee in ques-
tion and that their only purpose was to alleviate the anxi-
eties the employee might have, Fowle agreed to send in
the employee. Not until David appeared did either Rod-
gers or Magner know the identity of the person with
whom Fowle was concerned.
David testified Rodgers told her he understood a
union member had contacted her and that she was afraid
that if she spoke of union matters she would be fired. He
told her to sit down, that he had no intention of firing
her. She says he then asked her if the person who had
approched her was anyone in the plant. She replied neg-
atively, saying that it was a former employee. He then
asked if it was former employee John Holt and when she
refused to answer he replied, "Thank you. You have an-
swered my question." She agreed her silence was an ad-
mission that Holt was the individual involved. She then
offered that she had not "worked for a union before"
and did know about them. She says he told her Nevada
was a right-to-work State and the Union could not give
her more than the Company already had. She says he
told her if she struck she could not get unemployment
insurance and observed that she had four children to
support, asking how she could pay her bills if she was on
strike. She says she told him she wished to talk to her
father about it as he was a union member. She remem-
bers Rodgers saying that when unions first began they
were good but now all they wanted was employees'
money; every time employees would get a raise, their
union dues would increase. She also says he asked her
not to speak of the Union inside the plant and she
agreed, saying she would seek information about the
Union outside the plant.
Both Magner's and Rodgers' versions are significantly
different. Rodgers says that, after he expressed knowl-
edge that David was fearful regarding union matters, he
told her she had a legal right to discuss the Union but
did not want her to do it while she was working on her
machine. When she expressed ignorance regarding
unions and what purpose they served, he told her she
"should get both sides" and when she observed that her
father was a union member he told her "By all means,
talk to him." He denies he made any reference to strikes,
unpaid bills, or unemployment insurance. He says it was
she, not him, who mentioned she had four children.
Magner corroborates Rodgers in all respects. He says
Rodgers told David she should have no fear, that no one
would be fired over the Union. He remembers Rodgers
suggesting that she ask questions of knowledgeable
people regarding both sides of the issue but asked her
not to discuss those matters while she was actually work-
ing on her machine. He denies Rodgers said the only
thing unions could do was to strike and denies Rodgers
referred to her ability to pay bills. He remembers Rod-
gers telling her she should check with her father and
friends, go to a union meeting if she wished, but she was
to rest assured it would not cost her her job. He denies
Rodgers ever told David not to talk about the Union at
the plant.
Fowle reports that after David left the meeting and re-
turned to her machine David told Fowle "everything
was okay" and Rodgers had even told her to find out
about unions if she were interested.
In view of the fact that David agrees that Rodgers
told her she would not be fired for union activities, and
because I credit Fowle's testimony that David told her
Rodgers had urged her to speak to others, no doubt in-
cluding her father, to find out about unions, it seems un-
likely that the remainder of her testimony is accurate.
Rather it seems to me Rodgers' and Magner's statement
that she should refrain from union activities while work-
ing on her machine is the more probable of the two ver-
sions. Moreover, their testimony is mutually corrobora-
tive, in good detail and matter of fact. Accordingly I
credit Rodgers' and Magner's denial that Rodgers ever
ordered her not to speak about or discuss the Union
inside Respondent's facility.
That same day, March 20, Irene Rivera and Lyla Ro-
driguez were appointed probationary supervisors, joining
Ruth Makert in that capacity. On approximately March
27 Rodgers called all three to his office, apparently to
ask them how their new job was working out. Makert
testified that during the meeting Rodgers asked if they
had heard anything about union activities within the
plant. She says she told him then employee Sharon Coul-
son had said an employee named Shirley "Grannie"
Smith had approached her about attending a union meet-
ing. According to Makert Rodgers immediately called in
Mozer to tell him that union activity was underway.
Shortly thereafter he dismissed all three but before doing
so, told them "as supervisors" they "were representatives
of management," and advised them not to sign pledge
cards because that might inadvertently result in company
acceptance of the Union. He suggested they submit any
union mail to him unopened so he could put it in a safe.
She says he also told him to "keep an eye on our
people" as he wanted to know when supervisors heard
of anyone speaking about the Union.
Makert testified that a few hours later Rodgers called
a meeting of all supervisors on all shifts and said he
knew union activities were occurring but thought it was
confined to the graveyard shift though it might be
spreading to days. She says he listed a number of "do's
and don'ts" regarding the Union, telling the supervisory
staff to "push the Company benefits" and not to "down-
grade" the Union. Makert said Rodgers told them the
only people who would join the Union "were misfits and
people who were insecure in their jobs, and that unions
were nothing but communist organizations; all they were
out to get was just people's money."
