ALCO Standard Corp.Download PDFNational Labor Relations Board - Board DecisionsDec 26, 1972200 N.L.R.B. 1133 (N.L.R.B. 1972) Copy Citation U S CHEMICAL AND PLASTICS DIV 1133 U S Chemical and Plastics Division , ALCO Standard Corporation and Oil Chemical and Atomic Work- ers International Union, AFL-CIO Case 8-CA-6697 December 26, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On May 26, 1972, Administrative Law Judge i Ivar H Peterson issued the attached Decision in this proceeding Thereafter , Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering 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 in light of the exceptions and briefs and has decided to affirm the rulings, findings ,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order, except as modified herein The Administrative Law Judge found, and we agree, that Respondent violated Section 8(a)(1) of the Act by threatening to discharge employee Miller and four other employees if the conversation in which they were engaged during working time concerned the Union , and by threatening employee Giaqumta with discharge if Respondent "heard anymore talk about the Union" from her We also agree that the union animus which Respondent displayed to the aforesaid employees was expanded to include em- ployee Marshall Marshall, a union observer at the election which the Union won, was considered by Respondent to be so valuable an employee that despite the 36 times he had been either absent or late from work from May 5 to August 16, 1971,3 and despite his further unex- cused absences on August 18 and 19, for which he received a 1-day disciplinary suspension on August 20 because of his failure to notify Respondent of his intended absences on those 2 days, Respondent not only retained him, but also told him immediately prior to his suspension that if his attendance improved and his work remained satisfactory, he might be considered for a supervisory position Three days later, however , armed with the knowledge that Marshall had attended a union meeting on the evening of August 18, Respondent presented him with a final written warning which charged him with lateness and absence and stated that "Additional violation will result in dismissal " The pretextual nature of this notice, however, is clearly shown by credited evidence establishing that Marshall would not have received the warning had he not attended that union meeting That warning, moreover, was the first written warning ever issued by Respondent based on work attendance Several weeks after Respondent had issued Mar- shall's warning, it was notified by the Union that Marshall had been elected chairman of the negotiat- ing meeting When Marshall later attempted to discuss certain employee grievances with Respon- dent, he was met with hostility and pointed remarks to the effect that the grievances he, sought to discuss were none of his business In addition, one of the grievants for whom Marshall sought to speak also was given a final warning of discharge because he, too, failed to report off from work, although he had not received so much as a reprimand for committing like offenses in the past Shortly thereafter, on October 25, after 2 months of favorable work attendance and 2 days before the first scheduled neogtiating meeting, Marshall reported for work 30 minutes late and was discharged solely because of his tardiness Again, however, Respon- dent's history contravenes its present action, since the record shows that the 16 discharges it had meted out over the past 3 years because of poor work attendance had been based on a combination of absences and tardiness These facts clearly show that Marshall's discharge was initiated by a pretextual warning occasioned by his union activity, fostered by hostility because of his subsequent union and concerted activities, and effectuated by utilizing a waited-for event upon which Respondent seized in order to rid itself of an active and prominent union adherent who, in the future, was to have chaired the employees' negotiat- ing committee Accordingly, we find that Respon- dent violated Section 8(a)(3) and (1) by discharging Marshall because of his union and concerted activities 4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor 1 The title of Trial Examiner was changed to Administrative Law Judge effective August 19 1972 2 The Administrative Law Judge s second Conclusion of Law is hereby amended to read By threatening to discharge employees because of their union or concerted activities, Respondent violated Sec 8(a)(1) of the Act 3 Unless otherwise noted all events herein occurred during 1971 4 In view of the broad order which we shall issue herein we deem it unnecessary to consider or pass upon certain violations alleged but not determined by the Administrative Law Judge We also do not adopt the Administrative Law Judge s finding that Respondent violated Sec 8(a)(1) of the Act by its June 14 discontinuance of the morning coffeebreak 200 NLRB No 141 1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified herein, and hereby orders that Respondent, U S Chemical and Plastics Division, Alco Standard Corporation, Canton, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order, as so modified 1 Substitute for paragraph 1(b) of the Trial Examiner's recommended Order the following "(b) Threatening to discharge employees because of their union or concerted activities " IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleged violations not found herein CHAIRMAN MILLER, dissenting in part Contrary to the majority, I would reverse the Administrative Law Judge and dismiss the 8(a)(3) allegation based on the discharge of Marshall Marshall on August 20, 1971, received a 1-day disciplinary suspension because of his failure to notify the Respondent of his absences on August 18 and 19 