Steward-Warner Corp.

National Labor Relations Board - Board Decisions

Oct 28, 1980

253 N.L.R.B. 136 (N.L.R.B. 1980)

I)ECISI()NS ()F NA IONAI. LAB()R RELATIONS BO()AR)
Stewart-\Warner Corporation anrd Neil Burke and
Mlark Weisbrot, Margaret McCarthy and Bruce
Bernstein. Cases 13-CA-18102, 13-CA- 18740,
13-CA-18820, and 13-CA--I 8956
October 28, 1980
DECISION AND ORDER
BY ClIIRNlSN FANNING ANI) Ml MBI1.RS
JE NKINS ANI) P NI I O
On May 28, 1980, Administrative Law Judge
Bernard Ries issued the attached Decision in this
proceeding. Thereafter, the Respondent, the Gen-
eral Counsel, and Charging Party Mark Weishrot
filed exceptions and supporting briefs, and the Re-
spondent, the General Counsel, and Charging
Party Bruce Bernstein filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge, except as modified below, and to adopt his
recommended Order, as modified herein.
The Administrative Law Judge found that Bern-
stein's discharge was unlawful. Bernstein, who fa-
vored replacing the Union with the United Work-
ers Association (UWA), was discharged on
Monday, June 11, 1979. The only link between
Bernstein and UWA is that, on the weekend before
his discharge, he hosted a party which originally
was planned as a purely social gathering but some-
where along the line acquired an additional organi-
zational purpose. Thus, some, but not all, of the in-
vitations contained the notation: "Let's Get a
Decent Union at S-W!" The invitations gave Bern-
stein's address, but not his name.
The Administrative Law Judge acknowledged
that there is no direct objective evidence that the
Respondent was aware of Bernstein's sponsorship
of the party, or of his support for the UWA, or
that it even knew of the existence of the UWA.
However, he found that the Respondent had "the
opportunity for gaining knowledge" of both the or-
The Respondenit. the General Counsel, and the Cha rging Party have
excepted to certain credibility findings made by he Adnilislrai is l
Judge II is the Board's established policy not to ).crrilJc ian adnillnstra-
tive lawx judge', resolulin s with rcpct to crelibility I nless the clc;ar
preponderance of all of he rle vaii eidencc con inccs us Ihal Ith rcst)-
lutions arc incorrect Standard Dr, r 4 ll I'rdi/,,ot , 9li, 1i NlR I 544
(1950)1. enfd IX88 2d 362 (3d Cir 1951) We hast .l refull e.lxaminir ed
the record and find nio basis for revcersing iis ir diig
I In adopting thc Adminiistrative t.as Judge's cnlchlisiol that tlhe Re
spondertt did nol violate emploece Wl,sbrol's rights Illder \ I R ,
Wln elrietI ln, 420 tI 5 251 (1975), ('hallrman ilainitug .iland M rllbel
Jenkins do not rely on Raudwry a 1.Xprcs, Inc. 246 NIRlI No 18) ( 1979)
253 NLRB No. 16
gani/alion and of Bernstein's participation therein
because the invitations to the party were passed
around to employees and because conversations
about the upcoming party occurred within a few
feet of supervisors. Bernstein, however, did not
pass out any of the invitations which recited the
organizational purpose. In addition, his address,
without a name, o011 the invitations cannot reason-
ably support a inference of identification of a
new, probationary employee in a plant of approxi-
mately 3,(000 employees. Moreover, there is no evi-
dence that Bernstein's name was ever mentioned
during the conversations that supervisors arguably
were capable of overhearing. In short, the possibil-
ity of the Respondent's gaining the relevant knowl-
edge is present in only the most remote and hypo-
thetical sense.
Unpersuasive, too, is the evidence that the Re-
spondent had sufficient motivation to discharge
Bernstein for his UWA activities. Acknowledging
that the Respondent did not violate Section 8(a)(1)
of the Act at any time during the extended and
vigorous UWA campaign, and that its opposition
to a change in the existing organizational status of
its employees was lukewarm at most, the Adminis-
trative Law Judge rests his finding of animus on a
single remark by the supervisor who discharged
Bernstein. This remark was made more than 2
months after the discharge, and consisted of telling
a UWA supporter that he thought she was "too
smart to get hooked up" with that group. When
the employee answered that her conduct was "not
company business," the supervisor added that he
was not talking to her as the Company, but as a
friend. The incident, which was not alleged to be
unlawful, is, at best, ambiguous, isolated, and
remote, and hardly bespeaks a degree of animus
which permits the inference that the Respondent
would have singled out Bernstein for discharge had
it known of or suspected his UWA activity. Given
the less than passionate role the Respondent as-
sumed even as the UWA campaign coalesced and
eventually succeeded, this case does not appear to
fall within the category of cases exhibiting the "nip
in the bud" variety of employer unlawful
counterorganizational conduct.
While an unlawful motive may be inferred from
the falsity of the stated motive, "such an inference
is not compelled and is justified only where it may
reasonably be concluded that the motive sought to
be concealed by the asserted false reasons is unlaw-
ful." Superior orwardling Company, 242 NLRB 761,
765 (1979). Cf. irst N\ational Bank o Pueblo, 240
NLRB 184, 185 (1979); Shattuck Dnn Mining Cor-
poration v. .L.R.B., 362 F.2d 466, 470 (9th Cir.
1966).
13h
STEWARI-W'ARNFIR CO()RPO(RATI()N
For the foregoing reasons, we find that the Adminis-
trative Law Judge's conclusion that Bernstein was dis-
charged in violation of Section 8(a)(3) arid (I) of the Act
is not supported by a preponderance of the record evi-
dence, and we hereby dismiss that allegation of the com-
plaint.
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, as modi-
fied below, and hereby orders that the Respondent,
Stewart-Warner Corporation, Chicago, Illinois, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, as so modified:
I. Delete paragraphs (a) and 2(a) and (h), and
reletter the subsequent paragraphs accordingly.
2. Substitute the attached notice fo(r that of the
Administrative Law Judge.
APPENDIX
NoTIcct To EN1PI.O'tits
POSII.D HY ORI)II R o: THE
N.TIONAT . LABOR Rt-t AFIONS BOAR)
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WI.I NOT threaten employees; wt wll.i
NOT intimidate or denigrate employees; wt
WILl. NOT coercively interrogate employees;
and wt;: WtI. NOT limit the right of employees
to engage in protected concerted activities, in
circumstances which restrain, coerce, or inter-
fere with the rights of employees to engage in
activities within or on behalf of labor organi-
zations.
WE Wl I. NOT in any like manner interfere
with, restrain, or coerce our employees in the
exercise of their rights under Section 7 of the
National Labor Relations Act.
STEWART-WARNIR CORPORATION
DECISION
BI RNAR,) Rt. s, Administrative Law Judge: Case 13-
CA-18102 was heard in Chicago, Illinois, on April 18
and May 2, 1979, and closed on the latter date. Thereaf-
ter, counsel for the General Counsel filed motions to
reopen the record and to consolidate for further hearing
with Case 13-CA 18102 the complaints which had sub-
sequentls been issued in the other threc-captioned cases.
()ver Respondent's opposition, I granted the motions.
The new matters were heard in Chicago on November
13-16 and December 3, 1979. Only Respondent filed a
brief after the initial hearing; both Respondent and the
G(eneral Counsel, on or about March 18, 1980, filed
briefs addressing the second group of allegations The
pleadings establish that it is appropriate for the National
l.abor Relations Board to assert jurisdiction in this pro-
ceeding.
The proceeding consists of two well-demarcated
phases At issue in the original case is whether, on sever-
al occasions in September and October 1978, Respondent
engaged in conduct designed to interfere with the "union
and/or protected concerted activity" of employees, as al-
leged in the complaint, and thereby violated Section
8(a)(1) of the National Labor Relations Act, herein
called the Act. The second set of complaints charges
both 8(a)(l) and (3) violations occurring during a subse-
quent stage of Section 7 activity in May-September
1979. ()n the basis of the entire record.1 the briefs, and
my impression of the demeanor of the witesese I make
the following findings. conclusions, and recommenda-
tions
1. .\ II (; I IONS RISIN( O't l 1t F- ( 001
CA PAI U(N
As of 1978, Local 1031, International Brotherhood of
Electrical Workers, represented the employees at per-
haps 3 of Respondeat's plants aid, as well, about 65
other bargaining units. In the late summner of 1978, some
of Respondent's employees, dissatisfied w ih being repre-
sented by Local 1031, established an organization called
the "Committee for Our ()wn Local." or, acronymically,
"COOL." On September 5, 1978, the day after Labor
l)ay, COOL. members began distributing, inside and out-
side the plant, literature and cards. The cards, which
were designed to be mailed to IEWV International Presi-
dent Pillard, requested that "our bargaining unit be re-
moved from the jurisdiction of Local 1031 and estab-
lished as a separate IBEW local union"
Neil Burke is listed on the cards as one of the two
"Co-ordinators" of the COOL group. Burke, an employ-
ee for 20 years, began collecting signatures on September
5. He testified that, on September 7, he was told to go to
the office of Chester Kopier, his department foreman.
There. according to Burke, Kopier said he had been told
thirdhand that Burke had been out of his department
without permission. Burke denied having done so, and
said he "just went through this a couple of weeks ago
with Bill Buchanan." Kopier, after saying "Don't go into
Department 65 for any reason," then stated, "Neil, we
have been friends for years, but when a termination
comes through this office, you know, it wouldn't be
coming from me, but that I'll have to process it." Burke
then asked that the source of the information be contact-
' £( ,iIsr l loir ite (ileTr.ll (.iunllel ;ildt Resp)II till ha. filed a.1 Oe i
imoloni to corret atiC ra,lil rlpt Ihexc tr,,rs are hcreh} tlloted nld otr
retced
Ihe r cord uis .one.Il Il Ch lIl l] [tehi * i lllnlih r: tIlere aI refer-
ence to "rfic ( hlwlgo .ireal plIlnts" at other polilnt,
117
I)tliISI()NS ()F NA II()NAIL I .ABt()R R LA-I()NS l()ARI)
ed so that they could "get this straightened out right
now,'" but Kopier said he would riot disclose the source.
Burke thel said to Kopier, near tile end of the conversa-
lion, "ook, Chester, off the record I can tell you hov.
i'm organizing this and I don't have to leave the deparl-
menCt t do it." IHe went on to relate the manner ill
which he could solicit signatures without running afoul
of the rules. Kopier said nothing, aid Burke left.
The conmplaint alleges that, on or about September 7,
Respondent violated the Act whenl1 Kopicr "'threatened
to discharge an employee if the employee engaged in
union and/or protected concerted activit." I am i-
clined to think that Burke's testimony supports a fi iding
that Kopier violated Section 8(a)( ).
Kopier as not called by Respondent as a witness.
While another witness, urke's immediate foreman, Wil-
liam Buchanan, did give sortme testimony purportedly re-
lalinig to this incident. Kopier's failure to appear compli-
cates the decision, leaves directly uchallenged the testi-
monl of Burke, and leaves uncorroborated and unclari-
fled the testimony of Buchanan. Respondent's brief
simply states, "Kopier's presence would have been a
needless expense to the company because Burke's testi-
molny establishes that the alleged 'terminatioin' eilark
does nrot constitute a violation and that Kopier did rnot
discuss illard cards."
Considerinlg thai an appearance by Kopier might have
consunledCL only a fewv hours of his time and would have
enlltiled no more than the expense of travel from one
part of Chicago to another, that explanation displays a
kind of confidence not often encountered in these cases.
Responident is, of course, entitled to let the General
Counsel's ase stand or fill otn its own merits, but one
cannot help but speculate about a decision not to have
Kopier come in to profess his completely benign motive
ill an encounter which was evidently the main event of
the first phase of this proceeding.
Burke testified that he had been spoken to by supervi-
sion o(n two occasions in the preceding 20 years about
having left his department without permission. He said
that, in December 1977, he had taken a wrong turn in
the planlt and wound up in department 65. At that time,
Kopier had called him in and spoken of issuing him a
warnilig slip, but after Burke explained what had hap-
pened, "[Kopier] agreed with me, and I didn't receive a
warning and I went back to work."
More pertinent to the present issue was Burke's ac-
count of an incident in August 1978, the month before
the alleged violation. Burke said that, in early August, he
had secured permission from Buchanlan to go to depart-
ment 65 to grind a tool, and that, about 2 weeks later,
Buchanan chastised him for having gone to that depart-
ment without permission. While Burke testified that the
tool grinding occurred in early August and the criticism
by Buchanan 2 weeks later, his October affidavit placed
the times as, respectively, "about August 15" and "about
August 29." At first stating that the affidavit was "incor-
rect," Burke later said he "may have had it right there,
and I don't right now."
Supervisor Buchanan testified to an occasion which
floats uncomfortably in the air, unconnected in time,
almost contradictory of Burke, but unconfirmed by
Kopier. Sometime "iii the summer or fall of 1978,"
Kopier assertedly told Buchanan that Burke "was seen in
another department, I)epartment 65, talking to other
people." That same morning, Buchanan asked Burke
about it. and Burke told him he had gone to grind a tool.
Iuchanani told Burke that he should get a pass if he
wanted to leavc his work area. Again on that morning,
Kopicr told lBuchanian that he also had spoken to urke
about the matter, anid, iot long after this, Burke com-
plaiied to B3uchananl about havinig been chastised by
Kopier. Buchanan was a fairly good witness. If it is as-
sumed that he and Burke were referrinlg to the same inci-
dent, this would mean that Kopier spoke to Burke about
it in August nrot September. Buchanan's inability to
place this iincident il time leaves us thirsting for the
more definitive testimony by Kopier which was not pre-
senled.