Rodgers agrees such meetings were held but denies
making the statements attributed to him by Makert. He is
corroborated in large part by supervisors Rivera and Ro-
driguez. Both he and Rodriguez say Makert was the one
who raised the subject of unions at the first meeting by
volunteering that Smith had broached the topic. Rodgers
says he responded to Makert saying union activity was
the employees' right as long as they did not engage in
such activity at their work station during work. He
denies telling the supervisors to keep an eye on employ-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees' union activities. He is corroborated by Rivera who
says Rodgers told them, "I don't want you to spy on
them. I just want to make sure there is no union activity
on the machines." Rodriguez says Rodgers did not even
wish to discuss the matter with the supervisors at that
time. She, too, denies that he told supervisors to keep an
eye out on employees.
The General Counsel alleges this incident to constitute
instructing employees to engage in surveillance of em-
ployees' protected activity. The Respondent defends on
two grounds: first, the incident did not occur as reported
by Makert, arguing that her version is not credible;
second, it urges that the individuals in question are statu-
tory supervisors, not employees, and that even if it did
occur it was within Respondent's management preroga-
tive to be alert to union organizing efforts. Without
reaching the supervisory issue, I agree with Respondent
that Makert is not credible. That is particularly so with
respect to her quoting Rodgers as saying labor organiza-
tions were communist. Rodgers' father, brother, and
uncle are all members of another union, the International
Association of Machinists and Aerospace Workers, and
his father has recently engaged in a strike against his em-
ployer. It is unlikely, given Rodgers' close family con-
nection to a labor organization, that he would refer to
unions generally as communist organizations. It seems to
me that Makert here exhibited a tendency to exaggerate.
Furthermore, both in her pretrial affidavit and in cross-
examination she said, contrary to her testimony on
direct, that Rodgers had never told her to engage in sur-
veillance of the Union or employees' union activities. On
redirect she said he did. Believing she may have been
confused over terminology, I questioned her further and
am satisfied she understood the question each time, but
gave opposite answers. Weighing both factors-her tend-
ency to exaggerate and her equivocation-she is not
credited. Furthermore, I note that Rodgers is corroborat-
ed in close detail by Rivera and Rodriguez. I conclude,
therefore, that the conversation did not occur as al-
leged.4
On Saturday, April 28, the Union conducted an orga-
nizational meeting at the Carson City Civic Center, a
complex which includes an auditorium where the meet-
ing was held, and two swimming pools, an outdoor pool
immediately adjacent to the auditorium and an indoor
pool located 400-500 feet away. Supervisor Dority on
the day of the meeting had taken his daughter-in-law to
swim in the indoor pool, as was her habit. It appears that
Dority's son and daughter-in-law do not own an oper-
able automobile and he commonly chauffeured them on
various weekend errands such as shopping and other ac-
tivities. He testified his daughter-in-law swam regularly
4 Also corroborative of Respondent's version is the testimony of then
Supervisor Raymond Dority who testified that during the course of the
supervisory training program, which Rodgers in part conducted, that the
manner of responding to union activity was discussed. He says there
were no instructions regarding what steps supervisors were to take with
respect to reporting that activity to higher management. He does say, in
somewhat imprecise terms, that supervisors were instructed to tell em-
ployees not to engage in union activity during "working hours." Because
of Dority's imprecision and other, more precise, testimony elsewhere, I
take it that he actually was instructed to tell employees not to engage in
union activity while working on their machines.
at the pool and he had taken her there on other occa-
sions. It further appears that the front door of the audito-
rium is not visible from the indoor pool parking lot.
Dority says during the 2 hours or so that he was present
in the lot he sat in the car, listened to its radio, read, and
left the car to walk about the immediate vicinity. He
admits that during one of his sojourns he saw employee
"Grannie" Smith and another (not Yvonne David) and it
suddenly dawned on him that the union meeting was
taking place in the auditorium. He says he did not see
any other employee whom he remembers. David testified
that she, however, saw Dority.
The next workday, Monday, according to Ruth
Makert, she had a strange conversation. Approximately 3
weeks earlier she had been demoted from supervisor to
mold operator specialist. On the day before the meeting,
April 27, Makert says she signed a union authorization
card but she did not attend the union meeting. On
Monday, April 30, Makert says Supervisor Lyla Rodri-
guez told her that Department Manager Ralph Machado
"had told her that through a good source that he had
heard I [Makert] had attended that union meeting on the
28th, and that Raymond Dority was there, and he told
Lyla he was the one that said I was there at that meet-
ing."
Rodriguez denies the incident altogether. She says she
had no conversation with Makert at her machine about a
union meeting that day and never told Makert that Ma-
chado had learned through a good source that she had
attended the union meeting. In addition she says she
never told Makert that Dority had told her that it was
he who said she was at the meeting. Dority himself says
he never reported his observation to anyone.