In the 3-month period preceding this suspension , Marshall on 36 occasions had been either absent or late for work Though he did not attend work on August 18 and 19, Marshall on the evening of August 18 attended a union meeting This was discovered by Respondent, and on August 23, Respondent presented Marshall with a final written warning, charging him with past lateness and absences and stating "Additional violation will result in dismissal " On October 25 Marshall was 30 minutes late for reporting for work and was dis- charged This termination was found discriminatory despite record evidence that Respondent had a published policy against poor attendance, and in the past 3 years had discharged 16 employees because of combined absences and tardiness Furthermore, the Administrative Law Judge himself found that the General Counsel failed to establish that Respondent had retained any other employee with an attendance record comparable to that of Marshall, and hence it could not be concluded that Marshall was the victim of disparate treatment The majority acknowledges Marshall's poor at- tendance record and the fact that his discharge occurred only after he violated the final warning Nonetheless, the majority finds the discharge unlaw- ful by concluding that the final warning was pretextual That finding is unsound on substantive grounds, and questionable as a matter of procedure Although paragraph 7 of the complaint alleges 8(a)(1) violations regarding this warning notice, the Administrative Law Judge did not find any such violation, and no exception has been filed in this regard Yet the majority, contrary to well defined Board procedures, and despite the absence of exceptions, entertains this issue Indeed, the Administrative Law Judge' s dismissal of this allegation and the absence of exceptions thereto are understandable when one considers the dearth of evidence supporting the majority's finding that the warning was issued as pretext Thus, the pretext finding is based upon a statement attributed to management to the effect that Marshall would not have received the warning had he not attended the union meeting held on August 18 In context, this statement was plainly neutral, for it does not necessarily reflect hostility to union activity Mar- shall's absences on August 18 and 19 were in violation of Respondent's published rules The lack of any excuse for his absence was blatantly eviden- ced by the fact that he had no difficulty attending the union meeting on August 18, while at the same time failing to show up for work or notify the employer of his absence that day or the next That was clearly the meaning of Respondent's reference to the union meeting Surely such incidental or descriptive refer- ences to union activity do not constitute proof of animus or taint otherwise appropriate discipline In my opinion, therefore, no challenge to the lawfulness of the warning is before us, as a matter of procedure, nor would a preponderance of the evidence support such a challenge in any event Accordingly, as Marshall was discharged for conduct in clear violation of the final warning, I would dismiss the alleged 8(a)(3) and (1) violation TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE IVAR H PETERSON, Trial Examiner This case was tried at Canton, Ohio, on March 14, 21, and 22, 1972 The charge was filed by the Union on November 2, 1971, and the complaint was issued on January 18, 1972 Briefly stated, the complaint alleges that on various dates from June through November 1971 the Respondent engaged in various acts constituting violations of Section 8(a)(1) of the Act and on August 20 disciplined employee Kenneth Marshall by giving him a day off and terminated him on October 25 because Marshall had , or the Respondent believed he had, assisted or become a member of a union or engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, all in violation of Section 8(a)(1) and (3) of the Act In its duly filed answer , the Respondent admitted the jurisdictional allegations , but denied that it had committed any unfair labor practices Upon the entire record, including my observation of the demeanor of the witnesses , and after due consideration of the briefs filed by the General Counsel and counsel for the Respondent on May 1, 1 make the following U S CHEMICAL AND PLASTICS DIV 1135 FINDINGS OF FACT I JURISDICTION ALCO Standard Corporation, a Pennsylvania corpora- tion, is engaged in the manufacture of auto body repair materials and catalysts, wiping cloths, polishing buffs, and other products, having its principal office and place of business in Valley Forge, Pennsylvania U S Chemical and Plastics Division, the Respondent herein, is located in Canton, Ohio, and is an unincorporated division of ALCO In the course and conduct of its business, the Respondent annually sells goods valued in excess of $50,000 from its Canton facility directly to points outside the State of Ohio The Respondent admitted it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and I so find I also find that the Union is a labor organization within the meaning of Section 2(5) of the Act The following persons are now agents of the Respondent and supervisors within the meaning of Section 2(11) of the Act Jerome L Maggiore-President Thomas T Banahan-Manager William G Hohler-Superintendent Ernest D Morris-Foreman (since on or about November 4, 1971) II THE ALLEGED UNFAIR LABOR PRACTICES A Introduction On March 1, 1971, the Union filed a petition seeking to represent all production and maintenance employees, of whom there were approximately 36 The election was held on Friday, April 2, in a unit described as "all production and maintenance employees including truckdnvers, lead- men and janitors" but excluding all office clerical employees, guards, and supervisors as defined in the