Summitville Tile, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 863 (N.L.R.B. 1979)

SUMMITVILLE TILE. INC.
Summitville Tile, Inc. and International Brotherhood
of Pottery and Allied Workers, SIUNA, AFL-CIO.
Cases 8-CA 11772 and 8 RC 11235
September 28, 1979
DECISION, ORDER, AND CERTIFICATION
OF RESULTS OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS PENEII.()
AND MURPHY
On June 4, 1979, Administrative Law Judge Wil-
liam F. Jacobs issued the attached Decision in this
proceeding. Thereafter, the Charging Party and the
General Counsel filed exceptions and supporting
briefs, and Respondent filed an answering brief in
support of the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions' of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
I We do not adopt the conclusion of the Administrative Law Judge that
the termination of the employees was the less effective alternative available
to Respondent to deal with the card playing by the night shift. We will not
substitute our judgment for the business judgment of Respondent by con-
cluding, as the Administrative Law Judge did, that the "quickest, easiest.
and least painful way of getting the night shift to stop quitting early and
playing cards on Company time was simply to tell them to stop doing it."
The Board will not instruct employers as to what is the best way to deal with
serious breaches of discipline.
Neither do we adopt the conclusion of the Administrative Law Judge that
Respondent's owner. Johnson, went to the plant the evening of March 3 in
order to catch employee Moyer doing something which could be utilized as
a legitimate basis for taking action against him. Subject perhaps to indepen-
dent confirmation, the report of the night watchman, relayed to Johnson on
the afternoon of March 3, that the night shift was playing cards gave John-
son a legitimate basis for disciplining Moyer. Johnson's personal involve-
ment in the investigation of the matter does not support a finding that John-
son was searching for a reason to fire Moyer. A talk with the night
watchman or a direct investigation of the report by another member of
management that evening would also have accomplished that objective, had
Johnson been seeking a basis for termination. Although Johnson may have
welcomed the opportunity to discharge Moyer upon confirmation of the
night watchman's report that evening, the facts do not imply that Johnson
sought out a reason to discharge Moyer: the reason, in fact. had been
dropped in Johnson's lap that afternoon.
IT IS FURTHER ORDERED that the challenges to the
ballots of Ronald Lowery, Olie Moyer, Jr., Stewart
Clapper. Ralph Decker, Marvin McClaskey, Richard
Mason, Dan Hole, and Michael McClure in the elec-
tion conducted in Case 8 RC-11235 be, and they
hereby are, sustained, and shall remain unopened and
uncounted.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for International Brother-
hood of Pottery and Allied Workers, SIUNA, AFL-
CIO, and that said labor organization is not the ex-
clusive representative of all the employees, in the unit
herein involved, within the meaning of Section 9(a) of
the National Labor Relations Act, as amended.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge: These
consolidated cases were heard in Canton, Ohio, on August
31, September I and September 6 through 8, 1978.' The
petition in Case 8-RC-11235 was filed February 15 by In-
ternational Brotherhood of Pottery and Allied Workers,
SIUNA, AFL-CIO, hereafter called the Union. Following
the filing of said petition, Summitville Tile, Inc.. hereinafter
called Respondent and the Union, entered into a Stipula-
tion for Certification upon Consent Election pursuant to
which an election was conducted by the National Labor
Relations Board on April 6 in the appropriate stipulated
unit.2 The election results reflect that there were 51 ballots
cast for and 55 against the Union, with 8 challenges, a num-
ber sufficient to affect the results of the election. The charge
in Case 8 CA-11772 was filed by the Union on March 8
against the Company, and on March 27 complaint' issued
thereon alleging the discriminatory discharge of nine em-
ployees' on March 3, including the eight who were subse-
quently challenged by the Board agent conducting the elec-
tion on grounds that their names did not appear on the
eligibility list. Following the election, conducted by the Na-
tional Labor Relations Board, the Regional Director for
Region 8, on April 25, issued an Order directing hearing on
challenged ballots, in which he stated that inasmuch as the
determination of the challenged individuals' eligibility
would depend upon the resolution of issues contained in the
unfair labor practice case, he would issue an order provid-
I All dates herein are 1978 unless otherwise indicated.
2 All full-time and regular part-time production and maintenance employ-
ees, including shipping and receiving employees, excluding all office clerical
employees. professional employees, guards and supervisors as defined in the
Act.
3 The complaint was amended at the hearing to add as alleged supervisors,
James Augsberger and Virgil Whitmyer.
' All nine employees were alleged to have been terminated in violation of
Sec. 8(aHX
3 and I , and one of them. Olie Moyer. Jr. additionally. n viola-
tion of Sec 8(a8 4) and ( I ) of the Act.
245 NLRB No. 111
863
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing that the two cases be consolidated for hearing before an
Administrative Law Judge. The Order consolidating cases
and notice to consolidated hearing issued July 7 and pro-
vided for consolidation for purposes of hearing, ruling and
decision by an Administrative Law Judge after which, it
was further ordered, that Case 8-RC-11235 was to be
transferred to and continued before the Board in Washing-
ton, D.C. In its answer filed April 3, Respondent denied all
substantive allegations contained in the complaint.
All parties were represented at the hearing and were af-
forded full opportunity to be heard and present evidence
and argument. All parties filed briefs. Upon the entire rec-
ord, my observation of the demeanor of the witnesses and
after giving due consideration to the briefs, I make the fol-
lowing:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Jurisdiction is not in issue. The complaint alleges. Re-
spondent admits and I find that at all times material herein,
Respondent has been engaged in the manufacturing of floor
tiles in Minerva, Ohio, and elsewhere and is and has been,
at all material times, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Testimony and documentary evidence contained in the
record amply supports the finding that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. UNFAIR LABOR PRACTICES
Background
Respondent is a manufacturer of ceramic floor and wall
tiles and operates plants in Minerva and Summitville, Ohio.
The Minerva plant, the only one involved in the instant
case, employs between 150 and 175 employees whose work
revolves around the two tunnel kilns located at that plant
which are operated 24 hours a day, 7 days a week and 52
weeks a year. The capacity of the kilns, generally deter-
mines production, with a fixed number of kiln cars sched-
uled each day. Thus, all operations except packing depend
upon the timing of the kilns and as one car is removed from
a kiln another is put in, so that the kilns remain full at all
times. The plant schedules 63 cars per week which is top
capacity, 12 each on Mondays and Tuesdays, I I each on
Wednesdays, Thursdays, and Fridays and 6 on Saturday.
Although for the past 4 or 5 years Respondent has oper-
ated primarily as a day shift operation with some sort of a
night shift, as of about a year before the hearing the night
shift became more formalized. At that time, the day shift,
consisting of between 125 and 140 employees, worked from
7 a.m. to 3:30 p.m. The night shift consisting of 10 or 11
employees worked from 3:30 p.m. until midnight, while 7 or
8 part-time employees worked at various times between the
hours of noon and 7:30 p.m. When the night shift became
permanent in March 1977 it consisted of three teams of
three employees, each team operating a type of press
known as a cookie cutter, with one additional employee
operating the tow motor. There was also a kiln fireman on
the night shift who also acted as night watchman. When the
night crew operated the cookie cutters, it was responsible to
Plant Superintendent Giovenelli. When it was not needed
for this type of work, however, it did other types of work-
grinding, waxing, or packing and was responsible to other
supervisors in charge of those particular functions.
The Practice of Quitting Early Prior to March 3-Day
Shift
The day shift's quitting time, prior to March 3, was 3:30
p.m. Inasmuch as production was geared to the capacity of
the kilns and a certain number of carloads of tiles were
scheduled for loading and unloading each day, the quota or
output goal was sometimes completed before the 3:30 p.m.
quitting time, and depending on the particular type of job
at which a worker might be employed, he might or might
not be required to work right up close to quitting time.
Whenever the type of product so required, employees work-
ing at jobs geared to production sometimes had to work
right up to the last minute while on other occasions they
might finish early, sometimes half an hour early or, on rare
occasions, even earlier than that.' When employees shut
down early because their work was completed they were
expected to clean up their work area until quitting time.
According to Fred H. Johnson, Respondent's owner and
chairman of the board, employees might occasionally drift
away from their work stations early and be found lined up
at the timeclock as early as 3:15 p.m. On these occasions,
however, when Johnson observed this happening maybe
once or twice a year, he would instruct his supervisors to
correct the practice inasmuch as he felt that it was not fair
to other employees who had to continue working through
to quitting time, to see these employees standing around
doing nothing. Inasmuch as Johnson did not, however,
maintain his office at the Minerva plant and was not fre-
quently present' in the Minerva plant working area at quit-
ting time, his testimony must be considered more valuable
as a description of the rule in effect rather than of the prac-
tice.
In most cases, the other witnesses testifying on the sub-
ject, agree with Johnson's testimony to the effect that the
practice of quitting early, and how early, depended to a
large degree on the particular job being done, and my
analysis of the testimony of all witnesses leads me to con-
clude that this was, in fact, the case. Therefore, testimony
concerning practices on particular types of jobs is given
more weight than generalities descriptive of the entire shift8
See the testimony of Fred H. Johnson.
6 Ronald Lowery, an employee of 4-1/2 years testified that he only saw
Johnson at the plant at quitting time once when employees were through
working and just standing around.
7 Although Olie Moyer, Jr., an alleged discriminatee and key figure in this
case testified at one point that all departments shut down early and that
supervisors were aware of this fact, he testified elsewhere that the practice of
the day shift as regards quitting earl), depended upon the type of job being
done.
' Thus, the testimony of Olie Moyer, Jr. that in all the operations, idle
time, after clean up, was about 20 minutes, though true, as an average, is of
less importance than other testimony dealing with specificjobs which reflects
the reasons for quitting early.
864
SUMMITVILLE TILE, INC.
because reasons for early quitting may be applied to spe-
cific jobs hut not to the entire shift. Thus, on the selecting/
hacking line, where the employees took care of the fired
ware, and on the cookie cutters, these jobs required doing
as many carloads as were scheduled that particular day,
and depending on the amount and type of products pro-
duced, selectors and hackers 9 could complete their assigned
work in from 5 minutes to an hour before quitting time.'"
Most witnesses" testified that the selecting and hacking
lines would shut down between 2:30 and 3 p.m.2 Since it is
undisputed that Respondent scheduled 12 carloads of tiles
on Monday and Tuesday and 1 I on each of the other week-
days, it appears reasonable to conclude, and certain testi-
mony supports the conclusion," that the hackers shut down
at about 3 p.m. on Mondays and Tuesdays and as early as
2:30 p.m. on other weekdays. After shutting down, the
hackers would take from 5 to 20 minutes to clean up and
therefore would frequently have from 15 to 45 minutes'4 of
down time after cleanup. According to Supervisor Whit-
myer, even when the hackers and selectors had 40 or 45
minutes left after cleaning up, they still had plenty to do.
They brought up skids and generally kept busy getting set
up for the following day. A certain percentage of employees
would check out at 3 p.m. and leave the plant which was
their option. Those who stayed might then go to the rest-
room or get a can of pop and, in general, relax. Though
normally employees did not stand around and talk, they
sometimes did, on which occasions they were not criticized
for doing so. This standing around talking and drinking
pop, when it occurred, happened between 3 and 3:30 p.m..
when the employees were still on the clock and getting paid
for it. Though they were still on the clock, Whitmyer never
told any of these employees to put down the pop and get to
work. Plant Superintendent Giovenelli, on the other hand,
testified that on occasion he would sometimes direct them
to work, but that on other occasions he would permit them
to stand around for as much as 20 minutes. Though em-
ployees between 3 and 3:30 p.m. would stand around in
groups talking, Whitmyer would never tell them to "break
it up and go back to work" because their work had already
been completed. Though on these occasions, he might have
assigned them other jobs such as packing, for there was
always packing to do, he never did so.
Alleged discriminatee Olie Moyer, Jr. testified that in the
selecting area, clean up was finished between 3:10 and 3:15
p.m. after which employees stood around doing nothing
whatever. According to Moyer, Supervisors Whitmyer and
Lynn Campbell, in particular, were aware of this fact and
never told them not to quit early. But Moyer also testified
that Olimpio Giovenelli, production supervisor, on the
other hand, when he supervised the hackers in 1976 and
The hackers' job consists of manually lifting tiles from an off-bearing belt
from an extruder and placing the tiles on dryer or kiln cars.
10 Supervisor Virgil Whitmyer testified credibly to this fact
u Witnesses so testifying include Louive and Campbell. Olie Moyer. Jr.,
McClure Mason. and Lowery testified. in large, in support of their testi-
mony.
T On Saturdays they shut down /2 hour early.
i Cf. Lowery's testimony.
14 Based upon a composite of all of the testimony of witnesses who testified
on the matter.