First of all, I credit Dority's version that he was not at
the swimming pool to engage in any surveillance of
union activity. He says he had forgotten the meeting was
to be conducted until he actually saw people attending
the meeting. Nonetheless, it appears to me that he had a
legitimate reason for being where he was, to transport
his daughter-in-law for her recreation. Furthermore, he
appeared to be a credible witness in all other respects
and I credit his testimony that he did not tell anyone
what he had seen. He had no particular reason to do so
and he had not been instructed to do so. Moreover, it
seems quite unlikely that he would have told anyone he
had seen, Makert present at the meeting; she did not
attend it. That being the case, it seems unlikely that Ro-
driguez would have either been told or invented such
facts. Indeed, the contrary appears to be true. I have
noted elsewhere that Makert has a tendency to exagger-
ate and I have discredited her above. Accordingly, I dis-
believe Makert's version here and credit Rodriguez. I
therefore find that the incident did not occur as Makert
claims. Thus, I find the allegations that Dority engaged
in surveillance of the union meeting and that Rodriguez
gave the impression that Respondent had engaged in sur-
veillance to be unproven.
D. The Discharge of Ruth Makert
Sometime in late March, though Makert says it was
late April, Supervisor Leslie Little was demoted. Makert
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RICHDEL, INC.
was then still a probationary supervisor. Little's demo-
tion upset her and she spoke to Plant Manager Rodgers
and Department Manager Machado about Little's demo-
tion. They say the conversation occurred on April 2 and
that Makert asked them, in tears, why Little had been
demoted. Rodgers explained his reasons and then told
Makert he thought she was getting too emotionally in-
volved with the people in her department. She says Rod-
gers told her she was "clannish" and "associating with
the wrong people." She says he gave her a week to
straighten out. Rodgers and Machado simply say they
told her to avoid becoming too wrapped up in people's
problems. They deny they gave her a week to straighten
out and they also deny saying that she was clannish
and/or associated with the wrong people.
On April 9 Machado advised Makert that she had not
passed the probationary period as a supervisor and he
was returning her to a machine. She says he again stated
she associated with the wrong people and also remarked
that she did not accept the authority of her boss. Ma-
chado denies the latter remarks. He says he simply told
her she was having problems with her foreman and diffi-
culty in communicating with fellow supervisors. On
April 10 Machado completed a personnel status report
attaching an appraisal form dealing with her 30-day pro-
bation period. The report is consistent with his testimo-
ny.
Actually Makert had been a supervisor for nearly 60,
rather than 30, days. On the appraisal form Machado
checked boxes which stated that she did not maintain
sufficiently effective working relationships with others
and did not fully meet the requirements of the supervi-
sor's job. Her change in status did not result in any loss
of pay, but instead of supervising six machines on the
day shift she began operating one of them.
Makert's apparent replacement as a supervisor was
Sharon Coulson. Both Rivera and Coulson report that
immediately after her demotion Makert became reticent
toward them. Coulson says that she had to "break the
ice" with Makert with whom she had previously been on
good terms. Rivera testified Makert, as well as Yvonne
David, see infra, began replying tersely and obliquely to
normal production inquiries. This included a sarcastic
"Yes, ma'am; No, ma'am" routine in answer to all ques-
tions. David appears to have done this to a greater extent
than Makert.
On April 18, according to Rivera, she observed excess
plastic "flash" on Makert's parts. Accordingly, she called
Makert's attention to it and said she did not appear to be
trimming the parts properly. Makert said she was, and
Rivera replied, "Well, they are not being done." She
checked further and concluded she was correct. Later
she mentioned it to Machado. On April 30, the same day
Makert contends Rodriguez told her Machado knew she
had been at the union meeting (see subsec. C, supra),
Rivera asked her if she wanted to be placed on machine
number 15 on a permanent basis. If so, she went on, it
would mean that Makert would permanently be under
Rivera's authority. Rivera says Makert responded, "Well,
I don't care." Rivera offered to discuss whatever prob-
lem they might have together but Makert said she did
not want to, and did not have to communicate with
Rivera. Rivera responded she had the authority to put
her on number 15 permanently and Makert responded
that she "didn't care about [Rivera's] authority." Rivera
interpreted Makert's attitude as a challenge and was
upset by it. She reported the matter to Machado and told
him she might quit.
Makert describes the conversation somewhat different-
ly. She contends that when Rivera asked her if she
wanted to work on machine number 15 under her au-
thority she simply replied that it was immaterial for
whom she worked. To that Rivera gave the somewhat
angry response, "Well, if you feel that way, I don't want
you on my machines."