I am ireclined to credit Burke that some time elapsed
between his appearance in department 65 and the admo-
nilion given him by Kopier. Burke's uncontradicted ac-
counlt of the September 7 conversation with Kopier idi-
cates that a violation occurred. Respondent's rules re-
quire "'[w]ritten approval . . . to visit the following loca-
tions: . . . ()ther Dcpartmenits" They further provide
that "a verbal warnilng will be issued for the first inci-
dent [of violation of this rule], a written vrarning for the
second incident, and a suspension for the third incident
Ani employee is subject to termination for the fourth inci-
dent in a running year. " a The lestimoion discloses that
this sequelice is faithfully adhered to.
That being so, Kopier's statement to Burke, "Neil. we
have been friends for years, but when a termination
comes through this office, you know, it wouldin't be
coming from me, but that I'll have to process it," was
plainly disproportionate to any claim that Kopier was
merely speaking to Burke about being away from his de-
partment. Puttinig aside the December 1977 incident,
which Burke says, without contradiction, was dismissed
without so much as a warning, Burke's credited testimo-
ny is that he had inot been in department 65 since, at
worst, August 15. For Kopier to call him in oni Septem-
ber 7, 2 weeks after Buchanan had already spoken to him
about the matter ad shortly after the beginning of the
distribution of the cards (an event which was open and
notorious at the plant), and rarn him about "termina-
tion" would have reasonably been perceived by Burke 4
as an overreactionl sparked by the passing out of the
cards. 5
I find, accordingly, that Kopier unlawfully threatened
Burke on September 7 because of his participation in
protected concerted activity. ; In so finding, I have con-
:' All ilteresting feature of Resporldctllts ,lplllary  lstern is that
sollCm '%e rhal arllilgs" are tllenirialiic ll i .w rling. so Ithal i order to
diffrtrliait Ihl osec warnrilgs from '"l ittel w arnmiIgs." a specific designla-
tioll of the kind of iarmiig heing issued is made on the larning noItice
It Bulk. trc it'li . 'ithoul rcluillli present is
measured by "objective standards under all the irculm-
stances of the case," id. at 257. fi. 5.
I am hard put to conclude that Weishrot "reasonably"
feared the imposition of discipline poni entering the
office. The trip to DePriest's office should ha e seemed
routine to Weisbrot. It begani with an issue raised by
Wyper, as the two elngaged their dailk revie, of the
parts list, as to whether Weisbrot was responsible for co-
ordinating the supply of parts to both lines With Weis-
brot giving one answer. and Wyper uncertain,:*: Wyper's
instruction that they "go in the office and talk about it"
would not seem to have carried an olinous connota-
tions for Weisbrot's future. From all that appears a rea-
sonable person would have regarded the office visit as
nothing more than an effort to obtain clarification of
Weisbrot 's duties. In Qualit ' .MlruJiluring Comlpany,
195 NLRB 197, 199 (1972), the Board stated that thle rule
affordinig representation did not apply to "run-of-the-mill
shop-floor conversations as, for example, the gi ing of
instructions or training or needed corrections of \work
techniques." Although this was not a "shop-floor" con-
versation, which detracts somewhat from the analogy, al
objective view of the circumstanees should sensibly have
suggested that Wyper only intended an ordinary, nonth-
reatening discussion of a question of work function.
In addition, I have found above that, when Weisbrot,
upon entering the office, first asked whether he was
going to be disciplined, Wyper replied, "No, we just
want to talk." In (ncral Ilclric Company, 240( N I RH
:':t ()l croi,%-examilllllll, 'le hroli greicd thilt "'hert 'l \itiie o tl'Ctl-1
s l{rl iJl10 ab0Lo t hel-r lill %tit, palrl , 1 lh "
47, 4() (1979), the Board relied on the fact that the ap-
preliensi' e employee v as tlod "alrilrol frorm tie outset of
the coIversationl with his foretmanrr that he would not he
disciplined about his alle·gedl's ;faiult work" in conclud-
ing that the employee had no reasonable hasis for fearing
discipline as a result of the interviewa. In the present case.
when Weisbhrot asked whether he %ould he disciplined,
W. per expressly denied the possibility and explainled
(comfortingly, one would think) thal they were there
"just to talk After this statement was made bh the onl
supcrvisor present who kne. the purpose oif the isit,
\Weisbrolt ihuld plainly ha. e felt aslured that no disci-
plinle would elisue. I
Wyper's assurance satitfied te requirements of te
W 'eingarlel doctrine. Having heen to1, tl h per thatl no
discipline would issue, Weishrol had no1 reason to sup-
pose that he was being compelled to attend 'an investi-
gatory interview in hich the risk of discipline reason-
ably inhere[d], aid therefore no purpose to hc ser cd
by the presence (if a union represenlati. e
Moreover. it seems to me that Respondent mna; he on
the mark i dra\ ing an analogy be ht ceni this case and
Road wayt' pres, Inc., 246 NL R I No. 18(0 (1979) (Chair-
man Fanning and Member Jeinkins dissenting) There thc
majority held that it \as rnot violative of tie IcnMgarlen
principlh for an employer to discipline an eiplo cc for
the insublordinate act of refusing, becauset f the absence
of his ste ~ard, to leave the dock area ill order to attendi
a nriceting ill the office concernlig earlier misconduct (tf
thie employee. While Roadway is factually distinguishable
i sonmec respects. it seems to hoil do, rn to a holding that.
whilc n Iemployee may llilh impLuiti resist an iill orced
unrepreseCnted in. estigatory intervlie the emploCer's
"right to maintain discipline" entities the etmployer to
insist that the emnployee behave it h decorurn prior to
the commencemnlet of the iter. iea. Ibid.
In the present case, according to Wypcr's credited ac-
count. 'Weisbrol was thrice told to be seated. and thrice
refused, hbefore he asked that a steward be called It vas,
according to ike, principally the insubordinate onIIduct
of refusing to sit for which Weisbrot was disciplined In
a meaningful sense, the ease is stronger than RoadwatY ili
that the insubordination, at least initially, was in io way
linked to a request for representation. From another per-
spective, it may he said that. as anl employer may require
all employee to leae the plant floor i order to appear
in an office so that the interview, ma) begin,: so hie mnia
require the employee, once in the office, to sit doi ,n for
the same purpose
Trh coomplaint alleges that Weisbrot was uspcided
and temporarily terminated in June not only because he
sought unioln representation, but also becaulle of his "pro-
' th (illrll (r 1r nslcI airgICs ll hrief th.ll \.i l hrot hlilwi 11 l 11, C
I.i',irhll b ll l heI All ' h per sa, 1t'. 1h.e-l t k il lisig ,hih. ii
pr L-L'lT" ;tlll h it , ) DcPI'rlc ','s ltr r[lillk 1htl e 1 "id t (1tl kl1\
shether F ir not tsInlrt %collld ret-lo% l a Alrlllg miliC Itlil/td IIIC l
te tiiess oft w prs' is stlurai.e the hosrl jint I I% tlat \iNi[i r \;1
kioll ii i(I w clshrtil 1s the onl', sJplertil r res..cilt 11' , lis, tirtt qlos I li'
.-hi1tl' t i.' t 1 % h ile t i II liti \ I'il r t Irlsi V '\p r'e 1titiig
Ilt'rlI
" l,[n t[lllp \. % s (I{,'IutIglrl-ll rigllt. \stlh ;I1 I1t, .,t11ill.ll{ .i t.
tl;trdi. rllltlh. ' ;1{ lilt 01 I- Cll'f1I 11 -. tMlll it II ll in[ 1 ik. A ' l'1,/
147
I8DECISI()NS ()F NA 'IONAI IA()OR RELATIONS HO()ARD
tected and concerted activity." It becomes appropriate at
this point to discuss two matters which arguably indicate
that Weisbrot's Section 7 activities came to Respondent's
attention before June 11.
The first is that on May 21, reacting to the signout
policy, Weisbrot filed a charge with the Board's Region-
al Office against Respondent, giving as the basis for the
charge: "Since on or about May 9, 1979, and continuing
to date, the above named employer, by its supervisors
and agents, has harrassed [sic] and discriminated against
its employee Mark Weisbrot." There is, as Respondent
points out on brief, no express mention in the charge of
any union activity. Another section of the document,
however, alleges violation of "section 8(a), subsections I
and 3," of the Act, and the latter reference, of course, is
to the subsection protecting union activity. Nonetheless,
since the formation of the UWA was being kept, in
Weisbrot's word, "underground" until June 18, it is not
easy to infer from this charge that Respondent knew
what was on Weisbrot's mind when he filed it.:` The
record does not show how many such charges are filed
in a facility of Respondent's size or to whose attention
they come.
The other item is some testimony by Weisbrot and
former employee Bruce Bernstein. Bernstein, a proba-
tionary employee, was discharged on the day that Weis-
brot was suspended, and the asserted grounds for Re-
spondent's knowledge of Bernstein's pro-UWA position
to some extent involve Weisbrot as well.
Aside from his testimony that he participated in put-
ting together the June 18 newspaper announcing the for-
mation of UWA, the only union activity by Bernstein
before he was fired on June II (he had begun employ-
ment on April 15) was his sponsorship of a party at his
apartment on Saturday, June 9, which in part was in-
tended to promote the UWA. Initially, Bernstein and
some friends thought to have a purely social function,
but somewhere along the line it seemed a good idea to
make an organizational affair of it. Two kinds of invita-
tions were handed out:: 7 one simply announced a
"PARTY," giving Bernstein's home address and the day
and time; the other read, "Party? Let's Get a Decent
Union at S-W!" and it, too, gave Bernstein's address, as
well as his telephone number, plus the day and time.
Bernstein himself, however, did not pass out any copies
of the latter invitation. A total of some 45 employees at-
tended the party.
Bernstein testified that at or about 9 a.m. on June 11.
the Monday following the party, he was standing in the
plant near an elevator with Weisbrot and Robert McFar-
land. They were discussing the "success of the party and
the effect it would have on the organizing, the union
drive, in fact, we were discussing the fact that a large
number of people from the plant went to the party and
that overall it was a successful thing." At some point,
:s The 'small plant" doctrine, see Wieie PloH We'ldrig C(.. Inc.. 123
NlRB 61h (1959), would apparently not apply to Respondent's 3,000 em-
ployee operation (even assuming that each of the plants were considered
separately). It i. parenthetically, a limitation about which I have some
doubts Word probably circulates around a 50-man department (of a huge
plant as rapidly as it doe, around a 50-man plant S far as I know, ho w-
ever, the Board has refrained from uch an analysis
'7 There is reference to a third, but it is not in evidence.
Superintendent Cichorski "walked very close to us and
overheard a part of the conversation which we were dis-
cussing the party." After he passed by, Weisbrot re-
marked that Cichorski "had his c->c on" Bernstein. Bern-
stein had never previously spoken to Cichorski and did
not know his last name or title; he knew only that he
was a "big boss."
Weisbrot essentially confirmed Bernstein's account,
only he had Cichorski looking at both of them with
"kind of a mean look," and said that he told Bernstein
"to watch out, that this guy had it in for Bruce." Weis-
brot testified that he passed out both kinds of invitations
to the party.
It is, of course, possible that a supervisor became
aware that Weisbrot was circulating invitations to a
party, some of which made reference to "getting a
decent union" at Respondent's plants, and passed on the
information to the appropriate authorities. It is also possi-
ble, but improbable, that Cichorski, walking by Bernstein
and Weisbrot at his "normal stride," was fortunate
enough to overhear that Bernstein, whom he did not per-
sonally know, and Weisbrot, who he may or may not
have known, had held a party which successfully fos-
tered a new union.:i I have somewhat more respect for
the possibilities inherent in the testimony of Helen Horn,
a department 23 employee, an organizer of UWA, and a
believable witness, that discussions about the party were
had "on at least a couple of occasions" within a few feet
of two of the supervisors; such things as "maybe we
could get ourselves a better union" were said, but the
talk was not "real loud"; however, on Friday afternoon,
"you get a little louder than you are supposed to or
would be advisable." One of the department 23 supervi-
sors testified that she knew nothing of the UWA as of
June 11; the other was not asked.
This line of evidence primarily links Bernstein to the
UWA. I find it difficult to infer from it that Respondent
had by June 11 focused in on Weisbrot as a central
figure in an effort to unseat the IBEW. In any event,
even if I were to conclude that Respondent had such
knowledge, I could not find here that it seized upon
Weisbrot's behavior on that day to eliminate him. I note
that Weisbrot himself testified that DePriest urged only
that Weisbrot be suspended for his behavior, an unlikely
showing of restraint if the purpose were to stamp out the
UWA campaign.
It was Pike who decided on discharge, a punishment
which, at the time of the hearing, he still thought appro-
priate; he announced this decision on June 15, 2 days
after Weisbrot filed a charge with the Board based on
the June suspension, and perhaps at a time when Pike
might have been aware of that charge. Stafford chose to
reduce the discipline to a suspension in the course of the
grievance procedure. While the argument might be made
that Stafford, unlike Pike, feared the issuance of an
unfair labor practice complaint, at least as valid a conten-
tion can be made that there is no easier and relatively
less painless way for a large employer like Respondent to
:' Cichorski did not testify. but this ornission seemr quile dilffrent
from F:ltreman Kopier's failure to testify about his colnversatilonl with
Burk i Sptcmhber 1978
148X
S llXARI -WARNI R CO()RPO(RA ION
nip an organizational campaign i the bud than to fire a
lowly paid notorious partisan. Ihis Safford chose riot to
do. l
For the reasons given. therefore. I erid no nmerit in the
allegations based on the June II sutispclsiorll arid June 15
termirlation of Wcishrot
3. The suspension of August 15
The complaint next alleges that \Vcisbrot was unilaiw-
futll sspetnded b [)ePriest for 3 days on ALugustl 15.