Act The tally of ballots showed that there 23 votes for and 22 against the Union On April 6, the Respondent filed objections to the election The Board rejected the objec- tions and on July 21, 1971, certified the Union Under date of July 28, Robert Welman, district organizer for the Union, wrote to the Respondent requesting several items of information in order that it might "intelligently present to and discuss with you a complete list of contract proposals " The Respondent furnished the information Under date of August 16, Wellman wrote to Banahan thanking him for furnishing him the information and requesting "that all working conditions remain in a status quo position including all fringe benefits and that no layoffs be made outside the line of seniority" pending a meeting between the parties On the same date, the Union addressed another letter to Banahan noting that the Respondent had discontinued the regular morning coffeebreak for female employees, and that since this happened between the election and the issuance of the certification of representa- tives, the Union noted that "the affected employees had no opportunity to bargain on the issue," and requested immediate reinstatement of the morning coffeebreak Under date of September 6, Wellman addressed the following letter to the Respondent On several occasions we have received reports of acts of harassment against certain employees in the Bargaining Unit After investigating some of these complaints, we find that this problem does merit your attention We respectfully request that the company cease and desist these tactics of harassment , immediately We further point out that since all employees are entitled to representation, that opportunity for repre- sentation, be provided in all cases of disciplinary action whether oral or written These requests are made at this time in an effort to improve and maintain good relations between the involved parties In a separate letter also dated September 6, George Martin, recording secretary of the Union's Canton Local 7-450, stated that the following employees had been selected for the indicated offices Chairman-Kenneth Marshall Vice Chairman-Frances Ammond Secretary-Robert Cale Martin further advised that these officers would serve as a bargaining committee for the unit and within a short period the Union would request a collective-bargaining meeting On August 23, counsel for the Respondent replied to the Union's request concerning restoration of the coffeebreak for female employees, stating that it would be unlawful to do so He referred to a notice dated June 14 which in substance stated that the United States District Court had held that Ohio female employees' protective laws were in conflict with Title VII of the Civil Rights Act of 1964 and, accordingly, beginning June 14 "there will no longer be a morning rest period for women That rest period has been in effect only to comply with the now invalid Ohio law " Counsel continued that he had advised the Respondent "that they cannot reinstate the morning coffee break for women only since this would be a violation of Federal Law I have also advised the Company that they cannot extend their coffee break to male employees to eliminate discriminatory treatment, since this would also be a violation of Federal Law If the Company extended the coffee break to male employees unilaterally, I am certain you would complain that we had refused to bargain on the issue and were in some way extending a benefit to undermine the representation of the Union " B Interference, Restraint, and Coercion Gertrude Miller, who voluntarily left her employment in June, testified that in May Banahan came to where she was working with four other employees At the time, she was talking to another employee but continuing to work Banahan, she testified, told them if they "were talking about the Union, he would get nd of all five of us on the line and replace us all " Concerning this incident, Banahan testified that he knew "where it came from" and stated that he had on that occasion told the employees "if they didn't quit their gabbing and go back to work, he would relieve all five or four or whatever " Counsel for the General Counsel contends that Banahan's statement was violative of Section 8(a)(1) because, accepting Miller's testimony, it 1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD demonstrates he conditioned the discharge upon the employees' talking about the Union Shelly Giaquinta, who had been employed since April 1971 and worked on the tables labeling cans, testified that her aunt, Venon Horsely, who was employed as an overseer, came to her shortly after September 1 and asked her to sign a paper which was captioned "We, the undersigned, do not want to belong to the Union" She refused to sign Later, Horsely came back and asked her what she had thought about the matter and reminded her that she had been instrumental in getting herjob and said that it was with the understanding "that you would not belong to the Union " She further stated, according to Mrs Giaqumta, that if she did not sign the paper Horsely would have her fir( d Shortly before this, but on the same day, Mrs Giaquinta had had a conversation with her supervi- sor, William Hohler After the conversation between Horsely and Mrs Giaquinta, Hohler, who had overheard Mrs Giaquinta and Horsely, asked what had been going on and Mrs Giaquinta told him what Horsely had been talking about and in addition told him that she would not sign the paper Hohler then stated, so Mrs Giaquinta testified, that "if he heard anymore talk about the Union, he would have Tom Banahan fire me " This incident occurred shortly after September 1 when the negotiating committee had been elected 1 Foreman Hohler denied that he had stated he would "fire" anyone if he heard