Makert says later that day Rivera ordered her to put
her name tag on some boxes of parts which she had not
fabricated. Rivera says that occurred on May 2 and that
after some dispute over whether Makert was obligated to
put her name tag on the box, she told Makert to put
"half box" on that particular lot. Makert refused even
that request and Rivera told Makert she had to accept
her authority but Makert countered that she did not.
Rivera reported that, too, to Machado. The conversation
was overheard by operator Florence Bassett. Shortly
thereafter Supervisor Sharon Coulson says she heard
Makert refer to Rivera as a "bitch" and she told Ma-
chado.
Following this, Machado called Makert in for a discus-
sion. Present were both Rivera and Coulson. Makert tes-
tified Machado told her that he had heard she was
having a problem with Rivera who had told him Makert
did not care what Rivera's authority was and that "I was
refusing to put my name in the boxes and was being rude
to her." They then discussed the factual differences re-
garding the name tag incident and when Makert said
Bassett could shed some light on the incident, Machado
called Bassett to the meeting. Makert says Bassett cor-
roborated her by telling Machado what happened, who
started the conversation, and the tone of voice that was
used. She was then dismissed with Machado saying, "We
will just discount what Florence said and you are on
probation for a one-week period of time, in which time,
if your attitude does not change, we will take other
measures."
Bassett testified that when she was called in she simply
reported that she heard Rivera tell Makert to put tags on
a box and that Makert said it was not hers and that she
did not care what Irene said. She saw Rivera become
visibly angry. If anything, Bassett corroborates Rivera,
not Makert.
Machado testified he had received complaints from
Rivera and Coulson that Makert was not communicating
with supervisors. He says that when he called her to his
office she denied that charge asserting she had been com-
municating but he replied, "No, you are still having
problems dealing with the supervisors; you won't answer
when they talk to you. Also, you made the statement, 'I
don't care what your authority is' referring to Irene
Rivera." He says he told her the problem was continuing
and she would have to do something about it. Accord-
ingly, he gave her I week to "straighten up" and said if
the problem was not corrected he was going to take
473
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"further action." He asked her if she understood and she
replied that she did. He says Bassett added very little to
what his concern was and denies saying that he would
"discount" what she had said.
After the meeting was over Joyce Fowle, another ma-
chine operator, heard Makert in the parking lot refer to
Rivera as a "lying bitch."
Mold operator Deborah Hanson testified that some-
time in early May Makert told her that she had five to
six witnesses who would prove that Irene was removing
tags from the boxes. On May 8, according to Coulson,
she had a conversation with Makert about Rivera. Coul-
son says Makert told her she had contacted an attorney
"against Irene" and that she had three witnesses who
would say they had seen Rivera remove name tags from
Makert's boxes. Coulson reported that conversation to
Machado and made a note of it on a personnel record-
keeping form. Later that day Machado pulled Makert off
her machine and took her to the office where Plant Man-
ager Rodgers, Machado, and the supervisory staff were
assembled. Makert says Rodgers had a copy of the per-
sonnel manual and asked her if she had acknowledged
receiving it by signing a receipt for a copy. When she
admitted she had, he said, "I hear you have an attorney
against Irene Rivera-do you?" When she replied affir-
matively, she says he told her she was fired and directed
Machado to "Get her out of here before I throw her out
the window."
Rodgers describes the meeting less graphically. He
says he asked Makert if she had obtained an attorney
"against Irene" and when Makert replied that she had,
showed her her signature slip recently acknowledging
the company policy manual and asked if it was her signa-
ture. When she replied it was, he asked her if she had
started a petition or getting together employees to sign
statements against Irene. He says she replied that she
had. He then pointed out the clauses of the company
policy manual saying that he felt she had violated the
policy and she was terminated. He concedes telling Ma-
chado to get her out of the plant but denies telling him
to get her out before he threw her out the window.
Rodgers then caused to be filled out a personnel status
change report in which he stated Makert was being dis-
charged for violating company policies and engaging in
insubordination, willful misconduct, performing company
business outside the plant without permission, and intimi-
dating or coercing another person while on the job.
The other witnesses present corroborate Rodgers in all
respects (except they omit his reference to "a petition")
including denying Makert's claim that Rodgers told Ma-
chado to "get her out of her before I throw her out the
window."
E. The Discharge of Yvonne David
I have previously recounted the incident involving
David and Rodgers which occurred in the nurses office
on March 20. She also testified that on April 2 she was
shopping at a local grocery store where she spoke to a
friend and mentioned that former Mold Department
Manager Gary Mozer had been "fired." On the follow-
ing day Machado called her to his office and scolded her
for falsely telling someone Mozer had been fired. He said
that was misconduct sufficient to cause her to be fired.