1977. made sure that the employees alwa,,s had brooms in
their hands, even if they did not do an'ything with them.
and were merely standing around. Moyer's testimony on
this point fully supports that of Giovenelli. This testimony
indicates that different members of management took vary-
ing positions with regard to the necessity of giving the ap-
pearance of being busy during downtime. in order, appar-
ently, to comply with Johnson's admonition. In agreement
with Whitmyer, Moyer testified that if employees com-
pleted their work. they could check out rather than stand
around talking until quitting time.
A number of employees were called to testif', concerning
the practice of stopping work before quitting time and all
testified in agreement with Whitrmyer and Moyer that upon
completing their cleaning up chores, the employees just
stood around, drank pop, and talked until it was time to
punch out and that this practice was observed by members
of management who were pretty much doing the same
thing. Although none of' them were ever reprimanded for
standing around talking. waiting until 3:30 p.m. checkout
time, some chose to check out at 3 p.m. rather than just
hang around.
The waxing and grinding room facility was located in a
separate building. Employees who testified on the subject
stated that it closed down between 3 and 3:20 p.m., depend-
ing on the type of work being done. after which it took from
5 to 10 minutes to clean up. Though there was no supervi-
sory office in the waxing and grinding room. Whitmy'er,
when he was supervising in 1976 and 1977. would come in
about 3:10 p.m. while the employees were shutting down
and check up on production. Olie Moyer. Jr.. who was the
towmotor operator on the day shift during this period,
would then tally up the tickets which reflected production
and would take them to the office. The remaining 5 to 20
minutes left was considered downtime and the employees
would stand around and talk until it was time to punch out.
It would appear from the general concensus of testimony
that there was much less downtime in the waxing and
grinding room, about 15 minutes, due to the nature of the
work, than there was in the selecting and hacking areas.
In the waxing and grinding area there was a spray waxer.
This operation was shut down about 3 p.m.'" according to
most witnesses. ('leaning up. however, was an extensive
process leaving either no down time thereafter or at most
10-15 minutes. During this brief period, in the presence of
supervision, some employees stayed in the area, sitting and
talking, others left.
The work of packing on the packing line, during the rel-
evant period, involved packing the finished products in car-
tons for shipment. The packing crew usually consisted of six
employees, sometimes more or less. The makeup of the
crew varied for employees were frequently assigned to the
packing line when they were no longer needed elsewhere.
Similarly, employees already working on the packing line
might be taken off that job and reassigned to another job
where their services were more in demand. Thus, the pack-
ing line served as a sort of manpower pool. It also served as
the place of employment for those employees who were
15 Moser alone testified that the spray waxer shut down between 2:50 and
3 pm
865
DECISIONS OF NATIONAL LABOR RELATIONS BOARI)
unable to perform other duties as well as for those who had
nothing else to do. Inasmuch as the C'ompany was under-
staffed and the kilns produced faster than the product could
be packed, there was always packing to do. Further, since
the other work done at the plant was done in accordance
with the quota based on kiln capacity, whereas the packing
line work was not, the other job took priority, and packing
was left to be done when it was convenient.
As to the practice of shutting down the packing line prior
to the 3:30 p.m. quitting time, witnesses called to testify
stated that the packing line was shut down between 3 and
3:20 p.m.'6 when, unlike the other departments which shut
down automatically when the work was completed, super-
vision told the packers when to shut down. After shut
down, there was only about 5 minutes cleaning up to do
leaving down time of anywhere from 5 to 25 minutes. Dur-
ing this period employees would stand around and talk.
To summarize the practice during the day shift of stop-
ping work before quitting time, the record indicates that in
each department, depending on the amount and type of
work to be done, employees would stop working early.
clean up and relax, chat, and drink pop until quitting time,
and although this downtime amounted frequently to 30
minutes on the selecting and hacking lines because of the
scheduling of the work, it still amounted to from 5 to 25
minutes on the packing line where there was still work to be
done, and since all of the standing around was observed. I
find that it was condoned by members of supervision pre-
sent at the time.
Night Shift
As noted earlier, the night shift, prior to March 3. was
composed of three teams of three men each. Each team was
to operate one of the three cookie cutters, when operating
the cookie cutters was the assignment for the evening. Olie
Moyer, Jr. was the towmotor operator on the night shift
and these 10 employees comprised the night shift, not in-
cluding the kiln fireman/watchman, Gruber. When the
night shift was not operating the cookie cutters, it did any
of the other jobs done by day shift employees including
grinding or packing
According to Fred Johnson, production figures for the
night shift cannot fairly be compared to those of the day
shift, because the night shift was comprised of the same 10
employees who had worked together over a long period of
time, were not disturbed by interruptions and had access to
the towmotor whenever it was needed, whereas the day
shift employees were constantly moved around, were inter-
rupted in their work by such reassignments and sometimes
did not have the use of the tow motor because it was servic-
ing other operations. Granting all of this to be true, never-
theless Johnson admitted that he never had occasion to
criticize any night shift employees because of their lack of
production or for any other reason prior to March 3.
Supervisor Virgil Whitmyer testified also that although
he was familiar only with the night crew's production with
regard to grinding, he never had occasio to discuss its pro-
' Since the termination of the night shift on March 3, the packing line has,
worked through until 3:20 or 3 25 p.m
duction with other supervisors or to criticize it. He testified
that the night crew's production was at least equal to the
day crew's production and that he could not recall any oc-
casion when the night crew failed to equal the day crew's
output. He stated that it could be true that the night shift
did better on grinding than the dav shift. and that it regu-
larly outperformed day shift employees when packing. al-
though, like Johnson, Whitmyer stated that this was so be-
cause there was not a full crew packing on days since other
areas were constantly borrowing or adding to the packing
line labor pool.
Olie Moyer, Jr.. characterized by Respondent as the
night supervisor and by General (ounsel and the Charging
Party as a leadman, testified that with regard to production.
the night shift tried to keep pace with the day shift so that if
the day shift had produced a certain number of skids. the
night shift attempted to do the same number of skids plus a
little more. Generalis. according to Moyer. it succeeded in
its goal although sometimes it failed. Of course. the produc-
tion goal of the night shift depended upon the type of work
it was assigned on any particular evening, the number of
employees working on that assignment that night, and the
number of employees and their production in that area that
afternoon. This means of establishing the production goal
for the night shift was, according to Moyer, always the
practice. and to reach that goal the night shift worked until
quitting time which was midnight or until 11:45 or 11:30
p.m. when, if at that time the production goal had been
reached, the night shift would shut down, then clean up.
and sit around and talk until it was time to punch out.
Though free to do so, night shift employees did not punch
out early. Moyer testified that it was never a secret that the
night crew stopped work after equaling or slightly surpass-
ing the day crew's production, and no one from manage-
ment ever questioned Mover about the practice of stopping
work early. On the other hand, there is no evidence that
management knew of this practice.
In order to determine the output of the day so that pro-
duction goals could be set for the night shift. Moyer would
consult certain cards which reflected the number and type
of product produced that day by the cookie cutters, that is
if the night shift was assigned to the cookie cutters that
evening. In this wa3 the night shift knew how to pace itself.
Pacing itself when assigned to the waxing and grinding
room was more difficult for the night shift. according to
Moyer. since there were no cards bearing information con-
cerning production in the grinding and waxing room similar
to those used in connection with establishing coo)kie cutter
production goals. Moyer testified that in this regard he had
to rely on his previous day shift experience to establish pro-
duction goals for the night shift when assigned work in the
grinding and waxing room. One wonders, in this respect
however. why. if Moyer's system of establishing night shift
production goals based on day shift production was not
objectionable to management. as he implies in his testi-
mony. he did not simply ask (;iovenelli. Whitmyer. or some
other person in higher althorit what the dav shift pro-
duced. explaining his reasons for sking. namell\. that ilhe
desired to utilize the da? shifts plrodluctiol figures as a goal
for the night hift. As pposed to mlanageinent. he did
866
SIIMMITVILIE TILE. INC
sometimes inquire of rank-and-file employees about day
shift production.
With regard to the night shift establishing production
goals for its packing line work, there were cards available
which contained information concerning the number of em-
ployees and hours spent during the previous shift on pack-
ing. as well as the number of cartons or pieces packed.
Based on this information, the night crew would try to do a
comparable amount of work, taking into consideration the
size of both crews.
Several other night shift employees were called to testify
concerning the night shift's production and each supported
Moyer's testimony to the effect that the night shift always
tried to do a little more than the day shift in the area of
their assignment and invariably succeeded. Similarly. they
testified as did both Moyer and members of management
that the night shift never was criticized regarding its pro-
duction. Finally, these rank-and-file employees testified in
accordance with Moyer's testimony that after meeting or
exceeding the day shift's production, the night shift shut
down, ordinarily having worked until between 11:25 and
11:40 p.m.,'7 after which they would sweep up. then wait
around until it was time to punch out at midnight.
The Supenrisoyn Status of Olie MoIer. Jr.
General Counsel and Charging Party take the position
that alleged discriminatee Olie Moyer, Jr. was, at the time
of his discharge, a rank-and-file employee while Respon-
dent contends that he was in charge of the night crew and a
supervisor under the Act. General Counsel, in support of
his position, and to distinguish Moyer from the supervisory
staff, adduced testimony that Moyer was not salaried
whereas certain other individuals, admittedly supervisory,
were salaried: that he did not attend supervisory meetings:
that he did not come under the same written sickness and
health policy which covered salaried personnel: that he
punched a timeclock; that he did not have his own office or
desk; that he was covered by a pension plan whereas sala-
ried personnel were not; and that he was paid for overtime.
received a Christmas bonus and was eligible for a perfect
attendance bonus whereas admitted supervisors were not.
while those supervisors were eligible for performance bo-
nuses whereas rank-and-file employees and Moyer were
not. Additionally, Moyer had never hired or interviewed
perspective employees and had no authority to transfer em-
ployees from one shift to another or from one job to an-
other on his own, although if and when a question of reas-
signment arose, it was always Moyer who was authorized to
call Giovenelli by telephone to seek instruction as to
whether the employee in question should be reassigned or
sent home. Occasionally, it was predetermined before the
shift started that the night shift would perform one type of
work for a part of the evening then another task for the rest
of the evening. When this predetermination occurred, Gio-
venelli would so instruct Moyer and when the time came,
later during the shift to switch from one job to another, it
was Moyer who initiated the changeover.
' One employee testified that when he first began working the night shift
it shut down to clean up at 11:50 p.m.. but later on it began to shut down
earlier, but even so. there was no change in the amount of production
In support of its position. Respondent adduced testimony
that Moser was in complete charge of the entire plant dur-
ing the night shift and had received a 15-cents-per-hour
raise when made a supervisor in recognition of the job he
was doing. This 15 cents plus the 10 cents per hour he
received for driving the tow motor amounted to 25 cents
per hour more than the other employees on the night shift
received.
Aside from the various applicable indicia of supervision
utilized by each side to argue its position concerning Moy-
er's supervisory status or lack thereof, the record reveals
that in the day-to-day operation of the plant, and with par-
ticular respect to the night shift. Moyer's role was clearly
different from that of other rank-and-file employees on the
night shift. Thus, each day when he reported to work, he
and he alone would receive instructions from Giovenelli as
to what type of work the night shift would perform that
evening, and what kind of special problems, if any. might
be expected. Once informed of the type of production to be
done, Moyer, an employee with 10 years experience. knew
what else had to be done and thereafter merely advised the
rest of the shift where their work stations would he that
evening. In Giovenelli's absence. Whitmyer would give
Moyer his instructions. Again, on these occasions. Whit-
myer dealt solely with Moyer and no one else.
After receiving his instructions from Giovenelli or Whit-
myer at 3:15 p.m., and thereafter advising the rest of the
night shift where they would be working, Moyer spent 90
percent of his time driving the towmotor and doing other
physical labor and 10 percent of his time directing other
employees. When he was first assigned the night shift job in
March 1977, Giovenelli told Moyer that he would be a
working foreman and that he was "more or less to keep an
eye on" the other employees and "if something came up, let
him know." Since that time this is what Moyer did.
Aside from driving the towmotor, taking out scrap, mak-
ing minor repairs, setting up skids and other such physical
laborr Moyer was also required to fill out the pallet cards
indicating the amount of production. As far as directing the
other employees is concerned. Moyer and other witnesses
testified that after Moyer assigned them their work station
for the evening, in accordance with higher management's
instructions, they knew what to do and performed their du-
ties as the job required, and unless there was a new man
who needed help, Moyer's directions were limited to telling
the crew to speed up production if they were lagging behind
or to move a kiln car one way or the other.
