Schwebel Baking Co.

National Labor Relations Board - Board Decisions

Apr 25, 1980

249 N.L.R.B. 35 (N.L.R.B. 1980)

SCHWEBEL BAKING COMPANY 35
Schwebel Baking Company and Jack E. Walsh. Case
8-CA-1 1313
April 25, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On September 19, 1979, Administrative Law
Judge Thomas E. Bracken issued the attached De-
cision in this proceeding. Thereafter, the Charging
Party filed exceptions and a supporting brief, and
Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
THOMAS E. BRACKEN, Administrative Law Judge:
This case was heard before me in Youngstown, Ohio, on
July 10-12 and 24, 1978. The charge was filed by Jack
I The Respondent has 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 resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
I In adopting the Administrative Law Judge's conclusion that Re-
spondent did not violate Sec. 8(aX3) and (I), Members Penello and
Truesdale agree with the Administrative Law Judge that, for the reasons
stated by him, Chatham Manufacturing Company, Inc., 221 NLRB 760
(1975), enfd. 538 F.2d 323 (4th Cir. 1976), and Precision Castings Compa-
ny, 233 NLRB 183 (1977), are distinguishable from the instant case. They
additionally note that they previously have indicated their disagreement
with Precision Castings, as stated in their separate dissenting opinions in
Gould Corporation, 237 NLRB 881 (1978), enforcement denied 612 F.2d
728 (3d Cir. 1979) (amended March 13, 1980).
Member Jenkins dissented in Stop d Shop, Inc., 161 NLRB 75 (1966),
cited by the Administrative Law Judge in support of his dismissal of the
8(a)(3) complaint. Member Jenkins notes that while Respondent in that
case did have a lawful reason to discharge the union steward, the dis-
charge was, in his view, in fact motivated by a desire to discourage union
activity. Member Jenkins finds in this case no corresponding pattern of
behavior by Respondent indicating that the asserted reason for discharge
was pretextual.
249 NLRB No. 5
E. Walsh on August 25, 1977, and the complaint was
issued on February 7, 1978. The issue in this case is
whether the Respondent, Schwebel Baking Company,
discharged Jack E. Walsh and Henry George Budaker
on August 17, because of their efforts to carry out their
duties as shop stewards of Bakers' Union Local No. 19,
in violation of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended.
Upon the entire record, 2 including my observation of
the demeanor of the witnesses, and after due considera-
tion of the oral argument of the General Counsel, and
the briefs filed by the Charging Party and the Respond-
ent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Company, an Ohio corporation, is engaged in the
production of bread and other bakery products at its
bakery in Boardman, Ohio, where it annually ships prod-
ucts valued in excess of $50,000 directly to points located
outside the State of Ohio. The Company admits, and I
find, that it is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Bakers' Union Local No. 19 is a labor organization
within the meaning of Section 2(5) of the Act.3
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For a number of years, the Respondent has operated a
commercial bread-baking company, producing white
bread, hearth-baked bread (hard crust), and wiener and
sandwich buns. Since at least 1958, when Anthony A.
Santangelo became the union steward, the Company has
been a party to collective-bargaining agreements with a
Union. In 1972, there was a merger of Local 1194 and
Local 19, with Local 19 becoming the surviving union,
and the bargaining representative of the Respondent's
bakery employees. In 1972, Santangelo ceased being a
steward. Henry George Budaker served as a steward
from 1971 to 1974, and from October 1976 until his dis-
charge in August. Jack E. Walsh served as shop steward
from 1972 to 1974 and from October 1976 until his dis-
charge. At the time of the discharges, there was a third
shop steward, Raymond Cmil, Jr., who had served since
1975. All stewards were elected by members.
On November 7, 1975, the Respondent, as a member
of the Bakery Employers' Labor Council, entered into a
All dates are in 1977, unless otherwise stated.
2 The transcript of the hearing contains various errors, particularly in
relation to times of events. In the absence of any motion to correct the
transcript. I have not undertaken to do so on my own motion, and be-
lieve that the transcript of the testimony of the witnesses, coupled with
the exhibits, is sufficiently accurate to permit the Board to carry out its
statutory functions.
3 In the complaint, the Union's name is set forth as Bakery & Confec-
tionery Workers' Union, Local 19, but in the collective-bargaining agree-
ment received into evidence as Jt Exh I the name is set forth as Baker'
Union Local No 19.
' The complete name of this union does not appear in the record
SCHWEBEL BAKING COMPANY
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining agreement with Local 19, that was
effective from June 8, 1975, until July 2, 1977. This
agreement was in effect on August 17, as admitted by
the Charging Party in his brief, although the mechanics
used to extend it are not set forth in the record. Ariticle
111, section 13, thereof, in pertinent part, sets forth the
following right of a steward:
The privilege of stewards to leave their work with-
out loss of pay is extended with the understanding
that the time will be devoted to the prompt han-
dling of grievances and will not be abused.
Article VII, entitled "Job Security," covers the dis-
charge of an employee, as follows:
The Employer shall give one (1) week's advance
notice to the Union of its intention to discharge any
employee or lay off any employee except in case of
fighting, drunkenness from alcohol or drugs, dis-
honesty, disorderly conduct, and insubordination.
The question of whether or not such dismissal is
without just cause may be referred by the Union to
the Grievance Committee and to arbitration pro-
ceedings as provided in Article XV hereof.
The record is clear that, during the years in which
Walsh, Budaker, Santangelo, and Cmil had served as
stewards, they were allowed to leave most job assign-
ments to try to handle an employee's grievance, prior to
writing up a written grievance. George Green, the direc-
tor of manufacturing, admitted that stewards could leave
their work stations to handle a grievance if they were
able to do it in a few minutes. The record is also clear
that, when a steward left his job assignment to handle a
grievance, he secured a relief, if he was operating auto-
matic machinery that could not be left unattended.
Walsh testified that he never had any problem at any
time leaving his work station to handle a grievance. Bu-
daker testified that he had never been denied the right to
leave his station to handle a grievance, nor had he ever
been disciplined for leaving and handling a grievance.
Santangelo also testified that he had never been denied
permission to leave his work area to handle a grievance.
B. The Events of August 175
1. Prior to 12 p.m.
On the morning of August 17, Anthony D. Santangelo
punched in at 8:42 a.m., to begin his duties as a pan
stacker. 6 Santangelo was a veteran employee, having
commenced working for the Company in 1957. In
March, an automatic pan stacker had been installed, but
it was not functioning on this date, and Santangelo was
' As will be evident in setting forth the testimony of General Counsel's
witnesses, and the testimony of the Respondent's witnesses, there are
sharp differences as to the times that various events occurred during this
day. While some of these differences are not material, others are, and
these will be subsequently resolved herein.
I Unlike most factory production employees who commence work as a
body at the same time, shut down for lunch as a group, and leave as a
group at the same time, these bakery employees commence work, go to
lunch, and leave at staggered hours, so as to fit their work periods into
the baking schedule.
required to stack the pans on the conveyor belt by hand.
