Metzger Machine & Engineering Co.

National Labor Relations Board - Board Decisions

Mar 29, 1973

209 N.L.R.B. 905 (N.L.R.B. 1973)

METZGER MACHINE & ENGINEERING CO.
Metzger Machine & Engineering Company and Inter-
national Union, United Automobile, Aerospace and
Agricultural Implement Workers of America
(UAW)
Metzger Machine & Engineering Co. and Internation-
al Union, United Automobile, Aerospace and
Agricultural Implement Workers of America
(UAW), Petitioner. Cases 30-CA-1923 and
30-RC-1710
March 29, 1973
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On September 20, 1972, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Respondent filed exceptions and supporting briefs.
On February 1, 1973, the Board ordered that the
proceeding be remanded to the Administrative Law
Judge for the purpose of reopening the record to take
evidence with respect to the General Counsel's
motion to correct the transcript which the Adminis-
trative Law Judge had denied in his Decision. The
Board also ordered that the Administrative Law
Judge issue a Supplemental Decision on the motion.
On March 28, 1973, the Administrative Law Judge
issued his attached Supplemental Decision, again
denying the motion. Thereafter, the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision and Supplemental Decision in
light of the exceptions and briefs and has decided to
affirm the rulings, findings,' and conclusions of the
Administrative Law Judge, except as modified
herein, and to adopt his recommended Order.
We find merit in the General Counsel's exception
to the Administrative Law Judge's denial of the
motion to correct the transcript with respect to the
testimony of witness Neal Day. As reported by the
stenographer, Day, in testifying with respect to a
conversation between himself and George Metzger,
testified that Metzger identified "Bingenheimer and
Pasquale" as union instigators. The General Counsel
in his motion alleges that Day said, "Bingenheimer
and Paczesny." At the hearing on remand, Day
testified under oath, without contradiction, that at
the initial hearing he had said "Paczesny" and not
Pascuale." We shall, therefore, correct the transcript
905
as requested by the General Counsel . Notwithstand-
ing the corrected transcript , however, we find for the
reasons stated by the Administrative Law Judge, and
on the record as a whole , that the General Counsel
has failed to prove by a preponderance of the
evidence that Respondent violated Section 8(a)(3)
and'(1) of the Act by laying off or discharging any of
its employees . Accordingly , we affirm the Adminis-
trative Law Judge's dismissal of the allegations in the
complaint alleging the illegal discharge of any
employee and shall adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Metzger Machine &
Engineering Company, Milwaukee, Wisconsin, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
I The General Counsel and Respondent have excepted to certain
credibility findings made by the Administrative Law Judge It is the Board's
established policy not to overrule an Administrative Law Judge 's resolu-
tions with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect . Standard
Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3,195 1).
We have carefully examined the record and find no basis for reversing his
findings.
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge: A hearing
in the above-entitled proceeding was held before me on
July 13, 14, and 31, 1972, at Milwaukee, Wisconsin. In
Case 30-CA-1923 a charge was filed on April 19, 1972, by
International Union, United Automobile, Aerospace and
Agricultural Implement Workers, herein called the UAW,
against Metzger Machine and Engineering Company,
herein called the Respondent or the Company, and a
complaint thereon was issued by the General Counsel on
June 2, 1972. In Case 30-RC-1710 an election was held on
petition of the UAW on May 12, 1972, timely objections to
the result of the election were filed, and the Regional
Director then directed a hearing on only one of those
objections. The two cases were consolidated for single
hearing on both the complaint and the objection. The main
resultant issue is whether six employees were unlawfully
discharged in violation of Section 8(a)(3) of the Act. Briefs
were filed by the General Counsel and the Respondent.
Upon the entire record and from my observation of the
witnesses I make the following:
209 NLRB No. 147
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT1
1. THE BUSINESS OF THE RESPONDENT
Metzger Machine Engineering Company, a partnership,
maintains its principal office and place of business in
Milwaukee, Wisconsin, where it is engaged in the manufac-
ture and sale of furnaces, air conditioning units, trailers,
and snowmobiles. During the past year, a representative
period, it sold and shipped goods valued in excess of
$50,000 to points outside the State of Wisconsin. During
the same period it purchased and received goods valued in
excess of $50,000 from sources outside the State. I find that
the employer is engaged in commerce within the meaning
of the Act and that it will effectuate the policies of the Act
to exercisej unsdiction herein.
II. THE UNION INVOLVED
I find that International Union, United Automobile,
Aerospace and Agricultural Implement Workers of Amen-
ca (UAW), is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A Picture of the Case
Towards the end of December 1971, there was a move
among the Respondent's approximately 30 employees to
join the International Brotherhood of Firemen and Oilers,
AFL-CIO, -for the purpose of collective bargaining. This
Union filed a petition on January 7, 1972, asking for a
Board election (Case 30-RC-1630); that same day the
Fireman's Union also filed an unfair labor practice charge
against the Respondent, alleging it had discouraged
membership by illegal threats and interrogation (Case
30-CA- 1815). The employees changed their minds and on
January 20, 1972, the Firemen's Union withdrew both its
petition and its charge. Thereafter, later in January or early
in February, management spoke to the employees assem-
bled, offered to consider any complaints they might have
but only on an individual basis, and promised in a number
of detailed matters to increase their benefits and pay. It
gave raises in varying amounts during February and
March to about 10 individual workmen.
On April 4, 1972, the UAW, charging party here, filed
another representation petition (Case 30-RC-1710) for the
same overall group of production and maintenance
employees. Pursuant to that petition a Board-conducted
election was held on May 12; of the 30 eligible voters 6 cast
ballots in favor of the UAW and 15 voted against, with
certain challenges insufficient to affect the results. Mean-
while, on May 1, between the filing of this petition and the
election, the Respondent granted a general raise to
virtually all its employees, again in varying amounts.
Four employees were laid off at the end of the week of
December 30-Robert Bingenheimer, James Lustig, David
Paczesny, and Gerald Sauser. Ron Wallenkamp, also a
production worker, was discharged on March 6, 1972, and
1 A motion by the General Counsel to correct certain typographical
errors in the transcript , submitted with the statement that the Respondent's
counsel "has no objection," is hereby granted
Neal Day on March 23. The UAW filed the charge here
being considered on May 26. The complaint alleges that
the four employees sent home at the end of the year
suffered illegal discrimination in employment in retaliation
for their activities with respect to the Firemen's Union,
four violations of Section 8(a)(3) of the Act. As to
Wallenkamp and Day, the complaint alleges they were
discharged because of their "activities in organizing a
union," butitidoes not explain whether it was theFiremen's
Union or UAW activities for which they were dismissed.
There are also pinpointed allegations of coercive state-
ments, in violation of Section 8(a)(1), charged to various
supervisors. The Respondent denies the commission of any
unfair labor practices. As to the group of four employees it
defends on the affirmative ground that they were laid off
for economic reasons, because an unprecedented decline in
sales made it necessary to trim the payroll. Wallenkamp is
said to have been released because of excessive absences
and Day because he presumed to interfere with the proper
supervisory functions of other foremen or supervisors in
the production operation of the plant, There is an
additional defense as to Day; the Respondent contends he
was a supervisor within the meaning of the statute and
therefore could in no event complain of illegal discharge
because of any prounion activities.