In accordance with his instructions from Giovenelli to let
the latter know if something came up. Moyer would contact
Giovenelli by phone when problems arose, whether the
problems involved equipment or personnel. Thus, whenever
there was a machine breakdown which he could not take
care of himself. Moyer would call Giovenelli to let him
know, whereupon Giovenelli would tell him what to do,
either reassign the employees to other jobs or have them
clean up. Similarly, on occasions when personnel problems
erupted on the night shift, Moyer. in line with the authori-
zation from Giovenelli. would immediately contact Giove-
" On Saturdays Moyer worked as a general laborer, hacking. selecting,
driing the towmotor. packing or operating the cookie cutter
867
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nelli to advise him of the matter. Thus, on two occasions
Moyer contacted Giovenelli to advise him that employees
had been engaged in fighting at the plant. On the first occa-
sion, in the spring of 1977, two employees on the night shift
got into a fight. Moyer separated the combatants, told them
to simmer down, and advised them that he was going to call
Giovenelli which he subsequently did. Giovenelli told Moy-
er to let the two employees finish out he night, that he
would talk to them the following day hut that if the situ-
ation flared up again, Moyer should send them home. Moy-
er then advised the two individuals involved what Giove-
nelli had said, and they were quiet thereafter. Giovenelli
called the two combatants into his office the following day
but apparently Moyer took no part in any disciplining of
them if, in fact, there was any. On the second occasion, in
January or February 1978, two other night shift employees,
Melville and Hole became involved in an argument which
culminated in Melville throwing a box with several tiles in
it at Hole, cutting his hand. Again, in accordance with es-
tablished procedures, Moyer called Giovenelli. Giovenelli
told Moyer to send them home, that he would speak with
them in the morning. Moyer told them what Giovenelli had
said, and they went home.
The following day Melville was issued a 3 day suspension
by Giovenelli without any consultation whatsoever with
Moyer. Later, when Hole arrived both he and Moyer were
called into Giovenelli's office. The circumstances which led
up to the fight were discussed. Hole was advised that unless
he stopped telling other employees what to do, he would
probably "get some time off or would be fired."'" During
this meeting, according to Hole, Moyer "just sat there lis-
tening to Mr. Giovenelli talk, and when he got done he
agreed more or less." At one point, Hole was asked to leave
the room and Giovenelli and Moyer discussed the matter,
including the fact, apparently, that Hole had not fought
back but had just let Melville hit him. Based on these facts
Moyer "went to bat" for Hole and the result was that Hole
was given only a 1-day suspension rather than 3.
With regard to Moyer's role in the disciplining of Hole, I
find that his participation in the discussion with Hole and
Giovenelli which preceded the giving to Hole of the -day
suspension for engaging in the fight, was isolated. He was
not consulted nor did he participate in the discussion in
Giovenelli's office following the fight between the comba-
tants in the first fight. Nor was he consulted with regard to
the suspension of Melville. Thus, it is quite clear that par-
ticipation in the disciplining of night shift employees was
not a standard part of Moyer's duties, indicative of supervi-
sory authority. I find that his participation in the discussion
concerning Hole's fight with Melville, was therefore more in
the role of a witness rather than anything else, and do not
rely thereon in determining whether or not Moyer is a su-
pervisor under the Act.
In April or May 1977 an incident occurred which must
be considered in determining the supervisory status or lack
thereof of Olie Moyer, Jr. On that particular occasion, at
about 11:30 p.m., Moyer observed that one employee was
' Although in his testimony regarding this meeting, Hole used the word
"they," it appears from the entire context of the testimony that Giovenclli
was doing the alking, not both Giovenelli and Moyer together.
not keeping the belt that feeds the press full, as he should
have been doing. Moyer advised the employee to keep the
belt full as required, but he still did not do as instructed.
Moyer then said to the individual, "If you don't want to
work, go home." And he did! The following day Moyer was
told that he had overreacted, that he "wasn't supposed to
do that," that he should not have sent him home. After this
incident, whenever a question came up of sending someone
home, for fighting, or for whatever reason, Moyer would
first call Giovenelli and ask him what he wanted to do. The
incident demonstrates that whatever authority Moyer
thought he had concerning this type of action, he did not
have, and he was really a conduit of Giovenelli's authority
rather than an independent authority himself.
When the night shift worked on a job that had a quota,
such as when it worked on the cookie cutters, it was ex-
pected to produce in accordance with that quota, for the
one time that it failed to do so. Moyer was questioned by
Giovenelli as to why production was low. This incident oc-
curred during the summer of 1977. When asked about the
deficiency in production. Moyer explained that he had been
working with two new men and that he had had trouble
with the machines. Giovenelli apparently accepted Moyer's
explanation because thereafter Moyer was never again re-
quired to work with untried personnel. The importance of
the incident lies only in the fact that in the one instance that
production did not meet the satisfaction of Giovenelli. he
took steps to rectify the situation himself and did not re-
quire Moyer independently to make changes or decisions
on his own to bring production up to meet the requirements
of the Company. Other than in the single instance noted
there was no testimony indicating that Moyer was charged
by Respondent with maintaining specific levels of produc-
tion.
Though Moyer apparently was not expected to meet any
particular production quotas or standards he would decide
when the crew had done enough work and when to quit for
the night."' This decision was made on his own and was
reached, as noted earlier, by his determining, as well as he
could, what the day shift's production had been, and then
matching that production or exceeding it by a little. The
record contains no evidence that management was aware of
Moyer's approach to production. When Moyer was satis-
fied with the amount of production, he shut down for the
night. Similarly, he decided when the employees should
take their breaks and when they should temporarily cease
work to have lunch. When Moyer gave orders to shut down
for the night or to break for lunch or coffee break, the
employees followed his instructions.
There was certain testimony concerning employees who
wished to quit early. before the shift was over. Moyer testi-
fied that employees who desired to leave early could do so
but had just to check it out with Moyer. then punch out. If
they knew before the shift started that they intended to
leave early, they had to advise Giovenelli of their intention.
With regard to overtime, it so happened that overtime
was authorized for the night shift by Giovenelli on a few
occasions, principally on cold winter nights when there
20 Of course, when the night shift worked on the cookie cutters, their out-
put, like that of the day shift, was predetermined and they quit work when
the job was done.
868
SUMMITVILLE TILE. INC.
were carloads of tiles in the drier, which if left there over-
night, would freeze. On these occasions Giovenelli would
ask Moyer to stay after the shift long enough to move these
cars elsewhere to a heated area. When it was necessary for
Moyer to have a helper, he would request permission to
have another employee stay overtime with him and was
allowed to choose whomever he preferred. Whichever em-
ployee he chose to remain to help him was free to reject the
offer of overtime, at which instance Moyer would offer the
overtime to someone else. Thus, although Moyer could not
authorize overtime, he could decide to whom to offer what
little overtime was made available to Giovenelli.
In summary, the record reveals that Moyer, in many
ways, shared with the rank-and-file employees conditions of
employment which would indicate that he was one of them.
Similarly, the record reveals that he lacked most of the indi-
cia commonly identified with supervisory status. Those few
aspects of his work which appear to reflect supervisory au-
thority are not, in my opinion, sufficient to warrant the
conclusion that Moyer is a supervisor. Thus, the fact of his
receiving 15 cents per hour more than the other employees
more likely reflects, as testified by management personnel.
that he had responsibilities over-and-above those of the
other employees, for he was, in fact, in charge of the shift to
the extent that he served as Giovenelli's eyes, "keeping an
eye" on the others to see that Giovenelli's orders were car-
ried out. The fact that Moyer received this additional com-
pensation does not, however, conclusively demonstrate su-
pervisory status, particularly here, where the record reveals
that he did not display true independent judgment in per-
forming any of his job related functions. Commercial Mov-
ers, Inc., 240 NLRB 288 (1979). Similarly, the fact that
Moyer was "in charge" during the night shift, with no
higher members of management actually present is not dis-
positive of the issue of his supervisory status, especially in
such a case as this, where virtually every decision to be
made had to be checked by phone with a superior. The fact
that Moyer had to call Giovenelli before making any
changes whatsoever during the shift, left him bereft of any
of the authority to independently exercise discretion in such
matters which has historically been considered the sine qua
non of supervisory status. Westlake United Corporation, 236
NLRB 1114 (1978); Tri-County Electric Cooperative, Inc..
237 NLRB 968 (1948). Of course as a leadman, which I find
Moyer, in effect, to be, he did exercise that limited author-
ity usually connected with that office. Thus, his instructions
to employees that they should "speed it up" or move one
car over to the side or similar directions are more akin to
the directions given by leadmen rather than by individuals
found to be supervisors because the tasks involved are con-
sidered routine in nature and require no significant exercise
of independent judgment. Laborers and Hod Carriers Local
No. 341, affiliated with Laborers' International Union of
North America, AFL-CIO (Bannister-Joyce-Leonard). 223
NLRB 917 (1976). Likewise, the few times that Moyer was
permitted to choose an employee to help him move cars
after the shift was over, thus awarding overtime to that
employee, is not necessarily indicative of supervisory au-
thority, particularly where as here, the individual employ-
ees had the option of accepting or rejecting the opportunity
to work the overtime made available. Westlake United Cor-
poration, supra. Nor is it conclusive that Moyer made the
decision as to precisely when the shift should break for
lunch or for breaks since such decisions are also considered
minor and routine in the absence of a showing that he had
more important functions wherein he demonstrated author-
ity to exercise independent judgment. Barnes and Nobhl
Bookstores, Inc. 233 NLRB 1326(1977) citing Sunset Nurs-
ing Homes, Inc.. dbla North Miami Convalescent Home.
224 NLRB 1271 (1976). The total lack of authority to assert
independent judgment, contrary to the position of the Re-
spondent, is most amply demonstrated by the failure of
Moyer to effectively do so when he sent one employee
home fr not properly performing his work and was repri-
manded for it by being told he had overreacted or, in effect.
that he had gone beyond his authority and then again on
the night of March 3 when he shut down the packing line
for the night at 11:23 p.m. rather than midnight and was
promptly fired for doing so. ('learly. although Moyer was in
charge of shutting down for the night, he was given no
leeway in deciding when this should be done and had no
authority to independently determine that the shift could
shut down a few minutes early. If, Moyer were a supervisor,
as Respondent contends, and could independently decide to
shut down the shift early, then why did Respondent termi-
nate the entire shift when all that the rank-and-file employ-
ees did was to follow their supervisor's orders by stopping
work when he decided to close down the line. Obviously. by
terminating the entire shift. Johnson indicated that each
employee was being held responsible for his own act in
quitting work early the night of their termination. In short,
I find that Moyer was not a supervisor within the meaning
of the Act.
CL'nion Activit, at the Plant
The Union began its most recent organizational cam-
paign at Respondent's Minerva plant in January when, ac-
cording to L. D. McElhaney. Jr., vice-president of the Inter-
national Brotherhood of Pottery and Allied Workers, he
received a call from olie Moyer, Jr. requesting representa-
tion for the employees of Respondent. McElhaney advised
Moyer to get a committee together and he would try to set
up a meeting. Moyer subsequently organized a committee
consisting of himself, Ronald Lowery. a night shift em-
ployee, and Robert A. Campbell, a day shift employee. and
it was through these three employees that McElhaney
worked. Although McElhaney testified that the night shift
was prounion and Moyer testified in like manner, when
asked to name specific individual union activists, Moyer
named Larry Shaw. Frank Louive. Bob Campbell. and Joe
Keester, the first three being day shift employees, and Kees-
ter being on the noon to 7:30 p.m. shift. Among the night
shift employees whose union activity was specifically dis-
cussed. were Richard Mason. Michael McLure. and Ronald
Lowery. Donald Hole. another night shift employee testi-
fied that he was against the Union.
Olie Moyer, Jr. testified that in January, he signed a
union card and distributed a dozen such cards to other em-
ployees. attended union meetings, made a speech at one of
those meetings and advised other employees when meetings
were forthcoming. either orally or on one occasion, by
means of a written notice. During his speech at one of the
869
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union meetings, Moyer openly criticized Respondent, not-
ing that there were things at the plant "that weren't exactly
right" and commenting on the "inequalities" at the shop.
Moyer also answered questions from other employees
about the Union and spoke almost every day to day shift
employees about the Union between the hours of 3 p.m.
when he first arrived at the plant and 3:30 p.m. when the
night shift began working. Much of this conversation took
place by the kilns where the employees punch in, by the
foreman's office, and in the waxing and grinding room.
Moyer's role as a leading union organizer was confirmed
through the testimony of employees Ronald Lowery and
Bob Campbell.
Ronald Lowery, the second member of the organizing
committee, when asked by General Counsel what actions or
activities he engaged in on behalf of the Pottery Workers
Union, replied "None." When asked who were the leading
union organizers in the plant, Lowery replied Moyer and
Campbell, the third member of the committee and point-
edly did not classify himself among them. Lowery did, how-
ever, sign a union card and attend three union meetings.
Thus, it appears that although Lowery was initially on the
organizing committee, he was not outstandingly active on
behalf of the Union and his activity was limited to that
described above.