Shop Steward George Budaker who had punched in at
9:28 a.m., was operating a divider machine on the hearth
goods line, when he was approached by George Green,
the director of manufacturing. Budaker testified that
around 10:30 a.m. Green told him that he was having
trouble with Santangelo, that Santangelo was refusing to
do his job, and that if he did not do it, he was going to
fire him. Budaker and Green then went over to the pan
stacker, and, after some discussion, Green told Santan-
gelo that if he did not do the job the way he wanted it
done, he was going to fire him.' Shop Steward Jack
Walsh, who had punched in at 8:59 a.m., testified that
Budaker told him, about 10:30 a.m., that Green had in-
formed him that unless Santangelo put the pans on the
conveyor belt faster, he was going to fire him.
Budaker further testified that, about 11:30 a.m., he had
a break, and walked to the rear of the bakery to the
bread oven, and talked to its operator, Douglas Chan-
dler. At this time, Richard Schneider, the plant produc-
tion superintendent and next in authority to Green, ap-
proached them and they discussed Santangelo's job per-
formance. Schneider concluded the conversation by stat-
ing that Santangelo was not doing his job the way man-
agement wanted it done, and if he did not do it manage-
ment's way, "we are going to fire him."
During this period, Santangelo wanted a relief so that
he could go to the bathroom. He testified that he was re-
lieved "in and around noon." Walsh testified that he saw
the relief man relieve Santangelo about 11:30 to 11:45
a.m.
Green testified that at approximately 11 a.m.,
Schneider approached him about production problems in
Santangelo's work area, and that he and Schneider then
went to that production area.8 Here, Green told the di-
vider operator 9 to run the machine at its established
speed at all times, and also told Schneider to keep the
production flow going. At approximately 11:30 a.m.,
Green returned to the same production area, and in-
formed Budaker and Santangelo that, if Santangelo could
not keep up, he would be fired. At this same time, he
also told Schneider, that, if the line had to shut down
again, he should send Santangelo home.
2. 12 to 12:30 p.m.
a. According to General Counsel's witnesses
Santangelo testified that he left the bathroom "around
noon" and returned to his work area when Schneider
told him that he wanted to talk to him; Santangelo in-
formed Schneider that he was going back to work, and
Schneider replied by telling him, "I want you to go over
there and punch your card out." Santangelo then asked
him what for, and was told for not keeping up with pro-
duction. Santangelo further testified that this occurred
"something after twelve."'° Santangelo then asked
Schneider if he really meant it, and was told yes, and
I Santangelo placed this conference at 10:45 until after 11 a.m.
a Schneider corroborated Green's testimony throughout the hearing.
a A divider operator receives dough from the mixing department, and
operates a machine that cuts the dough into proper weights.
IO The discharge of Santangelo is not an issue in this case
SCHWEBEL BAKING COMPANY 37
again was told to punch his timecard out. Santangelo
then waved his hand to Budaker, who "was looking in
my area," and motioned for him to come over. " When
Budaker arrived, Santangelo left without any conversa-
tion, and went to Jack Walsh's work station. Walsh oper-
ated two mixers for the white bread line. According to
Santangelo, Walsh told him that he would be over as
soon as he kicked the dough out of the mixer. When
asked on cross-examination what time this was, Santan-
gelo replied, "Around after 12:00, 12:15, 12:30." Santan-
gelo then went back to his work area, and saw
Schneider, Budaker, another employee, John Homrigou-
sen, who was now putting pans on the conveyor. He fur-
ther testified that Walsh "came right in a matter of a
minute or so, he came right behind us." When Walsh ar-
rived, Schneider left, and came back with Green.
At this time, according to Santangelo, Green,
Schneider, himself, Budaker, and Walsh were present.
When asked if anybody said anything, he replied,
"George Green says yes, that's right, he's fired." When
Walsh proposed that they discuss it, Santangelo testified
as follows:
George Green told Jack Walsh, you got a dough
due out at 12:40 and Jack says, I'm over here on
union business on behalf of Tony and George says
Jack, go back to work or you are fired. Jack says,
I'm on union business and George repeated it again
and then he said [Jack], you are fired.
Santangelo then testified that about 5 minutes before
that, Walsh had told him to go back to work, and that
he had attempted to do so. However, Green had come
right behind him, and pushed the pans out of his hand,
and Schneider then told Green to "call the cops." San-
tangelo stated that it was shortly after 12:30 p.m. when
Walsh was fired by Green a second time, and that he
himself left 30 to 40 seconds later, and went to the bak-
ery's lunchroom.
Budaker testified that "around noon," Santangelo mo-
tioned for him to come over to the pan stacker area, and,
when he arrived, Santangelo told him that he had been
fired by Schneider. Santangelo then went to get Walsh,
leaving Budaker and Schneider near the stacker. Budaker
then asked Schneider to get the person who had given
Schneider the order to fire Santangelo, fixing this time as
"12:00 or shortly after 12:00." Budaker then claims he
went back to his work station to check his job, and re-
turned at "12:15, 12:20 roughly."
Budaker testified that when he walked the short dis-
tance back to the production area, Santangelo had re-
turned, Walsh was coming from his mixer, and Green
and Schneider were present. Budaker then asked Green
why Santangelo was fired, and was told that it was be-
cause he was not doing his job. Walsh then told Santan-
gelo to go do his job and show the group what the prob-
lem was. When Santangelo started to do his job, Green
" Budaker's machine was located in the same production area that
Santangelo worked in, and both employees' work stations were readily
visible to the other. Walsh's work station was separated by a wall from
Santangelo's and Budaker's work stations, with a doorway set therein,
and was about 30 feet from the pan stacker
stopped him. When asked what happened then, he testi-
fied as follows:
A. Then George Green told Jack Walsh to go
back and do his job.
Q. Did Walsh say anything?
A. Walsh said, I'll return as soon as I am finished
handling this grievance.
Q. Was there any reply by Green?
A. Not to my best recollection, no, Green said
there is no problem, Tony is fired. I want you to go
back to your station or you are going to be fired.
Q. Did Jack say anything?
A. Jack repeated himself that he was handling a
grievance and he would return as soon as he was
done.
Q. Did Green say anything?
A. Yes, George Green said if you are not going
back now, you are fired.
Q. Then what happened?
A. George Green left and Dick Snyder left.
Q. Approximately what time did George Green
and Dick Snyder leave?
A. I'd say 12:15, 12:30.
Q. Then, what did you do?
A. I went back to check on my machine to make
sure everything was set up right and still running
properly.
Q. Then what happened?
A. I looked back over towards Tony's work sta-
tion and Mr. Green had returned.
Q. Continue?
A. I walked back over there to Tony's station
and Mr. Green was telling Jack Walsh again, he
says, you will have to go back and throw out the
dough.
Q. He was telling Jack Walsh what?
A. Go back and throw out the dough and have
the dough out on time.
Q. Did Jack say anything to that?
A. Jack repeated himself. He said I am on union
business and I will return as soon as I am done.
Q. Did George Green say anything?
A. George Green said well, if you are not going
back you are fired.