The Company recalled all these employees except Day;
Paczesny and Sauser returned, the other three refused the
offer of reinstatement. If Day was in fact unlawfully
discharged he is the only one whom the Company will have
to reemploy. The case will be understood best if his
discharge be considered first.
A. Neal Day
Activity towards joining the Firemen's Union was
started by two employees named Bruce Pascale2 and
Frederick Braby, the latter first bringing union cards for
solicitation of signatures among the other employees. Talk
got around in the plant, an agent of the Firemen's Union
distributed leaflets in front of the plant, others signed up,
and a union meeting was scheduled for December 29,
Wednesday, at a bowling alley. This Union's leaflets were
all over the premises and clearly everybody, including
management, knew what was going on. Day was opposed
to the Firemen's Union; asked had he signed when
solicited, he answered: ". . . I declined, of course;" "... I
didn't wish to support that Union, and I felt the fellas were
getting themselves in trouble and end up with something
they didn't want . . . they solicited a bad union." He went
to the December 29 meeting anyhow in order to quarrel
with Lamping, the Firemen's agent, in front of the 12 to 14
employees who were present, according to him, "I argued
with Mr. Lamping, too, half the evening . . . because I
thought he was misleading the fellas."
There came a time when two of the owners, George and
John Metzger-the Company is a partnership of six or
seven brothers-called all the employees into a meeting
and told them there would be a program of semiannual
opportunities for each individual to speak privately to one
2 At a number of places in the transcript Pascale's name is erroneously
spelled as Pasquale
METZGER MACHINE & ENGINEERING CO.
or another of the owners and voice his gripes, ask for
anything he wished, and the Company would in each
instance do its best to accommodate him. I The Metzgers
made clear they did not care to deal with the employees
through any spokesman, or delegation, they would do so
only on an individual basis. They also that same day
promised a general raise to come on May 1. A very
important question in this case is: whose idea was it that
instead of furthering their interests in working conditions
collectively through the Firemen's Umon the employees
should each deal separately with the employer? It is a fact,
conceded by all, that sometime before January 20 the
employees decided to forget all about that union; they
canceled their petition and their charge. If the Respondent
induced them to do this by promising wage increases and
other concessions, it was the most coercive violation of the
statute. If the thought arose in the breasts of the employees
independently of any insinuation by the boss, individual
dealing with them thereafter might appear in a different
light. This question of who was really responsible for the
demise of the Firemen's Union also goes to the heart of
Day's discharge. He was released on March 23 because,
according to the complaint, he assisted "a union." If it was
Day who stopped the Firemen's campaign in its tracks it
could hardly be said the Respondent punished him for
that. Whether in March UAW activity had progressed at
all, or, more important, whether the Respondent knew
anything about it, is another matter. A confusing anomaly
is that the Respondent contends Day was a supervisor all
along. If he was, it would be immaterial who induced the
change of heart against the Firemen's Union-Day or the
Metzgers themselves-for in either case it would be
management's doing. However, in that event there still
could be no finding of illegality in his discharge, because
he only did what the Company wished.
The total evidence warrants a finding that Day con-
ceived the notion of direct dealing with the Respondent
and sold the proposal to the employees as inducement to
abandon the Firemen's Umon. He candidly said he did
what he could to persuade the employees against it. At one
point he said that George Metzger spoke to him in the shop
before the December 29 union meeting, and immediately
after some other employees had solicited his signature. He
testified George asked what was wrong-the solicitors did
not belong up on the balcony where Day worked, their
area was downstairs-and that he told the owner "it was
about the Union." At this George Metzger "looked
puzzled," and asked "why would the guys want a union?"
Day continued that later in the day George and Andrew
Metzger spoke to him again, Andrew asking him "if I
would be company spokesman," but that he declined. At
the hearing Andrew Metzger denied having asked this
question, and while his total testimony left much to be
desired so far as credibility generally is concerned, that of
Day was even less impressive. I do not believe Metzger
asked Day to do anything. But it does not really matter
whether he did or not, for Day said he refused, and his own
version therefore compels the finding that whatever he
then proceeded to do he did on his own.
Between the filing of the Firemen's petition for an
election on January 7 and the day it was withdrawn on the
907
20th, Day went to another meeting at Braby's home-this
was the man who lead the Firemen 's campaign. Again
Union Agent Lamping was present and again Day ".. .
talked about getting rid of him , getting him out of there."
There were other gatherings of employees on this subject,
in and about the plant. The first proposal Day brought to
Metzger was "I would secure a list of grievances from these
people and present it to him and then he could do whatever
he wanted to do but George declined." Day again went to
the employees , and returned to Metzger with "an agree-
ment I got from the fellas about dropping the union
election and the union charges , if George would agree to
calling these people in at least twice a year and talking to
them ." Paczesny testified that Day started suggesting
direct dealings with Metzger at the first employee meeting,
on December 29. "He just wanted us to get together and
just discuss our grievances with George." From Sieberlich's
testimony: "It was Neil Day that went down and talked to
George about it . . . . If they would listen to us and try to
do something for us." From Day's further testimony: "Q.
... Did you have a meeting with George Metzger, and
you told him that if he would talk to the men twice a year,
they'll drop the charges and the petition? A. Yeah, that was
probably-I couldn't give you a day, but probably the
second week in January-thereabouts-I don't remember
exactly. Q. When was that decision made by the men, that
you were reporting to Mr. Metzger? A. Well, this was in
part of what we were trying to work out and present-it
wasn't made up at any specific time that I could give you a
date on. Q. Well, did the men appoint you to go see Mr.
Metzger and tell him this? A. Well, appoint-yeah, right, I
assumed that position . . . the leaders wanted me to
present this to George." And it was Day, on the same day
that he "presented" to the Respondent the employees'
desire, who went to the Labor Board office to withdraw the
Firemen's petition and charge. No matter where the
suggestion originated , it was improper interference with the
employees' freedom of action for the employer to have
made a deal with them in this fashion before they quit the
Union. But so far as Day' s discharge 2 months later is
concerned, the January event had nothing to do with it.
This is one of those situations where it is argued the
employer's knowledge of union activities in general and of
the participation by this employee or that must be inferred
because of the small size of the plant. Later in his
testimony, when talking about the events at the time of his
discharge, Day passingly threw in the phrase that George
Metzger at one point accused him of having been the
moving spirit in the Firemen's union activity. George
Metzger denied having said this. Throughout this entire
story, in one way or another, Day was the outstanding
activist. If the Respondent is to be charged with knowledge
of which individuals went to a certain union meeting, or
which one solicited a union card during the lunch period, it
is entitled to be charged also with knowledge of Day's very
antiunion activity where the Firemen 's Union is con-
cerned.