After June 18, as discussed, Respondent was officially
on notice that the UWA was being formed andri tha
Weishrot was one of the charter members. There is n o
evidence that Weishro andri Reponde i t had anyr proh-
lenis inrilmdialely after he returned to work in the first
part of July. The plant was then shut down for vacation
in the last 2 weeks of July.
On August 13, Weisbrot received another written
warning notice. On this occasion, the foreman of depart-
ment 24 savw him talking to an employee while she was
working on the line. DePriest was called by the foreman.
and he aid Cichorski took Weisbrot to te personnel
office. There. Delriest told Pike that he knew of Weis-
brot passing out union buttons i sotrte department. and
also handing out literature i department 1, which Weis-
brot denied.
In the presence of three stewards. Pike first told Weis-
brot that he would be suspended; subsequentlly. Pike said
that under the rules, having previously received a verbal
warning, Weisbrot could be given no more than a writ-
ten warning at the time. It was at this point that Weis-
brot was shown for the first time the written verbal
warning executed by Wyper on May II11. A written
warning, signed by DePriest, was then drawn up for the
August 13 violation of "beiiig out of work aiea without
permission and disturbing employees during working
time." Issuance of this notice (like the May I1 warning)
is not alleged to be violative of the Act, although Weis-
brot testified that he had merely "stopped to say hello"
to the department 24 employee and was there for
"maybe five" seconds; at the hearing, counsel for the
General Counsel characterized the notice as "legitimate"
discipline.
Two days later, on August 15, Weisbrot was again dis-
ciplined for speaking to a working employee; this inci-
dent is alleged to be unlawful. According to Weisbrot,
he had returned from lunch and "had seen my supervisor
[Goldstein] toward the back of the back of the depart-
ment toward the office." Wanting to ask her a question,
he went toward her, but she "wasn't there when I got
toward the back." He "stopped in on line 3" and asser-
tedly asked Deborah Williams, who was working, if she
had seen Goldstein. Williams said she had not. He "was
there a few seconds" when DePriest came over, took
him into the office, called in a steward, and suspended
Weisbrot for 3 days, the suspension notice alleging the
identical violation as the August 13 notice, set out above.
Weisbrot testified that, during their discussion, DePriest
:" Nor did he make Weishro whole for losl pay at he time of rein-
slalcmenl, a probhahle ceoirst if he srer seekinlg to avoid isslanct of a
cimplalt
pointed to somec UWA authorization cards in Weisbrot',
pocket and asked if he were distributing them on the
line; Weishrot said he was not.
The initial theorv of the violation appears to he that
)ePriest blew ti up an inoffensive and fleeting exchange of
,ords intllo a pretext for suspension. A secondary argu-
ment is possible: that, even if the facts were as DcPriest
described them, the inposition of discipline was nonethe-
less discrimrinalory
:lmployee Williams was proffered to support Weis-
brot's testimony that his conversationl with her , as
ephemeral. She seemed a most honest person. hut one
part of her testimony was disquieting and other portions
were riot helpful to Weisbro Although Weisbrot testi-
fied that he "stopped" at the line for "a few, seconds,"
Williams persistently said that "he didn't stop to talk he
just asked mie i passing ... [and] kept walking by,"''
then repeated, in answer to a question, that Weisbrot did
not "stop to talk" with her ("No, he asked me in pass-
ing"). ut, wvihen asked how long the conversation took,
her reply was, "It didn't take five minutes if it took that
long," following which she reverted to "'H didn't stop.
like I say."
As I read Weisbrot's testimony and study a map in evi-
dence, the only way he might have seen (Goldstein
toward "the back of the back of the department towxard
the office" as he returned from lunch would be if he had
been proceeding south to north on the main aisle
through the department, although his testimony gives no
details. But Williams explicitly has Weisbrot proceeding
from east to west, coming from within the lines, which
apparently would be no place for him to be coming from
in returning from lunch, and which seems inconsistent
with his testimony
DePriest testified that, as he entered the department.
he spotted Weisbrot standing next to Williams at her
work station, where he remained for the 60-90 seconds it
took DePriest to reach them. He said that he did not
accept Weisbrot's story that he was merely asking if Wil-
liams had seen Goldstein, for several logical reasons,
aside from the time consumed by the two as witnessed
by DePriest. 4 0
I think that there is some reason to believe that De-
Priest spotted Weisbrot standing and talking to Williams
at her work station. Given that Weisbrot had, only 2
days before, received what the General Counsel termed
"legitimate" discipline for the same offense, I find it diffi-
cult to engage in the hairsplitting which would somehow
differentiate between the two offenses, especially taking
Weisbrot's entire work history into account. While I do
not generally find DePriest to be a reliable witness, it
does appear to me that he had a somewhat cautious
streak, and would not be likely to take on Weisbrot (and
another witness) if he had seen Weisbrot do nothing
more than exchange a few words with Williams in pass-
ing. I think a more substantial conversation occurred.
It is useful to address at this point the evidence bear-
ing on Respondent's general attitude toward employee
I'" Wilhalms stified hat Dc Priesl approached him from hi, offie., noli
from the ntain lisle I cannot sec. from Io)king the map. iho, , William.l
could hac manle smwCh kan ohtbsrstlltwi
149
I)LCISI()NS ()I NAII()NAI. I.AI()R R I.ATIO()NS B()ARI)
conversations, charitable and commercial solicitations.
and similar lnonproductive use of working timle. I can (do
little more. alter reviewing the evidencee thanl say that it
is a mixed bag. It appears to me that. as might be likely
in any large facilily, enforcementi of tle rules varied
tronm departlmen to departlment and usuall related t(
the tcmpcrament of the supervisors. Ihc re is evidenc of
occasional lotteries anrid selling of callidy anid other goods
by employees ill difierelt parts of the plalt. someiltilies
with the knowledge and/or endorsement of' supervisors.
O)n the other hanlld, it appears that Respondent attempted
to control, as best it could, the activities of its thousanids
of employees. Thus, in December 1977, Respondent
made a point of' posting the planlt rule oil "selling ad
making unauthorized collections," with a warling about
discipliiary actiol, in anticipation of the Christmas
season.
A certain aniounlt of colnversation was permitted.
Thus, Wyper testified that it has "always been'' that as-
sembly workers it department 2() sitting near eacth other
on the line spoke to one another, ad his testimony
shows that it was only after he cautioned Weisbrol
"mariV tlimes" aboul speaking to workers at their statiolns
that he drew up the May II verbal warning. There
seems to have been an understanding by the employees.
however, insoflar as there nlay be any generalizations
drawn, that it was improper to spend time speaking
about nonwork-related matters. Thus, Deborah Williams
testified that Weisbrot spoke to her occasionally on the
line, but "[n]ot too much because the rule was that I
didn't stop to talk to anybody during working hours. So,
it was never too often." Weisbrot, in describing his
appeal to Pike on August 13 for a \warning instead of a
suspension, had, himself, said to Pike, "If you want to
give me a warning, O.K., I talked to someorie, I admit
it."4 I
Considerations of significance here, it seems to me, are
the role of DePriest in department 20, and the character
of the man. DePriest testified that, when he took over
the department on April 23, he was told that among its
problems was absence of discipline This vas confirmed
after April 23 not only by his own observation, but also
by a letter he saw soon thereafter which had been re-
ceived by one of Respondent's vice presidents from oth-
erwise unidentified "Old Timers Of Dept. 20 Asking For
tHelp!" This missive asserted that "the majority of people
in dept. 20 are good working people who do their job,"
but that "certain people are being allowed to do what-
ever they want when they want." The letter went o to
give details of the alleged laxity, and ventured the opin-
ion that management was "afraid of certain workers be-
cause of the people belonging to certain communists [sic]
groups."
DePriest began his effort to reorder the department by
instructing the supervisory staff to explain the rules to
" Safford iestified hat certain cllectlions, such as the annllual Crusade
of Mercy and hbond dri.Cs are authorized others are nol I trre ICS1-
monr that. prior Io Ihe election irl October, tinuticrou IEW rpreserta-
rises mtiade foria} inl tile plianl. so Tinetlmle alcinilllpaiiel h, floreiieCrl
Slafford spkc (eof his hing a icklikh probhlrr, since Iocal 11i11 had
access riglhr fi r legtirnale business, hul aid Illat, lclcnver lie heard if
an abuse
.
h attrnptl to c it olrol it
ernployees and tell them that he wanited obedience. It
seeims clear that DePriest is a "book manl" who expects
that rules will be lhonored. lersonniel l)irector Stafford
testified that DePriest enforces rules more stringently
than other foremenl and that probably two or three times
at nilay grievances are filed against him as against other
formeni. Elmployce Williams agreed. and other evidence
lmakes clear, thiat, after DePriest assumed authority over
the department, "there has been some rather strict en-
forcelelnt of rules that employees are unhappy about. " 4
I he June 18 edition of the UWA newspaper reprints a
Icalelt entitled "Roy [)elriest vs. the Workers of Dept.
2(0," which accused )elPriest, inter lia, of "trying to
turn Dept. 20 into some kind of combination kindergar-
tell arid maximum security prison."
It thus appears that l)elriest has a particularly author-
itarian bent, that oine of the purposes behind his assign-
meint to the overhaul of department 20 was to bring that
special characteristic to bear, and that he did so with de-
termination. (Given these factors, it does not seem incon-
ceivable that whenl Del riest saw Weisbrot speaking to
Williams at her work station on August 15-the same
Weisbrot who had been punished by DePriest for the
same conduct only 2 days before and who, among other
things, had been discharged for insubordination only 2
months before--this disciplinarian would have been
spurred to action.
I am not persuaded that Weisbrot was back in the as-
sembly area simply to ask where Goldstein was, for rea-
sons which analysis of the evidence discloses;4 :3 I can see
that DePriest might reasonably have felt the same. And
while DePriest or another supervisor might have merely
reprimanded a first-time offender for this incident, I
cannot say that DePriest's reaction to such conduct by
Weisbrot. only freshly disciplined for the same behavior,
was not an appropriate reaction for the offense, particu-
larly from a supervisor of DePriest's temperament. In
view of the fact that the General Counsel has not chal-
lenged the May 11 and August 13 warning as improper,
there is scarcely anN logical basis for making a different
contention as to the August 15 discipline, once it is con-
cluded that Weisbrot was in fact standing and talking to
Williams.
One difficulty with the issue is the reference in the
August 15 notice to "being out of work area without
permission" in addition to "disturbing employees during
working time." The evidence on the question of whether
Weisbrot was "out of' his work area is complicated.
Testimony by Weisbrot Margaret McCarthy, and Deb-
orah Williams was to the effect that stock chasers deliver
parts into the assembly lines all day long, and did so
right up until the hearing. 4 4 Wyper testified that chasers
were at no time "normally" supposed to go into the
a4 Williarms herself filed a grievalnce iabout having Il get permission lo
use Ihe resitronl, and she signed he May 2 grievance relating to use of
dclparlnliet 22 sCllding rmachilles, puttilg fie exclamatiorn arks [ext to
her ilame
4: (O) t he whole, as presiously detailed a( as discussed intar. Weis-
hreut Cse lled (m nmlake a habit of otel ixrsilg htl \sorker, at their slations:
it does nol rsc urllikelk Ilo lie Ihail he was doing the same here
41 Wllianm,, however, a, llsure f the clasificalions, and she nmay
hare hcn referring io ulill1 ,orkers andl/.or ruckcrs
15()
S't:ARI \I'ARNELR CO()R'(RA I ()N
lines, but that the "proper procedure" was for them to
drop off parts at the enid of the lines; after a newa parts
control system was put into effect, probably in late
August, the chasers aetre only to dcliser to 3 main stock-
ing areas (but even then, some suhasseibly lines had
their own storage points). Kuczynski said that chasers
"should never have gone into the lines to deliver a part,"
but he was "sure there were times when the stock chas-
ers did get into the lines sometimes just to visit people ."
DePriest testified that, at some uncertain time, he told
the stock chasers that they were not permitted to go into
the assembly lines; he said that this instruction was giveni
during "[t]he first couple weeks when I was establishing
the parts department." In the light of Wyper's testimony,
this appears to refer to the time iate in August when the
three major storage areas were created.
Relying particularly on Wyper's testimony, I think it
fair to say that, as of August 15, stock chasers were gen-
erally not supposed to go into the lines to deliver parts,
although they probably did so from time to time; the de-
livery to the lines was I think, by and large done by the
truckers and the utility workers. If chasers did go into
the lines, they were, I infer, supposed to be doing so for
a business purpose.
In a sense, then, Weisbrot was "out of [his] work area"
if he was in the lines for a purpose other than delivering
supplies or other work-related activity. Both Pike and
DePriest had, according to their testimony, made clear
to Weisbrot on May 23, at the time that Weisbrot at-
tempted to deliver the petition to the steward at her
work place, that he "was not to disturb other employees
in the department [while] they were working" and was
required to obtain permission from an employee's super-
visor in order to go into an assembly line to speak to that
employee. Weisbrot testified that DePriest had said "it
was against the rules." Practically speaking, I doubt that
DePriest gave much thought to the wording of the
notice; it mirrors precisely the language of the August 13
notice he had given to Weisbrot, and he undoubtedly
simply copied that notice.