She thought it over and decided she did not really know
whether Mozer had been fired and accepted Machado's
statement that Mozer had quit. She offered to apologize
to Mozer. Machado sent her back to work.
On April 18 David asked Rivera why Makert had
been demoted. When Rivera replied Makert had lost her
position because she was "not doing her job," David ex-
claimed, "My God, doesn't this plant give anyone a
chance?" Rivera went on saying there had been too
many complaints about Makert from her own people to
which David skeptically replied, "Oh, come on Irene."
Later that afternoon Machado called David to his
office and told her he had heard she had been "hot"
with her supervisor. When she denied it, he said, "Don't
let me hear about it again." Immediately thereafter, she
admits beginning a sarcastic "Yes, ma'am; no, ma'am"
routine with her supervisors. She deliberately became
formal and terse with them.
On April 20 or thereabouts she attended a company
meeting called by Rodgers which was a question-and-
answer session regarding unions. Nothing about that
meeting is alleged to be unlawful or evidence of union
animus.
On April 28 she attended the union meeting at the
Carson City Civic Center. She says on the day before
that meeting Facility Manager Clint Magner saw her at
the plant exit pick up a union flyer. While at the meeting
she saw Dority waiting in the parking lot in front of the
indoor swimming pool.
At the beginning of the shift on May I Makert offered
to trade machines with her and David agreed. Both went
to Machado to get permission but he decided to consult
with Coulson and Rivera. David testified that because no
answer was immediately forthcoming they went back to
their respective machines. While David was putting up
her "bodies," draining them, taking the caps, shaking
them off and counting them, Coulson called to her. She
waited until she was through with her count and then
asked what Coulson wanted. Coulson said, "Will you
please put your caps in the box? Drain them first before
you put them in the box." David asked why and Coulson
replied, "so the box doesn't fall out." David continued to
work. A few minutes later Coulson came up from behind
and was watching David box the bodies when the mold
machine opened and a part began to eject. David ran to
her gate to grab the part before it fell but in her haste
accidentally knocked over the bodies, requiring her to
restack. She uttered the mild epithet, "damn" and went
back to work. Coulson said nothing to her about that in-
cident. Later she and Rivera came over to pick up her
completed boxes and Coulson asked if David had put her
name tag on a particular box. David replied that she had
not because it was not hers; that the box had been nearly
completed by someone on the earlier shift. David says
Rivera told Coulson to put David's name tag on it
anyway. David interjected, "Fine, but if anything is
wrong with them and they have got cracks in it, I will
deny that I had anything to do with that box." They left,
then returned and David admits she began smiling at
them in an odd way. According to David, Rivera finally
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RICHDEL, INC.
asked if something was funny and when David replied,
"There is," Irene's face turned red and she walked off.
David says shortly after the 10 a.m. break Machado
called her to his office and asked if she was feeling okay.
Both Rivera and Coulson were present. When she re-
plied she was, he asked if she were sure. When she insist-
ed she was okay, he said he did not think so. Coulson
then said she believed David had been insubordinate.
David asked if she were referring to the name tags or
her statement that she would not sign the paper if the
bodies were wrong. Coulson said no, she was referring
to a "my God" utterance David had allegedly made.
David replied she had said "damn" when her bodies fell
over; then David told them that if they wanted to take
everything seriously, that was their problem but it was
"just like when she had supposedly gotten 'hot' with
Rivera, but hadn't."
David testified Machado then interjected saying he
could not have this sort of conflict going on in the mold
department every day and he had decided to suspend
David for 3 days. He had her sign a suspension slip and
told her he did not want to see her back until Monday,
and then with a different attitude. He then said, accord-
ing to David, "I can't go out and kiss you, what do you
want me to do, go out and kiss your feet?" She then re-
plied, "No, sir, but I don't expect to kiss anybody else's
feet either." He told her to return on Monday with a dif-
ferent attitude because "after all, you have four kids to
support."
Machado describes the conversation differently. He
says he had had complaints about David from Rivera
and Coulson and accordingly brought in David to ask
her what the problems were that she was having with
her supervisors. She replied, "Nothing really." He then
told her he had heard she was not communicating. She
replied she was. He asserted that she was not; they were
having a problem with her every day; she would not
answer and would not talk to the supervisors and the
entire matter had been going on for some time. In this
regard it should be noted that David admits she had not
ceased her "Yes, ma'am; no ma'am" routine. He told her
she was being suspended for 3 days to see if the problem
would clear up. Machado then filled out the suspension
report in which he stated that she had been warned
before about being insubordinate to supervisors and that
every day they were having the same problems with her
failure to communicate with them. He also observed she
had been moved to different supervisors but the problem
had not been resolved. Both Coulson and Rivera cor-
roborate Machado's version.