I find that by calling all of its employees into a company
meeting late in January , by granting them then and there a
longer rest period mornings and afternoons, by promising
them increased insurance and vacation benefits, by
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
promising to listen to each employee's complaints individu-
ally on a regular basis twice a year, and by holding out the
possibility of an across-the-board raise to all employees on
May 1, 1972, the Respondent restrained and coerced the
employees in violation of Section 8(a)(1) of the Act. This
finding is not weakened by the fact it was Day who first
conceived of this alternative to union activity, who sold it
to his fellow workers in the first instance, and who asked
the Respondent to agree as a condition precedent to
withdrawal of the Firemen Union's petition and charge.
No one denied Day's testimony that he obtained George
Metzger's agreement to direct dealings with employees
before withdrawal of the Firemen's petition and as a
consideration for the employees doing so. The company
representatives knew the problems which the employees
wished to talk about concerned conditions of employment,
that this was a way it could avoid having to deal with any
union. John Metzger's rejection of one employee's propo-
sal-voiced at the meeting-that a delegation speak for all
of the employees, and his insistence that it would have to
be one individual at a time only, serves all the more to
prove the Respondent conditioned its agreement upon an
end to any thought of collective bargaining. The conces-
sions granted at the meeting itself-longer break periods
and improved insurance and vacation benefits-warrant
an inference that there was always the unspoken under-
standing between the employees and the Company that
with the listening to complaints, the Company would grant
at least some of the economic demands. It does not really
make any difference whether it is individual employees
who request the quid pro quo for abandonment of the
union or whether it is the company which first extends the
bait. In either case the employer violates the neutrality
which the statute commands while a petition for an
election is pending.
That the Respondent's purpose that day was to increase
the chances the employees would forget about any union is
also evidenced by John Metzger's testimonial explanation
of why he called the meeting. "I also recall that I
mentioned something along the line that there were
different areas in which we can perhaps do things . . . we
certainly wanted to meet them half way and we wanted
every one to give us his-get personal views; not have
some spokesman probably talk for the crowd . . . . There
was hemming and hawing, and there was some talk of
unions and so forth, and we felt that if we were in a
position to take care of any of their complaints, if there
were complaints, we certainly wanted to listen to them
George Metzger did not bother to deny the
testimony of some employees who were present that ".. .
we were going to receive a $5,000 life insurance policy paid
and vacation and different things," "... when they had
time to work things out like pension plan ... "he
indicated there might be a general shop increase, ... .
about May 1, ". . . raises and that possibly around May
1st, there could be a general plant increase."
During the next several weeks George Metzger called
each and every employee into his office for separate
interviews, where he listened to the specific request of each
employee. For the most part the evidence indicates he
repeated to them the concessions he promised or gave at
the mass meeting. An outcome of these individual
interviews was that during the months of February and
March the Company granted individual pay raises to eight
employees in amounts ranging from 10 cents to 40 cents
per hour. I find that in each instance these individual pay
raises constituted a separate violation of Section 8(a)(1) of
the Act; they represent implementation of the unlawful
promises to improve conditions of employment made at
the mass meeting called by the Respondent.
Returning to the discharge of Neal Day, there remains
the matter of the UAW activities. In alleging Day was
released for helping "a union," does it mean this union?
The evidence supporting such an inference is extremely
weak; both as to the extent of card signing for the UAW
before March 23 and as to the Respondent's knowledge
about it. It is clear this idea too was entirely Day's. He said
he had it "in mind" when speaking to the Labor Board
agent before January 20 to put an end to the Firemen's
move; he even said he signed a UAW card on January 17.
Several other employees also said they signed such cards in
late January or February. According to Day he had
succeeded in obtaining 17 signatures before his discharge;
I do not believe him. The UAW must have had at least
nine cards when it filed the election petition on April 3, but
there is also considerable evidence of card signing in the
plant between the time of Day's discharge and April 3.
With the prosecution theory being that the Respondent
must have known about all this because of the extent of the
talk and solicitation in the factory, the dated cards
themselves could have been produced in support. But only
one was shown at the hearing, and the UAW won only six
votes at the election in May. On these related facts I am
convinced Day tended to exaggerate at the hearing both
the number of UAW cards signed and the amount of open
talks that went on in the plant on the subject before he left.
He took back the first statement that he had signed a card
on January 17; later he said that on the 20th he only told
the Labor Board agent he intended to contact the UAW
and that he really could not remember when he first
communicated with that union.
More important, however, is the truly pertinent question:
what are the chances the Respondent was aware of Day's
inclination, or activities in favor of the UAW? The
evidentiary indications are that the employees did not
publicize that activity, but held back on it instead. Day
testified he told the Board agent, in January, "That I would
solicit the UAW dust in case the Metzgers would renege
... ." He also testified : "Well, it was prior to the
withdrawing of the election, that was one of the supports
the fellas had, that they would have the UAW
back them in case the Metzgers got funny with them and it
was set up just in case they did." But the Metzgers did not
"renege," or "get funny" with the men; indeed the General
Counsel stresses the fact the Metzgers kept their January
promises by in fact extending the rest periods both
mornings and afternoons and by giving a number of
individual raises in February and March. Until Day was
discharged, and, it appears, turned to the UAW for help by
stepping up his assistance to that union, there was little
reason for the employees to irritate the Metzgers by
flouting the UAW under their noses. And finally Day said
METZGER MACHINE & ENGINEERING CO.
flatly his intention was to conceal any UAW rumor from
the Respondent" . . . when all the cards came back, I kept
them myself, so I could account for the cards. I didn't want
the Company at this time to know about the UAW . . . I
kept them on my person." The suspicion that Day never
even gave signed cards, until after his discharge, to the
UAW representative who first put them in his hands, is
very strong.
It is against this kind of proof, illegal animus, against
him that the Respondent's affirmative defense of discharge
for cause must be evaluated. And there is no issue as to
what Day did, for which the Respondent now says it
dismissed him. His first version of the story is illusive,
intermingled with unintelligible references to the "Union,"
and it took some pressing cross-examination, confronting
him with his earlier affidavit, to draw it out clearly. Day
was located on a balcony devoted solely to producing air-
conditioning units, where he worked alone dunng the
winter. The rest of the production and maintenance
employees worked on the ground floor, about 30 of them.
For reasons which do not appear clearly on this record a
considerable number of employees took to going upstairs
and bringing their "problems" to him to consider.
Whatever else the problems included, such as family or
other personal matters unrelated to the job, they also
included dissatisfaction with supervisory decisions of work
assignments made by the three supervisors downstairs
-Gnffa, Zarling, and Jackson.
Day testified that he was able to calm some of the
employees and have them return to work satisfied, and that
as to others, when he deemed their problems proper
matters for the Respondent to consider he sent them to
George Metzger. Two days before the discharge one man,
Ray Sieberlich, talked to Day about "shop pressure
building up and such," and Day sent him to see George
Metzger. In the afternoon Metzger talked to Day in an
effort to persuade him to stay out of the Company's
business. Day gave a number of versions of his talks with
Metzger the next few days on this subject; they are ever-
changing and reveal an obvious attempt to inject an
extraneous element of unionism where the subject was in
fact irrelevant. His first was as follows: "[George said]
What are you talking upstairs, holding intermediate office,
and I said what do you mean, and he says Ray comes
down from up there, talking, telling me about pressures in
the shop, and I said what do you mean, and he said well,
Ray just came down from you, and I said no, I told Ray
this is what George wanted, and he said you are holding an
intermediate office, and I feel like there is a union standing
ready to hit me over the head with something and I don't
know how to move and the Firemen and Oilers Union is
not even in contact with the people any more at Metzgers,
and when I told him this [sic, emphasis supplied], he seemed
somewhat satisfied with this."