It may be argued that DePriest, by including the refer-
ence to a "work area" violation, in addition to "disturb-
ing employees," was straining to hold Weisbrot to an im-
proper standard, thus giving rise to a suspicion about De-
Priest's motives. I recognize the argument, and have con-
sidered it. It still seems to me that the basic question is
whether the General Counsel has established by a pre-
ponderance of the evidence that DePriest, a man of a
certain temper and personality, with a given mission to
increase the efficiency of department 20, would on
August 15 have treated differently another employee, not
engaged in union activity, for disturbing a worker on the
line, where that other employee had, like Weisbrot, re-
ceived a verbal warning for such conduct in May, 4 a
written warning for similar behavior (from DePriest) on
August 13,46 and, inter alia, had been discharged and re-
instated just 6 weeks before. I cannot conscientiously
say, on this evidence, that the General Counsel has estab-
lished that DePriest would have acted differently toward
's As noted, the May disciplinle for the same coniducl is not alleged
he violative.
4e This arning is also nor alleged to be unlawful
an eniployee (lot asociated u ith the UW'A. I shall there-
fore recommend dismissa , of this allegation
4. The Septlemrnber 13 discharge of' Weisbrot
The final complaint allegation pertaining to Weishrot
relates to his discharge on September 13, s\ hich is said to
have been caused by his "union and/or other protected
concerted activities for the purpose of collectic bhargain-
iiig or other mutual aid or protection."
One can only guess at the forces ithin \Veishrot
which led him to behave as he did in the sleek of Sep-
tembher 10-15. Despite has ing been fired in June. and
having received a written arrting on August 13 and a 3-
dai suspension on August 15 for "disturbing emplo ces
during working time, "4 Weisbrot conccdedl . on
Monday, September 10, and on Wcdncsda 5 , September
12, went to department 64 and spoke to employees hile
they worked. On these occasions, unlike the previous
ones, his workday had ended. The department 4 eim-
ployees were engaged in work, however, and one might
suppose that a minimum amount of circumspectio-n
would have counseled against such activit b Wcisbrot.
but the asserted basis for his second discharge is essen-
tiallyv uncontested
Joe Butler, a supervisor in department 64, testified
that, at or about 4:30 p.m. on September 10, he sa"w
Weisbrot, whom he did not knos at the time, talking to
an employee named Coushan at the work stattion of the
latter. Weisbrot was wearing a UWA T-shirt. Butler
asked Weisbrot to leave. 4
Shortly after this, Roy Collins, foreman of department
64, saw Weisbrot, as of then unknown to him, in the area
talking to employee Jim Butler, the nephew of Joe, as
Jim was working. Collins asked Weisbrot if he had a job
to do; Weisbrot said yes, and Collins told him to go do
it. 4 ' A few minutes later, he saw Weisbrot again, this
time simply standing in the adjoining department II; his
attention was then distracted by another employee
About 10 minutes later, he saw Joe Butler and asked if
he had seen the "guy in a red T-shirt." Butler said he
had run him out of the department earlier. Collins told
Butler to ascertain Weisbrot's identity if he saw him
again.
On Wednesday, September 12, Joe Butler again saw
Weisbrot, wearing his UWA T-shirt, in the department
about 4:30 p.m.. this time talking to employee Nadine
Roberts as she worked. He asked Weisbrot to leave. Sub-
sequently, he mentioned this incident to Collins, who
asked if he had ascertained Weisbrot's identity. Butler
said he had not, since "It]he guy didn't give me a hard
time and he just left."
Weisbrot's testimony was somewhat different from
that of the two supervisors. He said he had talked to Jim
Butler on Monday for "[a]bout five minutes." and he
4 i addition to he pre Jlune I I disciphil ai d i cldCIIi earlier set ouit.
the record shows that. ,i Aiguit 24, 'relishro receled another i rittcn
warnilng notice for absntCeelsn, his third iotlirc oni Ihis sUhlecct mslCt
March I
4 As slated aboe. W'etihrit's shlit ha.d allrcad elnded il 3 45
W4 5eishrot testified that he tfits ans, credl in ith affirnam, rather
thail get intio . pintles .. Lsls-,'l' s1ith ( lie
151
I)(tlISI()NS (f NAI I()NAI. I.AI)R R All ()NS I)ARI)
"believe[d] he was working: I can't be sure. thonghl"
Asked if he had talLFd to any other employees in depart-
ment 64 on that day. Weishbol said, "1 don't think so. No
one I call remember offhand. no." ()n rebhttal. he testi-
fied that he did not know anll employe named C(oushan.
He identified Collins as the supervisor who told hin to
leave on Monlday. Hc also agreed lhatl he spoke to Rob-
erts on Wednesday, a conversation of about "a minute''
which was cut short by the supervisor; but he further
testified that he spoke to Jim Butler again on that day. I
credit Joe Butler's testimony that he spoke to Weishrot
on Monday as well as Wcdnesday; I do not believe he
invented this encounter.
On Thursday. September 13, the UWA distributed a
leaflet containing a picture of 18 of the union organizers,
with their names and department numbers. Upon seeing
the leaflet and recognizing Weisbrot, Collins attempted
to call Kuczynski, who was on vacation, and then spoke
to DePriest, telling him that Weisbrot had been asked to
leave department 64 three times that week and request-
ing DePriest to "make sure he stays out of here." De-
Priest notified the hourly personnel manager, Pike.
Later that day, at a meeting with Local 1031 union
stewards present, Weisbrot was discharged for having
been "in a work area without proper authorization and
was disturbing employees in this working area during
their working time." ° The discharge decision was made
by Pike, who interviewed Collins, Joe Butler, and Jim
Butler after hearing from DePriest. Pike was informed,
inter alia, that Weisbrot had been wearing a UWA shirt.
Pike, it will be recalled, had made the decision, subse-
quently reversed by Stafford, to discharge Weisbrot in
June. He testified, with respect to the second discharge,
that he "checked into" Weisbrot's record, which would
have shown, as set out above, the three written warnings
for absenteeism in March, May, and August, the verbal
written warning for extending a break in May, the verbal
written warning for using the wrong break area in May,
the verbal written warning for "repeatedly stopping on
assembly line to hold non-work related conversations" in
May, the converted termination in June, the written
warning of August 13 for "being out of work area with-
out permission and disturbing employees during working
time," and the 3-day suspension of August 15 for the
same offense. Pike testified, "The fundamental considera-
tion I made about the previous discipline in his record
was for similar type discipline that he had received for
similar violations-most notably, a warning notice and a
3-day suspension for the same thing-the same violation,
the same infraction of the rule." Pike's investigation in
the second week of September showed that, on Monday,
Weisbrot had been found in department 64 talking to a
working employee and had been told to leave; that in-
stead of doing so Weisbrot went and talked to another
working employee, and was again instructed to leave;
and that, on Wednesday, Weisbrot once again breached
"I So reads the termination notice Added to it in handwriting is the
statement. "[)uring the process of administering the ternlination employ-
ee threatened he foreman and caused a disturbance in the department
and refused to relinguish his pass" Wceishrot conceded that, in an allgry
discussion, he refused to hand in his pass, "started yelling," and called
DePriest a "pmrip"
the disciplinle of department 64. Consideriing that Pike
had. ill Jtile, di'scharged Wisbrot, it does rit lseem tn-
tcaillble to thilik thiat Pike hbelieved it \was aglitli ime
for Wcishrot to depart.
The superficially arresting fact that Weishrot's ideintifi-
cation through the UWA leallet led to his discharge
seems, i my judgmcnt, to work at least as much in Re-
spondent's favor as against it. The fact is that both Col-
lins and Butler saw al unfamiliar employee wearing a
UWA T-shirt and speaking to department 64 employees
otn Monday, and did nothing more than chase him off.
Butler did the same on Wednesday. This suggests that
Respondent may not he treated as a motnolith, uniformly
and conspiratorially dedicated to rooting out all signs of
UWA activity. If that were true, presumably Weisbrot
would have been apprehended by Butler and Collins on
Monday and turned over to DePriest then. This relative-
ly laissez-fjire attitude should be compared to that of
Foreman Mallick who, seeing Weisbrot conversing with
a working employee in department 24 on August 13. had
immediately corralled him and contacted DePriest. 5
While it might be argued that Collins and Butler were
prepared to allow a suspected UA organizer off, but
had second thoughts about Weisbrot's importance when
his picture appeared in the leaflet, there is no reason to
believe that they would so finely discriminate between
organizers.
Against this background, it is not easy to draw an in-
ference that Weisbrot's activity on behalf of the UWA
played a meaningfully contributory role in the decision
to terminate his employment. There is certainly no evi-
dence that any other employee had been allowed to ac-
cumulate such a string of rule violations without suffer-
ing the ultimate penalty.
There are, I think, some impediments to the General
Counsel's theory all along the line that, since May 9, Re-
spondent had been out to get Weisbrot. If that were so,
why did DePriest, as Weisbrot testified, instruct Kuc-
zynski to issue Weisbrot only a written verbal warning,
instead of the already made out written warning, on May
17? Similarly, why did DePriest decide not to give Weis-
brot the threatened warning for turning in a grievance to
the steward while at work on May 23, and why was no
effort made to follow up on the report that Weisbrot had
been talking to employees in department 65 on May 30?
In like vein, it might be argued that, if Respondent were
determined to eliminate Weisbrot, it would have stuck
by its guns on the June discharge.
I do not mean, I should add, that the case is at all
clearcut. While again noting that his demeanor gave no
a I have considered the iestimony of Nadine Roberts that inollerl-
plolyees of departnment i4 comne into that departmenl "al day" II talk to
working employees without superslsory intcrlnttri W'hile Roberts is
a vvitness of strength and dignlity I am inclined to beliese thal Collins, ar
equally impressive uitless. did not lie in suhsequenllly tesTifyllng that his
rule is that nonemployes may nolt speak to empil)oee withlrul permis-
sion, ad that Roberts would he farnihar with this requirement hbecause
she had personal experience with it when a frienld f hers persistently
oserstayed break isits, leading Collins to call the friend's fireman
5While practice O1 s ariouls ralters seemed to differ from deparlmenl o
department. the (eneral Cunel's witness L)lane Mseiheltlcr testified
that, i departmlti 37, "'il o,, i .ined go talk 1)to oilebhtli oil the
lire, you alsays ,wci tip ad talked io [the foremar ] first
152
S I WAR] -WARNER CRPORATI-I()N
indication of dishonesty. I have concluded elsewhere
that DePriest was probably fabricating in various in-
stances, and there are conflicts in the testimony of Re-
spondent's witnesses which might be thought suspi-
cious. 2 But the case is the General Counsel's to prove
by "the preponderance of the testimony taken," as
spelled out in Section 10(b). arid, looked at as a whole, I
am not convinced that the evidence so preponderates.
My sense of the case is that Respondent opposed the
ouster of Local 1031 by an independent union."' As I
have earlier noted, however, I doubt that the pulse
behind that opposition beats as strongly when the issue is
exchanging one union for another as when the stakes are
whether a company should be organized in the first
place. It is of interest, I think, that not a single violation
of Section 8(a)(1) by verbal restraint, coercion, or inter-
ference is alleged here with regard to the UWA cam-
paign, although the facts and figures make that surpris-
ing: a 4-month effort among 3,((X) employees monitored
by a vigorous organizing committee.
It is entirely possible that Respondent and DePriest
were delighted by the opportunity to say goodby to
Weisbrot on September 13: under prevailing law, only if'
it can be concluded that Respondent would not have
taken advantage of that opportunity in other, neutral cir-
cumnstances would there be a basis for finding a violation.
Golden 'Nugget. lI(t., 215 NLR 50, 52 (1974). On this
record, I see no substantial basis for finding that another
employee, not engaged in union activity. would have
been treated more leniently than Weisbrot. Therefore,
with some degree of reluctance arising from my unre-
solved suspicions about the case, I feel constrained to
recommend the dismissal of this, and all, allegations per-
taining to Weisbrot
B. The Discharge of Bruce Bernstein
Bruce Bernstein was hired into department 23 on April
17, 1979. His 2-month probationary period would have
expired on Saturday, June 16. He was discharged on
Monday, June II, and, not being a regular employee.
was unable to grieve his discharge. The complaint l-
leges that Bernstein was terminated "because of his
having engaged in union and/or other protected concert-
ed activities for the purpose of collective bargaining or
other mutual aid or protection."
The evidence relating to Bernstein's concerted activi-
ties has been discussed above. As indicated, he linked a
small social affair planned to be held in his apartment on
June 9 with a promotion of the soon-to-be-announced
UWA, and some of the invitations handed out at the
plant referred to the party as having the purpose of get-
ting a "decent union"; Bernstein's address and telephone
number were on the latter invitations. In the week pre-
S' Another mall example of DePriesit, seminig unrehahilily Is found
in his tesirnony about his walk with Weihrol il the personnel office on
June 11 Weishroi testlfied Ihal l)ePriesl aid he could "suspend ou f
don't like your looks if I want to do that " DePriel letified that w hal he
said was, "t could suspend )ou or terminate ou ust hecause I don't like
the way you look, but that doesn't mean it snould stick" The addendurn
testified b DLe'rest eenls exceedingly humble, Im context, for a man
of DePriet's prsonailts and aulhorit
.a I anm not much persuaded io Ihe coinrary by the public stance of
neutrality taken by the C(mpsly hortly before the election.
ceding this function, there was some discussion about it
by employees near the desk of department 23 supervisors
and Wcisbrot and Bernstein were speaking of the success
of the party on the morning of June 11 when Cichorski,
the superintendent of automotive assembly, walked by
and gave Bernstein, whom Cichorski had not met, a
"mean" look.
As company knowledge of an employee's union activi-
ty goes, this is not strong stuff. It is settled, however,
that proof of knowledge may be inferred from all the cir-
cumstances,54 and there are circumstances in this record
of the sort upon which the Board often relies to infer
both knowledge and unlawful intent.