Robert A. Campbell, the third member of the organizing
committee was quite active in organizing on behalf of the
Union. He signed a union card, passed out cards to other
employees, attended union meetings and was the observer
for the Union at the April 6 representation election. During
the organizing campaign, Campell talked with day shift em-
ployees about the Union and with Moyer and other night
shift employees as the shift was changing.' This was during
January and February. Although no supervisory personnel
were present during these discussions, according to Camp-
bell, his immediate supervisor, Virgil Whitmyer2 2 and an-
other supervisor, Delmer Klingensmith, saw him pass out
union cards during lunch hour and engage in other activi-
ties on behalf of the Union at the plant. I conclude that
Robert Campbell was, in fact, a leading union organizer.
Larry Shaw was described by Bob Campbell as one of
the main union proponents and as a union activist by Moy-
er. Frank Louive testified to having engaged in conversa-
tion with Shaw about the union sympathies of the night
shift. Production Foreman Whitmyer, when asked by Gen-
eral Counsel if it was common knowledge that Shaw was in
favor of the Union, denied that it was, but later testified.
when being questioned by counsel for the Charging Party.
that he knew before the election that Shaw was "supposed
to be for the Union." I find from this testimony that Shaw
was a known union adherent and that management had
knowledge of this fact.
Frank Louive, a day shift employee, was a union activist
who signed a union card himself, distributed union cards to
2tCampbell's testimony about actively discussing the Union with other
employees was supported by the testimony of Frank Louive and Richard
Mason. Ronald Lowery and Michael McClure testified that Campbell was a
leading union organizer.
22 Whitmyer denied that he knew that Bob Campbell was a leading union
organizer but admitted that he had overheard employees talk about the
Union during shift changing time.
other employees, talked to both day and night shift employ-
ees between 3 and 3:30 p.m. about the Union and helped
obtain their signatures on the cards. He attended all union
meetings. Louive testified that Supervisor Whitmyer was
present during some of his conversations with other em-
ployees about the Union. Among the employees with whom
Louive had conversations about the Union were Richard
Mason whom he testified was a night shift employee who
was himself in favor of the Union. and Larry Shaw and Bob
Campbell with whom he discussed the union sympathies of
the night shift. According to Louive. Campbell told him
that the night shift would vote for the Union.
Louive's testimony concerning his union activity is sup-
ported by that of Moyer who described him as a union
activist and by Campbell who named him as one of the
main union proponents. As was the case with Shaw, Whit-
myer denied, at first, knowing that Louive was in favor of
the Union. He did admit, however, to noticing night shift
employees milling around with day shift employees as the
shifts changed and hearing them talk about the Union.
From this "gossip" Whitmyer heard the names of certain
employees who were supposed to be in favor of the Union
and Louive was admittedly one of these. I conclude that
Louive was a union activist and that his role was known to
management. Whether or not Whitmyer was present during
the specific conversations wherein it was stated that the
night shift would vote for the Union. and whether or not he
overheard these remarks, is open to question. Evidence sup-
porting such a finding is at best inconclusive and I make no
such finding.
Joe Keester was another individual named by Moyer and
Louive as being one of the primary union activists but ex-
cept for their bold assertions to that effect, there is no testi-
mony to support their contention. Keester did not testify.
In addition to the evidence discussed above wherein spe-
cific individuals and their union activity were the subject of
testimony, Moyer also testified that the entire night shift,
except for one employee. was in favor of the Union. Ac-
cording to Moyer, the night crew favored the Union, its
members "talked it up every time they came in," and all but
one signed cards. The night shift employees discussed the
Union in favorable terms when they arrived at work be-
tween 3 and 3:30 p.m. Only half of them attended union
meetings, however. Richard Mason, a night shift employee.
supported Moyer's testimony to the effect that all except
one of the night crew supported the Union, and all spoke
with Campbell about the Union, upon occasion, during the
changing of the shifts as they gathered between the time-
clock and the office. On at least some of these occasions,
according to Mason. Giovenelli and Whitmyer were present
and might have been close enough to hear the discussions.
Night shift employee Michael McClure testified that be-
tween 3:10 and 3:30 p.m., he too spoke with day shift em-
ployees about the Union as they gathered around the time-
clock, and in other areas of the plant as well. He also
testified that supervisors were present at the time. During
some of his discussions, according to McClure. he men-
tioned the fact that the night shift employees were in favor
of the Union.
From the testimony available on the subject, primarily
that of Moyer and Mason, it would appear that the night
870
SUMMITVILLE TILE. INC.
shift crew members, all save one, were in favor of the Union
and discussed the Union with Campbell" who seems to
have been the focal point of all such activity during the
period when shifts were changing. However, it is interesting
to note that when witnesses were asked by General Counsel
who the primary union activists were, invariably the same
names were repeated, and none of them were on the night
shift except for Moyer himself. Equally as interesting is the
fact that there is sufficient evidence to warrant the conclu-
sion that there was significant union activity in the form of
discussion between 3 and 3:30 p.m. which was witnessed by
management personnel and whereas these discussions al-
most always included Campbell and frequently included
Louive and Shaw, few night shift employees' names were
mentioned in connection therewith, Moyer, of course, being
the single exception. In fact. aside from Moyer, only Mi-
chael McClure and Richard Mason of the entire night shift
crew, were called to testify on the subject by General Coun-
sel or Charging Party. McClure testified that he signed a
union card and, as noted earlier, took part in discussions
about the Union with Moyer and first shift employees in
the presence of supervisors but did not speak with Camp-
bell because he did not know him. Mason testified that he
signed a union card, attended one or two union meetings
and talked about the Union with other employees including
Campbell while Campbell was still on duty and while su-
pervisors were present. He also credibly testified, most sig-
nificantly, that while he engaged in union discussions with
Campbell, in the presence of management, that no one said
anything to Campbell about not working, and that such
discussions took place on three or four occasions.
I conclude contrary to General Counsel that there is in-
sufficient evidence to warrant the conclusion that the night
shift was all actively in favor of the Union since five of the
ten employees on the night shift-Decker, Clapper,
McClaskey. Melville, and Gruszecki did not testify as to the
extent of thier union activity, Dan Hole admitted that he
was against the Union and Lowery was only minimally ac-
tive. Granted a majority of the night crew may have fa-
vored the Union, there is little substantial evidence that
management was aware of their feelings for only Moyer.
Mason, and McClure testified to participating in the discus-
sions about the Union which took place as the shifts were
changing and which were witnessed by management per-
sonnel. Of course, it is possible that Whitmyer or some
other management personnel may have heard one of the
General Counsel's witnesses proclaim that the night shift
was all in favor of the Union. believed the statement and
thereafter acted upon it, but weighing against this assump-
tion are two very substantially important facts: First, of the
five employees who appear to have been most active on
behalf of the Union-Shaw, Louive, Campbell, Keester.
and Moyer, four continued in the employment of Respon-
dent, even though it is clear from the record that the ac-
tivity of three of the four was well known to Respondent.
Second, even while Campbell and others were carrying on
discussions about the Union on Company time and in the
presence of supervision, management not only totally re-
frained from any action which could possibly be considered
U Michael McClure denied that he spoke with Campbell.
violative of Section 8(a)( I), but did not even attempt to
break up these discussions by ordering Campbell or the
other employees on duty to grab a broom and sweep down,
or otherwise show annoyance at their activity.
In sum, with respect to the night shift's prounion stance,
if it existed at all, there is insufficient evidence to warrant
the conclusion that Respondent was aware of it. Addition-
ally. the record clearly indicates that where Respondent
was aware of union activit among its employees. it showed
no inclination to interfere with said activities even when
such activity occurred on company time and in the presence
of supervisory personnel.
The Events o March 3
Pursuant to the petition filed by the Union on February
2. a representation hearing with a prehearing conference
was scheduled for the morning of March 3. That morning,
some time before 9 a.m.. L. D. McElhane., Jr.. vice-pres-
ident of the Union arrived at the courthouse in Minerva.
Ohio to attend the conference and hearing. Shortly there-
after. Moyer arrived. It was Moyer's intention to help
McElhaney make decisions with regard to voter eligibility.
Thereafter. Johnson and his attorney, Richard Colvin ar-
rived. When Johnson saw Moyer in the company of McEI-
haney. he exclaimed, "What the hell are you doing here!"24
Moyer replied that he was there to see what was going on.
After Johnson and Colvin put their papers down, they left
the conference room and went out into the hall while McEI-
haney and Mover remained in the room, all parties await-
ing the arrival of the representative of the Labor Board.
When the Board agent arrived, all present sat down to dis-
cuss which of Respondent's employees were eligible to vote.
During this discussion. while working out which individuals
were supervisory. Johnson and his attorney took the posi-
tion that Moyer was a supervisor. The Union took the posi-
tion that he was not, and should be eligible to vote. The
election agreement was worked out with the decision being
reached that Moyer should vote under challenge. The meet-
ing lasted until about noon at which time the participants
parted. Just as the meeting broke up and they were leaving
Colvin shook Moyer's hand and said, "I hope to hell you
know what you are doing."
I interpret Johnson's exclamation directed to Moyer as
indicative of shock, as he himself testified. and unhappiness
" Moyer described Johnson's voice as gruff. Johnson testified merel) that
he was surprised to see Moyer there but not angry. He testified that he was
shocked to see Moyer present because "here was a man who I had all my
faith in, being responsible for running the night shift for me and then to see
him at a representation hearing just shocked me." Johnson admitted that he
was not happy about Moyer's presence, and I find that Johnson was in act
displeased with Moyer for actively and overtly helping the Union at the
conference by conferring with McElhaney and giving him information
'2 McElhaney and Moyer both testified that Colvin made this statement to
Moyer. Colvin did not testify. Johnson testified that he did not hear the
comment attnributed to Colvin but admits that he was not in Colvin's pres-
ence throughout the entire conference. I credit Moyer and McElhaney and
find that the statement was, in fact. made, in the context described abose
Though McElhaney testified that earlier during the conference Johnson had
made an identical remark to Moyer. Johnson denied making such a state-
ment and Moyer did not support McElhaney's testimony I credit Johnson's
denial and find that McElhaney was probabl confused in his recollection of
events It seems unlikely that the exact, precise words were used b both
Johnson and Colvin and in the absence of corroboration from Moyer. I will
not credit McElhaney on this point
871
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or displeasure with Moyer for cooperating with the Union
by conferring with its agent and feeding him information
contrary to Respondent's interest, particularly since, as
Johnson also admitted, he had placed his faith in Moyer as
the individual in charge of running the night shift on Re-
spondent's behalf.2 6 A certain amount of animosity arising
from this confrontation may and is inferred. On the other
hand, Colvin's statement: "I hope the hell you know what
you doing," stated while the two were amicably shaking
hands is open to too many interpretations to warrant a find-
ing that it was necessarily indicative of animosity, and l
place no weight on it.
On the morning of March 3, while Johnson and Colvin
were preparing for and participating in the representation
conference, night watchman Gruber came to Giovenelli's
office, as he was in the habit of doing, before leaving the
plant at 7 a.m., when he had something wrong to report.
These occasional reports, which occurred at a frequency of
once every 2 or 3 weeks, usually had to do with mainte-
nance problems, but on this particular occasion had to do
with the fact that the night shift had been playing cards the
night before."7 According to Giovenelli, Gruber did not
mention anyone by name. This was the first time that Gio-
venelli had ever heard anything about the night shift play-
ing cards during working hours, and he did not know how
long the night crew had been in the habit of engaging in
such activity. Giovenelli determined to advise his superior
of Gruber's report. When Augsberger, the plant superinten-
dent arrived shortly thereafter, Giovenelli told him about
the card playing the night before.
After leaving the conference, Johnson went to lunch with
Colvin, then went to the plant. When he arrived at the
plant, which was, according to Johnson, about 2 p.m., he
told Augsberger about Moyer's role at the representation
hearing.2 8 Testimony is incomplete as to precisely what was
11 Even though Moyer has been found not to be a supervisor. but merely a
leadman, Johnson's displeasure was probably very genuine.
2 Gruber's report appears as testified to by Giovenelli. Gruber was not
called by Respondent to corroborate Giovenelli's testimony. nor was he
called by General Counsel for examination as to the circumstances sur-
rounding his March 3 report, the reasons why he made the report, or the fact
of whether or not he had ever previously observed or reported night shift
personnel for any reason, card playing or whatever. In the absence of testi-
mony of Gruber. I am unfortunately left with the almost unbearably suspi-
cious coincidence of Gruber's report of the night shift's card playing being
presented for the first time to management on the same morning as the
confrontation between Moyer and Johnson at the representation conference.
In the absence of evidence or testimony to the contrary, I have no alternative
but to accept Giovenelli's testimony even though I have found him not
totally reliable in certain other facets of his testimony.