The next day Metzger talked to him again in an effort to
dissuade him. At one point Day recalled this conversation
as follows:
George did mention, he said why were the fellows
coming to me about the shop, and I told him that being
that I was the go-between between the fellas in the shop
and George himself dunng the union business there,
909
that they were used to coming to me with the union
business as well as with their personal problems. You
may come up with one or two here and there and I said
it would take time for these fellas to get used to going
to George again or even to begin with, and that was
about the extent of that . . . After I told him that these
fellows were used to coming to me about their
problems, that it would take time to convert over to
him and to his policy, he said that by listening to them
that I was encouraging them to come to me and I said
that I couldn't chase them away and he said that he
wanted me to eat alone, you know, upstairs, or eat
downstairs with the rest of the shop fellas, which
included Company people as well as union people .. .
George said that if I was a Company man like I
claimed I was, that I would give him the name of the
union supporters.
Then came reference to the witnesses' earlier affidavit.
With it as a reminder now Day admitted the following
statements were true: "George, when he approached me
above accused me of undermining his foremen . . . By
having an `intermediate' (office upstairs in my air condi-
tioning area) where I received complaints." It was a result
of that intermediate office that he thought I was holding.
He says you are undermining my foremen, this is what he
said. Q. Now, did he say what? A. Well, by the fellas
coming to me he assumed they were talking about shop
problems, that is why he thought I was undermining his
foremen, and I told him it wasn't true." At this point Day
again shifted to double-talk. "No, I told him that the area
concerned union-it concerned some shop problems and it
concerned some personal problems. I told George this at
the time, and he said something about me wanting to be a
psychiatrist, I believe-something to that effect." "I told
him that guys did talk to me about a variety of the
problems including the Union."
Day then said that among the problems the employees
brought to him were: (1) one man "felt ... Ray Zarling [a
downstairs supervisor] was riding him or something"; (2)
"why they don't get more money per hour"; (3) "they
sought a raise and was turned down"; (4) "do you think I
should go in and ask for a raise"; (5) "Fred Braby on one
instance was shaken up, because he was bounced around
quite a bit and I simply told him to see George, too"; (6)
"Q. What about transfers of assignments in a department.
Did the men ever come to you and complain that they were
being transferred from one job to another? A. Yes, I heard
talk of that, right. I couldn't give you a separate instance."
There is no evidence in this record of any "union
problem," in the plant during February or March; there is
no evidence of any employee going to any of the Metzgers
complaining about "union" in any form until after Day's
discharge. I do not believe Day's statement that Metzger
accused him of being the instigator of the Firemen's
Union. There was no reason at this late date for the owner
so to upbraid the man who was responsible for getting rid of
that union. What Day was trying to do in his ever-changing
testimony was to inject oblique references to "the Union"
in order to slant Metzger's complaint away from what it
really was.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
George Metzger's testimony is different and I credit him.
He denied saying "the Union is ready to hit me."
I said, "Neal, what is going on here? There seems to be
a real problem developed here where these"-or
supervisors, Zarling and Louis Jackson and Robert
Griffa, were having serious problems with some people
in regard to communications. I said, "It seems like
these people are coming in your department and are
being tutored somehow that they don't respond to their
immediate supervisors; upon which he said, "Well,
George, they should come to me and blow off steam.
That is the thing, and then you won't have any trouble,
see. Let them come up to me, and I will take care of
these problems." I said, "Neal, what are you saying?
Are you saying that these other supervisors should give
the directions to the people that were working for
them?" "Well, George, can't you see? Let them come to
me and blow off the steam." We went back and forth in
this type of conversation. I said, "Neal, this is totally
unworkable what you are suggesting to me here that
the communications is completely broken down if we
go anywheres along this type of route here. There other
supervisors have been on the job as long as or in many
cases four times as long as you have been on your job,
and now you want these things funneled through you,"
and it became a complete loggerhead in regard to him
accepting the fact that he should not be doing this type
of activity, and he said, "Well, George, if you think it
don't work out, I will leave. I will resign." He said,
"Anytime you think it won't work out I will resign,"
It is not for me or the Board to pass judgment upon
whether the Respondent's asserted reason for discharging
Day was reasonable or fair. The question always remains
whether the record in its totality warrants an inference that
the discharge came about because of the employee's union
activity. I find this affirmative primary burden has not
been satisfied in this case and shall therefore recommend
dismissal of the complaint as to Day.
I also find the evidence insufficient to prove Day was a
supervisor as defined in the Act. He worked on air-
conditioning units all year; he worked alone except for the
summer months when units are sold and assembled, and
when four to five helpers were assigned to him. He taught
these others, some part-timers and some full-timers, told
them what to do, and in the sense that the work had to be
coordinated, he was responsible for the output of his
section. He had no authority to hire or discharge, shift
employees from one department to another, alter anyone's
pay, change the hours of work, or in any meaningful way
directly affect the conditions of employment of his summer
helpers. He said he never recommended a raise and I
believe him. He was the most skilled, but like the others he
was hourly paid and punched a timecard . The Respondent
showed he once recommended a friend for hire, but it is
clear others in the plant did likewise; this was a friendly
matter of helping others get work and had nothing to do
with effective supervision. He on occasion signed for
delivered parts or supplies; others did this, too, and for the
most part it happened on the unusual occasion when
shipments for some reason did not go directly to the
shipping department where they regularly go. The air-
conditioning department is under effective control of
Andrew Metzger, one of the owner brothers, who worked
intimately with Day. Parts salesmen sometime came to
him, but Day testified he only ordered parts on those rare
occasions when given permission in advance by Andrew.
His testimony on this point is not inconsistent with that of
George Metzger, who said Day was involved with salesmen
only "partially with me," and "he would corrolate that with
my brother, Andrew."
There is a direct conflict in testimony between Day and
Andrew Metzger with respect to the extent of his authority;
on balance I am inclined to believe Day was closer to the
mark , Andrew is the real boss of this department; he
spends part of his time in the plant and part outside. In
conclusionary language he said Day had "full responsibili-
ty," "he had charge of all purchases," "he could reject or
he could take orders," he "absolutely" could recommend
raises and did so "many times ," he had "complete
discretion if they worked overtime or not." Recalled in
rebuttal Day gave the lie to all of this . His testimony is that
Andrew Metzger placed all the orders and sometimes
asked him to "verify" an order received. He said he was
never consulted on wage increases ; asked for the name of
one person for whom Day had recommended an increase
in pay, Metzger answered: "I haven't the slightest
knowledge at this time." Day said he was only permitted to
work overtime if George Metzger approved his request in
advance, and George did not contradict him. After blandly
saying Day "absolutely" decided all overtime matters,
Andrew Metzger then hedged by saying "this is just
stretching a point." It is George who runs the plant
operationally all day. Andrew admitted he knew all about
the Firemen's Union organizational campaign, of its
petition filed, and of UAW activities which followed. Yet
he insisted he never once spoke of any union with any
single employee. Day conceded on occasion a customer
called him to place an order for an air-conditioning unit,
and that suppliers sometimes sent their quotations to him
with the hope he could influence Andrew to make a
purchase. There is nothing unusual , in the circumstances,
in such things, and they do not in themselves indicate
supervisory authority over.the department employees. It is
also significant that when the Respondent , as part of its
program to solve the employees' "problems" directly as an
alternative to collective bargaining, spoke to each employ-
ee separately, it also called Day in for private interview,
quite like any other rank-and -file employee.