Bernstein testified that, in the afternoon of June 11. 2
days after the party, he was called into the office of
Frank Weaver, the foreman of department 23, who su-
pervises about 175 employees. Present with Weaver were
Cichorski and a secretary. Weaver told Bernstein that he
was being terminated because lie had had too many ab-
sences. After he left the office, Bernstein spoke to some
other employees who urged him to find out whether he
was being fired by Weaver or the personnel office Ac-
cordingly, Bernstein returned to Weaver's office (Ci-
chorski and the secretary were still present). Bernstein
told Weaver that he did not think he had a bad attend-
ance record, saying that his absences fell vwithin the
range outlined to him by Weaver when he was hired. He
pointed out to Weaver that when he had been ill on
three recent days, May 30-31 and June 1, he had
brought back a medical note, had asked Weaver if his ab-
sences would affect his record, and had been told that
they would not He then asked Weaver whether he or
the personnel office was responsible for the discharge.
According to Bernstein:
Mr. Weaver replied by saying neither, that I had
met the standards or the boundaries of the accept-
able absences. I had followed procedures, but that
wasn't the point. he said. He said the point was that
there was nothing he could do. Procedures were
firing me. That is the word he used. He said I was
being fired by procedures. He said I was being fired
neither by him nor personnel and there was nothing
he could do about it and he repeated the thing
about this should be a lesson and I should look at
this as a learning experience.
Bernstein then went to the personnel office and spoke
to personnel employee Ed Rieger. Rieger said he would
look at Bernstein's record and discuss the matter with
him the next day. When Bernstein returned, Rieger told
him that his absentee record did not merit automatic dis-
charge, but that this was a "foreman's discretionary
firing" and Rieger could do nothing about it.
As indicated, Bernstein was told that he was being
fired because of his absentee record. The notice of termi-
nation given him on June II states, as the reason for dis-
charge, "Released-Absenteeism." In an area of the form
for evaluating the employee's "work," "conduct." and
"ability" as either "very good," "good," "fair," or
4 .I. R.B. Li.n Bei/l (onmpanv. 311 S 584. t()2 (1t41)
15x
I)}.V'ISlNS ()F NA IO()NAI. I.AilO()R RlI.A I I)NS t(),XRI)
"poor," Bernstein received a poor rating on all three
items. Although the terminalion notice oInly specilies
"Absenteeism'' as the reason for discharge, at the hearing
Respondent's switnesses assigned weight to IBernstein's ill-
ferior work performance. as discussed below.
Respondent's principal testimony o tile IBernstein lle-
gation CanlC fronl I:oreman Wlea e and dna Peer,
Beriistein's immediate supervisor. hey both made i-
pressive personal appearaices. especially Peer (although
she became less conviltcing on cross-ex;llillatioln). Peer
denied any knowledge of BIernstein's involvement in the
formnation of a ine uniion; Weaver was itot questioiied
onl the subject. It is difficult, perhaps because We'aver
was called as an adverse witness by General Counsel and
did not reappear il Respondent's case, to get a firill
grasp oni how, from Responident's point of view, the de-
cision to terminate Bernstein developed, and its tinliiig
decided on. Weaver first testified that ernstein was dis-
charged for "excessive absenlteeism."'' His lest inoiy
seems to be that. when line supervisors such as Peer
have absentee or other problems with employees. they
notify Weaver and he counsels the errant eployee.
Weaver "believed" that Peer spoke to hini not only of
Bernstein's absenteeism but also of his poor work record,
but lie could not say how mnany times. lie "believed"
that he called in ernstein a "couple of times" to ,.arn
himi about his abseniteeism, but could not say whe i he
did so. Subsequently, he said that, "as mluch as he] call
recall," he talked to him oce or twice, but it is "possi-
ble" that he did not speak to hilm at all." '
Asked when it was decided to discharge ernstein,
Weaver said, "The supervisor came inll and complained
that he was off a period of time and when he came back,
it was decided because of the absenteeism and his poor
work record that he would be terminated." l'he refer-
ence to "when he came back, it was decided" vwould in-
dicate that the decision was made on or soon after June
4, when Bernstein returned from a 3-day illness, but the
evidence is that he was not discharged until Monday.
June 11. Peer, as shown below, testified differently as to
the time of decision.
As Weaver agreed, the reference to Bernsteinl's work
performance at this point in his testimony contradicted
his initial statement that the discharge was caused by ab-
senteeism, but he asserted that "the main purpose was his
absenteeism." as exacerbated by performance. Weaver
then made a statement which seems to indicate that the
decision to discharge was made and about to be imple-
mented even before Weaver heard of the poor work
record, although that construction is inconsistent with
the statement quoted above as well as with Bernstein's
account of the discharge interview: "[Excessive absentee-
ism] was the main purpose that I had him in there for,
but after the supervisor brought to my attention that his
work record was also poor . . . .56
5" bternslein teslified ha h had cnever heen arned ahout his ahsell-
leeism
6 'Ih c slilerice 'was iint colmpleted Accordtilgly to tirnsilill. Peer
was not prer cl, t a tc ile li of dischalrge W\ca'cr's tatemer t thil hi '"had
iflcrnlrstil] In there." suggesting thit the illitlali C ve ls W 'c'al'cr',. i con -
trary to Per's licn ,mlon r I1i II Si \ti' t t' ci Vca cr ailroi ld the ellc t of
May Io complain of tkernstein' ace ad poor performance
T[he attelldanlce record Ifr I3erinstcin. hired oln April
17. shows the folloxiing: lie was tardy o(il April 23: hc
had all uexcused abhsence otl N1;ay 17: and lie had ex-
cused absences oil May 30.() May 31, atld J le I At tlhc
hearing, Weaver testified that, ;s he recalled, lrnsteii
'u;as absent "approximately foiur timles in a period of
about six weeks," which ainlualized out to 3h work dalys
(lt' asence a ear and "w vhich is, i rr book, too rmulch.
aid I couldn't stand for it." Weaver wals not later r-
called to testify iln response to 3erilstcir's subsequent tes-
timoiny about Weaver saying that "procedures" 'as the
villain; he did say, i response to questionls by the (;criner-
al Counsel, that he believed he kew al the time of dis-
charge that Bernstein had "two excused and two unex-
cused absences, " that he "thinks'' that Herrilsteir pre-
scrited a doctor's excuse to him "on two ccasions." ad
that hie had "no recall" of assuring Bernstein that lie had
niothing to worry about as a result of the cxcused ab-
teristein testified that on the morning of Juie I fr
the first and only time. Weav er was unpleasant to himi
As Bernisteinl was sorting cases, Weaver approached and
said, "I hope you are not putting the stamped cases back
ill the bhis because if you are, your ass is grass." WVeaxcr
was not recalled to testifv about this assertioi.
Supervisor Peer, called as a witness for Respondeitt.
was questioned by Respondent as if I3ernsteiri's deficientt
ork was the only, or at least the principal, cause of the
discharge, Thus, her iterrogatioll began with questions
relatinig to the various functions of ernstein's job. She
dutifully stated that ernistciin's operation of the bezzliig
machine was "vcry poor" and that he was "remoxed'
froil that operaitori after he damaged "many parts." Sub-
sequently, hoxvcver, she testified that Bernistein as
never actually "removed" from the machine, ill that she
kept returning him to it for another "chance
throughout the whole period of his employment." Actu-
ally, on the basis of ernstein's testimony, there is some
reason to believe Peer's original account that he was "re-
moved" from the machine; he said that he was taken off
the bezzling machine at some unclear time, but he said
this was done because Peer told him "they wanted to
train new people."
PI'eer was further asked about Bernstein's performance
of his stock handling function, and termed it inadequate,
in that he had "mixed parts" and "mixed boxes" on more
than one occasion for each kind of error. While the
record leaves some doubt as to how Peer could be sure
that it was Bernstein, rather than another employee, who
was culpable on all such occasions, his own testimony,
referred to below, indicates that he had made errors
known to Peer.
Peer said that she discussed Bernstein's work perform-
ance with him on two occasions, telling him at the begin-
ning of his second week, and then perhaps after 2 weeks
of employment, that she would "have to see improve-
ment." She could recall no other conversations with him
"regarding his work." In this respect, ernstein painted a
rather more filvorable picture for Respondent than did
'' A s utl l ahove, hls is inaccurate.
154
STEWARI -WARN'R CO()RI()RA'TIO()N
Peer; while his testimony was somewhat confusing. he
conceded that on one occasion Peer "yelled" at him for
returning late from a break, and that perhaps four times
she admonished him that "You have got to be more
awake" and "You have got to use your head more."
However, he also said that he heard her make similar rc-
marks to all the employees.
While, as set out above, Weaver testified at one time
that his predischarge warnings to ernstein (if, indeed,
there were any at all) related to absenteeism, and that he
became aware of Bernstein's inadequate work perform-
ance only somewhere around the time at which dis-
charge was decided on Peer conttarily testified that she
asked Weaver to speak to Bernstein about his poor per-
formance "about in the middle of the next week after the
second time I talked to him." She further said that she
spoke to Weaver on this subject again. she "think[s]," on
the "second day after his absence" (presumably May 31.
the second day of the only consecutive string of absences
by Bernstein): "Not only his work performance Nas
poor, he'd been absent for, this was the second day in a
row. I couldn't survive ill that manner." By this she
meant that he was one of only four men i the depart-
ment, that usually the men operate the bezzlitig machine
because of its strenuous nature, and that Bernstein's ah-
sence was therefore "crippling."
There seem to be some problems vw ith this latter piece
of testimony One is that Peer's other testimony would
indicate that Bernstein's performance on the bezzling ma-
chine was horrendous and his May-June efforts on the
machine were simply to give him another "chance'' on
those facts, his inattendanice would not likely adversel
affect this function. a The second is Bernstein's testimno-
ny on rebuttal that on the second day of his 3-day ab-
sence he came to the job for ai few hours, found that he
was too ill to work, asked permission from "I think
Edna" to see the plant nurse, got a note front the nurse
permitting him to go home, "showed Edna the note."
and left work.
This testimony was given by Bernstein on the last day
of the hearing. Company counsel objected to the testimo-
ny as to whether "a nurse sent him home or whether he
spoke with Ms. Peer concerning it, as properly being
part of the General Counsel's case-in-chief, and counsel
complained, inter alia, that he would "have to now bring
in Ms. Peer to testify with respect to this." After a collo-
quy which, in the transcript, is rather confusing, the
General Counsel stated that the only testinony that he
"want[ed] to stand is that he came to work that day and
left." Counsel for Respondent did not demur.
On this state of the record, it would be improper to
rely on Bernstein's testimoy that he showed a medical
excuse note to Peer on the second day of his absence. It
would, however, be proper to depend on his testimony
that he "came to work . . . and left" on the second day.
This appearance, presumably known to Peer, raises a
question as to why she would speak to Weaver on the
second day of Bernstein's absence. Peer had previously
testified, however, that Bernstein was "absent three days
s I put aside here Ihe fact hal Itern',ici n Iesrified that he , ai.luall
removed from the bezzling machine hefore his employment ended
in a row," and that, while it is "possible" that she gave
him a pass to see the nurse "at any time," she does not
remember doing so. I should note that. it w ould appear
from other evidence that if Bernstein had worked for 2
hours on the second das, of his illness that might sho\,
on his attendance record in evidence; it does not How-
ever, the attendance records are obviously not free from
error: an example is one of them which marks anti em-
plo)ee vsAitli excused absences oil nexistcnt days in
February. It seems probable to me that Bernstein did
make an effort to work on May 31, and that Pccr must
have been so aware,
Peer testified that she supplied Weaver's secretary
with the information on the termination forni that Hern-
stein's "work," "conduct," and "ability" serc all "poor."
Hoswever, she as not sure at the hearing hether she
sould have said that his "conduct" was 'poor" or
"fair." She could recall no reason, haever, fr dsigna-
ting Bernstein's "conduct" ecen as loss as "fair" other
than "having repeatedly to tell him instruction'' which
she conceded, on reflection, to be a matter relating to his
work rather than to his conduct.
Peer indicated that she was causally responlsible for the
cvcntual discharge of Bernstein. going to Weaecr and
telling him that, "not only his attendance wkas poor, his
work performance hadn't improved." This "last" conter-
satin with Weaver about Bernstein occurred. she said.
after he had been absent, I noticed the second da i a
rosA and that is when I went to him She would not.
however. go so far is to say that she recolmmenrded
Bernstein's discharge; hen asked if she did, Peer re-
plied, "Something of that sort " Her account of Weaver's
response was also equiocal: "I guess he was going to
talk to him and do whatever was necessary." Peer said
that, when she spoke to Weaver, she vs as not a are that
the May 30-June 1 absences were excused, bhut that
when Bernstein returned on Monday, June 4, 'I think
Bruce told mc himself that day, he had been sick or
something."
)Dwight Perry began work in department 23 some h
days after Bernstein started. He testified that about
weeks before his appearance at the hearing o November
15, 1979, Peer asked him if e "remembered what type
worker Bruce was"; he told her that Bernstein was a
"decent worker." He further testified that, about 2 wceks
before the hearing, Peer asked him if Bernstein was "the
guy that she was trying to locate for about an hour on a
previous occasion and when he returned, he was walking
down the aisle smoking a pipe, when I told her no, that
it was Thad . . . an assembler in Department 23." Perry
further testified that Bernstein had trained him to work
on the bezzling machine. a fact Bernstein himself did not
mention.