Q. Approximately what time is this?
A. 12:35
Walsh testified that the time at which Santangelo came
to him in the mixing room was 12:15 p.m. After being
told by Santangelo that he had been fired by Schneider,
and told to punch his card out, Walsh advised Santan-
gelo that he had one more dough to kick out of the
mixer,t 2 and then he would come over. Walsh testified
that he kicked the dough out of the mixer at 12:20 p.m.,
marked his dough sheet, that the next time dough would
be due out was 12:40 p.m., so that he would not be re-
quired to be back at his mixer until 12:40. He then
walked 30 feet to the pan stacking area where he said the
following employees were present: Santangelo, Budaker.
12 The mixer was a stainless steel drum, about 4 to 5 feet in diameter
and 5 feet high
SCHWEI3EL flAKING COMPANY
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joe Diamond, Timmy Best, and Jim Donnelly,' 3 as well
as Green and Schneider. General Counsel then asked
Walsh to tell again what Green said to him, if anything.
A. He told me that I should return to work.
Q. Did you say anything to George Green?
A. Yes, I did.
Q. What did you say?
A. I informed Mr. Green that I was there per-
taining to union business on Tony's behalf.
Q. Did you tell him anything else?
A. No, I didn't
Q. Did George Green say anything to you?
A. Yes. He informed me that I was fired.
Q. Did he say anything else to you?
A. Yes. He repeated it three times. He repeated it
three different times.
Q. What did he repeat?
A. Return to work, return to work, return to
work.
Walsh testified that Lis best estimate of the time he was
fired was 12:20 p.m. Then, a "few" minutes after he was
fired, he told Santangelo to go back to work, and, when
Santangelo tried to put pans on the conveyor belt, Green
slammed the pans down, and told Santangelo that he had
been fired. Green then informed Schneider that he
should call the police. Walsh testified that he did not
hear Green at any time tell Schneider to punch Santan-
gelo's card out, but that he did hear Schneider tell Green
to punch his, Walsh's card out. Walsh further testified
that when Green fired him, Budaker did not say any-
thing.
General Counsel produced testimony from two rebut-
tal witnesses, Jim Donnelly and Tim Best, who both
worked in the tank area, near the pan stacking area, and
were friends of Walsh. Donnelly testified that, shortly
after noon, he saw Green, Schneider, Santangelo, Bu-
daker, and Walsh together, after Santangelo had been
fired. When asked by General Counsel what he heard, he
replied, "mostly just arguing back and forth. Everybody
was talking at one time. You really couldn't hear much
of what they were saying." When asked if he heard any-
thing that was more specific than just arguing, he re-
plied, "Yes, I heard Mr. Green tell Jack Walsh he was
fired." He further testified he heard it about 12:20 or
12:25 p.m., at a distance of 12 feet away, as he was walk-
ing past the group to the timeclock.14 After he heard
this, he punched his card out, at "some time around"
12:25 p.m., and went home.
On cross-examination, Donnelly testified that he and
Best punched out at the same time, and that he was
"sure" and "positive" of this. He was then shown Best's
timecard which was punched out at 12:37 p.m., and re-
plied that he too punched out then at 12:37 or 12:38 p.m.
When shown his own timecard, with a punch-out time of
' Neither Santangelo nor Budaker testified that Best or Donnelly was
in this group
14 Both Donnelly and Best commenced work at 4:30 am. with a
scheduled quitting time of 12 30 p.m
lb All three of these employees were mixers, Jack Walsh, white bread,
Richard Zeloniz, hard rolls, and David Brill, buns
12:50, he admitted that his previously stated punch-out
time was incorrect.
Best testified that he saw Walsh arrive in the area at
12:15 or 12:20 p.m., and that he heard Green say some-
thing to Walsh, while at a distance of 5 feet away. He
then answered General Counsel's questions as follows:
Q. To the best of your knowledge and recollec-
tion, what did he say?
A. He asked him what he was doing.
Q. Do you recall what if anything Jack Walsh
said?
A. He said he was on union business.
Q. Did George Green say anything?
A. Told him to return to his work station.
Q. Did Jack say anything?
A. He repeated he was on union business.
Q. Did George say anything?
A. He said you are fired.
Best testified that he then stayed around a few minutes
and walked up to the lunchroom, "because that is where
everybody else was going, so I decided to follow." He
stayed in the lunchroom for 5 to 10 minutes then
punched out at 12:37 p.m., as he saw a few people being
fired.
b. According to the Respondent's witnesses
Schneider testified that he discharged Santangelo
around noon, as he returned to the production area from
the men's room, because the way he had been feeding
pans on the conveyor was slowing down production.
Schneider told him that he wanted him to go home, and
to punch his card. At this, Santangelo asked him if he
was serious, and when Schneider answered that he was,
Santangelo hollered to Budaker, "George, Dick is send-
ing me home, what do you want me to do." Budaker
then walked over to Schneider and told him that he
"better see Green and get this straightened out right
now, because if Tony goes we all go." Schneider then
told Budaker that he was running the shop and that
Tony was to punch his card and go home. Schneider,
when asked if there was a reply, testified: "George im-
mediately then, he hollered Jack, he said shut it down.
He says, Richard, shut it down. He says, Dave shut it
down." 5 With that, Schneider went immediately to
Green's office, and informed him that he had fired San-
tangelo, and that "they were shutting the shop down.
Green went into Paul Schwebel's office for a minute or
so, and then Schneider and Green proceeded to the pro-
duction area arriving at about 12:05 or 12:06 p.m. Here
they met Walsh, Budaker, and Santangelo.
Green testified that when he arrived at the area, he
verified Schneider's decision to fire Santangelo' 6 and
Walsh then informed him that there would be no more
' At a hearing on December 6, before a referee of the Board of
Review of the Ohio Bureau of Unemployment Services, involving the
discharge of Walsh, Green had testified that Schneider had come to him
at 12 noon and informed him that Budaker had told him there would be a
walkout if Santangelo were fired, and that this was before Santangelo
was fired.
SCHWEBEL BAKING COMPANY 19
production until Santangelo was put back to work.
Green then told Walsh it was specifically against the
contract for the employees to engage in a work slow-
down or stoppage, that there was a grievance procedure
they should follow, and that they should go ahead and
file the grievance. Walsh replied that, "We don't have a
contract, there is no grievance procedure." Green stated
that there was a contract, as a "continuance clause" in it
kept the contract in effect. '7 It was at this time, Green
testified, that Walsh told Santangelo to go back to work,
and when Santangelo picked up a pan, Green put his
hand on it, told him he was fired, and then told
Schneider to get his card and punch it out. Green ad-
mitted that during this conversation Walsh told him that
he was on a break, and, as Green understood the situa-
tion, he was on a break.