The reason that Gruber may have reported the card playing on the morn-
ing of May 3 rather than at some other time, or not at all. may or may not be
related to the fact that on the evening before, at about 11:45 p.m. while the
night crew was standing around the timeclock, Gruber came over and got
into a discussion with Moyer about the pros and cons of union representa-
tion, Gruber taking the antiunion position, Moyer the prounion position.
Other employees were also involved. The discussion between Moyer and
Gruber was described by Moyer and one other witness, Donald Hole. as an
argument, during which Gruber appeared angry "because he started yelling
at" Moyer. Whether it was this argument which prompted Gruber to report
Moyer and the rest of the night shift there is no way of telling. According to
Giovenelli, when Gruber made his report, the following morning, he did not
mention Moyer's union sympathies or the argument he had had with him
concerning unionism the previous evening.
2 Johnson's testimony with regard to the events of March 3 was both
evasive and contradictory:
said by Johnson to Augsberger during this discussion but it
must be assumed that Johnson informed Augsberger that
he was shocked and displeased that Moyer had supported
the Union at the representation conference, as indeed he
testified he was. Augsberger then informed Johnson that he
had heard a rumor that the night shift was quitting early
and playing cards. He asked Johnson if he had heard about
it. Johnson replied that he had not. Augsberger then went
on to explain that he had heard this rumor from Giovenelli
who had heard it from Gruber.
Shortly after Augsberger informed Johnson of the rumor
that the night shift was quitting early and playing cards,
Giovenelli came into the office to join Johnson and Augs-
berger. According to Johnson, after Giovenelli joined the
other two, he said to Augsberger, "Did you say anything to
Fred [Johnsonl about the night crew playing cards?" Augs-
herger, replied, "Yes. I told him about it." Giovenelli testi-
fied that he could not recall this conversation, did not know
that Johnson had been at the representation meeting that
morning, and could not recall whether Moyer's role at the
representation conference was discussed at this impromptu
managerial meeting." Despite Giovenelli's testimony, how-
ever, I find that Moyer's role in the representation confer-
ence was fully discussed between Augsberger and Johnson,
Q. Believing, as you say, that he [Moyer] was a supervisor, you felt
doublecrossed by him being there with the Union helping the Union,
didn't you?
A. No.
Q. You didn't feel doublecrossed at all?
A. At that moment, I was shocked and surprised to find this man, my
night supervisor, at this representation hearing.
Q. When you got over your surprise and after the moment had
passed. did you later that day consider it an act of disloyalty?
A. I don't think that I gave much thought to it the rest of the day
because we were pretty busy all day and I don't remember I didn't
discuss it all da.
Q. In other words, one of your supervisors, a man you trusted with
the whole night shift, he comes to a Labor Board hearing with the
Union and helps out the Union, and you don't give any further consid-
eration the rest of that day; is that what you are telling us now?
A. No, i'm not ellingou that n ... I'm nor sure.
Q. Did you go up to Augsberger and say, "You know what hap-
pened? That damn Moyer came down to the hearing with the Union"?
Did you tell him something like that?
A. No. I didn't say that
JLDGE JA(OBS: Did you say anything like that?
THE WirNFSS: No.
Q. Did you tell Augsberger any thing about Moyer being at the hear-
ing that morning?
A. I mav have.
Q. You may have. Would you think a little more and tell us if, in
fact, you did not, in fact, say something to Augsberger about Moyer
being at the hearing. You did, didn't you?
A. You are trying to put words into m) mouth, sir.
J;D6t JA(oBS: I think the question is: Did you say anything about
that'? Did you?
THE Wrt-eFSS: My answer has been right along we probably did.
These are the events of the da) and I'm certain rwe discussed them
Q. You probably did say to Augsberger that Moyer had been at the
hearing?
A. It's quite po.ssible, sir
24 Giovenelli's testimony with regard to this meeting struck me as incredi-
bly evasive.
872
SUMMITVILLE TILE. INC.
after which the card playing on Moyer's shift was likewise
thoroughly aired and that Giovenelli participated in the dis-
cussion. In my opinion, the probabilities require such a
finding, Giovenelli's testimony notwithstanding.
According to Johnson, as he was leaving the plant at
about 3:30 p.m., another employee. John Costea called him
aside and asked him if he knew that the men on the night
shift was quitting early and playing cards. Johnson replied
that he had not known, but would look into it. Costea went
on to inform Johnson where the employees had been play-
ing and indicated that it "was an every night thing" and
that they had been quitting anywhere from 11:10 to 11:20
p.m. °0 On the basis of Costea's report and that of Gruber as
rendered through Augsberger, Johnson, once home, deter-
mined to investigate these rumors further.
At about 3 p.m. Moyer arrived at the plant and was told
by Giovenelli that the night shift would be working on the
packing belt that night. Giovenelli did not mention to Moy-
er Gruber's report concerning the card playing, nor warn
Moyer that management was aware of the card playing that
was going on and of which it disapproved. Since Giovenelli
was Moyer's immediate supervisor, responsible for what-
ever was being done on the night shift, it is strange that he
did not make inquiry of Moyer concerning the rumors if. in
fact, management cared about the card playing at all. Since
Johnson testified that he did not decide to investigate the
happenings on the night shift until after he left the plant,
and the record is devoid of any testimony as to why Giove-
nelli should not have called Moyer to task on the basis of
the rumor, or at least question him on the subject. there is
no logical reason for Giovenelli's failing to talk to Moyer
about the reported card playing, unless, of course, it had
been determined during the earlier discussions of that day,
between Johnson, Augsberger, and Giovenelli, that nothing
should be said to Moyer about the rumors, for fear of alert-
ing him, so that the night crew could be caught redhanded.
I find that this is what must have occurred, for it was Gio-
venelli's province to supervise, direct, and discipline em-
ployees on the night crew just as he had done in the past.
and if the night crew's quitting early and playing cards was
objectionable because it interfered with production or for
any reason, the problem could most quickly have been
solved by Giovenelli telling Moyer that he had heard the
rumors and that the practice of quitting early and playing
cards would have to stop immediately under threat of dis-
charge. Such a warning would undoubtedly have resulted in
the appropriately requested reaction on the part of Moyer
and the night crew namely, full utilization of company time
that very night for productive purposes. But Giovenelli, de-
'0 Once again, as was the case with Gruber, neither Respondent nor Gen-
eral Counsel called Costea to testify. Respondent failed to call him to cor-
roborate Johnson to support his testimony that Costea's report concerning
card playing on the night shift was indeed made for the first time on March
3 and was spontaneous, and General Counsel failed to call him to examine
him on these subjects as well as the reasons which suddenly prompted him to
report Moyer and the night shift the very day that Moyer appeared on behalf
of the Union at the representation conference. Nothing appears in the record
as to how Costea, who does not work on the night crew could possibl knosw
what was going on dunng that shift. Failure of one party or the other to call
either Gruber or Costea has resulted in gaps in the record, unanswered ques-
tions, which if properly addressed could have been of substantial assistance
to the undersigned in rendering a just and equitable decision
spite discussions about the subject having taken place
among management personnel less than an hour before.
pointedly refrained from mentioning either quitting early or
card playing to Moyer. I cannot conclude that Giovenelli's
failure to confront Moyer with the charge of "stealing time"
when he arrived at work at 3 p.m. on March 3 was a mere
oversight) but rather conclude that it was not mentioned
because another approach had been decided upon during
the managerial discussions which had taken place between
2 and 3 p.m.. just minutes before. Since it is clear that the
quickest, easiest and least painful way of getting the night
shift to stop quitting early and playing cards on company
time was simply to tell them to stop doing it, Respondent's
failure to take this action in favor of the less effective alter-
native which was subsequently actually utilized must have
had an objective quite different from merely getting the
employees to stop doing what management was objecting
to." That objective was to catch in the act of playing cards
on company time, Moyer and whoever else might be in-
volved. Since catching the night crew playing cards would
not result in full production, as would a timely warning, the
chosen alternative was going to be less effective than the
warning. Thus, it is patently clear that the objective of
catching the night shift quitting early and playing cards was
for some purpose other than remedying the effects of quit-
ting early. The question once again arises, why would it be
better for Respondent to catch Moyer and the night shift
playing cards on company time than to stop them from
doing it by means of a simple warning. The answer to this
question is reflected in what eventually occurred, and which
Johnson hoped would occur. Clearly, Respondent could not
terminate Moyer on the basis of a mere rumor, but if actu-
ally caught in the act of shutting down the line early. then
playing cards, reading or whatever, on company time, dis-
missal could be justified.
In summary, I find that between 2 and 3 p.m. on March
3, Johnson, Augsberger. and Giovenelli fully discussed
Moyer's role at the representation conference during which
he freely offered his services to the Union's cause, and that
they also discussed in conjunction with this role, the report
that Moyer and the night shift were quitting early and play-
ing cards on company time; that rather than warn him to
cease this practice thereby putting a stop to the loss of
downtime and production, they opted for trying to catch
him and the night crew engaging in the rumored objection-
able conduct; that since a warning would have most likely
resulted in increased production and a saving to the ('om-
pany, whereas the alternative action, ultimately decided
upon, would have resulted and did result in a further loss of
production time to the Company, the object in trying to
catch the night shift quitting early was not to cure the ills
resulting therefrom, but was an end in and of itself; that the
reason why Johnson desired to catch Moyer "stealing time"
1, To conclude that it was a mere osersight, is to conclude that "stealing
time" was unimportant, and consequently that the basis for the discharge
was a sham.
12 Obviously, it would have been more effective simply to have told Moyer
to stop quitting earl) because one must assume that had he been told to do
so. he would have followed orders. That night and thereafter the night shift
would have followed orders. worked through to quitting time, and obtained
full production. An) other course would necessanl' delay full utilization of
company time for productive purposes.
873
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was to be in a position to have a legitimate and lawful basis
for terminating him; and that Johnson's desire to rid him-
self of Moyer's services was based upon Johnson's displea-
sure with Moyer for supporting, conferring with, and aiding
the Union during the representation conference earlier in
the day.
At 3:20 or 3:25 p.m., Moyer and the night crew went
down to the packing belt as told. The day shift selectors and
waxing room employees had quit working at 3 p.m. or be-
fore. When the night shift began working on the packing
belt there were some noon-7:30 p.m. shift employees still
working there. Moyer checked the card to find out the num-
ber of employees who had worked on packing during the
day shift and the production achieved, and determined.
based on his findings, that 18 skids of 6 x 6 tiles would he
the production goal for that night. The day shift had pro-
duced 16 skids but since the night shift had a few more men
for a few more hours. 18 skids would be considered good.
According to the testimony of Johnson and Giovenelli,
between 9:30 and 10:30 p.m.." Johnson called Giovenelli at
his home and asked him if it would be all right to pick him
up at II p.m. and then to go to the plant to see if the night
shift was playing cards. I have found, however, for reasons
already stated, that the course of action, most probably had
already been decided upon earlier that afternoon.
At II p.m. Johnson picked up Giovenelli and drove to
the plant to check out the rumor. Johnson specifically de-
nied that the predetermined object of going to the plant was
to fire the night shift. They arrived at the plant at about
1 1:10 or I 1: 15 p.m. According to Giovenelli. they parked at
the south end of the plant and entered through the south
entrance. Instead of going directly to the packing installa-
tion which Giovenelli knew to be the assigned work station
of the night shift and where the night shift was, in fact,
working, Giovenelli took Johnson on a Cook's tour of the
plant indicating the various sites where the employees
might have been playing cards if they had not been working
at the time. Once again, if Giovenelli and Johnson were
interested in determining whether or not the night shift was
working at the time of their arrival, and equally interested
in having them put in a full night's work, they would have
proceeded directly to the packing line. But a full night's
production was the farthest thing from their minds. Rather,
catching Moyer redhanded, for the purpose of providing a
basis for discharge was uppermost in Johnson's mind. This
is clear from Giovenelli's' description of the circuitous,
time-consuming wandering route which he and Johnson
took while biding their time" wating for Moyer to make the
mistake which they hoped to witness:
" Johnson testified that he made the call at 9:30 p.m., while Giovenelli
testified that he received the call at 10 or 10:30 p.m.
4 Johnson's testimony is in agreement with Giovenelli's.
"Since Johnson picked up Giovenelli at his home at II a.m., and his
home, according to Giovenelli. is a 5 minute drive from the plant, Johnson
and Giovenelli spent 15 minutes skulking around the plant. Johnson implied
that this time was used up looking for the night shift employees, and indeed
wherever Giovenelli and Johnson looked, "no one was there." The fact that
the two cautiously skirted the employees' work station and never once
checked the packing area where Giovenelli personally assigned them to
work, convinces me that Johnson and Giovenelli were, as stated above, wait-
ing to spring the trap.