When the suspension was over David returned to
work on Monday, May 7. On the following day Makert
was discharged as recounted above. On Wednesday,
May 9, David went to the lunchroom at 7:30 a.m. prior
to beginning of the shift. A group of employees was dis-
cussing Makert's discharge and David remarked she did
not think it was right. She also said he was quite upset
with the hassles she was getting. David then told the
others, "If Irene [Rivera] gets me fired on a lie I will go
over to her table and pull her danm black hair out." She
says she said nothing further. Deborah Hanson was one
of the employees who heard David's remarks. She adds
David also said if she was fired "she would take Rivera
with her." Hanson reported the entire conversation to
Rivera. Later that day she heard David say she would
shoot Rivera if she was fired and would also shoot
anyone who helped fire her.
About 3:30 p.m. David was called to Machado's office
and she asked, "What have I done nowr' He did not
reply but took her to Assistant Plant Manager Robert
West's office. On their arrival Machado said he had
heard her derogatory remark about pulling out Irene's
hair and wanted to know if she had made the statement.
She admitted that she had. At that point West asked
when the trouble had started. She replied that it had
begun when Rivera "lied on number 15," the incident
described above when Machado told her he had heard
she had been "hot" with her supervisor. She says he told
her he "had to go with his supervisors." West declared
that after reviewing her record he had decided to termi-
nate her on the basis of attitude. She says she offered to
keep her mouth. shut but West said that was not good
enough.
According to Rivera, after hearing the report of
David's threat from Hanson, she went to West. West in
turn referred her to Machado and the two later had a
discussion about David. Machado and West reviewed
David's record and, according to Machado, decided that,
if she had actually made the statement, she should be ter-
minated. They then prepared the papers in advance, a
routine procedure in discharge situations. Except for that
background Respondent's witnesses agree that David's
description is essentially accurate. Machado says David
admitted saying she would "beat up Irene" rather than
pull her hair out, but the purport is the same. They had
already filled out the personnel status change form and
had placed on it that she was being fired for "bad atti-
tude-making threatening remarks toward department
supervisors. She has been warned before about her atti-
tude." She was asked to sign the form but instead wrote
on the back, "One supervisor has lied and provoked my
attitude to no end."
Both Machado and West deny any knowledge about
the March 20 conversation David had with Rodgers at
the nurses office. They say that by the time of the hear-
ing they had become aware of it but during the dis-
charge were ignorant of it.
IV. ANALYSIS AND CONCLUSIONS
A. James Cota
In analyzing the factual circumstances leading to
Cota's discharge I have concluded that the General
Counsel has failed to prove that Respondent's discharge
of Cota was motivated by either his union activities or a
desire to chill such activity.
First, there is no evidence that in late January either
Rodgers or Mozer was aware of any union activity by
Cota or any other employee. The only evidence that
management was aware of Cota's desire to organize a
union was Karr's report to Hunt and Cota's remark to
Callahan that, if there were a union in the plant, another
individual would not have gotten a promotion. Cota's
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grousing to Hunt was no more than a disgruntled com-
plaint. After listening to Cota at the hearing it is difficult
for me to believe Karr, Hunt, or anyone else would have
taken Cota seriously. Callahan certainly recognized
Cota's attitude for what it was. He did not even bother
to tell Mozer, though he did tell him that Cota was com-
plaining over the promotion of another employee. That
was the thrust of Cota's complaint, not his union-orga-
nizing propensity.
The General Counsel argues, however, that Hunt's
and Callahan's knowledge must be imputed to the deci-
sionmaker, Mozer. It is true that neither Mozer or Hunt
testified; only Callahan did. However, in view of the fact
that the only reasons Cota says Mozer gave him for dis-
charge are consistent with the personnel record made by
Mozer, I do not see any reason to draw an adverse infer-
ence against Respondent for failing to call them.5
Second, there is no evidence of union animus on the
part of either Mozer or Respondent generally. There is
no reason to doubt Karr's testimony that Hunt told him
Cota "could get fired" for union organizing, but, equally,
there is no evidence that Hunt's remark reflected compa-
ny policy or even Mozer's policy." Elsewhere in this
record is evidence that Respondent's only concern was
that union activity not occur on the machines; Rodgers
even encouraged David to find out all she could about
unions, telling her to consult with her father and attend a
union meeting if she wished. Simply speaking, even if I
impute to Mozer Hunt's and Callahan's knowledge of
Cota's union-organizing expression, there is no evidence,
direct or indirect, of union bias sufficient to motivate the
discharge.