anymore union talk Hohler gave the following testimony with respect to this incident Q It has been testified that you told her that, if you heard anymore union talk, you will have all the people fired by Mr Banahan Is that true A No I never mentioned the word "fire" about anybody It should be noted that the record quite plainly shows that Mrs Giaquinta had testified only that she herself was threatened with discharge, whereas counsel for the Res- pondent did not state her testimony accurately in directing the above question to Hohler It seems apparent, therefore, that Hohler in his testimony did not deny the threat specifically as to Mrs Giaqumta, but merely denied using the word "fire " Under date of August 20, Marshall , whose termination will be discussed hereafter , was given a warning notice stating that it was "a final warning" following two verbal notices concerning lateness and absence, and that addi- tional violation would result in dismissal Marshall denied that he had had two earlier warnings He testified that the afternoon after he received the notice he saw Supervisor Hohler and "asked him did he know about the slip I received and he said he knew about it and said this wouldn't have happened if I hadn't been at the union meeting the other night " Another employee, Gary Rohrer, a polyester mixers helper, was absent from work on October 25 and 26 because his wife was in labor He went to work on October 27 and saw Banahan, who chided him for not repotting He was asked to, and did, sign a warning 1 Sandra Lee Mercier who had worked for the Respondent from May 19 1971, until January 12 1972 testified that she overheard the foregoing conversation between Mrs Giaquinta and Foreman Hohler and related that notice He testified that previously he had not been warned or required to sign a warning notice The complaint alleged that on or about November 4, Supervisor Morris announced and implemented restric- tions on relief periods for machine operators Dons Sandor, a machine operator , testified that on November 4 Moms, who had just been made a supervisor , instructed the employees not to go to the restroom in pairs but to go when a machine was down or in need of being filled Frances Ammond , also a machine operator, and vice chairman of the negotiating committee , attended a negotia- tion session on November 4 and, after learning of the rule changes instituted by Moms, spoke to him about the matter Morns testified that he called the people in his tube department together and explained the rules to them He told them it was desired that unnecessary breaks be eliminated , and that the breaks would be confined to 5 minutes, prior to a tube machine being filled or when a machine broke down According to Moms, he had been told by Banahan to issue the instruction about the restroom breaks C The Layoff and Termination of Kenneth Marshall Marshall, a young man of 21, began working for the Respondent on January 4 and was terminated October 25 He worked under the supervision of Hohler As stated above, he was selected as chairman of the Union's negotiating committee He signed an authorization card on February 27 He also acted as the Union's observer at the April2 election When Marshall started to work, as a towmotor operator and materials handler, he was told that his rate of pay would be at least $2 an hour, however, when he received his first paycheck he calculated that he was only receiving $1 70 an hour He then went to see Supervisor Hohler, who took it to Superintendent Banahan Marshall told Hohler that he could not afford to work for $1 70 an hour and that he would have to quit Banahan told him there had been a mistake made and that Marshall "was too good a worker and he didn't want to lose me and the imstake would be corrected " His next paycheck was for $2 25 an hour plus $30 80 backpay Thereafter, he received $2 25 per hour Marshall was absent on Wednesday , August 18, and also the following day because, so he testified, he had a migraine headache The union meeting was scheduled on the night of August 18 During the afternoon of August 18, Welman called him and told him that it was essential that he be at the meeting, and he did attend He testified that the following day he felt even worse, and that he called to report he would not be in on both days He reported to work on Friday, August 20, and discovered that his timecard was not in the rack He then went to see Foreman Hohler to inquire about this circumstance and he was told that he had to see President Maggiore before he could go to work He did see Maggiore between 9 30 and 10 a in Maggiore , so he testified , stated that he had missed too many days and was tardy too many tunes and he needed Hohler stated that if Mrs Giaquinta did not quit talking union he would see that she was discharged U S CHEMICAL AND PLASTICS DIV 1137 someone there everyday, as his work was important Maggiore further stated, so Marshall testified, that he "had me in mind for a supervisory job that was opening up in the back of the plant and it was essential that I be there every day " Marshall asked Maggiore if his work was satisfactory and Maggiore responded "when your work isn't satisfactory, I will let you know " He then left the office and asked Foreman Hohler for his timecard, Hohler went to see Maggiore and then came back and said that Maggiore did not need him that day and that he could go home and report back to work Monday morning and then see Plant Superintendent Banahan He then left the plant On the way, he discovered that his car had no brakes and ran into the back of a car He was cited and had to go to court the first thing Monday morning and was fined $1 and court costs for mechanical failure He testified that he notified the Company that he would not be in on time, but he did come in at noon