Q. Then you entered the plant?
A. Yes.
Q. Where did you go then?
A. We went back to, there is a
Q. Would you be going north, south, east or west'?
A. We were going north.
Q. You were going to the north end of the plant?
A. Yes.
Q. Where did you go?
A. There is a table here, where they sit and eat
Q. ('. Referring to the key, what does "(" identify?
Is that a particular place in the plant'?
A. Yeah. That is where the cookie cutter presses
are. There is a table there nearby where the: eat their
lunches and plo' cards and stuff like that.
Q. So then you went there and nothing was there,
and what did you do then''?
A. We went on to the there is an area here, in this
open area here (indicating), and we went on through
here, down to "A."
Q. You, in a sense, continued northerly direction
through the plant?
A. Yes.
Q. You were at "A" and what does "A" represent?
A. "A" is another this is by the fireman's shanty.
There are two picnic tables where they eat and ply
cardv, if you want. We checked that area out.
Q. Then where did you go?
A. Then we went, we would be going east, and we
went out to a small room where there are coke ma-
chines here. There is another coke machine and a wall
phone, a public phone.
Q. This is on the east side of the plant you are point-
ing to?
A. That's right. There is another picnic table also in
this room, here (pointing). We checked that and there
was nothing there, so we went out through the door.
Q. You are now outside the plant?
A. Yes, sir.
Q. Where did you go then?
A. We went north, then, out to the tile grinding
room and the waxing room, which is there where they
were playing.
Q. That is a separate building from the main plant?
A. Yes.
Q. What did you find at the time you went to the
waxing and grinding room?
A. Nothing.
Q. Then what did you do?
A. We came back out and went under the ware-
house shed and we didn't see anything there: the, were
still working.
A. So, when we came in there. they were still swork-
ing. But then all at once we didn't hear nothing, we just
874
StIMMITVILILE TILE, INC
stopped here for a moment, and then all at once we
seen them coming back through the shop.
Meanwhile, Moyer, unaware that Giiovenelli and John-
son were in the plant completed the 18 skids ' of tiles ats
scheduled at 11:20 p.m.. and told the men to clean up while
he shut down the line 17 At 11:23 p.m. the night shift started
cleaning up. There was only a small amount of scrap to
throw into the hopper and so after doing this, Moser and
the others left the packing area and headed for the waxing
room which was warmer and not as noise+ as it was next to
the kilns where they had been working. To get from the
packing area to the waxing room. Moyet and the others
had to walk approximately 150 yards. passing the timeclock
on the way. Therefore it is quite clear that they could have
punched out and gone home hut chose not to do so.
As the night shift arrived at the waxing room, someone
suggested playing cards. Moyer, who had a deck, agreed.
Four of the employees, including Moyer, gathered around a
stack of skids. The others, all present in the waxing room
began reading newspapers, snacking or were just sittinmg
around. Just as Moyer was dealing the first hand, 2 to 4
minutes after shut down. Johnson and Giovenelli walked
into the room. Johnson walked directly over to Moyer and
asked rhetorically" "What the fuck are you doing?" Moyer
replied simply. "We're done." Johnson retorted. "What the
hell do you mean, you're done?" Whereupon Moyer re-
plied. "We finished our work. We're done. sir." Johnson
then stated, "Don't sir me! I've heard enough out of you.
today.3" You've been nothing but trouble and I've got news
for you. Buddy, you're fired." Thereupon Johnson turned
to the rest of the night shift present and asked. "Are you
clocked out?" Nobody replied vocally. but all shook their
heads negatively. Johnson exclaimed. "You're all through.
Go on, get out of here. You're fired. Get out of my sight. I
don't ever want to see you again. I'm tired of you sons of
bitches shutting down early." *4 Moyer interjected. "But sir,
38 The amount of production or lack thereof. as such, was not one of the
reasons interjected by Respondent as a defense. Moyer's practice of gener-
ally surpassing the day shift's output seems historically to have satisfied
Respondent's demands and, in fact, Respondent stipulated that the sole rea-
son for discharge was playing cards on company time.
*' When Moyer decided to shut down the line there was, as always. still
more packing that could have been done and there is no dispute that the
night shift could have remained busy until quitting time.
I consider the question rhetoncal because not only was it quite obvious
what Moyer and the others were doing but Giovenelli and Johnson had been
hanging around for 20 minutes, by that time, waiting for the card playing to
begin. The form of the question was not nearly as indicative of surprise. as it
was of anger.
3' Johnson had not talked to, nor heard from Moyer. since the representa-
tion conference of that morning. I therefore conclude that Johnson's refer-
ence of having "heard enough out of you today," referred back to the repre-
sentation conference of that morning when Moyer sided with the Union
against Respondent. Johnson's comment was indicative of his displeasure
with Moyer because of his role in supporting the Union's cause. Johnson's
remark highlights and is evidentiary of his antipathy toward Mover because
of Moyer's support of the Union. Giovenelli testified that this statement was
not made. He is not credited.
14 There appears no evidence in the record that Johnson was aware, prior
to March 3. that the night shift had been shutting down early although there
is evidence that Johnson was aware that day shift employees had sometimes
shut down early, that he had objected to this practice and that he had taken
steps in the past to correct the situation. I conclude that Johnson's remark
did not necessarily indicate prior knowledge on his part., of the night shirt's
propensity to shut down early and find no evidence of condonation. On the
the day crew shuts down early. ['he selectors shut down
early." and looking at Giovenelli. "You know that." Nei-
ther Giovenelli nor Johnson answered. Ihe night shift then
punched out and Johnson and Gioveneili collected the
timecards of the employees who had just been fired.
Ten minutes after the employees punched out Mason re-
turned to ask Johnson for his job back. During the conver-
sation which followed. Mason advised Johnson that the
night crew had been quitting between I: 10 and I 1:25 p.m.
each night for the past month or two. Despite Mason's en-
treaties Johnson refused to retract his termination. Johnson
and Giovenelli left about midnight. When Giovenelhl ar-
rived at home he receited a phone call frontm Moer about
getting his job back. Giovenelli told Moser that it would be
better to call Johnson in the morning rather than at that
time because Johnson was "kind of hot under the collar
right then." Giovenelli opined that ma\be if lMoer had
shut down at 11:40 p.m. rather than 11:30 the night shift
would not have been fired. He expressed his s' mpath stat-
ing that it was too had, that some of the men had been good
workers.
I conclude with regard to the events of the eening of
March 3 that Johnson visited the plant after hearing that
the night shift had been quitting early and playing cards.
for the purpose of determining if the rumor was true. and if
true to take whatever action he deemed proper at the time.
With regard to Moyer, it is patently clear from Johnson's
testimony and remarks of that morning i.e.. "What the hell
are you doing here?." that he was displeased with Moyer's
siding with the Union. His remarks of that evening. "I've
heard enough out of you. today" convinces me that his
initial displeasure with Mover was carried through to that
evening and was the primary consideration br his decision
to make his surreptitious visit to the plant in order to catch
Moyer and only incidentally. whoeer else might be impli-
cated stealing time, thereby pro,iding a legitimate basis for
terminating them. When he ound them playing cards.
reading, and sitting around on company time, he termi-
nated them. The question to be answered next is whether
Johnson would have terminated the night shift for stealing
time, as he had, in the absence of union actis itv.
The History o/ Coard Playing at, rthe Plai,,
Mover testified at length about the playing of cards and
other games at the plant. There is no doubt that card play-
ing and the playing of board tpe games went on at the
plant during lunch periods and perhaps during breaks"
with the knowledge of supervisory personnel and without
objection. Sometimes when games were played at lunch, the
employees continued to play past the "back to work" time
by 10 minutes and on these occasions Whitmyer would
contrary. though I have determined that Johnson visited he plant the night
of March 3 in order to catch Moyer and others playing cards on cm.copa
time, and must have enjoyed that certain satisfaction that necessaril\ accorm
panics vindication when one's suspicions are confirmed. he necrthelei, , as
genuinely and justifiably angry with the night crew for cheating Ihe (onm-
pany.
4( Giosenelli testified that although he was aware that emplosees plased
cards during the longer lunch breaks, they did not do so during the shorter
breaks Whitmyer testified. however. that emplosees plaed games blh at
lunch and during breaks and that he neser criticized them for so doing
875
DECISIONS OF NATIONAL ABOR RELATIONS BOARD
come out and give the employees a hand signal to start
back to work, after which they would do so. Whitmver tes-
tified that some sort of signal was necessary to get the men
back to work after lunch 99 percent of the time. He testified
also that certain employees, on crews other than his own,
played cards every day. When he got "hung up" on a prob-
lem and did not get out into the working area until 5 min-
utes into the shift, and found that the employees were still
playing cards, he would simply give them the signal to
"crank it up." and never gave the employees any kind of
oral or written warnings for these incursions into Company
time. Needless to say, there was never any firings based on
this type of employee infringement on Company time. De-
spite General Counsel's argument equating 5 to 10 minutes
of card playing past the lunch hour, to the events of March
3, 1 find a significant difference, and will not decide the case
on the basis of the argued comparison.
More significant is the testimony concerning the practice
of certain employees of playing cards or board games after
their shift had shut down for the day. This is the more
appropriate bases for comparison as far as the events of
March 3 are concerned. Thus, Moyer testified that when
employees finished work early, they would stand around
and talk, sometimes play cards or table top games-short
games. When asked where employees played cards Moyer
testified that he did not observe card playing in Giovenelli's
area between 3 and 3:30 p.m.,42 but did observe card play-
ing and other games being played in the waxing and grind-
ing room. There was, however, no supervisory office in the
waxing and grinding room at the time that Moyer observed
employees playing these games, in which he participated
himself. Nevertheless, at times when the supervisor4 in
charge of the waxing and grinding room entered the area
and found such games being played by employees who
were "waiting to go home," he voiced no objection. But
when asked directly about supervisors' knowledge of card
playing Moyer seemed to hedge:
Q. Were supervisors present when the games were
played at these periods of time.
A. Okay. Virgil, [Whitmyer, supervisor over the
waxing and grinding operation] when we played cards
or these table top games, yes, played them during
breaks, during lunch, and after we were shut down and
cleaned up in the evening. Not as often then because it
was a big hassle because it was time to leave, you had
to put it all away.
JUDGE JACOBS: Get back to the day shift business.
Remember when he was on the day shift.
THE WiTNESS: That was on the day shift .... In the
evening, I meant the afternoon.
And elsewhere:
Q. Do you recall seeing any supervisors in the area
or observing the actual playing of these games, and
this is when you were on the day shift?
A. Yes. This is when I was in the wax and grinding
room now.
42 Moyer testified elsewhere that Giovenelli "usually made sure they had a
broom even if they didn't do anything."
41 Whitmyer was in charge.
Q. Okay.
A. I am talking about the tabletop games. We
played the horse racing game and Virgil Whitmyer
knew we played the horse racing game. He had been
out through there at the time.
Sometimes, okay, we played cards I didn't always
plqy cards at the time. In the waxing and grinding room
they playved cards during the lunch period.
Now it carried over sometimes ten minutes past the
lunch.
Thus, although it must have been clear to Moyer that the
questions posed were for the purpose of determining the
extent to which employees played cards on company time
with the tacit permission of supervision, Moyer insisted for
the most part in discussing the playing of games during
breaks or lunch time.
At another point during his examination Moyer testified
as fbllows:
Q. During the time you worked on the night shift,
when you would come in around 3:00 o'clock or so,
did you personally observe during any of that one year
period any playing of games in the plant?
A. Okay, Behind the kilnfireman's office I have seen
selectors playing cards. This was between 3:00 and
3:30.
Q. Now who would be the supervisor in charge of
that area?
A. At that time it would have been Virgil Whit-
myer.
Q. And would you ever see Whitmyer between 3:00
and 3:30 when you came in?
A. Yes.
Q. Where would you see Whitmyer?
A. He would generally be standing where the select-
ing line was, or in front of the kilns themselves.
Q. What would he be doing in front of the kilns or
near the selecting line.
A. He'd be talking with the selectors, just generally
passing the time.
Q. Now, on occasions when you saw the selectors
playing cards in this period of time, would you see
Whitmyer on any of those days you saw the selectors
playing cards?
A. On one occasion, that I know of for sure, that I
can say for sure.
Q. Tall us about that.
A. He was standing, it would be [by the] farthest
kiln, over by the transfer track, talking with somebody,
I don't know who, and behind the kiln fireman they
have a picnic table there, and there was a group of
selectors playing cards.
Q. Were you in a position where you could see both
Whitmyer and the selectors at the same time from your
point of view?
876
SUMMITVILLE TILE. INC.
A. Yes. He could see that they were playing cards
.... It had to be in) the winter between '77, '78.