Indeed, the reasons advanced by Respondent for firing
Cota are corroborated by him. He says, by way of re-
joinder, that Respondent had long tolerated his attitude
problems. But his observation here ignores the supervi-
sory shakeup directed by Rodgers. Assuming that Hunt
and Callahan were lax in enforcing company policy re-
garding reading and disruptive conduct it does not
follow that Mozer was. When different supervision
became aware of his conduct, it is not surprising that a
different reaction was obtained.
Third, the question of the timing of Cota's discharge is
subject to different reasonable interpretations. The Gen-
eral Counsel observes that his discharge occurred 2 days
after Karr told Hunt Cota had said he was going to or-
ganize a union. But it also occurred at the end of the
month only days after Mozer stated he wanted Cota
I It is true that there is Little's testimony that Mozer virtually admitted
he was discharging Cota for being a union activist, but I do not find
Little to be credible. She has a bias against Respondent and Respondent
has presented credible evidence that in all likelihood she was not in the
plant at the time the alleged conversation occurred. In this regard I ob-
serve that it is possible Little had returned to the plant in late January to
discuss her resumption of duties upon the expiration of her leave of ab-
sence. She did not place the remark in that context and the General
Counsel did not recall her to explain. In view of these facts, as well as
her long silence about the alleged conversation, I believe she seized upon
the hearing as an opportunity to vent her anger at Respondent. Her testi-
mony is rejected.
6 Assuming Hunt's statement to Karr was an unlawful threat to dis-
charge an employee for union activity, I do not believe a remedy is nec-
essary. The statement is not alleged as a violation and it is totally isolat-
ed.
fired for reading and disruptive conduct. In that regard it
appears the axe was already falling before Cota ever ex-
pressed any union-organizing interest. 7
Finally, there is no evidence that Respondent's as-
signed reason for discharging Cota was a pretext. Only
Mansker supports Cota here and she minimized Cota's
reading to a level that rendered her testimony doubtful,
since Cota admitted to a greater level than she was will-
ing to describe. I have already noted that Mansker's tes-
timony to the effect no warnings were given is subject to
doubt because she may not have attended the warning
meeting. The only reading which was tolerated was the
company parts manual. That is obviously a different
matter, for it had a training purpose.
In conclusion, I find the General Counsel has failed to
prove that Cota was discharged because he said he in-
tended to organize a union.
B. Ruth Makert
Neither am I able to conclude that Ruth Makert was
discharged for any reason prohibited by the Act. She
had not engaged in any union activity except for the
signing of a card and there is no credible evidence that
Respondent knew or believed she had done so. At best
her activity would fall within the protection of the Act
only if her decision to hire an attorney to deal with per-
ceived problems with Rivera constituted protected con-
certed action. I cannot conclude that it did. Rather, it
appears her hiring an attorney for that purpose was
simply to vindicate her own personal differences with
Rivera.
It is clear to me that Makert resented Rivera for sever-
al reasons. First, she apparently believed Rivera was ex-
cessively ambitious, wanting a job in the office. Second,
when Makert failed the probationary period, she found
herself taking orders from Rivera whom she had trained.
That did not sit well with her. Furthermore, I am not
persuaded that Rodgers or Machado told Makert she
was "associating with the wrong people." Even if the
remark were made, it is not clear that it had anything to
do with union organizers. More likely it had to do with
her becoming excessively involved emotionally with
fellow workers, such as Little whose demotion had re-
duced Makert to tears. Certainly Respondent's charge
that she was refusing to communicate with the supervi-
sors was accurate. She claimed she did not have to talk
to Rivera, and Coulson had to make a special effort to
"break the ice." Finally, when she became so angry with
Rivera that she hired an attorney it is clear that her only
purpose was to figure out a way to continue working
without having to speak to Rivera. That object had no
I Cots testified that in late January he asked for a transfer to the
graveyard shift and on January 30, the day before his discharge, Hunt
told him his request had been approved. Assuming Cots is telling the
truth here, Hunt may not have been privy to Mozer's decision. Hunt was
the assistant department manager and probably had the authority to make
the transfer without Mozer's approval. Yet, there is reason to doubt Cots
here. Karr reported that Cots said he intended "to milk" Respondent for
S1 million. Use of the verb "milk" implies a willingness to stretch the
truth to obtain the desired end. Either way there is no reason for me to
conclude Mozer's decision followed, rather than preceded, Respondent's
supposed acquisition of knowledge of Cota's prounion feelings.
476
RICHDEL, INC.
"mutual aid or protection" in mind. She was only trying
to improve her own circumstances. Indeed, it appears
she was trying to dictate her own terms and conditions
of employment. a I am, therefore, unable to find that her
discharge violated Section 8(a)(1) or (3) of the Act. Like-
wise, the demotion which she experienced in early April
and statements connected to it had nothing to do with
reasons prohibited by the Act. The General Counsel has
failed to show by a preponderance of the evidence that
Respondent had a discriminatory motive in its demotion
and later discharge of Makert.