Schneider testified that he immediately went to the ti-
meclock and punched Santangelo's card out at 12:09 p.m.
as shown on the Respondent's Exhibit 3, Santangelo's ti-
mecard. Schneider then came back to the group in the
production area, and Green told him to go see what time
the next white slice dough was due out of the mixer.' 8
Schneider then went to the adjacent mixing room,
checked Walsh's dough schedule, and returned to the
production area about 12:10 or 12:11 p.m., where he told
Green that the next dough was due out at 12:40 p.m.' 9
Green then told Walsh that he had a dough due out at
12:40 p.m., and that he expected him to get it out at that
time, to which Walsh replied, "George, I can't hear
you." Green again told Walsh that there was a dough
due out at 12:40 p.m., and that he expected it to be
kicked out, and again Walsh answered that he could not
hear him.2 0 Green next told Santangelo several times to
leave the premises as he had been fired, and when San-
tangelo refused, Green told Schneider to call the police.
Green and Schneider then proceeded to Schwebel's
office to discuss the situation, about 12:15 or 12:20 p.m.
3. After 12:30 p.m.
a. According to General Counsel's witnesses
Walsh testified that at approximately 12:30 p.m., he
left the production area where he had been discharged,
and went to the bread wrapper area to try to find Roy
Cmil, the third steward. Not finding him there, Walsh
went to the lunch area and there ran into Cmil where he
told him that he and Santangelo had been discharged.
Walsh described the conversation as follows: "Ray and I
discussed the matter. It was a mutual agreement that we
should call the Union Hall and notify them that he had
been fired and I had been fired also." They then pro-
ceeded to the conference room where Cmil called Local
1? Walsh denied that Green mentioned a grievance procedure or that
there was a contract, or that the contract procedures should be followed.
L On this date the Company was making 7,200 loaves of sandwich
bread per hour.
'1 While Santangelo denied remembering that Green asked Schneider
to check the dough sheet, Budaker admitted that Green and Schneider
discussed the dough schedule, and that Schneider left the production area
to go through a door that led to the mixing area, where Walsh kept his
dough sheets, and then returned to the pan Stacking area about 12:35
p.m.
20 Walsh denied that he said, "I can't hear you
19 in Cleveland. Upon completing the telephone call,
Cmil told Walsh that he had talked to a business agent,
and, if any members had been fired, to keep them in the
lunchroom until the union officials arrived.
Following the telephone call, Walsh and Cmil attempt-
ed to leave the room, when Green and Schneider ap-
peared. Green stuck his right arm directly across the
door jamb, and Cmil ducked under Green's arm, fol-
lowed by Walsh. The two employees walked down the
dock, followed by Green, who was screaming at both of
them, "Return to work you are fired, return to work you
are fired." Walsh did not say a word but continued
down the dock on through the double door that led to
the production area. At this time, Green ran directly
around in front of him and, "He told me that I had been
fired." This occurred at 12:45 or 12:50 p.m., Walsh did
not say anything in reply, and went to the bathroom,
then to the lunchroom. When he arrived in the lunch-
room, he found 10 to 15 other employees there.
Finding Santangelo still in the lunchroom, Walsh
placed his grievance book on the table and attempted to
fill out a grievance for him, at roughly I p.m. The police
arrived while Walsh was trying to write the grievance.
However, Green walked into the lunchroom and in-
formed Walsh "that I was fired again." At that time
Walsh was aware that "There were quite a few people
fired."
Budaker testified that following Walsh's discharge at
12:35 p.m. in the pan stacking area, he had returned to
his work station, ran one more dough, cleaned his ma-
chine for the next dough, and at 12:45 p.m. told his crew
that, as soon as they were done with the dough, they
could take their lunch or break. Budaker then went to
the lunchroom at 12:55 p.m. for his lunchbreak. Here, he
met Walsh about I p.m., and they then walked to the
production office, to check if Walsh's and other employ-
ees' timecards had been punched out. Unable to find the
timecards, they then decided to go to the bread wrap-
ping area to talk to the other steward, Cmil. The two
stewards proceeded through the doorway near the pro-
duction office toward the wrapping area, when Green
came the other way at approximately 1:40 p.m. Accord-
ing to Budaker, Green grabbed him by the arm and said,
"Wait, I want to talk to you." Budaker then testified as
follows:
A. Well, I told George, well, talk to me, you
don't have to grab me to stop me. He told me, he
said you have to go back to work. I told him I
would go back to work as soon as I was done with
this problem, handling this grievance.
Q. What did George Green say to that, if any-
thing?
A. He told me there is no grievance.
Q. What did you say?
A. I told him I said, 20 people, maybe more are
fired, I think that is a heck of a grievance.
Q. What did he say?
A. He said I want you to go back to your job.
Q. What did you say, if anything?
A. I said I will go back as soon as I am done
with this and if I do go back, there is nothing to do,
SCHWEBEL BAKING COMPANY 3
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you fired my whole crew. You've fired my mixer,
what would you like me to do when I go back?
Q. Did he explain what he wanted you to do?
A. He said he didn't care what I did, sweep the
floor, sit down, it does not matter, just go back.
Q. What did you say if anything?
A. I told him, well, I can't do that until I handle
this grievance.
Q. Was there any further conversation between
you and Mr. Green at that time?
A. Well, he told me I was fired.
Budaker testified that after being fired he tried to talk to
Green some more, both were a little bit loud, when, "He
put his clipboard on my chest there and wrote my name
there and repeated that you are fired and pushed me
away with his clipboard." Budaker then took Green's
arms and moved them away, and left the area. Walsh tes-
tified that he was standing right alongside of Budaker
when this confrontation took place, and corroborated his
testimony in large extent, but did testify that there was
no pushing or shoving at all.
Charles F. Hart, who had been putting on pans that
day, was called by the General Counsel, and testified pri-
marily on the incident concerning Budaker's discharge.
Hart stated that he was coming through an aisleway for
the timeclock in the production area, going towards the
wrapping area, when he came upon Green and Budaker
facing each other. He was sure that Schneider, Cmil, and
Bob Stricko, a foreman, were also present, but he was
not sure if Walsh was there or not. Hart said he was 4
feet away from the back of Green, who was also facing
the wrapping area. Budaker was facing Green, with all
three parties in a straight line. Hart testified that Budaker
told Green that he was on union business and Green told
him to go back to work and, when Budaker said no,
Green told him that he was fired. At this time the argu-
ment got "heated," and Stricko and Schneider, who
were about 10 feet away, "got in and tried to separate"
them. On cross-examination, when Hart was asked if he
saw Green place a clipboard on Budaker's chest, he re-
plied, "I saw him writing something. I was standing
behind Mr. Green so I couldn't make out what was
going on." Hart further testified that he did not see Bu-
daker push Green, that it was just a heated argument.
b. According to the Respondent's witnesses
Green testified that, after he left the production area
and went to Schwebel's office, he got Santangelo's
record out and talked things over with Schwebel for
about 20 minutes. Believing that there was no more
dough to mix, and that the bakery would soon be out of
production, the decision was made to call the police and
have Santangelo removed. The police were called by
Schwebel at 12:44 p.m., as set forth in the Respondent's
Exhibit 17(b), the Boardman police call record. 2t Green
and Schneider then went to the dock, met the police
21 The same call record states that the police arrived at 12:51 p.m and
left at I:10 I credit this time of 1:10 p.m. over the 1:20 p.m. set forth on
Resp. Eh 17 (a), as that is a radio log summary of many calls received
hy the police, with the times obviously taken from the times set forth in
the individual call record slips.
upon their arrival, went to the lunchroom with them,
and pointed out Santangelo. After the police had some
discussion with Santangelo, Budaker, and Cmil, Santan-
gelo agreed to leave and walked out with the police.