Thus, although General Counsel argued in his brief that
"Summitville employees played cards and games and en-
gaged in other recreational activity with great frequency,
during both work and nonwork time," the testimony of
Moyer, his strongest witness on the subject, clearly indi-
cates that card playing was not at all frequent and, in fact,
could name only a single instance of its occurring in the
main building when it might have been observed by super-
vision. That single instance of card playing being observed
bysupervision involved Whitmyer who, according to Moy-
er's testimony, exhibited a rather permissive attitude
toward employees playing games when he occasionally ob-
served them doing so in the waxing and grinding room
which was located outside and away from the general pro-
duction area, where Giovenelli made sure employees had
brooms, even if they did not use them. Thus, were I to rely
on Moyer's testimony alone, I would conclude that Respon-
dent did not generally approve or condone the playing of
cards by employees on Company time during the 3 3:30
p.m. period, that period just before quitting time. Whereas
Giovenelli attempted to follow, or at least attempted to give
the appearance of following Johnson's orders by insisting
that employees had brooms in their hands during the period
of downtime, thus making card playing quite impossible,
Whitmyer was somewhat more permissive in his supervi-
sion, permitting employees who were out of sight, in the
waxing and grinding room, during the period prior to check
out time, to participate in games while awaiting check out.
This is the most that can be made out of Moyer's testimony,
if fully credited.
Members of management who testified concerning the
practice of card playing at the plant did not include John-
son, presumably because he did not maintain an office at
the plant and would not be aware of the day-to-day opera-
tion, and the attitude of local management toward the prac-
tice of card playing. Whitmyer, on the other hand, did work
at the Minerva plant as a member of supervision. He testi-
fied under cross-examination as follows:
Q. People played cards on the day shift all the time,
didn't they?
A. No, sir.
Q. Didn't they play during breaks?
A. They could play at break period.
Q. So they did play all the time, didn't they? They
played every day?
MR. MANN: Objection, you Honor. This is Mr.
Burch's testimony again. The evidence according to
Mr. Burch.
Q. When I say all the time, I meant they played
everyday, didn't they?
A. I have no idea.
MR. MANN: Show my objection on the record,
please.
Q. Didn't they play during their lunchtime on a
regular basis?
A. One particular group plays every day.
Q. That is all I am asking. Don't they play during
their breaks on a regular basis, some employees?
A. I would say yes.
Q. Isn't it a fact that employees play cards every
day on the day shift?
JUDG(E JACOBS: Counsel-
MR. MANN: Objection, your Honor. This is about as
slippery a cross-examination as I have ever seen.
Q. They played during their lunch break and during
their breaks everyday. at least some employees, right?
A. I would say es. but I have no knowledge.
Q. You never criticized anybody for playing cards
during their break, did you?
A. No.
Q. You never criticized anybody for playing during
their lunch break?
A. No.
Q. There is nothing wrong with playing cards in it-
self, is there, as long as
MR. MANN: Objection, your Honor. whether there is
anything wrong with playing cards in itself. This ,nan
is not here to testify to that. We have had somne evi-
dence in the record that the reason Olie Moser. Jr.
stated there was no card playing--so if that many peo-
ple think there was no card playing at all. there is
something wrong, and decidedly wrong.
JUDGE JACOBS: I understand the question to mean
with regard to the attitude of supervision. namel, this
supervisor's attitude towards playing cards. specifi-
cally.
MR. MANN: Your Honor, we would object.
Q. As far as you are concerned, there is nothing
wrong with employees playing cards during lunch
break and during this downtime?" There is nothing
wrong with employees playing cards, isn't that a fact?
A. (Nodding.) No, sir.
MR. MANN: Objection. your Honor. He is getting
cute again.
Though it would appear. at first blush. that Whitm)er. in
his testimony, agrees with Moyer that Respondent had no
objection to card playing during the 3 to 3:30 p.m. shut-
down period, the admission is illusory, inasmuch as Whit-
myer was testifying to Respondent's attitude toward card
playing by employees during lunch and break time whereas
it was due to General Counsel's inclusion of the all encom-
passing term, "downtime" in his final question, which might
lead to the insupportable conclusion that an admission had
been made. I find that Whitmyer never was asked directly
whether or not employees played cards after shutting down
nor examined with regard to his own permissive attitude
toward the matter.
Giovenelli, on the other hand, was asked directly and
answered credibly, that cards were not played on company
time by the day shift, at least not to his knowledge. He also
testified that although he would not have interfered with
the employees playing games between 3:10 and 3:30 p.m..
before checking out, he always insisted that employees in
"General Counsel. unfortunately. wittingly or unwittingl>. expanded
Whitmyer's testimony concerning the fact that Respondent did not object to
card playing dunng breaks or lunch time to include within his final question
the term "downtime" thus making it appear as though Whitm)er '.as agree-
ing that Respondent had no objection to employees playing cards during the
3 to 3:30 p.m, downtime. Thankfully. General Counsel did not so argue In
his brief.
877
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his department carry brooms. Giovenelli, was not ques-
tioned as to the type of games he would permit them to play
while they swept or leaned on their brooms but it seems
unlikely that card playing is what he had in mind when he
answered the question to the effect that he would not have
said anything to employees who played games during this
period.
Despite the fact that General Counsel argued in his brief
that card playing was frequent during the 3-3:30 p.m. shut-
down period he produced only two rank-and-file witnesses
other than Moyer to testify on the matter. Frank Louive.
one of the leading prounion activists testified that he could
recall employees playing cards after cleaning up, on just
one occasion. He stated that this occurred about a year
prior to the hearing and that although Giovenelli ordinarily
would have been in the area, he could not testify as to
whether or not he saw the card playing. Ronald Lowery,
one of the alleged discriminatees testified as follows:
Q. Was there any card playing before 3:30 after ev-
erybody stopped working?
A. In the four years that I was on days, I seen them
once or twice.
Q. You saw them once or twice, in the selecting de-
partment?
A. Well, down by the pop machine there was a pic-
nic table there where everybody ate lunch.
Q. All right. Were any supervisors around during
this period of time?
A. I don't believe any of them was seen.
Q. Did you observe any other games such as horse
racing games or anything of that nature among the
employees?
A. We used to play that at lunchtime on days.
Q. Did you observe any game playing before 3:30
on the day shift?
A. No.
Thus, of all the employees who could be called to testify
concerning the alleged frequent incidents of card and game
playing among employees between the hours of 3 and 3:30
p.m. in the presence of supervision, General Counsel pro-
duced only three. Two, Louive and Lowery testified that
card playing was an extremely rare occurrence during this
period, and neither could affirm the presence of supervision
when it did, in fact, occur. Their testimony leaves Moyer
standing alone with regard to supplying evidence on this
matter. I do not credit him but rather find, contrary to
General Counsel's position, that card playing was not at all
a frequent pastime of day shift employees between the
hours of 3 and 3:30 p.m. following clean up, but was ex-
tremely rare, and not condoned by management.
With regard to the practice of night shift employees play-
ing cards Moyer testified that it began in December 1977 or
January 1978. The night shift did not play cards every
night, but did so with some frequency since that period,
with different groups joining in from time to time. While
some employees played cards after shutting down, others
read magazines or sat around, watched the game or talked.
On one occasion the night watchman told two of the night
shift employees that if Johnson ever came in and caught
them sitting around and playing cards on company time,
they would all be in trouble or could even get fired. One of
the two asked Moyer about the advisability of playing cards
on company time, but Moyer simply told him that if there
was any question, he, Moyer would be the one to whom
they would come. This employee then advised other em-
ployees of what Moyer had said. Clearly, Moyer was under
the impression that he had more authority than he actually
did. As far as management's attitude toward the night shift
playing cards on company time is concerned. both Johnson
and Whitmyer were asked and denied warning them about
the practice. However, contained within the testimony of
Johnson is the implied assertion that neither Johnson nor
Whitmyer was aware of what was going on during the night
shift until March 3. and therefore had no reason to issue
such warnings. Similarly, the record is devoid of evidence
that any member of management was aware. prior to
March 3. that the night shift was quitting early and playing
cards, and I so find.
Position of the Parties, Analsis, and (Conclu.vion
Respondent takes the position that on March 3. Johnson
heard for the first time that the night crew was playing
cards on company time. that he decided to investigate, did
so, found the rumor to be true, and terminated the entire
crew. The theory is neat and uncomplicated. Untfortu-
nately, however, it is a bit too simplified for there are a
number of attendant circumstances which must be given
consideration before a decision on the case can be satisfac-
torily rendered.
If Respondent's theory of the case is simple, the same
cannot be said of General Counsel's theory, for in his very
well written brief he lists case upon case wherein the Board
has drawn inferences from factual situations analagous in
some degree to the facts of the instant case. In most of the
cases cited, however. there was a basic flaw in Respondent's
defense which enabled the Board to rely upon such infer-
ences that flaw being, again in most instances, the fact that
the employer did not have a solid, legitimate lawful reason
for terminating the alleged discriminatees. Thus, General
Counsel sites cases 5 in support of his contention that
U.' S Soil Conditioning C'onpany. 235 NLRB 762 (1978). In this case,
which was cited by General Counsel. Respondent was found to have at-
tempted to justify its discharge of an employee on various shifting grounds,
This fact and other reasons permitted the Board to look beyond the stated
shifting reasons for discharge for some other unstated reason for discharge.
The Board then found that the alleged discriminate had openly engaged in
union activity. and inferred knowledge thereof The instant case is inapposite
for reason that Respondent initially claimed that it terminated the night shift
because it quit early and played cards on Company time and never deviated
from that position, Respondent's stated position with regard to its reason for
discharging the night shift, if reasonable, which I find it is, is solid, legitimate
and lawful and provides no basis for looking beyond its circumstances. to
root out inferences concerning probable Company knowledge of union ac-
tivity to support a theory of discharge based on said activity. Similarly,
General Counsel relies upon Tavlor Bros. Inc.. 230 NLRB 861 (1977) for the
same proposition, but as stated by the Administrative Law Judge whose
decision in the cited case was adopted b the Board:
Direct knowledge is not always a necessary ingredient if under the
particular circumstances and facts of the case, knowledge might rea-
sonably be inferred. In view of Respondent's acknowledged antiunion
animus. its blatant disregard for the rights of its employvees to engage in
union acrivities, and its admitted questioning of employees regarding
878
SUMMITVILLE TILE, INC.
knowledge of union activities and sympathies of the entire
night shift crew may be established by resort to circumstan-
tial evidence. These cases, however, fall into a particular
category involving the proferring of specious reasons for
discharging alleged discriminatees, shifting defenses or im-
plausible explanations. Thus, these cases stand for the
proposition that once it is determined that an employer is
unable to offer a legitimate and plausible basis for discharg-
ing a known union activist, it is both resaonable and accept-
able under the law to assume that there is. in fact, a more
logical basis for Respondent's action, namely the union ac-
tivity of the alleged discriminatee. knowledge of' which may
legitimately be inferred. In the instant case, however. John-
son discovered the entire night shift quitting early. plaNing
cards, reading magazines, and sitting around in other
words stealing time. He had a perfectly legitimate reason
for being upset and spontaneously acted upon it. This does
not necessarily mean, of course that he may not have had
other reasons for wanting to get rid of Moyer and perhaps
the entire night shift. But under the circumstances here in-
volved, there must be fairly solid evidence that union ac-
tivity was an additional reason for the discharge and I do
not find it in the record. Thus, although management was
aware of the union activity of several activists there is not a
scintilla of evidence that Respondent was willing to violate
the law by interfering with this activity. There were no
threats, interrogation nothing, prior to the terminations of
March 3, to indicate that Respondent was willing to break
the law to stop the organizational campaign. On the con-
trary, there was testimony that Campbell during the down-
time prior to 3:30 p.m., openly discussed the Union with
other employees in the presence of management, and was
permitted to do so, without any interference whatsoever.
He was not even told to stop talking, grab a broom and
sweep down which, arguably, management had the right to
require him to do. Further, on the morning of March 3
Johnson was shocked to find out about Moyer's prounion
sympathy. I believe this to be true. So, if Johnson did not
know anything about Moyer's union sympathies prior to his
showing up at the representation case conference, on what
basis should it be inferred that he had knowledge that the
entire night shift was pronunion. I am not willing to draw
their union activities an inference of knowledge on the Respondent's part
would not seem to be unreasonable. 6
Is Illegal motive may be supported by a number of factors. such as
coincidence in union activity and discharge, disparity of treatment,
general bias and hostility toward the Union, variance from the em-
ployer's normal routine and implausible explanation b the employer
for its actions.