B. Ray Wallenkamp
The facts pertinent to the discharge of this man are
undisputed unless the question of motivation-really an
inference said to arise from the related facts--can be said
to be a factual one itself . Aside from the Respondent's
answer , which denies illegal discharge, there is no credibili-
ty problem. Wallenkamp had a very bad record of
absenteeism ; he was told time without number he had to
improve-once even warned he would be discharged, but
this happened long ago. A more aggravating aspect of his
conduct was that sometimes he did not call in advance to
give notice of intended absences. Wallenkamp admitted
METZGER MACHINE & ENGINEERING CO. 911
that "not calling in was the most important point." During
the week ending March 3, 1972, he was absent from work a
half day Tuesday and all day Thursday and Friday. He did
not give notice of his Tuesday absence in advance and
most probably did not give notice of the later absences
either.3 He was back home in Milwaukee by noon Friday
but did not report to the plant. His explanation of this was
that about 2 p.m. an employee named Mass telephoned
him to say "you better get in here right away, if you don't
want to lose your job, because your time card is pulled."
On Monday he did not come to the plant until 11:30
a.m., and then went directly to the office without even
looking at the timecard rack. He started by telling George
Metzger "I heard you wanted to see me," but no one had
told him any such thing. Metzger told him he could no
longer tolerate such absences in a leadman and asked him
to look for another job. As they talked Wallenkamp said he
"had a lead on a job in Fond Du Lac," that he was
"thinking of going to work at Kiekhaefer." Metzger said he
had enjoyed working with him, they shook hands and
parted amicably. I think it obvious from all this that
Wallenkamp knew he deserved to be discharged and was
expecting it, that he was discharged because of his
absences, and that he had no basis for complaint. The
original charge filed by the Charging Party the following
month, on April 19, does not mention him as having
suffered illegal discrimination.
Wallenkamp signed a card in favor of the Firemen's
Union late in December; he said he also urged other
employees to sign inside the plant. He also testified,
however, that when Peter Metzger, one of the partners,
asked him at that time how he felt about a union, he
avoided saying. Asked how this conversation came about,
he answered: ". . . it didn't come about from no way,
because I had never spoken to any of the employers about
it." Wallenkamp also testified that Zarling, one of the
downstairs supervisors, once engaged him in conversation
to discuss the pros and cons of unionism, and that while
he, Wallenkamp, did say there could be advantages to the
employees, "I didn't say or give him my views." The
strongest prop in support of the suggested inference of
personal animus against this man is his uncontradicted
testimony that 2 months before his discharge, again very
early in the year, another supervisor, . . . Griffa, told him
that if the union activity continued "there was going to be
certain things done that could squelch it more or less .. .
certain guys may be laid off." This statement was pure
coercion prohibited by the statute, and I find it to have
been a violation of Section 8(a)(1) chargeab'° to the
Respondent.
I find the evidence insufficient to prove illegal motiva-
tion in Wallenkamp's discharge. He was not a specially
active proponent of the Firemen's Union, and the general
threat voiced by Supervisor Griff a was not directed to him
personally. By the time he was released 2 months later
3 Wallenkamp went "up North" for Thursday and Friday that week
because of illness "in the family." On direct examination he said his mother
telephoned the Company "from up North" to advise he would not work the
rest of the week, and that he did not call himself Later he said he first
learned of the illness in the family at 2 a.m Thursday, and then took off.
The Respondent offered Wallenkamp's earlier affidavit for impeachment
purposes, and it served the purpose, for it contained the unequivocal
union activity generally had quieted down. The General
Counsel points to the fact there were others, probably five
or six, whose record of absenteeism was not better than
Wallenkamp's, and who were not released. But one of
those others, Willie Smith, was discharged a month before
Wallenkamp and for the same reason. Moreover, there
may have been good reason no longer to tolerate his
excessive unexcused absences. He was a leadman; he set
up the dyes; in his own words he described his responsibili-
ties as: "Make sure the brakes were set up right, make sure
the material got out right and not messed up, made sure
the other two guys, if there was two guys, were doing their
work properly, keeping records of what we made, how
much we made in a day, that sort of thing." On the face of
it, it was not unreasonable for the Respondent to be less
tolerant of Wallenkamp's absences than of those of other
employees.
I shall recommend dismissal of the complaint with
respect to Wallenkamp.
C. Bingenheimer, Lustig, Paczesny, and Sauser
Discharge of these four men, decided and largely
implemented at the end of the week of December 30, gives
rise to a circumstantial evidence case against the Respon-
dent. And like all such cases the record facts raise more
questions than they answer. Virtually every subsidiary
argument advanced, based upon a special fact, appears like
a coin, and when turned around serves to support a
contrary contention. These were the only employees laid
off that month and they were released the very week when
the organizational campaign of the Firemen's Union was
in bloom-a very suspicious circumstance. The four main
products manufactured and sold by this company are
furnaces, air-conditioning units, trailers, and snowmobiles,
and it is snowmobiles on which the employees work mostly
in the winter time. Unlike prior years, the 3-month period
October, November, and December, when customer orders
for snowmobiles are normally received, in 1971 showed a
very drastic reduction in sales-down quite 50 percent,
from what had been expected.4 If only these facts be
considered the case begins to look like a standoff, with an
apparently rational explanation offsetting the adverse
inference suggested by the timeliness between the layoffs
and the union activity.
The General Counsel makes another argument. With
snowmobile sales down 50 percent in October and even
more in November, why did the Respondent not reduce its
complement then, why did it wait still another month and
incur more losses? Indeed, how come it waited precisely
until it saw union leaflets i istributed all over the plant and
learned there would be a union meeting on the 29th? And
again the Company responds with what on its face at least
is not lacking in persuasiveness. None of the products of
this plant are entirely made on order; supplies are stacked
statement . "I had called George [Metzger ] on Wednesday or Thursday a in.
and told him I probably would not be in the rest of the week "
4 In October, November, and December 1971 sales of snowmobiles were
83, 78, and 99, respectively For the same months of 1970 they were instead
170, 231, and 197, and for the same months of 1969 they were 269 , 198, and
239
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in advance of the season, subparts are fabricated and
assembled and kept in reserve in anticipation of normal
sales periods, and most of the cash-both in materials and
labor-is expended in preparation for the peak sales. And
this is not only true of snowmobiles but also of furnaces,
air-conditioning units , and regular trailers . An officer
explained that when orders for snowmobiles are received
the Company makes every effort to assemble them and
make deliveries within 24 hours; it does not always succeed
and sometimes it takes 3 or 4 days to achieve deliveries. As
to what happened last year, John Metzger said that in the
hope that orders would finally come before the end of the
year the Company built up a reserve of snowmobile parts
which now stands in storage and which it hopes to sell next
season . As he put it: "We considered it really seriously in
the month of November when we saw-we were watching
this thing daily, by the hour in fact , and the sales were not
materializing in the month of November, but this isn't too
strange in other product lines either . Sometimes it is
delayed. In retrospect, I suppose we should have had this
layoff in about the middle of November, but we felt that
chances are we would recoup in the month of December.