Green then wanted to get production going, so he
went looking for the employees to tell them to return to
work. The firEt employee he met was David Brill, and
he told him to go back to his work area, and be prepared
to throw out a bun dough. When Brill refused to do it,
Green fired him. Green then went to his office and
picked up a clipboard so that he could record the events
that were going on. On leaving his office, about 1 p.m.,
Green met Cmil and Walsh coming out of the thrift
store. Green told Walsh that he had a dough to kick out,
and that he wanted him to go to his work area, to which
Walsh replied, "I can't hear you." Walsh walked past
Green, Green followed him and Green told him that he
had a dough to kick out, to return to his area and kick
out a dough or he would be fired. Walsh again replied,
"I can't hear you," and then Green told him he was
fired. Green asked Cmil if he was engaged in a work
stoppage and, when told that he was not and that Stricko
had relieved him to take care of union business, Green
accepted this answer.
Green conferred again with Schwebel, informing him
that he had fired Walsh. He then went to the lunchroom
about 1:15 p.m. , where he saw "quite a few" people. He
told everybody who was not on lunchbreak to leave the
lunchroom and return to their work stations. When there
was no general movement, Green called the names of
George Semer, Bryan Svetlack, Charles Hart, and John
Zomida, and when they refused to return to work, he
fired them. He then went into the shop to check its
status.
About 1:45 or 1:50 p.m., Green went looking for Bu-
daker to tell him to return to work, and saw him in the
dock area about 15 feet ahead of him, heading towards
the wrapping area. As Green called to him that he
wanted to talk to him, Budaker turned around and
charged at him with his hands in the air hollering, "don't
you tell me what you are going to tell me," and that he
would knock Green's head off. He then pushed Green
into the open swinging doors of the aisleway, knocking
his head against the door. At this time Green told him,
"Now you are fired." With that, Budaker grabbed and
shoved Green, Schneider got in between them, and
Green escaped to the adjacent production office. Green
denied that he put the clipboard on Budaker's chest.
Schneider, who was with Green, corroborated Green's
testimony as to this confrontation, and further testified
that Stricko was present, and both had held Budaker
back from further contact with Green.
Robert G. Stricko, the production supervisor in the
wrapping department, testified that as he came from the
wrapping area he saw Budaker facing Green in the hall-
way, between the production office and the wrapping
area. It was between 1:45 and 2 p.m. and Stricko was
about 10 feet away. He saw Green hit the door with his
back, roll off the door, and then go into the production
office. Stricko "stopped" Budaker, and then went to the
production office, where he stood in the doorway with
----
SCHWEBEL BAKING COMPANY 41
Schneider, blocking any entry from the "group" who
followed.
Cmil, who was working as a bread wrapper operator
on August 17, punched in at 10:55 a.m. He testified that
he went to the lunchroom on a break at approximately
12:30 p.m., where he ran into Walsh. Walsh told him
"they had fired Tony Santangelo and they were getting
everyone into the lunchroom." 22 Cmil then asked Walsh
if he had called the Union in Cleveland and informed
them that the Company had fired an employee, and was
advised that he had not. Cmil then suggested that they
call Cleveland and tell them what was going on.2 3 Cmil
and Walsh then proceeded to the thrift store and Cmil
telephoned the Union, finally talking to a business agent:
"I explained that they had fired Tony Santangelo and the
employees were beginning to sit down in the lunch-
room." He was told business agents were in the area, and
would be there shortly.
Cmil left the store and went back to his wrapping
area, as he knew bread would be down shortly. He then
asked his supervisor, Stricko, if he could have someone
to relieve him, because he had union business to attend
to; Stricko replied that he would watch the machines
until he could get a relief.24 Cmil then left and went
back toward the lunchroom where he saw Walsh and
Budaker. At this time Cmil saw the police leave with
Santangelo, and he then suggested that they go see
Schwebel and try to get things straightened out before
they got out of hand. Cmil and Walsh did go to Schwe-
bel's office, but he would not meet with them. Cmil and
Walsh then went to the telephone, and Cmil again called
the Union in Cleveland, and was told that the officials
were on their way. Cmil did not know at this time that
Walsh had been discharged. Cmil and Walsh then started
to leave the thrift store, when they encountered Green
about I p.m. Cmil then testified as follows:
George blocked the door and put his hands across
the door. He told Jack he had a dough due out, go
back in the mixing room.
Jack said he couldn't hear him. I kind of got out of
the room and went under his arm. Jack kind of got
around him someway and George got around in
front of us again and he told Jack, you have a
dough due out, go back in the mixing room and
Jack said I can't hear you George.
We moved a little further on the dock, just a few
steps at a time we were going. George said for the
third time, Jack I want you to go back to the
mixing room you have a dough due out. Jack says I
can't hear you. George said you are fired Jack.
2' The Charging Party pointed out to Cmil that in his prehearing affi-
davit he had stated "He [Walsh] responded that the men had walked off
the job in protest of the firing of Tony Santagelo earlier that day." I do
not find this to be a contradiction of Cmil's testimony above but find
each statement to be a logical adjunct of the other.
's Cmil had been elected steward in January 1975, and served in that
capacity until June 1978, when he became a production supervisor.
" Stricko corroborated Cmil's testimony as to this relief, and placed
their conversation as having occurred between 12:45 and I p.m.
Cmil also testified that he considered himself and
Walsh to be engaged in union business when the two
telephone calls were made to Cleveland, and when they
went to speak to Schwebel.
4. Stoppage of work
The Respondent called various rank-and-file employ-
ees as witnesses, and produced much testimony in order
to try to prove that Walsh and Budaker had called a
wildcat strike after Santangelo was fired. However, it
must be kept in mind that the Company does not claim
that either Walsh or Budaker was discharged because
they called an unauthorized strike. It is the Company's
position that Walsh was fired because he refused to obey
a lawful order to return to work, and Budaker was fired
because he assaulted Green. Even so, the events relating
to a shutdown after Santangelo's discharge are material,
as they set the atmosphere in which both of these em-
ployees were discharged, and will be briefly reviewed.
Edward Kubis was a bread divider operator on
August 17, on the line for which Walsh was the mixer.
Kubis, whose work station was the closest to Walsh's
mixer, testified that Walsh, accompanied by Budaker,
came over to his job station and "told me to run out the
dough, and we were going to meet in the lunchroom."
Kubis then ran out all the dough he had. He did not fix a
time for this conversation, but did testify that it was
before he went to lunch at 12:46 p.m., the time his time-
card shows that he punched out for lunch. Kubis also
testified that after his lunch, which ended at 1:07 p.m., as
shown on his timecard, Budaker and John Zomida came
up to him and said to him that "they were all going to
walk out" and to come back to the lunchroom. Kubis
did this, but when he heard Green say that anybody who
left the building was automatically fired, returned to his
work station.