The cited case differs from the instant case in that the cited case contains
numerous instances of 8(aX I ) violations in the form of threats and interroga-
tion of employees together with an implausible explanation by the employer
for its action in discharging the alleged discriminatees. The instant case re-
flects neither a blatant disregard of the rights of employees-indeed. there
was no concomitant activity on the part of Respondent in the instant case
against known union activists e.g. Louive and Campbell-as there was in the
cited case, nor is there any problem herein with an implausible explanation
offered by the employer for the discharge. In the absence of 8(a( ) activity
by the Respondent, an implausible explanation on its part for the discharges,
or some other convincing reason for looking beyond the stated reason for the
discharge, a search for and dependence upon inferences is unwarranted
such an inference on the basis of this record.4" Nor am I
willing to find, on the basis of the evidence before me that
Johnson was willing to terminate the entire night shift be-
cause he assumed that i Moyer was prounion, the entire
night shift was also prounion.
In his brief. General Counsel argues, quoting Enenrs
I.G.A. Store of lorence, Inc., 219 NLRB 121, 124 (1975):
Where there are legitimate reasons for the discharge of
an employee. the question is whether those were in ftact
the only grounds for the dismissal, or whether the,
were "put forth as a mere pretext to justif\ an Imper-
missible discharge."
Inasmuch as I have found no basis for inference that
Respondent was aware of the night shift's prounion sympa-
thies. except for course for Moyer. there exists no basis
upon which to consider whether or not the termination of
the night shift for stealing time was merelN pretextual. I
refuse to transform Moyer's solitary aid to the Union at the
representation meeting on the morning of March 3 into a
general prounion campaign by the entire night shift on the
basis of the evidence adduced by General Counsel appear-
ing in the record, nor am I willing to expand Johnson's
knowledge of Moyer's role to inexplicabl1 include knowl-
edge of prounion sympathy on the part of such individuals
as Decker. Clapper, McClaskey, or Melville. night shift em-
ployees whose names hardly appear in the record at all.
much less in connection with specific union activity. Hole.
of course, even testified that he was not in favor of the
Union. Thus, in the absence of substantial union activ it on
the part of the night shift, and no basis for inferring that
Respondent had knowledge of or assumed union activit on
their part, the question of pretext does not arise.
General Counsel. in relying on timeliness, to support his
case, points out in his brief that it was only that morning
that Moyer was discovered to be a prounion activist. But
this, of course, has nothing to do with any employee other
than Moyer. for onl] he was engaged in helping the Union
during the representation conference. Moreover, if there is
to be any consideration given to the element of timeliness,
then the fact of the entire night shift's being terminated in
timely fashion immediately upon Johnson's discovering
them shutting down early, playing cards, reading maga-
zines, or what have you, all on Company time, without
checking out, is worthy of that consideration.
In short I find that what occurred on March 3 was that
Johnson was surprised and even shocked to find Moyer at
the representation conference, on the morning of March 3,
aiding and abetting the Union by supplying it with infor-
mation in order to further its campaign to become the rep-
resentative of Respondent's employees. I find, moreover.
that Johnson was displeased with Moyer for taking the
Union's part in these proceedings. Later in the day, when
Johnson discussed Moyer's role as a union activist with
'General Counsel's reliance on Joseph Pollak Corp, 232 NI.RB 825
(1977) is. in my opinion. misplaced. In the cited case. the alleged discrimi-
natee was heavily engaged In union aci ity in close proximity of manage-
ment personnel, and she alone was terminated for said actiity. In he instant
case. there is little or no evidence that most members of the night shift
engaged In union acilvit., either ithin sight or hearing of management
personnel or otherwise
879
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other members of management he noted, I am certain, his
displeasure with him for supporting the Union, whereupon
they advised him of the rumor that Moyer and the night
shift were shutting down early and playing cards on Com-
pany time. Whereas Johnson, aware of the prohibitions of
the Act, had, to that point, scrupulously abstained from
engaging in any activity violative of the Act, even though
the identity of union activists was well known, he now de-
termined to check into this rumor and if the story proved
true to take effective and immediate action. I have found
that had Moyer not been involved that morning in aiding
the Union's cause, Johnson probably would not personally
have become involved in investigating the card playing ru-
mor but would more likely have simply asked Giovenelli to
look into the matter. I conclude that Johnson became per-
sonally involved in the investigation of the card playing
rumor because of Moyer's union activity for the following
reasons: First, it was Giovenelli's job to run the plant and
he was in charge of the night shift. Second, Giovenelli had
the job of running the plant and the record contains no
basis for Johnson to assume that he could not control the
situation. Finally, there must have been some reason why
Johnson, as owner, would take the extraordinary step of
visiting the plant miles from his home, skulking around the
place in the dead of night, waiting for the employees to
make their move instead of simply telling Giovenelli that
afternoon to inform Moyer that he had heard the rumor
and to "clean up his act." I am convinced that Johnson
determined to check into Moyer's activities that night in
order to catch him doing something which could be used,
not as a pretext, but as a legitimate basis for taking action
against him. When Johnson and Giovenelli visited the plant
that night and found them working, they bided their time
until 11:23 p.m., at which time the night shift shut down
and began the card playing, magazine reading, etc., on
company time. Johnson, at that point, felt that he had a
legitimate reason to fire Moyer since he truly believed that
Moyer and the others were cheating the Company as in-
deed they were. Johnson may have been inwardly satisfied
at being given the opportunity by Moyer to discharge him,
but he did so, nevertheless, for the legitimate reason pro-
vided by Moyer-cheating the Company.
Thus, we are not faced with a situation where an em-
ployer seeks out a pretextual reason for terminating em-
ployees, the real reason being their union activity, nor are
we faced with a situation where there are two reasons for
terminating employees, one legitimate and one discrimina-
tory and where the employees are terminated for both rea-
sons. In either of these two situations a violation of the Act
has occurred. Rather, what we have in the instant case is a
situation where Respondent was clearly unhappy with
Moyer for allying himself with the Union against the Com-
pany; where although Respondent was not at all pleased
with the prospect of unionization, it scrupulously avoided
any violations of the Act: but finally when it became aware
that Moyer might well be involved in cheating the Com-
pany of time, it purposefully and designedly availed itself of
the opportunity of catching Moyer and other employees
red-handed, succeeded in doing so and fired them for it.
It is well established that an employee is not insulated
from discharge for cause simply by virtue of the fact that he
has engaged in protected activity. Rosso and Mastracco,
Inc., d/b/a Giant Open Air Market, 231 NLRB 945 (1977).
For as stated in Klate Holt Company, 161 NLRB 1606, 1612
(1966):
The mere fact that an employer may desire to termi-
nate an employee because he engages in unwelcome
concerted activities does not, of itself' establish the un-
lawfulness of a subsequent discharge. If an employee
provides an employer with a sufficient cause for his
dismissal by engaging in conduct for which he would
have been terminated in any event, and the employer
discharges him for that reason, the circumstance that
the employer welcomed the opportunity to discharge
does not make it discriminatory and therefore unlaw-
ful.
Certainly misconduct which would justify a discharge. ab-
sent any, protected activity will also justify a discharge de-
spite protected activity. Rosso and Mastracco, Inc., supra.
In the instant case. I feel that the employees who were
caught by Johnson playing cards, watching others play and
reading magazines on Company time would have received
the same punishment whether or not they had been known
to have engaged in, or suspected of having engaged in
union activities."7 At least, in my opinion, General Counsel
has not proved by a preponderance of the evidence that
Respondent was motivated by discriminatory reasons when
it terminated the entire night shift immediately upon dis-
covering them sitting around and playing cards on com-
pany time. Granted, there is little doubt that Johnson wel-
comed the opportunity to terminate Moyer, whose services
on behalf of the Union earlier that day obviously displeased
him. But Moyer clearly invited the disciplinary action that
was taken in this case.48
'7 The fact that Whitmyer may have occasionally permitted some game
playing in the waxing and grinding room by day shift employees does notconvince me that Giovenelli or Johnson would have condoned the night shift
shutting down 37 minutes early and playing cards, watching the game, read-ing magazines and otherwise cheating the Employer of time. Similarly,
though General Counsel's witnesses testified variously that the packing line
shut down at 3:20 p.m., between 3 and 3:15 pm., between and 3 and 3:10
p.m. and at 3 p.m., and thereafter cleaned up for 5 minutes after which they
stood around or went for pop, management witnesses testified without con-tradiction that the packing line during the day shift served as a kind of laborpool to which employees were assigned when not needed elsewhere and fromwhich they were freely taken and assigned to otherjobs. Thus, the number of
employees on the packing line fluctuated. Moreover, there was testimony
that the caliber of employee assigned to packing during the day was of a
poorer quality. frequently employees who could not, for one reason or an-
other, work anywhere else. For this reason I find that the fact that Whit-
myer may have shut down the packing line between 5 and 25 minutes earlywhen the line may or may not have been understaffed is not fairly to becompared to the incident of March 3 when the entire night shift closed down
37 minutes early and sat around and played cards on company time. Though
there is some evidence that Whitmyer was somewhat lenient with employees
that worked directly for him. the record is clear. even from Moer's testi-
mony, that Giovenelli always made sure that prior to quitting time, the men
had to at least have brooms in their hands, to appear busy and that this was
in accordance with Johnson's orders, I find no basis in the record for con-cluding that the action of the night shift on March 3 should have been
condoned by management because of the practice of permitting the packing
line on the day shift to shut down early. The two situations simply do not
equate.
Fikse Bros.. Inc., 236 NLRB 1351 (1978). General Counsel's argument
that termination was too severe a discipline, was unwarranted and therefore
indicative of ulterior motivation. I find unpersuasive in light of the fact that
880
SUIMMITVILLE TILE. INC
Having found that General Counsel has failed to prove
by a preponderance of the evidence that the discharge of
the night shift on March 3 was discriminatorily motivated,"
and there being no other substantive allegations of unfair
labor practices contained in the complaint, I shall recom-
mend that the complaint be dismissed in its entirety. There-
tore, on the basis of the foregoing findings of fact and the
entire record in this case. I make the following:
CONCI.USIONS O() LAW
1. International Brotherhood of Pottery and Allied
Workers, SIUNA. AFL CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
2. Respondent is an employer within the meaning of Sec-
Johnson's decision to terminate the entire night shift was clearly spontaneous
and more emotional than deliberative. Similarly, there was testimony that
there existed a specific disciplinary system calling for an oral warning first.,
then I. 2, or 3-day suspensions, then termination. This was, however, an
unwnritten informal system and it is not clear from the record as to what type
of breach of company rules this system would be applied. There was also
testimony that an employee could be terminated for a first offense if it were
serious enough. It would appear from the record that Johnson gave no
thought to any formal or informal disciplinary system in existence at the
Company when he discovered the night shift playing cards on March 3. hut
rather acted spontaneously on impulse. Under the circumstances. I do not
consider his failure to apply the informal disciplinary system indicative of
discnminatory motivation.
"' General Counsel points out that during certain conversations in June,
between Johnson and management personnel of another corporation. John-
son referred to employees Shaw and Louive as union radicals and stated that
he would be glad to get rid of them. General Counsel in his brief relies on
these statements as indicative of union animus. Surely, the record in its
entirety clearly indicates that Respondent was hardly enamored of the pros-
pect of union representation of his employees. Yet, it hardly follows as the
night, the day, that simply because Johnson would prefer to run his Cornm-
pany without a union, that he would go to any lengths including the commis-
sion of unfair labor practices to keep the Union out. Indeed, the evidence all
points to a contrary finding for there is not the slightest indication that
Respondent in any way interfered with its employees' organizational activi-
ties though the most active of them were known to supervision. Even the two
individuals to whom Johnson referred as union radicals were still employed
at the plant at the time of the hearing.
tion 2(2), and is engaged in commerce as defined in Section
2(6) and 7) of the Act.
3. Respondent has not committed any of the unfair labor
practices alleged in the complaint.
Upon the foregoing findings of' 'act and conclusions of
law. and the entire record in this case, and pursua;nt to
Section 10(c) of the Act. I hereby issue the toillowin recom-
mended:
ORDER"'
It is ordered that the complint he. and it herehb is, dis-
missed in its entirety.
Report on Challenged Ballots
As set forth above, the Regional Director's Order direct-
ing hearing on challenged ballots and his subsequently is-
sued Order consolidating cases and notice of consolidated
hearing provides, among other things, that the Administra-
tive Law Judge shall determine the issue of' the eligibility of
the eight employees named in the Order directing hearing
on challenged ballots to vote in the election held April 6,
1978. in Case 8-RC- 11235.
On the basis of the findings heretofore made in this con-
solidated case, I find that Ronald Lowers. Olie Moer, Jr..
Stewart Clapper, Ralph Decker. Marvin McClaskey, Rich-
ard Mason. Dan Hole, and Michael McClure were dis-
charged for cause on March 3, 1978. Accordingly, I recomn-
mend that the challenges to their eligibility to vote in the
election be sustained and that their ballots should not be
counted in ascertaining the results of the election.
50 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions, and recommended Order herein shall. as provided in Sec. 102.48
of the Rules and Regulations. be adopted bh the Board and become its
findings. conclusions. and Order. and all ohjecton thereto shall be deemed
waived for all purposes
881