There was nothing about Perry's appearance which
would suggest that he was not being truthful. and the
fact that he could not even "pronounce [Bernstein's] last
name" at the hearing indicates that he was no particular
friend of Bernstein's. Although Peer testified the dtay
after erry did, she was not asked to deny his testimony
about her seeking his appraisal of Bernstein's work, nor
was she asked about Perry's claim that Bernstein had
155
)DECISIONS ()i NATI()NAL AB()OR REI ATIONS O()ARD
trained him on the bezzling machine. The only reference
by her to Perry's testimony came when she was asked
some seemingly unhelpful questions about whether she
remembered an employee named Thad, the kind of
clothing he and Bernstein wore, and whether she knew if
either of them smoked a pipe. If Perry is to be believed,
one might infer that Peer's subsequent detailed testimony
about Bernstein's inadequacies was not founded in her
recollection.
The propriety of such an inference is open, it would
seem, to some argument. If Peer were knowingly in-
volved in the discharge of Bernstein in June for illegal
reasons, she would likely recall him vividly enough in
October not to have to ask Perry what sort of worker he
had been (and, indeed, if she knew that Bernstein had
been unlawfully discharged and that a hearing was
coming up, she would have been exceedingly stupid to
have asked such a question of a rank-and-file employee).
In other words, Peer's questioning of Perry can be read
to mean that she truly remembered little about him, an
improbable state of affairs if she had been consciously in-
volved in his discharge for improper reasons. On the
other hand, the questions put to Perry by Peer might be
consistent with the effort of a middle-level supervisor at-
tempting to prepare to bolster a decision made by a
higher authority to discharge an employee without
having consulted her first. But it may be argued that, if
Weaver had instructed Peer to be ready, at the forth-
coming hearing, to testify that Bernstein had been an in-
adequate employee, she would not blithely and foolishly
have approached Perry to ask whether he remembered
"what type worker Bruce was"; her course in this regard
would already have been set. In short, I am uncertain of
the value of Perry's essentially undenied testimony.
There is in evidence, for comparison with Bernstein's
absentee history, the attendance records of all employees
who served their entire (or truncated) probationary peri-
ods in department 23 between January 1978 and June
1979. The General Counsel introduced some of these re-
cords and Respondent introduced the majority of them.
On brief, each side draws various conclusions as to the
gravity of Bernstein's relative absenteeism, relying on
differing premises.
Important to Respondent's analysis is Personnel Direc-
tor Stafford's testimony on this issue. In discussing how
absences are recorded on employee attendance records,
Stafford testified that the department 23 shop clerk does
not make entries of absences, if any, for a given week on
an employee's attendance record until Tuesday or
Wednesday of the next week. At that time, the clerk
makes entries on the records showing the kind of ab-
sence (unexcused, excused, unreported, etc.) and its
length. Those attendance records are not available to
Foreman Weaver until perhaps Thursday or Friday of
that succeeding week. In other words, Stafford said (re-
ferring to G.C. Exh. 25(b)) the absences of the employee
shown on that attendance record on Monday-Wednes-
day, October 16-18, would not be physically placed on
the record until the following Tuesday or Wednesday,
October 24 or 25, and probably not given to the foreman
until Thursday, October 26. Thus, it is possible that
Weaver would not see a record of the October 16 ab-
sence until October 26, some 10 days later.
The object of this testimony was to show that some
probationary employees with arguably worse records
were allowed to complete their probationary periods be-
cause the foreman may not have known, as to those pro-
hationers who were absent in the 10 days preceding the
end of their periods, that they were absent, since the at-
tendance record, if reviewed on the last day of their
period, would not reflect the more recent absences.
Stafford further testified, in explaining the retention of
certain probationary employees, that discipline was re-
laxed with regard to attendance in the severe winter
months of January 1978 and February 1979.
Stafford also testified that probationers, unlike regular
employees, did not receive progressive discipline. The
purpose of the probationary period, he said, is "to evalu-
ate an employee with regard to this [sic] general work
requirements. That includes conduct, it includes his abili-
ty to perform the job, his attendance." Respondent re-
leases probationary employees "whenever we want to do
it or have reason to do it" within the 60-day probation-
ary period, and there is no prescribed maximum for pro-
bationary absenteeism.
On brief, Respondent attempts to show that Bernstein's
attendance record (one unexcused absence and three ex-
cused absences) as of his termination date (5 days before
the end of his probationary period) was as bad as any of
the other 62 probationary employees hired into depart-
ment 23 between January 1968 and June 1979. In a chart
designed to so demonstrate, appended to its brief. Re-
spondent, relying on Stafford's testimony, makes adjust-
ments in the absentee record of the other probationers.
One of these adjustments is a deduction of absences
"which occurred ithin 10 days of the end of the em-
ployee's probationary period or within 10 days of the
date the employee was discharged if the employee did
not work the full probationary period." The assumption
made here is that, because of the posting system, Fore-
man Weaver might have let absences occurring during
the latter part of the probationary period slip by unno-
ticed because they were not actually recorded by the
shop clerk at the time the 60-day period ended.
This assumption is not necessarily compelling. For one
thing, 10 days is too broad a compass; an employee's ab-
sence on a Tuesday, Wednesday, Thursday, or Friday
should, according to Stafford, be available to the fore-
man on the attendance record by the following Thurs-
day. More importantly, the fact that an absence has not
been posted does not necessarily mean that Weaver is
unaware of it, as shown by the testimony of Weaver and
Peer that Bernstein's absences of May 30-June I were
discussed by the two supervisors either "when he came
back" (Weaver) or when he had been absent "the second
day in a row" (Peer), at which time, and before the ab-
sences were posted as excused, they decided to get rid of
him. It is similarly important to point out, however, that
the fact that Peer assertedly brought Bernstein's situation
to Weaver's attention does not mean that other supervi-
sors at Peer's level would necessarily bring similar or
even worse cases to Weaver; and, if they did not, it
156
S'I WVAR'I'-WARNELR CN()KI'()RA [II()N
seems clear that Weaver would likely not be aware of
absence problems until the absences were posted.
Weaver testified that, except when a line supervisor noti-
fies him of problems with I of his 175 employees, he re-
views weekly only the attendance records which his
clerk "has pulled out for me and put on the side for my
attention."
The General Counsel introduced the records of 17
contemporary probationers for the apparent purpose of
demonstrating disparate treatment of Bernstein. As the
General Counsel states on brief. "Measuring Bernstein's
attendance against that of other employees is difficult
.... " and, in fact, the General Counsel's brief refers to
only nine of his own exhibits and four of Respondent's.
As indicated, it is impossible to know which supervisors,
applying a "discretionary" standard, would approach
Weaver at any given time during a probationary period
to complain about an employee's attendance; this could
well depend on a subjective balancing of the employee's
absenteeism against his or her perceived skills and poten-
tial.
The General Counsel's analysis of the records com-
pares certain nondischarged employees' performances
against "the pro-rated figure of 32 absences per year
given by Weaver"--aclually, Weaver testified that Bern-
stein's 4 absences "in a period of about six weeks" annua-
lized to "thirty-six workdays a year. which is, in my
book, too much"-and some testimony by Stafford about
a 6 percent figure. 5 9 The General Counsel also includes
an employee who left after only working a few weeks,
on the apparent theory that Respondent should promptly
discharge probationers whose absences quickly and early
mount up, which may or may not be a fair assumption.
He further includes instances of tardiness, the signicance
of which is really unclear on the record. Having done
so, he arrives at the cases of 13 employees "whose at-
tendance during the probationary period was far worse
than Bernstein's but who were retained." Some of the
General Counsel's choices are questionable in certain re-
spects; others seem to be reasonably substantial compari-
sons.
Recognizing the variables involved, it is not easy to
make comparisons. Some cases are superficially more ag-
gravated than Bernstein's. Diana Hagerstrom (G.C. Exh.
23(a)), for example, was hired on January 30, 1979. She
had four unexcused absences in February, 6fi received a
warning notice on March 7, and had two excused ab-
sences on March 12 and 19, the latter date being her last
day worked, at which time she separated ("Quit-Better
job"). Stafford testified that receipt of the warning notice
indicates that Hagerstrom must have been an "exception-
al" worker, because progressive discipline does not nor-
mally apply to probationers. Her separation notice rates
her as "good" in all work characteristics. It is impossible
to say that the four unexcused absences in February by
se Stafford in fact iestified that there a, nolt estahlished criterion of
excessive absenteelsm h prohationrlers He did sa) that the managemnt
goal oserall is 4 per cert absenteeism." hut hat Respondent aerages an
unsatisfaclorI ' I" per cent abelh nteciti '
SO Notations of tIro) more such absences on1I ebruary "2'" and 30"
are ohviousli Ill error 1 vao of the althentlc unc.cused absences A ere for
4 and 3 hours
an employee thought to be "good" was ever brought to
Weavcr's altention, although one might presume that is
so; in any event, the fourth such absence occurred a
month after she began and there could have been a
desire to see how she performed over the next 2 or 3
weeks. ';
Jeffrey Fowler (G.C. Exh 24(a)) was hired on Sep-
tember 26, 1978. In October, he was tardy three times. In
November he had an unexcused absence on November I,
a 4-hour unexcused absence on November 15, a tardiness
on November 16, and excused absences on November 20,
22, and 24. Assuming that WVearer did not learn from
Fowler's foreman of the latter three absences until after
the expiration of Fowler's probationary period on No-
vember 25, it may be argued that his record vas not as
bad as Bernstein's. An opposite assumption could lead to
the contrary inference.6 2
Nereida Lucas (G.C. Exh. 25(a)) had a record quite
similar to Bernstein's. Hired on September 26, 1978,
Lucas was tardy on October 4, had an unexcused ab-
sence of 4 hours on October 9, and had three excused
absences on October 16, 17, and 18. Lucas, however,
quit work on October 26, only 30 days after starting em-
ployment, and, arguably, too soon into the 60-day period
for any serious evaluation.
Frankie Dorband (G.C. Exh. 29) is a more meaningful
comparison. Dorband, hired on January 18, 1979, had in-
curred three excused absences and one unreported ab-
sence by March 1, long before the end of her 60-day
period. These four absences in 6 weeks would seem to
qualify her for termination under Weaver's standard, and
he presumably saw her attendance card, recording the
four absences, prior to the end of her probationary
period on March 19. She was not released, and there is
no explanation of the distinction except in Respondent's
appendix to the brief, which lumps her two excused and
one unreported absences in February as presumptively
"bad weather" days which would have been discounted
by a supervisor. :
At least as, if not more, discrepant is the case of Marie
Pickett (G.C. Exh. 32).6 4 Hired on January 18, 1979,
Pickett was tardy on February 7, had an unexcused ab-
sence on February 13, had three excused absences on
February 20, 21, and 22, was tardy again on February
28, and had an unexcused absence of 4.8 hours on
Monday, March 12. Since her probationary period ex-
pired on Monday, March 19, it may be argued that, be-
cause of the posting procedure, by March 19 Weaver
would not have known of her unexcused absence of
l Respondenrl', brief dlcounls ;all of the Fchruary unexcused ahsrcncc,
because thc occulrred in a hbd weather month It takes this general
hroad-brush pprioach as 10 all of January 1°71 and Ftheruar> I')79, dIe-
spilte he absence of any showing that the particular da Nr missed 'were in-
clemell
' t I Las ,ee some force in he testimony of Personnel Direlot r Stafford
that. n assessing an emplsee' s ab',ntcneeism during the probhaionarN
period, tihe facl Ihat a absence is "excued" inder person el department
pro.edture* would nrot necessarly mean ihil it is Irlicken fron a supcrr-
sor's milid s i ncgallie factlr An mploece ho lend, lo he sick or
olthcrsvre ndlspos ed mighl nolt h considered dsirhrble
i: N i 1')liri"icnl 23 siupcrulor ,cr Ictll l TIhat such ib l tiles erre
ot erlooked
h, The ieneral Consel', brief does nol refer to, this record
157
I)I(CISI()NS ()OF NAI()ONA. I.AB()R R.ATI()NS I()ARI)
March 12. ut even withoul that knowledge. he presurnm-
ably would hase seen, before the end of her termination
period, the four absences which had occurred by -ehl-u-
ary 22. Picket \was not discharged at the end of the 0()
days."
Sylvester Neal (Resp. Exh. 61) was hired on Noveim-
ber 24, 1978. lHe , as tardy on November 28, and had ex-
cused absences of full or part days on December 8, 21.
and 29, and January 6 and 19. Even discounting the Jan-
uary 19 absence as possibly not being known to Weaver
prior to the expiration of Neal's 60-day period on Janu-
ary 23, that leaves at least four absences which might
have been known to Weaver by the latter date; Respond-
ent's brief would discount one of these four as a bad
weather day because it fell in January.
There are, in addition, other records which, in an ab-
solute sense, are as bad or worse than Bernstein's but
which did not result inll discharge; arguably, they fall into
the reporting lag exception urged by Respondent. See
Drake (G.C. Exh. 22(a)) (five absences as of end of
period, last two occurring within last 6 days), Calhoun
(G.C. Exh. 26) (five absences in period, last three occur-
ring in last 6 days of period), Thomas (G.C. Exh. 27)
(seven absences in period, last four in last 6 days of
period), Torres (G.C. Exh. 34) (seven absences in period,
last four in last 4 (lays of period). None of these employ-
ees was discharged at the end of the probationary period.
Then there is the interesting case of Evelyn Ray. The
records introduced by Respondent (Resp. Exh. 67) show
that Ray was hired on May 1. 1979, was tardy on May 3,
had unexcused absences on May 4 and 7, had excused
absences on May 15 and 18, and was "Release[d]-Absen-
teeism" on June II11 the very day on which Bernstein
was discharged. Ray's record, in total absences, and even
in tardiness, was identical to Bernstein's; in quality, one
might argue that it is a shade worse, since Ray had two
unexcused absences to Bernstein's one; but, by Weaver's
standard of counting and annualizing total absences, the
record of the two employees is just about identical.