C. The Discharge of Yvonne David
Here again, I conclude the General Counsel has failed
to show by a preponderance of the evidence that
Yvonne David's discharge violated Section 8(aXl) and
(3). The only union activity in which she had engaged
was to express a fear in late March that she might be
fired during the Union's organizing drive. The fear had
been instilled in her by an outsider and she expressed it
to a fellow employee. That resulted in a counseling con-
versation with Rodgers and Mozer. During the conversa-
tion she was noncoercively asked what had happened
and was assured that she would not be fired over union
matters. Rodgers told her she was free to engage in
union activity, including consulting with any knowledge-
able person about unions and her only restriction was to
refrain from union activity while working at her ma-
chine. Rather than exhibiting union animus the incident
exhibits a tolerance and a recognition of employee rights.
Afterwards she told a fellow employee that everything
was now all right.9
David became upset with Makert's demotion and
either then or shortly thereafter began responding rigidly
to supervisory directions. Her tone was interpreted as
sarcastic and rude and she antagonized the inexperienced
Rivera and Coulson who probably overreacted. David's
only overt union activity was to attend the April 28
union meeting at the Civic Center. She, however, was
not alone in this regard. No doubt Magner saw others
accept the Union's flyers and there is no credible evi-
dence that Respondent knew she had gone to the meet-
ing.
I think it is fair to say that the May I incident which
resulted in her suspension was blown out of proportion
by Rivera and Coulson, but the decision was made by
Machado who relied on their report. That is not to say
that a communication/insubordination problem was not
occurring; David admitted it was. Whether it justified a
I Adding confusion to her purpose in hiring an attorney is her pretrial
affidavit in which she says she told Rodgers she had an attorney for "real
estate." Why did she tell that to the Board investigator when everyone,
including her, now agrees that she admitted the attorney wua "against"
Rivera? Perhaps the only thing which can truly be discerned is that this
is another instance demonstrating her doubtful credibility.
* Machado's scolding David on April 3 for recklessly telling a friend
that Mozer had been fired does not seem to have any bearing on the
issues before me. The General Counsel argues that it is evidence of Re-
spondent's ability to keep close tabs on its employees, but I do not agree.
It is only evidence that that incident somehow got back to him.
suspension is not for me to say, but there is no proof that
the suspension had anything to do with her having at-
tended the union meeting.
By May 9, having observed Makert's discharge, con-
sidering it to be unfair, and combining it with what she
believed to be unfair treatment of her, David was seeth-
ing. She admits as much when she concedes she said she
would pull out Rivera's hair. Neither is there reason to
doubt Hanson's testimony that David also said she would
take Rivera with her if she was fired and would shoot
Rivera or anyone who helped Rivera fire her. Her anger
is clearer still when one notes the remark she placed on
her termination slip to the effect that Rivera had lied to
her and "provoked my attitude to no end."
That David's discharge was not motivated by antiun-
ion considerations is apparent when one considers the
decision was made by West to whom Rivera's final com-
plaint originally went and who was already aware of
David's earlier problems. There is no proof that either
West or Machado was actually aware that Rodgers had
spoken to her on March 20, but even that cannot be
characterized as having been in an antiunion context.
The only evidence before West and Machado was the
continued complaints by her immediate supervisors and a
threat of physical harm to one of them. Up to that time
they had been reasonably tolerant and had even shifted
her to different supervisors in order to correct the prob-
lem. David had exhausted their goodwill by the time she
angrily threatened to pull out Rivera's hair.
Finally, I observe that there is neither union animus in
this discharge, nor evidence that the discharge was for
pretextuous reasons. The only factor favoring a violation
is the timing in the sense that her suspension occurred
only 3 days after she attended a union meeting. That,
however, is not enough to warrant the conclusion that
her attending the meeting had anything to do with the
discharge, particularly in the face of her own admission
that she was constantly being mildly insubordinate to
two new supervisors who lacked confidence in their own
authority. While their reaction may have been somewhat
unfair, it is not unreasonable for West and Machado to
have relied on them and to have backed them up.
Indeed, the same can be said for Makert's discharge as
well.
Therefore, I find that the evidence presented by the
General Counsel in support of the contention that Re-
spondent violated Section 8(aX3) and (1) of the Act with
respect to David's discharge and the events leading to it
fails to support the allegation.
Based on the foregoing findings of fact and the record
as a whole I hereby make the following:
CONCLUSIONS OF LAW
I. Respondent is an employer within the meaning of
Section 2(2) of the Act, engaged in commerce and in an
industry affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
477
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER'
It is ordered that the complaint be, and it hereby is,
dismissed in its entirety.
i' In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
478