We knew just before Christmas that we had to cut back
drastically ." Why did he not take action then? "You don't
like to layoff people right before Christmas, so we let it go
until the end of the year." The records of sale are not
disputed and Metzger 's testimony as to how this Company
does business stands uncontradicted and is perfectly
credible . Even Neal Day admitted in the end , in rebuttal,
"It was slow in the area , and they would talk about it, well,
we were not getting out as many trailers this year, as last
year . . . It looked slower to me ." This evidence of
economic stress cannot be swept away.
In a case of this kind nothing can be taken out of
context . The General Counsel's brief points to the fact that
in sales of furnaces the Company did better in November
1971 than in November 1970-$49,000 more-and that it
hired two persons during the last 3 months of the year. Of
these last ones appearing on the rolls are Ellen Bromsen,
probably an office girl and not a production worker, and
the other is Scott Rickert , a name that does not appear on
the pertinent exhibit . If the entire 3-month period of
declining business be considered , sales of furnaces were
about the same-$561,000 to $570,000. As to the hires,
even if it be true one production worker was added, the
same exhibit also shows five men quit during the same
period. But this only serves to make the delay in
implementing further layoffs appear more rational. On this
record there can be no finding that the entire idea of laying
anyone off was pure retaliation for union activity. I find
the Respondent had economic reasons to reduce the
payroll by four at the end of the year.
It is also argued that even assuming there was economic
justification for layoffs the Respondent deliberately select-
ed these particular four individuals to satisfy a union
animus. Fair appraisal of the merits of the ultimate
contention demands that all facts bearing any pertinence
to the question be considered, not only those which point
one way or the other. There are facts supporting the
conclusion of malicious selection, and there are facts
weakening the requested inference of illegal motivation.
There is no real direct evidence of bad intent directed to
these four persons themselves . It is a probability theory, a
game of numbers , as it were . If the Respondent had to
release four men for economic reasons , and all four of the
men it chose were unioneers , a certain probability is
suggested . If those four were the only persons who favored
the Union, the probability of improper intent becomes
much stronger . Assume again it had to release 10 persons,
and chose 5 pro and 5 antiunion employees , what then
becomes of the probability? If to this last equation is added
a further fact-that of the total complement of 30, 15
favored the Union and 15 did not, it would have to be said
the inference of illegal motive is absolutely dead . It thus
becomes apparent that a relevant factor in this number
game is always the percentage of the total complement who
favored the Union and the percentage of unioneers found
in the layoff group. And, of course, the question of what
knowledge can be imputed to the employer is also an
essential ingredient in the formula . One must guard against
a not uncommon fallacy. The prosecution proves four men
were fired and that these four men favored the Union; he
passes . The Respondent proves economic justification and
rests . Does it follow these four, and only these four,
favored the union?
The most active agitators, in fact the originators of the
move towards the Firemen 's Union , were Braby and
Pascale . The attitude and the participation of the four
discharged men ranged from agreement , to indifference, to
rejection . Bingenheimer signed a card after the meeting of
December 29, which he attended, but gave it to no one,
kept it to himself because he was released before he could
do anything with it. He said that just before Christmas,
while giving him his turkey, George Metzger asked what he
thought "about this union thing" and "are you promoting
the union?" Bingenheimer answered "absolutely not," that
he was "kind of interested in it" only to "see both sides of
the conflict ," because they might get better wages and
more security. Asked had he also told Metzger that day
"we don't need a union around here ," he answered "I can
remember saying something to that effect ." George
Metzger recalled the conversation but testified it was
Bingenheimer who brought up the subject of the Union
and said to the owner "we don' t need a union , and I just
want to hear both sides of the story." Bingenheimer was
discharged on Friday, December 30.
Paczesny testified that talk about the Union started on
December 22, Wednesday, when he heard Braby , Pascale
and Bingenheimer talk, and that that evening Braby and
Pascale went to the union hall to see Lamping , the union
agent . The next day the leaflets were distributed in front of
the plant inviting people to the December 29 meeting. He
went to the meeting and spoke in favor of the Union,
signed a card , and then talked the Union up while at work;
he added he openly asked others to sign . Paczesny could
not get to the plant Friday because of a storm and found
his discharge notice when he arrived on Monday morning,
January 3.
Lustig also went to the union meeting and signed a card
there . He said that while the leaflets were being given out
in front of the plant George Metzger walked by with one in
his hand and asked him "what is this union talk"; he
METZGER MACHINE & ENGINEERING CO.
answered only he did not know. Lustig also testified he
talked to employees in the plant about the Union ". - . . a
couple-two," and named Krause and "just Paczesny,"
adding he did this "during the break and once in a while
while I eat lunch with them." He was discharged on
Friday, December 30.
Sauser, the fourth man in the laid-off group, was
opposed to the Union. "I was against the first time
[meaning the Firemen's Union as distinguished from the
latter UAW campaign] ... I didn't sign a card or nothing
for it."5 He was discharged on December 31.
On a strictly numerical basis, three of the four men laid
off favored the Union. It was said at the hearing that in
December there were about 28 or 30 rank-and-file
employees all told. How many of the total favored the
Union this record does not show. Day said 12 or 14
attended the union meeting on December 29; other
witnesses lowered the number to eight or nine . There was
much talking and signing of cards in the plant. About 10
cards must have been signed if only to support the
representation petition filed by the Firemen's Union. If all
the cards that were eventually signed had been placed in
evidence-and the Firemen's Union had them to pro-
duce-there would be a less nebulous basis on which to
predicate the necessary comparison of numbers.
Moreover, there is the matter of relative exuberance, or
overt enthusiasm by this employee or that, which is said to
have come to the Respondent's attention, and which, it is
charged, inspired the discriminatory selection. It is not
impertinent here to consider that Lustig did very little
indeed that would bring him particularly to the attention of
the manager, that no one of the Company ever spoke about
the Union to Paczesny, and that Bingenheimer made it a
point to tell George Metzger he "absolutely" was not
promoting the Union. The two names which are repeated
again and again throughout the record as the most
outspoken in favor of the Union are Braby's and Pascale's.