When he arrived at the plant, he waited for Banahan to come back from lunch, who told him substantially the same thing Maggiore had stated, namely, that he had been late too many times and that the Company had him in mind for a supervisory job opening in the back shop 2 In the afternoon, Hohler told Marshall, according to the latter, that he would not have been given the warning slips if he had not gone to the union meeting the preceding week After being elected chairman of the negotiating commit- tee on September 1 and prior to his discharge, Marshall undertook to take up with management problems of employees About 2 weeks before being dismissed, he took up a pay problem of employee Rohrer, who had been receiving $1 70 an hour and then was transferred to a higher paymgjob on which other employees were receiving $2 an hour According to Marshall, Rohrer had talked with management several times about the matter and was told that the reason he did not receive thee higher rate was because of the wage-price freeze Marshall testified he knew that this was not so because he had read a bulletin in which it was stated that if an employee was promoted he should receive the higher rate for the job to which he was promoted Marshall spoke to Superintendent Banahan as well as Foreman Hohler about this matter Marshall testified that, when he informed Banahan of his point of view, Banahan "became infuriated and told me it was none of my business," and that he had talked to Mr Rohrer on the phone Banahan further stated, according to Marshall, that he had asked his attorney about the matter and the latter had stated that his hands were tied until November 13 On the same occasion, Marshall spoke to Banahan about his own and other employees' insurance As to himself he had "put in for family coverage some time ago" and had not received it He was concerned, he testified, because his wife was expecting a baby He also discussed the problem of a Mr and Mrs Giovanm who were both employed the same day and had not received their insurance cards With respect to the Giovanni's problem, Banahan stated the matter was none of Marshall's business On October 25, Marshall was 30 minutes late for work and when he went to the timecard rack his timecard was missing He then went to Hohler's office to ask about the matter and Hohler found it on his desk Banahan then appeared and stated that he wished to talk to Marshall Hohler then left and, so Marshall testified, Banahan stated, "Well, Ken, you are late again Of course, this is it You can come back and pick up your check this afternoon When you do, don't walk through the plant Come to the front office and get your check " After he received his check, Marshall asked the receptionist if he could speak to either Maggiore or Banahan She stated that they were not available He then saw Controller Rand, who came out into the inner office and asked if he knew about his termination Rand stated that he did and said, so Marshall testified, "Yes It is too bad " He then asked Rand if he thought it was fair, and finally Rand stated, "We both knew it was coming " Rand also told Marshall, according to the latter, that it was evident "they were out to get me and he also told me that I wouldn't have a problem getting another job and that, if I needed a reference, to have them call him and he would give me a good reference " Marshall testified that before he acted as observer in the Board election management personnel treated him in a cordial manner but that after the election "they ignored me in the morning " About 2 weeks before the election, an employee named Carmen Adma asked him to talk with the women in the shop to vote against the Union and attempted to persuade him that he would advance to a better job if he worked against the Union Adina also said that if Marshall repeated what he had said to him "you can end up at the bottom of the river with cement at your feet " Marshall reported this to Banahan, Hohler, and Maggiore Immediately after the election, two truckdrivers and Adina called him names Marshall said it was "apparent they were angry because the Union had won the election " Later Marshall called his mother to come pick him up and Banahan came into the shipping department and "told me he would escort me to the gate, but, after I got out, he didn't care what happened to me " Hohler, who was locking up the plant, told Marshall, "In a way, Ken, I am glad the Union won the election " Marshall asked why and Hohler replied, "Because, if the Union had lost, it would have meant your job " On cross-examination, Marshall testified that he called in on August 18 and 19 and believes that he spoke to Hohler and advised that he would not be in because he had a migraine headache Plant Manager Banahan testified that when he assumed his position in June 1968 the Respondent was experiencing a serious problem with absenteeism In consequenbie, he posted a notice stating that as of January 1 a daily record would be kept of attendance and this record "would be a main factor for future pay increases and discharging of personnel [sic] " Since becoming plant manager, Banahan has discharged a considerable number of employees for 2 Marshall was married on July 10 and had permission from Maggiore to afternoon handed him a slip of paper and asked him to sign it This was a be off on the 2 days before and 3 days after the wedding After Banahan final warning that further violation of rules relating to tardiness would result had spoken to him and Marshall had gone to work, Banahan in the in dismissal 1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD absenteeism According to Banahan, it is important that machine operators and material handlers maintain good attendance records as compared with other employees He testified that he had given verbal