Given the fact that Ray, not identified in the record
with the UWA. was released on the same day from the
same department as Bernstein, one might have thought
something would have been made of this seemingly fa-
vorable point by Respondent at the hearing. Except for
the introduction of Ray's records, the transcript is silent
about her; only on brief does Respondent argue her case
as proof of the neutrality of the handling of Bernstein.
I am left to puzzle about Ray's case. How did it come
about that after four absences in the first 18 days of em-
ployment, and none thereafter, it was decided that she
should be discharged 24 days after the last absence and
some 19 days before the expiration of her probationary
period?66 Perhaps, after all, it was sensible litigation
strategy to leave Ray quietly ticking away in the record;
while her case gives rise to the foregoing questions, it
must, obviously, be accorded careful consideration.fi7
,l The appendix to Respondent's brief does not deduct Pickett's four
February absences, tir reasons unlexplained
66 The terniiatiorn form shows Ray as a "fair" worker inm all categl-
ries.
6 I nmay well he that Respolldcnlt wisely chose rli to highlight Ihe
simultaneous discharge of Ray for fear of provoking arn amendmen to
A few other items deserve discussion. ()ne is that
Bernstein and Weisbrot were disciplined on the same
day. T'his appears to be coincidence. It is hard to con-
ceive, as Respondent argues, that Respondent would
have anticipated that the routine June 11 discussion be-
twcen Wyper and Weisbrot could have resulted in the
admitted insubordination, calling for a steward, etc.,
which brought about Weisbrot's suspension on that day.
()ine would have to infer a conspiracy and a scheme by
Wyper, DePriest, and Pike. all dependent on a hoped-for
reaction by Weisbrot: that seems wholly unlikely.
Similarly, the fact that Cichorski was present in the
department 20 office when Weisbrot came in on June 11,
and in the department 23 office when Bernstein was fired
on that date, does not seem to be more than happen-
stance. The testimony is that Cichorski was present 'for
various business reasons. It seems somehow entirely too
sinister, and inane on his part, to suppose that he engi-
neered or was aware of a plan to discharge both employ-
ees for their UWA involvement, and deliberately chose
to be present as the plan was being put into effect.
Finally, there is the uncontradicted testimony of de-
partment 23 employee Helen Horn that, on August 24,
Weaver started a conversation with her by pointing to
her UWA button and asking what it was. When she said
it was a union button, Weaver told her that he thought
she was "too smart to get hooked up with that." He
went on to say that he had seen her name in a leaflet put
out by WAI.L, an opponent of UWA, which identified
her as a UWA solicitor. He asked if she had been in-
volved in the organization of UWA; she replied that she
was "wearing the button." The conversation ended with
Weaver saying that he thought she was smart enough to
work in the office, and offering to help her out if she
had any problems. Horn testified that the leaflet to
which Weaver had referred had come out that morning
or the day before. Horn's name also appears on the letter
announcing the formation of UWA received by Re-
spondent on June 18.
The foregoing is, I believe, a fairly exhaustive analysis
of tile important evidence relating to the Bernstein dis-
charge. The problems in that evidence seem to me to be
troublesome. After considerable reflection, and recogniz-
ing the difficulties in the case, my inclination is to con-
clude that the General Counsel has made out his case by
a preponderance of the evidence.
To some extent, and with some regret, that decision is
necessarily a mechanical one. Bernstein seemed to me a
most honest witness, and he heightened that impression
by conceding at the hearing that Peer had criticized his
work on several occasions. He testified that, when he re-
turned from his absence of May 30-June 1, he asked
Weaver if that absence would jeopardize his job, and
Weaver assured him that it would not. Asked by the
General Counsel, prior to Bernstein giving this testimo-
ny, whether such an event had occurred, Weaver simply
said, "I have no recall of that." Weaver was not called
as a witness for Respondent after Bernstein had testified
tilhe complaint alleging that Ray' discharge was designed Ito obscure he
iol elC bchlld Iternstein's terminatioin I'hat has happened in inilar cases
in the past
I VAR I \R-WARNI-R C()RI'()ORA I()N
to more positively denl ha;l.ig gix en WeaLer this assrur-
ance.
I very much doubt that errnstein faricated ;l is ex-
change (iser the tcstiniori (f Peer th;it the last tinle
she spoke to \V'eaker about B3crslten A as on the second
day of his 3-day ;ahslnc. together sitlh 'Weaver's testi-
mony that "it was decided" ill that last conversralion that
Bernstein would be terminatcd. it would have heen
wholly incollsistent , itlh such a decislon for WVeavcr o
have suhsequently assured lerrrsteiii that he had nothinlg
to worry about. Indeed, the decision having purportedlly
been taken before 1CBernstein retlrned, i is hard to under-
stand why VW'eaver ould go 1no urther than to say hei
had "no recall" of harilng given such ai assurance ap-
propriately, he should harve quite certainly remenlbered
not having done so. The inference here, of course, is thiat
an intervening evenrit-the party-brought about a
change of nlind by WVeascr.
Similarly, art adverse inference must be drawrn frolt
Bernstein's uncontradicled testiniony that Weaver said
that the decision to fire him was dictated by "procc-
dures," rather than being a decision by Weaver or the
personnel office. Again, I do riot believe Bernlsteinl
dreamed up this colloquy. While it might be implicit in
Weaver's general tcstiniony that he made no such state-
ment, his filure directly to address this claim makes it
impossible to test its accuracy And assuming that it was
in fact said, it contradicts e'caver's underlying theme
that he exercised his discretion based oil Bernstein's ab-
senteeism and poor performance.
As for the latter deficiency, it is a impression that
Peer was so overzealous in attempting to downgrade
Bernstein that another adverse inference is appropriate.
Bernstein's allegedly wretched performance, resulting in
the damage of "many parts," on the bezzling machine
(from which Peer could not seem to decide whether
Bernstein had been removed or not) was at the same
time so valuable that his 3-day absence from that oper-
ation was "crippling" to her assembly line. Again, al-
though Bernstein simply could not learn to operate the
machine efficiently, he was assigned, according to the
uncontradicted testimony of Dwight Perry. to teach
Perry how to run the machine. Similarly, the decision to
rate Bernstein as "poor" not only in "work" and "abili-
ty" but also in "conduct," when there is no evidence at
all that Bernstein engaged in anv untoward conduct, is
more of the sort of overkill which tends to create a sus-
picion that a coverup is in progress.
The several conflicts in and between the testimony of
Weaver and Peer strengthen this suspicion. Weaver's ini-
tial testimony that he "believed" he spoke to Bernstein a
"couple of times" about his absenteeism, and also about
his poor performance, was subsequently reduced to the
"possib[ility]" that he did not speak to him at all; this
latter is quite likely, because he surely would not have
called in Bernstein about his first absence on May 17,
and he clearly did not admonish him after Bernstein re-
turned from his 3-day string of absences, his only other
incident of absenteeism, ending June 1. Although
Weaver at first testified in a way suggesting that he may
have spoken to Bernstein early on about his low-quality
performance, and, although Peer testified that she asked
Wcaser to sp;eak to lernslteiln coitcerrinig his efficicl'
''aibout i tie riiddle of te IlCXl cck altelcr the scond
tlime I talked to hiri" (hich appareitly Wouldl hasc
been in the third w\eek of Icrnstein's cirlplonicnil.
Wca\'er later seenled to say that hie had heard riothiii
abhout IeCrnistein's work till lie was about to discharge
hlirl: "[[xcessixve absentcism j was the n;ail purpose t hat
I had hin i there for, hut after the supervisor brought
to niy attenlti(on that his ,uork record 'ias also poor."
()11 its face, the "poor performniance"'' reason selnis
riakev eighlt aftCrthought It is riot express1 illtiltolled
ill the terillnatioln Ioril as a reasoLn for releaise. allhlough
the exhibits tile contains the recordls if three prohbation
ers whose given reason for discharge was "Not caplhl
of our type of work." plainl a recognizeed lc'tcgorx
Moreover, eveni taking ito accout all the ariables aiid
ulcertailnties discussed earlier kith respec Ito the report-
ing-of-absence process. it does sceni rather difficult to be-
lie\ c that Bernstein's unexcused absence anid three ex-
cused absences were truly considered so ioleriable a
record i department 23. While. for the reasons givel
above. I cannot he sure of this, niy rex iew of the rcords
leaves at least a strong hunch that the four absences.
three of them excused. in 55 days might riot ordiiariil
arIuse Weax er or his subordinate niaiagers.; ' 1i
record shows. as to the 63 probationers ull ose records
are in evidence. that only 3 of them. BIernstein. John
Roberts, and Evelyn Ray, were released for absenteeism.
At this point, however, the case of Eselyn Ray looms
large. As indicated, her absentee record was quite sinilar
to (or perhaps qualitatively somewhat worse than) Bern-
stei's and she was fired on the same day As also indi-
cated, unilluriiated questions attend her case. AcknolI-
edging the surface force of Ray's discharge, and at the
same time the unanswered peculiarities relatinig to hy
she was fired henl she was, I have concluded that this
piece of evidence simply is not sufficielnt to carry thc
day for Respondent against all the other considerations
set out here.
Timing is a meaningful factor. If the decision to dis-
charge Bernstein was made on or about May 31. as Peer
would have it, why was he not terminated hen he re-
turned to work on Monday, June 4? Neither of the su-
pervisors was asked to comment on this sticky question
One document in evidence shows that an excessivels
absent probationer. John Roberts, was let go on the day
that he returned from four consecutive days of unreporl-
ed absence (G.C. Exhs. 211a) and (b)). Other documents
disclose that Weaver had no particular day of the week
for discharging probationers. Roberts, above. was fired
on a Friday. Moore, thought of as not being "capable of
' ' ()I11L an enlploye p;,¢scs iht prnohau ill;lr ptriod, the rtlcs bc conl
c rlloldtcrab*h relaxed "()nc dly of repolrted ahcllscic nll cilh nollth v Jth-
OuJl %thSr;llllatIlg cvld nn c ' ill be pcrmrlrtcd" hcrfirc b rls dlt'clplln I I1
pOictI An cmpilpr c rcc, cs grraduled (liicipilic, h ill i n hl TnlrII-
llaldt', tint )t's (tll fur IlidCllu s If unciL ut'l ilit ui rcrorlcl inB
scUi'" .lit llin t calendar quarir, nutu nlcidenlrs of abshin.' irc lil t a rrit d
iforvard for this purprec fron) oe lL quaricr ti(, .nCllothr Sttiff'lrd tsiliSd,
lOsnoC ar J }ll , pinnt tchn r onsrl aonlahlr , lil Rn'sporldcI trics III .;I.tl
in11iknlig rcuilAl r those culnplIn, ! cs ho tihrett n l .ils tils h5, ' tsil 11 Is
1l p 11,I ] tl C' tll lc ' vll Irc(1 .h i h.rh cr I shr lcl.t'1II. 0 .n1o l lUrl Irlrd
ti, sirk orl ihc sce lu idl , of t is tia I(\s V.1tiLnt I.Sl C appcarcd t
h' 'l( a ill q{inpunsn'c
] so
I) (CISI()NS ()1: NA'II()NAL IAI()R RELAIIONS ()AkI)
our type of work," was released on a Monday (Resp.
Exh. 57). Wilmer, also deemed incapable, was discharged
on a Wednesday (Resp. Exh, 80). Bendford, terminated
for the same reason, was fired on a Friday (Resp. xh.
38). The failure to take similar action promptly against
Bernstein once the decision was made inevitably leaves
one doubting that the decision was in fact made as early
as Weaver and Peer testified it was.t ;
Bernstein testified, as noted, that, on the morning of
June 11, Weaver walked up to him as he sorted cases
and said, "i hope you are not putting the stamped cases
back in the bins because if ou are, your ass is grass."
Bernstein replied that he was performing his work cor-
rectly. He testified that Weaver had never been deroga-
tory to him before. Weaver did not testify about this in-
cident, and there is no reason to disbelieve Bernstein.
The statement would seem to be significant. It may be
read to be a warmup for the subsequent discharge, which
Bernstein seemed to think. More sensibly, however, it
reads as if, at the time he made the statement, Weaver
contemplated a continuing relationship with Bernstein
and had not yet decided to discharge him, contrary to
his testimony: why bother delivering such a conditional
threat to an employee whose fate has already been
sealed? This interpretation would perhaps, although not
necessarily, lead to the belief that the decision had not
yet been made as of the morning of June I I.
I come to the issue of Weaver's knowledge of Bern-
stein's sponsorship of' the June 9 party. There is no direct
evidence that Weaver had such knowledge. There is,
nonetheless, evidence indicating that such evidence
might have been quite accessible. Printed invitations,
some of them stating that the party was to "get a decent
union at S-W" and listing Bernstein's home address and
telephone number, were passed around. There was dis-
cussion about the party in the department, some of it
near the desk of the supervisors. The opportunity for
gaining knowledge was, I think, sufficiently there.70
Respondent makes the point on brief, and I have earli-
er remarked, that Respondent's reaction to UWA was, so
far as the record shows, scant in terms of unfair labor
practices. This raises the fair question of whether
Weaver would have been aroused enough by Bernstein's
participation in an effort to "get a decent union at S-W"
that he would decide to terminate his employment, espe-
cially since, at that time, UWA had not even gelled into
an announced candidate for bargaining representative.