On cross-examination, the Charging Party pointed out
to Kubis that at the hearing before the Ohio Unemploy-
ment Compensation Board when he was asked "Did
anyone direct you to go into the lunchroom after you
had finished running your product," he had answered,
"No." He also admitted that at the same hearing when
asked if he had any conversations with Walsh or Bu-
daker or both on August 17, he had mentioned only one
conversation and that was with Budaker. I did not find
Kubis to be a credible witness, and I do not credit his
testimony.
David Brill was the bun mixer on August 17, and he
testified that he stopped mixing sometime around 10:30
a.m. because his shop steward Budaker simply told him
not to throw out any more dough. He stayed by his ma-
chine for a while, and then went to the lunchroom about
11:30 to see what was going on. Later, when Brill re-
fused Green's order to return to work, he was dis-
charged. He was subsequently reinstated and discharged
again in November for reasons not related to this case.
Brill was a stolid, impassive witness who had no obvious
reason to favor the Respondent, and I credit his testimo-
ny that Budaker told him not to throw out any more
doughs. His asserted time estimates are obviously out of
line, but I do not find that these estimates affect the sub-
stance of his testimony.
SCHWEBEL AKING COMPANY
42 L)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
John J. Sebest, who worked in the bagging depart-
ment, testified that he returned from his lunchbreak at
12:23 p.m., as shown on his timecard. Some time thereaf-
ter, Budaker told him to shut his department down. A
"little later" Sebest had a conversation with Walsh,
which he describes as follows: "I told Jack that George
wanted us to shut down but I said I only [have] two and
a half years before retirement and George Green said
anybody that walks out of the bakery is going to be
fired. I was not going to walk out." He then quoted
Walsh as saying, "Do what you have to do."
Douglas Chandler, the bread operator, testified that
Budaker did not tell him to go to the lunchroom, he only
made a "mere suggestion" that he do so. When Chandler
returned from lunch at 1:17 p.m., he felt that there was a
strike because his divider operator was not working. He
also told Budaker that he was not going to leave his area
with bread in the oven, that there would be no damage
and, if he shut the oven down, it would be done proper-
ly. He stated that Budaker agreed.
George Semer was a molder operator on the hearth
bread line, with the other members of his crew being:
John Zomida, Charles Grubber, and Budaker. Sometime
after Santangelo was fired, Semer stopped operating his
molder because, "We didn't have any dough. We ran out
of the dough. George [Budaker] told us to go into the
lunchroom." Semer's best estimate of the time he went to
the lunchroom was around 12 p.m. Semer refused to
return to work and was fired.
Richard Zeloniz, the hard roll mixer, testified that he
knew that Santangelo had been fired and that Walsh and
Budaker were intervening for him as shop stewards. He
was by his mixer and saw that "nobody brought out a
trough back" and realized it was 12:30 p.m. He asked
Budaker what was happening, and was told that "most
of the guys are up in the lunchroom." Zeloniz then went
to the lunchroom.
Brill, Sebest, Chandler, and Semer were all reluctant
witnesses for the Respondent, and obviously loyal union
members whose sympathies were with the discharged
employees. Zeloniz was extremely hostile and argumen-
tative. However, their testimony does establish that, after
Santangelo was fired, the employees gradually left their
job assignments, stopped performing their regular duties,
and assembled in the lunchroom, so as to constitute an
unauthorized work stoppage.
Hart, one of the General Counsel's witnesses, admitted
that he took his lunch at 12:30 a.m. because "there was
no work to do." Employees were standing around, and,
since "there was no dough, there was no need for me to
put pans on the conveyor." Walsh, in effect, admitted
that there was a work stoppage when he answered the
question: "As a matter of fact, throughout from approxi-
mately 12:25. Mr. Green and Mr. Snyder were trying to
get the bakery back in operation." His affirmative answer
was "the bakery and the dock."
C. Credibility
The testimony of Walsh, Budaker, and Santangelo
conflicted at numerous points with the testimony of
Green, Schneider, Stricko, and Cmil. I have credited
Green, Schneider, Stricko, and Cmil over Walsh, Bu-
daker, and Santangelo, not only because of the demeanor
of the witnesses, but also because of the inherent prob-
abilities of the total testimony. The Respondent's wit-
nesses impressed me as sincere and conscientious men,
who told the facts in a direct, straightforward manner,
exactly as they remembered them. Walsh was a tense, ar-
gumentative, implausible witness whose testimony car-
ried no conviction. For example, he admitted that he
told Santangelo to go back to work after Santangelo had
been fired, but denied that he was still functioning as a
steward, answering, "How could I function as a steward
if I had already been fired." Later in his testimony, he
contended that, when he was in the lunchroom, he got
out his grievance book and tried to write up Santangelo's
grievance. Certainly, the writing up of a discharge griev-
ance is the function of a steward. Budaker was an eva-
sive and inconsistent witness whose testimony gave the
strong impression of being fabricated. On being asked on
cross-examination about what happened on August 17,
the following colloquy took place.
Q. It was work stoppage, wasn't it?
A. I have no idea.
Q. You don't know whether there was a work
stoppage on August 17th?
A. No, not at this time.
Q. What time is this?
A. I don't know.
Q. You don't know what time?
A. No.
Q. When was there a work stoppage?
A. I don't know if there was necessarily one.
Santangelo was a brooding, unforthright witness, whose
testimony I could not credit when in conflict with that
of the Respondent's witnesses. Hart, Donnelly, and Best
were, by far, the least impressive witnesses who testified
during this hearing. Hart was an evasive, equivocal wit-
ness. The two rebuttal witnesses, Donnelly and Best,
were nervous, twitchy witnesses, who constantly had to
be told to keep their voices up, used long pauses before
answering questions, and had very little recall of any
facts. I do not credit their testimony and regard it as fab-
ricated.
D. Analysis and Conclusions
According to General Counsel, Walsh and Budaker
were terminated because they engaged in protected con-
certed union activities. For Walsh, the handling of San-
tangelo's grievance, and for Budaker, the carrying out of
his duties as a steward. In addition, the Charging Party
contends that they, as stewards, were singled out from a
larger group who had refused to work in exactly the
same way. According to the Respondent, Walsh and Bu-
daker were discharged not because they engaged in
union activities, but because Walsh refused a proper
order to return to work, and because Budaker assaulted
Green.
As an initial premise, it is apparent that the Respond-
ent has had a stable relationship with the Union for
many years, an indication of lack of union animus. Alton
Box Board Company Container Division, 155 NLRB 1025
SCHWEBEL BAKING COMPANY 43
(1965). The collective-bargaining agreement between the
parties contains union-shop and binding arbitration
clauses, provides for the Union to serve as the exclusive
hiring hall, and allows voluntary deductions for Ohio
Drive or COPE. Walsh, Budaker, and Santangelo were
unanimous that, in all the prior years in which they had
served as stewards, they had never had any problem at
any time in being able to leave their work stations to
handle a grievance.