One asks: if the Company was seeking to ferret out the
ringleaders, why did it discharge Sauser at all, why did it
skip the opportunity to get rid of Braby and Pascale?6
The General Counsel's ultimate contention is not
strengthened by the further argument that the Respondent
did not choose on the basis of seniority. There was no
obligation upon it to do so. A prepared exhibit received in
evidence shows that as of October 2, 1971, there were 36
rank-and-file employees at work; the initial hiring dates of
all but three are indicated. Of these 23 were senior to all 4
of the employees laid off at the end of the year, and 25
were senior to Sauser. As to Lustig, only two men-Tucker
In his direct testimony Sauser also related an incident that occurred
later, in April, after he had been recalled, and while people were signing
UAW cards. As he was chatting with his supervisor , Jackson, on the job, he,
Sauser, volunteered the comment "the last time I got laid off was because of
the union , which I had no part for it if I get laid off this time , I'll really
know what it is for " Repeating the story on cross-examination he prefixed
his own comment with a question by the supervisor , "what do you think
about the union " Jackson appeared as a witness only to deny ever talking
about the Union with Sauser Maybe Jackson 's question , if he did ask it,
was unlawful interrogation as alleged in the complaint Surely it served not
at all to prove illegal discharge of anyone in this case
6 At one point in his testimony Day said that George Metzger once told
him he [Metzger] knew who "they" were, and named Bingenheimer and
Pascale. After the close of the hearing the General Counsel filed a motion to
alter this testimony to have Day put the names "Bingenheimer and
913
and Louy-were junior and each started work on Septem-
ber 9, 1971, the day after Lustig first came on the job. If
anything, the seniority picture tends to support the
Respondent's general assertion that it did consider relative
tenure.
Conversely, the defense is not helped by George
Metzger's insistence that he selected on the basis of relative
seniority within departments. But for a very vague
generality there are no fixed departments in this plant;
employees are constantly shifted from one machine to the
other, from fabrication to assembly as the need arises, and
from one operation to another. Clearly, skills are diversi-
fied and people are used here and there as the season and
the product changes. Metzger even said the departments
are too "interrelated" to be distinguished. This defense
position therefore is not supported by the evidence.
There remains the fact that about a month later the
Respondent did give evidence of antiunion intent in its
unlawful promises to improve conditions of employment in
a deal with the employees in which they agreed to forget
about the Firemen's Union. It did not stop short then of
violating the law when union activities are concerned. Can
it be said it was of like mind a month earlier, when it had
the chance to hit unioneers in the economic layoff? The
riddle reverts to the beginning of this discussion. In every
circumstantial evidence case all the pertinent factors must
be considered. One of them now is that although the
Company did commit unfair labor practices in February
and March, it was initially provoked into this improper
conduct by the employees themselves. It was Day, and
through him the employees, who first suggested the mass
meeting and the individual raises. Viewed in this light the
later offense cannot serve as effectively to prove, retroac-
tively, an earlier determination, independently of employee
desires, to move affirmatively against the Firemen's Union.
On May 1, the Respondent gave raises to no less than 17
employees. Now it knew the UAW representation petition
was pending and that there was going to be an election
within 12 days. This was not routine, ordinary business
practice following established procedures. It was an
extension and part and parcel of the earlier program-all
violative of Section 8(a)(1) of the Act-to wean the
employees away from their prounion resolve. I find the
Respondent committed an unfair labor practice with
respect to each raise it gave that day. And of course the act
of giving the raises at that time absolutely interfered with
the UAW election. The objection filed by that Union in
protest against the results of the election correctly charged
the Company with improper interference. The results of
Paczesny" into Metzger's mouth instead. Counsel for the Respondent
opposed the motion . I deny the motion because it is not consistent with my
recollection of the oral testimony and because it is not in accord with the
total tenor of Day's testimony, in which he several times spoke of
Bingenheimer and Pascale as activists and never once mentioned Paczesny.
In support of his motion the General Counsel states that at the start of the
resumed hearing on July 31, 1972, the Trial Examiner refused to allow him
to recall Day as a witness for the purpose of correcting his testimony of 2
weeks earlier. The statement is false . The truth is that the General Counsel
was permitted to recall Day, that Day did testify a second time that day,
and that he was then interrogated by the General Counsel but was not asked
to change his testimony in this respect . The General Counsel's motion to
reopen the records in order now to give Day a third opportunity to change
his story is hereby denied.
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that election must be set aside and a new one held when in
the judgment of the Regional Director the moment is ripe.
All this was 4 months after the Christmas economic
layoff. Is 4 months too long to justify tying the two acts
together and finding that the illegality of May taints the
ostensible correct layoffs of Christmas? The revolving
riddle in a circumstantial evidence case never stops, and if
in the end an affirmative case in support of the complaint
is proved, it is always a mosaic of little bits pieced together.
These violations of Section 8(a)(1) of the Act were not the
only ones committed. Wallenkamp, the man who stayed
until March 6, testified he one day had "a slight
conversation" with Gnffa, one of the supervisors, in which
Griffa "mutually brought up" the subject of the Union and
said "if it kept up, there was going to be certain things
done that would squelch it more or less . . . certain guys
may be laid off." Wallenkamp could not state exactly when
this took place, before the economic layoffs or later, during
January. It happened after the leaflets were distributed, but
he did not go to the December 29 meeting and did not
know whether Griffa spoke to him before or after that. The
only date that appears on the record is "in December of
1971," and it came from the General Counsel in a leading
question on another subject two pages before the matter of
the Griffa conversation was even mentioned to the witness.
This statement by Griffa has already been found to
constitute an unfair labor practice. But I deem it a weak
reed in support of any overall inference of illegal
motivation in the discharge of four men, particularly as it
may have come after the event. The only statement by a
management agent that can possibly be viewed as a threat
of any kind is a statement imputed to George Metzger by
Day and it is that when George Metzger asked him to be
spokesman for the Company and he refused, Metzger also
said he knew who "they" were, mentioned Bingenheimer
and Pascale, and added "he knew . . . how to handle the
situation." He did not clearly threaten to discharge people,
and he did not dismiss Pascale.
For the rest, the complaint alleges illegal interrogation of
employees. According to Day, at the start of the Firemen
Union's activity George Metzger once asked him "why the
guys would want a union," and on another occasion asked
"why the fellows wanted a union." Lustig said that when
the leaflets were being passed out at the exit, he had one
and Metzger had one, and Metzger asked turn "what is this
union talk." And Wallenkamp said that before the end of
the year Peter Metzger asked him how he "felt about the
Union." There were other such questions, but they came
quite a time after the layoffs. After the UAW election in
May Andrew Metzger asked Sieberlich how he had voted.
The Metzgers denied talking about the Union to their
employees at all but their denials are too general in the
total circumstances, and I cannot credit them. An element
of illegal interrogation in all this there was and I do find
the Respondent did violate Section 8(a)(1) by too much
questioning of employees about their union ideas, a
coercive activity. But I do not believe this testimony proves
anything of substance as to the mass discharging issue. It
reflects the weakest of unfair labor practices . At best all the
questioning can possibly prove is that the Respondent, in
consequence of the interrogation , must have learned
something of the various employees ' attitudes toward
unionism . But the fact of company knowledge is a general
assumption on this aspect of the case anyway, because of
the small size of the plant . The pinpointed questioning
therefore is duplicate evidence going to the same partial
element of proof , if proof it is, of direct animosity towards
the particular four who were selected for layoff.
Another mind, another thought . In the light of the
balancing facts presented by the defense , I cannot discredit
company witnesses because of any "inherent bias," as
suggested in the General Counsel 's brief, nor believe that
the Respondent discharged Sauser , a nonunion man, in
order to give the economic layoff "an air of legitimacy."