I see no reason not to think so. At a later time, on
August 24, according to the undenied testimony of Helen
Horn, Weaver displayed a certain antipathy to the idea
of an independent union, telling Horn that he thought
she was "too smart to get hooked up" with UWA. He
might well have felt the same way about the notion that
Bernstein was an agitator for a new union, whether or
not Weaver was implementing company policy, and for
*9 Personnel Director Stafford stated that the pay week enid, on
Sunday If the decision to fire Bernstein were made on or about Ma 31,
it would at the least have seemed sensible to let him go no later than
Friday. June 1(0, to avoid having to write him a separate check for the
work performed on Monday, June I I
'° As previously stated, it is established that knowledge may be in-
ferred from the circumstances N L. iKR s Link-Behlt Company. upru
whatever reasons he might personally have had. Bern-
stein witas, clearly, a target of opportunity, being in the
final week of his probation, and the chance might have
seemed to Weaver too easy to ignore.
Although the case is not an overpowering one, I am.
for the reasons given, persuaded that the General Coun-
sel has made it by "the preponderance of the testimony
taken," as provided by Section 10(b) of the Act. One
other fact gives rise to a lingering doubt. Bernstein did
not file his charge with the Board until July 2,71 while
his friend Weisbrot filed the charge about his own June
11 incident o June 13. The reason for the delay in filing
the charge was not litigated. The Board has held that the
fact of delay, without more, is an improper considera-
ltion. Central FIreight Lines, Inc., 222 NLRB 388, fn. 2
(1976). The rule seems just: any number of explanations,
such as personal problems, might have been offered if
the question had been raised.
Accordingly, I conclude from all the evidence that the
discharge of Bernstein on June 11 was directly related to
and substantially prompted by his activities on behalf of
UWA, and therefore violated Section 8(a)(3) and ( 1).
C. The Allegations Pertaining to Margaret McCarthy
The complaint asserts that on June I, 1979, in circum-
stances in which employee Margaret McCarthy request-
ed and was entitled to Weingarten representation, Re-
spondent unlawfully denied it. There is no contention
that McCarthy's pro-UWA sympathies played any part
in the incident.
The players are McCarthy, who worked in department
20, Foreman Kuczynski, and Administrator DePriest.
McCarthy testified that, as she was returning from morn-
ing break on June 1, Kuczynski called her into the de-
partment office. She testified that her prior visits to the
office had been "mainly to receive warnings." When she
entered and asked what the problem was, Kuczynski
said, "I am going to give you a written warning." He ex-
plained that she had broken the rule about entering the
assembly area without wearing her safety glasses. She
stated that she had not known that this was a breach of
the rules. At this point, McCarthy said, DePlriest entered,
and McCarthy asked, "Can I have the steward here be-
cause you people are talking about giving me a arn-
ing." DePriest told her to sit down, which she did, and
she again asked if she could have a steward present.
Kuczynski said that a steward did not have to be called
until a warning was actually written, and DePriest said
that "they didn't really need the steward." A discussion
about the rules followed, with DePriest saying, inter alia,
that he had also seen her carrying coffee, another rule
violation, "and that he could give me a warning for that,
but all he really wanted to do was tell me about these
rules."
At that point, McCarthy asked whether she was going
to receive a warning or not. He [apparently Kuczynski]
said, 'Well, I am going to give you a verbal warning.'
" IBernstein's signature on the charge is dated July 21 he "Date
Filed," as typed in by the Rcgioinal Office, is "June 2h, 1979 " he latter
date is bhviously an error. The complaint in Bernstein's case reciles that
his charge was filed on July 26.
160
S'T'WA RT-WARNER C()RIPORA'ION
"She then asked DePriest if he were"going to give me a
warning," but he said nothing. DePriesl then made refer-
ence to the "petition out in the department about eating
apples and oranges on the line," which she assumed was
in reference to the May 23 grievance relating to the use
of food-dispensing machines. "After a while, they were
just telling me about all of the rules and I just sat there."
Eventually, McCarthy again asked if she were to get a
warning or not. The two men "kind of looked at each
other," and told her to go back to work, which she did.
"That was the end of it." She received no discipline.
I have given above a substantially complete paraphrase
of McCarthy's version of the conversation on direct ex-
amination. She said that she was in the office for "at
least 20 minutes," so it is clear that her testimony did not
fully replicate the conversation.
Kuczynski testified that he called McCarthy into the
office because DePriest had notified him that an employ-
ee was "walking on the line without wearing her safety
glasses." He went out, saw McCarthy, and called her
into the office. When he asked her if she knew "what
this is about," she replied, "Yes, about the safety glass-
es." Kuczynski conceded that he then said, "Well, I'll
probably have to discipline you." After McCarthy began
to say that she thought the rules permitted her to leave
the glasses off during rest breaks, DePriest (who was, ac-
cording to Kuczynski, in the office from the beginning of
the interview)7 2 said, "Well, she don't seem to under-
stand the rules. Maybe you better not discipline her." A
discussion of the rules followed, and it was only at this
point, said Kuczynski, that McCarthy asked for a ste-
ward. She was told, "Well, what do you need a steward
for? There's no discipline." She then left the office.
DePriest, questioned only briefly about this incident,
said that, in McCarthy's presence, he "instructed Lenny
not to discipline her, just to explain the rules."
McCarthy appeared to be an excellent witness, but I
note that her account of this 5-month-old event changed
somewhat on further examination. Thus, when I later
asked McCarthy for a reprise of the interview, De-
Priest's assurance that she would receive no discipline
seemed much earlier and more emphatic. In that second
version of the meeting, McCarthy said that, after she had
requested a steward, and Kuczynski had said it was not
necessary to provide a steward until a warning was actu-
ally given, DePriest said "they just wanted to talk to me
.... He told me that they just wanted to talk to me
and tell me the rules. That is how I remember. He told
me that they just wanted to talk to me and tell me the
rules .... We don't need Ruby because we are going
to tell you the rules. We just want to sit here and talk to
you and tell you the rules. What do you need a steward
for?"
It seems to me that neither the letter nor the spirit of
the Weingarten principle was offended by the failure to
summon a steward, assuming arguendo that McCarthy
did ask for one soon after Kuczynski admittedly told her
that he "probably" would issue a warning. For, almost
immediately, DePriest, the ranking official, made it clear
that the only purpose of the discussion was "just . . . to
;z DePriest said the twio were already n he ffice when he entered
talk to [her] and tell [her] the rules." That assurance, it
seems to me, should reasonably have allayed any fears
on McCarthy's part that the interview might result in
discipline, and the precedent earlier cited in connection
with Weisbrot's June I1 interview is applicable here.7:
Indeed, it might further be contended that the interview.
from the beginning, was not "investigatory" in the sense
contemplated by Weingarten, thus making a steward's
presence useful. So far as the record shows, no interroga-
tion occurred, and McCarthy's testimony indicates that
the interview was essentially didactic."' In this respect,
the conversation was arguably analogous to "the giving
of instructions or training or needed corrections of work
techniques" authorized by Quality Manufacturing Compa-
nv, supra, 195 NLRB at 199, to be undertaken despite
any request for a steward.
The record discloses that there had been confusion in
the plant about the use of safety glasses. On May 18, a
lengthy notice had been posted on all bulletin boards on
the subject of "Wearing of Eye Protection," stating that
"There has been some question by many employees re-
garding the established rules governing the wearing of
safety glasses," and then setting out the rules. One of the
noted locations where glasses did not have to be worn
was "In a break area." Because it appeared from the Mc-
Carthy incident that questions still lingered in depart-
ment 20, Kuczynski had the notice retyped to read "In a
break area (Departmental Lunch Area)"; copies were
distributed to the employees so that other employees.
like McCarthy, would not misunderstand the rules.
The foregoing indicates to me that, there being "some
question by many employees" about the safety glasses re-
quirement, DePriest. understanding that, merely under-
took on June I to attempt to clarify the rules to McCar-
thy. Of course, DePriest's intention would not necessar-
ily have a bearing on McCarthy's reasonable apprehen-
sion of discipline, and I would think that, at the begin-
ning of the conversation, she surely had grounds for
some apprehension. In view of her concession, however,
that DePriest very soon thereafter said that no steward
was needed because the two managers "just wanted to
talk to me and tell me the rules," it seems to me that no
71 A stlatement that no steward is needed because a supers.isor "Just
wants to talk to an employee and tell her the rules" is, in my siev, con-
siderahly more of a commitment that discipline will not he nvolved than
a mere statement that "an employee does not need assistance." Lenu.ro
Industrie.s, Inc., 244 NLRB 607 (1979), cited by the General Counsel
7 "Then he started telling me about all of these different rules, mlotl)
relating to glasses." "After a while. they were just telling me about all if
the rules and I just sat there" "- [Tlhey Were telling me all of these rules.
see, and I was just listening to them " At one point. McCarilh testified
that, toward the end of the cotnrersaion. she "asked them if the', had ianl
other questions"' While the Wsord "other" suggests that there had been
prior questions, she did not testif' to any
I note that in referring to his testimony n order to argue that there
was no interrogation, Respondent's brief omits the rather significant word
"other' " I further note that Respondent', brief is i palpable error in
some other instances, uch as the claim that "Nowhere in her testimony
doe, McCarthy identify precisely when during the 15-20 minute inter-
ite' that she requested a steward" In fact, as cited in the transcript. Mc-
Carthy is as precise on this point as one could he, short of haing noted
down the time of day, and much more so than Kuczynskl's testimion
ahbut midway" through the inerview ("I would feel it as somewhere
midway ") touted hb Respipndnit as the "only testimony as It the
tining of the rquest
I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
substantial Weingarten obligation continued. I find it diffi-
cult to believe that Kuczynski later said that he was
going to give her a verbal warning, especially since this
did not come to pass. McCarthy made a fine appearance,
but I am inclined to think that time may have eroded her
recollection . 7 On this evidence, I would not find that
Respondent failed to comply with its statutory duty, and
I recommend dismissal of this allegation.
CONCIUSIONS Oi LAW
1. Stewart-Warner Corporation is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. United Workers Association is a labor organization
within the meaning of Section 2(5) of the Act.
3. By threatening employees, by intimidating employ-
ees, by coercively interrogating employees, by limiting
the right of employees to engage in protected activity,
and by denigrating employees, in September 1978, Re-
spondent violated Section 8(a)(1) of the Act.
4. By discharging Bruce Bernstein on June 11, 1979,
Respondent violated Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Other than as found above, Respondent has not vio-
lated the Act as alleged in the consolidated complaints.
THt RlIM HI)Y
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respond-
ent be ordered to cease and desist therefrom and to take
certain affirmative action designed to effectuate the pur-
poses of the Act.
Having found that Respondent unlawfully discharged
Bruce Bernstein on June 11, 1979, 1 shall recommend
that Respondent be required to offer him immediate and
full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority and other rights and privi-
leges, and make him whole for any loss of earnings he
may have suffered by reason of the discrimination
against him, by payment to him of a sum of money equal
to that which he normally would have earned from the
aforesaid date of termination to the date of Respondent's
offer of reinstatement, less earnings during such period.
The backpay provided herein shall be computed on a
basis of calendar quarters in accordance with F. W.
Woolworth Company, 90 NLRB 289 (1950), with interest
as prescribed in Tlis Plumbing & Heating Co., 138 NLRB
716 (1962), and Florida Steel Corporation, 231 NLRB 651
(1977).
I shall also recommend posting of the traditional no-
tices.
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:
7" here may also he a question hether a verbal warning conslilutes
"discipline " Stafford testified Ihal I. ocal 1031, taking the position thai
verhal warnings could not he grieved, sought and received agreement
fromn Respondent around 1977 hl employees xo4uld no longer receive
copies of erhal warning forms
ORDER 7"t
The Respondent, Stewart-Warner Corporation, Chica-
go, Illinois, its officers, agents, successors, and assigns,
shall:
I. Cease and desist From:
(a) Discharging or otherwise discriminating against
employees in regard to their hire, tenure of employment,
or other terms and conditions of employment in order to
discourage membership in United Workers Association
or any other labor organization.
(b) Threatening employees in order to discourage ac-
tivity within or on behalf of any labor organization.
(c) Intimidating and denigrating employees in order to
discourage activity within or on behalf of any labor or-
ganization.
(d) Coercively interrogating employees in order to re-
strain them from engaging in activity within or on behalf
of any labor organization.
(e) Limiting the right of employees to engage in pro-
tected concerted activities.
(f) In any like manner interfering with, restraining, or
coercing its employees in the exercise of rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Bruce Bernstein, if Respondent has not al-
ready done so, immediate and full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity and other rights and privileges, and make him whole
for any loss of earnings he may have suffered by reason
of Respondent's unlawful discrimination against him, in
the manner set forth in the section of this Decision enti-
tled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this recommended Order.
(c) Post at its Chicago, Illinois, facilities copies of the
attached notice marked "Appendix."7 7 Copies of said
notice, on forms provided by the Regional Director for
Region 13, after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
"' In the eent ioi exceptions are filed as provided by Sec. 10246 of
the Rules arid Regulations f the National Lahor Relations Hoard. the
findings, conclusions. and recomlmenrrded Order herein shall, as provided
il Sec 1112 48 of the Rules and Regulations he adopted by the Board and
become its findings. conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
" 11the I cvien that this Order is enforced by a Judgnment of a Uilted
Slate, Court off Appeals. the words in he notice reading "lPmted hb
()rder of the National I.abor Relations Board" shlil read "Posled P'ursu-
itlo ao Judgmnrl of hle liriled Staite Court of Appeal, Eiiforrcirg all
()rder of the National I .abhir Relatiorns oard "
162
SrIEWART-WARNER CORIPORATION
(d) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order. what
steps have been taken to comply herewith.
I IS URI H-R ORI)ERII) that the allegations in the
consolidated complaints be dismissed except insofar as
specific findings of violations based on those allegations
have been made above.
h13