The record shows that mid-morning August 17, a
tenseness was developing in the bakery, over the manner
in which Santangelo was performing his duties. Green
made several visits to observe the manual handstacking
of the pans, and returned at approximately 11:30 a.m. 25
As Budaker admitted, Green told him that he was going
to fire Santangelo if he did not do his job correctly. Bu-
daker promptly passed this information to his fellow ste-
ward, Walsh, and later to Chandler, the operator of the
main oven.
Santangelo then went to the men's room prior to 12
noon.2 6 Santangelo returned around noon, and Schneider
then told him to punch his card out and go home. San-
tangelo waved to Budaker, who was watching the meet-
ing, and requested that he come over as Schneider was
sending him home. Budaker came right over and told
Schneider that he better get Green and straighten this
out right now, "because if Tony goes we all go."2 7
When Schneider informed Budaker that he was running
the shop, Budaker then hollered to the three mixers,
Walsh, Zeloniz, and Brill, to shut down.
Schneider immediately went to the executive office,
and informed Green of what had happened. Santangelo
also left when Schneider did and went into the white
bread mixing room and told Walsh he had been fired and
told to punch his card out. Walsh then kicked his dough
out of the mixer and, as he testified, marked his dough
sheet to show that the next time a dough would be due
out was 12:40 p.m.
Green and Schneider returned to the area about 12:05
p.m., at which time Walsh also arrived, joining Santan-
gelo and Budaker. Walsh forthwith told Green that there
would be no more production until Santangelo was put
back to work. I fully credit Green's testimony that he
then told Walsh that it was contrary to the contract for
the employees to engage in a work stoppage, and that
there was a grievance procedure, and that they should
file a grievance. Green was a veteran employee in the
baking industry having previously worked for the Ward
Baking Company and the National Baking Division of
the A & P. The inherent probabilities of his testimony
are overwhelming, that the highest operating official of
the Company would want to handle the Union's protest
of Santangelo's discharge through the grievance and ar-
bitration channels provided in the parties' collective-bar-
gaining agreement, rather than through an economic
2 I have generally credited the times asserted by the Respondent's
witnesses over the General Counsel's witnesses whose approximation
were usually from 10 minutes to I hour prior to the Respondent's stated
times.
a6 Walsh testified he saw a relief man go to the pan stacker at 11:30 to
11:45 a.m.
a7 Budaker, Santangelo, and Schneider all placed this conversation
about noon.
battle, by the employees walking out, and shutting the
bakery down. There is no question but that the commer-
cial baking of bread and rolls is a highly competitive
business, and customers must be served to retain their
business. A shutdown plant would have done great busi-
ness harm to the Respondent, and Green as an experi-
enced manager, requested that Walsh and Budaker
follow the contract's grievance procedure, which would
have obviated any cessation of production.
Walsh refused to follow the contract grievance proce-
dure, denying that a contract existed, although as ad-
mitted during the hearing, it clearly did. Walsh then told
Santangelo to go back to work, and when he attempted
to put pans on the conveyor, Green stopped him. At this
point Green told Schneider to get Santangelo's timecard
and punch it out. Schneider went immediately to the ti-
mecard rack, which was a short distance away, and
punched Santangelo out at 12:09 p.m. While most of the
times given by all witnesses were mental approximations,
I find that this time of 12:09 p.m. is a firm beacon that
supports most of the times I have credited herein.
When Schneider returned, Green told him to go and
see when the next dough was due out of Walsh's mixer.
Schneider went to the mixing room, saw Walsh's dough
sheet, 28 and returned about 12:11 p.m. to report that the
next dough was due out at 12:40 p.m., and that he ex-
pected him to get it out, and each time Walsh responded
that he could not hear him. Since Santangelo had refused
to leave the plant, it is only logical that Green and
Schneider would go to Schwebel's office to discuss what
to do next.
Walsh's account of his noontime conversation with
Green does not mention anything about Green telling
him that he had a dough due out at 12:40 p.m., and that
he was expected to get it out. Yet, both Santangelo and
Budaker recalled it, as Santangelo testified that Green
told Walsh "again," "you will have to go back and
throw out the dough."
In addition to crediting Green's and Schneider's testi-
mony that Walsh was not fired at that time, I find that
the inferences reasonably drawn from the testimony of
employees solidly supports this finding. Walsh testified
that when he was fired in the pan stacking area, Budaker
said nothing. It is inconceivable that a veteran steward
seeing a fellow steward fired, would stand there speech-
less and make no protest. Earlier, when Santangelo had
according to Budaker, only waved for him to come over,
he had immediately gone to his assistance, and strongly
contested Schneider's order. It is true that Budaker said
nothing about Walsh being fired, and that was because
Walsh had not been fired at that midnoon confrontation.
Thereafter, the bakery was buzzing with talk about
Santangelo being fired, but ony Santangelo, and not
Walsh. Semer testified that Budaker came over to his
machine and told him they had fired Santangelo, and
that, even later, there was no discussion about Walsh
being fired. Zeloniz testified "everybody" was upset be-
8 The dough sheet for August 17 was not produced by the Respond-
ent as the Company only retains them for several weeks, and then dis-
cards them. The only exception to this practice is the handling of the
July 4 sheets, which are retained from year to year, that date being the
heaviest baking day of the year.
SCHWEBEL AKING COMPANY
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause "they" tried to fire Santangelo. Brill learned of
Santangelo's firing in the lunchroom, but not of Walsh's.
Chandler testified that when he went to the lunchroom
at almost I p.m., "a group of guys were standing around
arguing, and upon asking them what was going on, "they
said Tony had been fired." Best, in describing the mood
of the plant after he punched out at 12:37 p.r., stated
"everybody was pretty upset with Tony being fired."
Donnelly testified that as he and Best stood by the time-
clock just prior to punching out, the two talked about
Santangelo being fired, but nothing was said about Walsh
being fired.2 9 If Walsh had been fired shortly after the
firing of Santangelo, certainly there would be as much
discussion of his firing, as there was of Santangelo, but
there was none.
After Green and Schneider left the group, Walsh did
not do the obvious thing if he had just been fired, and
turn to Budaker right then and there to handle his griev-
ance, but claimed that he went looking for Cmil. Bu-
daker did not offer to help Walsh in his purportedly
fired status, but, according to his testimony, went back
to his machine, routinely took one more dough, ran the
dough out, and told his crew they could take a break,
and then he went to lunch. Certainly, these were not the
reactions of a militant steward who had just seen a
brother steward fired before his very eyes.
It was no mutual agreement between Cmil and Walsh
that caused the telephone call to the union office in
Cleveland. It was solely Cmil's idea when Walsh told
him that Santangelo had been fired, and that they were
trying to get all employees to go to the lunchroom. On
September 27, a little more than a month after that tu-
multuous day, while Cmil was still a loyal shop steward,
he had given an affidavit to the Board in which he re-
ported that Walsh had told him that the men had walked
off the job "in protest of the firing of Tony Santangelo."