Suspicion upon , I find the evidence in its totality falls short
of satisfying the affirmative burden of proof resting upon
the General Counsel and shall therefore recommend
dismissal of the complaint with respect to Bingenheimer,
Lustig , Paczesny , and Sauser.7
The Objection
I find the evidence sufficient to support the objection of
the UAW to the May election . I therefore recommend that
the election be set aside and that a new one be held when
the Regional Director thinks proper.
CONCLUSIONS OF LAW
1. By George Metzger's conduct in promising improve-
ments in vacation , insurance benefits, and wage increases,
by the Respondent's conduct in granting individual pay
raises in February and March 1972 and almost across-the-
board raises to all employees on May 1, 1972, by
Supervisor Gnffa's statement to an employee that employ-
ees might be laid off, by Andrew Metzger's statement that
employees would lose benefits, and by coercively interro-
gating employees concerning their attitude towards unions,
all for the purpose of discouraging union activities, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
The Respondent, Metzger Machine and Engineering
Company, Milwaukee, Wisconsin, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Promising improvements in vacation, insurance
benefits, and wage increases, granting individual pay raises
7 Cf Great Eastern Color Lithographic Corp., 133 NLRB 911. 102 48 of the Rules and Regulations , be adopted by the Board and become
8 In the event no exceptions are filed as provided by Sec 102 46 of the its findings , conclusions , and Order, and all objections thereto shall be
Rules and Regulations of the National Labor Relations Board , the findings, deemed waived for all purposes.
conclusions , and recommended Order herein shall , as provided in Sec
METZGER MACHINE & ENGINEERING CO.
and across-the-board raises, telling employees that em-
ployees might be laid off, telling employees they would lose
benefits, interrogating employees concerning their attitude
towards unions, for the purpose of discouraging union
activities.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their right to self-organization, to form, join, or assist any
labor organization, to engage in other concerted activities
for the purpose of collective bargaining, or other mutual
aid or protection, or to refrain from any and all such
activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its place of business in Milwaukee, Wisconsin,
copies of the attached notice marked "Appendix."9 Copies
of the notice, on forms provided by the Regional Director
for Region 30, after being duly signed by an authorized
representative of the Respondent, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that the notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 30, in
writing, within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply herewith.1°
IT IS HEREBY FURTHER ORDERED that the complaint be
dismissed insofar as it alleges illegal discharge with respect
to any employee.
9 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
is In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read
"Notify the Regional Director for Region 30, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all parties had the opportunity to
present their evidence the National Labor Relat' ns Board
has found that we violated the National Labor Relations
Act, and has ordered us to post this notice and we intend
to carry out the order of the Board.
The Act gives all employees these rights:
To engage in self-organization;
To form, join, or help Unions;
To bargain collectively through a representa-
tive of their own choosing;
To act together for collective bargaining or
other mutual aid or protection;
To refrain from any and all of these things.
WE WILL respect your rights to self-organization, to
915
form , join, or assist any labor organization, or to
bargain collectively in respect to terms or conditions of
employment through International Union United
Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), or any representative of
your choice, or to refrain from such activity, and WE
WILL NOT interfere with , restrain , or coerce our
employees in the exercise of these rights.
WE WILL NOT do anything that interferes with these
rights. More specifically,
WE WILL NOT promise improvements in vacations
and insurance benefits and wage increases, grant
individual pay raises or across -the-board pay raises, tell
employees they will be laid off, tell employees they will
lose their benefits , or coercively interrogate employees
concerning their desires with respect to unions.
You and all our employees are free to become members
of any labor organization , or to refrain from doing so
Dated By
METZGER MACHINE AND
ENGINEERING COMPANY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office,
Commerce Building, Second Floor, 744 North 4th Street,
Milwaukee, Wisconsin 53203, Telephone 414-224-3861.
SUPPLEMENTAL DECISION
THOMAS A. Ricci, Administrative Law Judge: The initial
hearing in this case was held on July 13 and 14, 1972, 2
days during which the General Counsel and the Charging
Party completed their case in chief in support of the
complaint , and on July 31, 1972 , when the Respondent's
defense and the General Counsel's rebuttal were received.
On August 24, 1972 , after the close of the hearing, the
General Counsel filed a motion to correct official tran-
script, listing 10 items called "errors" in the record by the
official stenographer . On September 20, 1972 , a Decision
was issued , in which the General Counsel 's motion was
granted with respect to eight items , and denied as to two,
to which the Respondent objected. By Order dated
February 1, 1973, the Board reversed this ruling with
respect to one of the items in the motion to correct official
transcript and remanded the case for further hearing to
afford the General Counsel an opportunity to litigate the
merits of his motion as to that single item.
The remand hearing was held on February 21, 1973, at
Milwaukee, Wisconsin ; the General Counsel and the
Respondent participated. A brief was filed by the General
Counsel and the Respondent.
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Second Ruling on Motion
The pinpointed testimonial phrase in the record tran-
script which the General Counsel now wishes to rewrite
came out of the mouth of Neal Day , one of the employees
said to have been illegally discharged by the Respondent,
and, in a substantial sense , the principal witness called by
the prosecution . He spoke of a conversation with George
Metzger , an owner of the Company , in which Metzger
referred to two employees as being known union adher-
ents. As reported by the stenographer in the original
transcript made on July 13, 1972 , Day quoted Metzger as
having referred to "Bingenheimer and Pasquale" as union
men. The General Counsel would have it that Day quoted
Metzger as naming "Bingenheimer and Paczesny" instead.
In support of his motion the General Counsel recalled
Day as a witness at the remand hearing . Day now said that
his original statement , as a witness in July 1972, had been
that George Metzger named Bingenheimer and Paczesny,
and that the stenographer must have erred in making the
transcript . No other evidence was offered in support of the
motion that the official stenographer made a mistake. The
Respondent adheres to its opposition to the motion.
It is not a contention of the General Counsel that Day's
tongue slipped at the original hearing, so that the word
"Pasquale" came out of his mouth when he intended to say
"Paczesny ." The motion was not aimed at giving Day an
opportunity ' to change his testimony ; it was strictly to
correct an error said to have been made by the stenogra-
pher . It follows that when the Board granted the motion to
reopen the hearing , it also did so for the same limited
purpose . Had the Board meant to afford the General
Counsel an opportunity to change the critical testimony
itself-which the General Counsel did not ask-it would
have said so. In that event the Respondent would have
been alerted to the possibility that it had to respond to a
different case in chief than the one it insisted it too heard
originally . Indeed, were the object of this remand even a
possibility that a principal witness in support of the
complaint would give damaging testimony different from
what he gave in the first instance , the Respondent would
be entitled to a concomitant opportunity to alter its
defense . In the circumstances , it had a right to hold still
and say nothing.
My recollection is that Day's original testimony was that
Metzger named Bingenheimer and Pasquale as the two
employees he believed favored the Union, or were its
adherents . My attention at all hearings of this kind is
always most sharply focused upon the names of individuals
named in the complaint as having suffered illegal discrimi-
nation at the hands of an employer. I therefore again deny
the motion to correct the official transcript as made.