Certainly, if Walsh had told him that he had also been
fired, Cmil would have put that in his affidavit. Also,
Cmil would have reported to the Union in Cleveland
when he made his telephone calls, that both Walsh and
Santangelo had been fired. However, he only reported
that Santangelo had been fired, because that was the
only knowledge he had of any employee being fired.
We then come to the time Walsh was actually dis-
charged out on the dock sometime around 1 p.m. The
bakery was in an uproar, with most employees not work-
ing. The police had come to evict Santangelo, and, as
Walsh admitted, Green and Schneider were trying to get
the bakery back into operation. Green had already fired
Brill when he refused to return to his work area, and the
next employees he met were Walsh and Cmil, as they
were coming out of the thrift store.
As Cmil credibly testified, when Green told Walsh
that he had a dough due out and to go back to the
mixing room, Walsh replied that he could not hear him.
Twice again, Green repeated this to Walsh as they pro-
ceeded down the dock, and both times Walsh's only
reply was that "I can't hear you." Thus, when Green
29 One witness, Hart, testified that when he went to the lunchroom
around "12:00 or a quarter to one," the employees were talking about the
firings of Walsh and Santangelo. As previously stated, I do not credit
Hart's testimony.
fired Walsh, Walsh was clearly not functioning as a ste-
ward, and made no claim that he was functioning as a
steward, or that he was on union business. Certainly a
steward acting in any degree of a reasonble manner
would have told Green that he was on union business,
and not ignored Green's instruction, nor replied in such a
totally unresponsive manner. Walsh had been away from
his work station for some 50 minutes, and he knew that a
dough had been due out at 12:40 p.m., and was now past
due. Walsh knew that his job of mixing the dough was
the start of the production process for the white bread,
and, if he did not run the mixers, then physically remove
the dough from the mixer and put it in a trough, and
place the trough on the floor, the divider operator, the
moulder, and the oven operator would have no work.
Walsh had totally abdicated his duties as a steward,
and also as an employee, and his discharge was for cause
and did not violate the Act.
I also find that Budaker was discharged because he as-
saulted Green. There undoubtedly was physical contact
between the two men, after Green called out to him that
he wanted to talk to him. Budaker knew that Green had
had Santangelo removed by the police, that Green had
already fired a number of employees, and he was seeth-
ing with anger when he charged Green, and pushed him
into the swinging doors. Certainly such violence by Bu-
daker against a supervisor was not within the scope of a
steward's duties, nor part of the collective-bargaining
procedure, and was sufficient grounds for Budaker's dis-
charge. Budaker's claim that Green opened the conversa-
tion by grabbing him was not corroborated by any wit-
ness. Walsh testified that there was no pushing or shov-
ing, and Hart stated that the whole thing was just a
heated argument. Budaker would justify his placing his
hands on Green, by claiming that Green put a clipboard
on Budaker's chest, and then wrote his name down on it.
Hart did not see Green put a clipboard on Budaker's
chest, and it is against all probabilities that the older
Green would so lay a clipboard on the chest of the
angry, much younger looking Budaker, who was a pow-
erful man, 6 feet 2 inches, and 210 pounds. It is also to
be noted that in an affidavit given by Budaker to a
Board agent I week after his discharge, he did not men-
tion a clipboard, or that there was any physical contact
between any persons. Budaker was not handling any
grievance at the time he was discharged, but was in fact
wandering about the bakery, encouraging employees
such as Brill and Sebest to shut their machines down,
and telling or suggesting to employees such as Semer
and Chandler that they go to the lunchroom.
The facts in the two main cases cited by the General
Counsel and the Charging Party in support of their case,
are clearly inapposite to the facts in the instant case. In
Chatham Manufacturing Company, Inc., 221 NLRB 760
(1975), enfd. 538 F.2d 323 (4th Cir. 1976), the steward
was clearly trying to file a grievance on behalf of the
employees when he was disciplined. In Precision Casting
Company, 223 NLRB 183 (1977), there was an unauthor-
ized walkout by many employees. Following the termi-
nation of the walkout, the employer admittedly singled
out five shop stewards and suspended them, because as
union stewards, they had failed to abide by their contrac-
SCHWEBEL BAKING COMPANY 45
tual responsibility to take reasonable steps to terminate
the work stoppage. Obviously, in the instant case, Walsh
and Budaker were not singled out after the walkout was
terminated, and then disciplined. They were discharged
during the height of the walkout when they were not
performing the duties of a shop steward.
The Charging Party points out in his hrief that Re-
spondent also fired five other employees on the same day
for refusing to return to their work stations, Brill, Semer,
Hart, Svetlack, and Zamodia. Since three of these em-
ployees, Brill, Semer, and Hart, were reinstated some
time later, the argument is then made that since Re-
spondent has made no explanation why the two stewards
were not reinstated, it necesarily follows that the Re-
spondent singled out the other two stewards for disci-
pline as in Precision Casting. This argument has no bear-
ing on Budaker's discharge as he was fired for making an
assault on a company official. I also find that this bare
assertion as to Walsh does not meet the General Coun-
sel's burden of proof. The record does not show how
many employees were terminated, although during the
course of the hearing there was testimony that many
more than seven were discharged. The record, also, does
not show how many employees were reinstated, or why
any employees were reinstated, including Brill, Semer,
and Hart.30 The Charging Party's statement, not being
supported by proof, cannot be boot strapped to stand as
a proven conclusion.
General Counsel introduced no evidence to show hos-
tility of any degree to Walsh and Budaker, or that the
Respondent had ever sought to bar them, or any other
steward from handling grievances. In fact, the evidence
is totally to the contrary, as admitted by these two stew-
ards and former steward Santangelo. Walsh and Bu-
daker's words and actions plainly show that they had de-
termined to take matters into their own hands, had
30 It is well established that an employer may choose among wrongdo-
ers in meting out discipline. See N.L.R.B. v. Fansteel Metallurgical Corpo-
ration., 306 U.S. 240, 259 (1939).
chosen to totally ignore the grievance procedure of the
collective-bargaining agreement, as well as the authority
of management, and had abandoned their duties as stew-
ards. Their actions totally exceeded the boundaries of ac-
ceptable conduct, and made a mockery of the collective-
bargaining process. Accordingly, I find that the General
Counsel did not sustain his burden of establishing by a
preponderance of the evidence that Jack E. Walsh and
Henry George Budaker were discriminatorily discharged
in violation of Section 8(a)(3) and (1) of the Act. It is
therefore recommended that the complaint be dismissed.
Rivieria Manufacturing Co., 167 NLRB 772 (1967); Stop
& Shop, Inc., 161 NLRB 75 (1966).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of the Act.
3. The Respondent has not discriminated against em-
ployees Jack E. Walsh and Henry George Budaker, and
has not engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) if the Act,
there is issued the hereby recommended:
ORDER 3
It is hereby ordered that the complaint herein be, and
it hereby is, dismissed in its entirety.
"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 find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
S C H W E B E L B A K IN G C O M PA N Y 45~~~~~~~~~~~~~~~~~~~~~~~~~