warnings to Marshall between March and August, his attendance record prior to March had been considerably better When Banahan returned from his vacation on August 23, he gave Marshall a written warning to the effect that it was final notice, that if further violation occurred he would be terminated According to Banahan, he interviewed Mrs Giaquinta, as well as all other employees hired , and President Maggiore does not become involved in the hiring of employees He stated that he never told anyone that they would be fired if they talked about the Union, nor did he ever give any instructions with respect to talking on company time He did give instructions that employees should talk union business at breaks and before the workday started or after the day's end, but not during working hours He denied that he told a group of employees, as testified by Gertrude Miller, that if they were talking about the Union he would get rid of them all He did, however, tell a group that if they did not "quit their gabbing and go back to work, I will relieve all five or four or whatever " Supervisor Hohler testified that Marshall did not call him on August 18 or 19 to report off, in fact, Hohler stated that he had never talked to Marshall on the telephone at any time Hohler further denied that he had told Marshall that he was glad the Union had won the election because if it had lost Marshall would have been terminated Nor did he tell Marshall on August 20 or any other time that if Marshall had not been at a union meeting he would not have received the warning notice and a disciplinary suspension He further denied the testimony of Mrs Giaquinta that he told employees that if he heard any more union talk he would have Banahan fire them Employees used to congregate and talk about various subjects and Hohler would break it up and tell them to get to work Hohler acknowledged that Marshall was a good worker Supervisor Morris testified that Banahan told him to explain the rules concerning going to the restroom to the employees in his tube department He told them that the Respondent wanted to eliminate unnecessary breaks and that they could go to the restroom when the tube machine was being filled for a period of 5 minutes or when a machine broke down and that two or three should not go at the same time President Maggiore testified that Marshall did not call in on August 18 or 19 nor did anyone report to him that Marshall had done so When Marshall returned to work on August 20, Maggiore called him into the office and attempted to impress on him how important it was that all of the employees show up every day He related that Marshall said he was very sick in bed and in response to a question why he had not called in Marshall said "he had been unable to get out and that he had asked his wife to phone and that she had attempted to phone for 2 days and that our line was busy " According to Maggiore, the Respondent has three lines on a rotary system "and it is very seldom loaded 11 D Conclusions Upon consideration of the entire record and the able briefs filed by counsel , I come to the conclusion that in substantial part the evidence sustains the allegations in the complaint We will first consider the discontinuation of the morning coffeebreak on June 14 On June 14, a few days after the Union had held an informational meeting , the Respondent posted the follow- ing notice We have been advised by our attorney , that the United States District Court has held the Ohio female employee protective laws to be in conflict with Title VII of the Civil Rights Act of 1964 Therefore , beginning June 14, 1971, there will no longer be a morning rest period for women That rest period has been in effect only to comply with the now invalid Ohio law Section 4107 42 of the Ohio Revised Code provides, among other things, that female employees "shall be entitled to not less than thirty minutes for meal time" and if an establishment finds it impractical to provide a suitable lunchroom "female employees shall be entitled to not less than one hour for meal time during which hour they shall be permitted to leave the establishment " It also provides that a female employee must be given a meal period of at least a half hour after not more than 5 hours of continuous labor (Sec 4107 46) In reply to the Union's protest concerning discontinuation of coffeebreaks, the Respondent represented that if it extended coffeebreaks to men the Union probably would have asserted that such action was an unlawful refusal to bargain The record plainly demonstrates that the jobs occupied by women in the Respondent 's plant , namely that of machine operators and assemblers, were the more confining Thus it appears that if there was disparate treatment with respect to coffeebreaks , it was on the basis of job classification rather than sex and, therefore, would not be in conflict with Equal Employment Opportunity laws Thus it appears that Respondent was in fact depriving employees of benefits prior to the certification of the Union and in effect advising the Union that after the certification it could bargain about getting the benefits restored In view of the insubstantiality of the Respondent 's defense , considered in the light of the nature of the act and the timing , I find that the discontinuation of coffeebreaks was the withdrawal of a privilege in reprisal for the union activity of the employees , and accordingly, was violative of Section 8(a)(1) of the Act I was not favorably impressed with the reliability of Superintendent Banahan as a witness, and therefore I am persuaded that the testimony of Gertrude Miller to the effect that Banahan told her and four other employees that if they were talking about the Union he would get rid of all five of them and replace them all is credible I therefore find that this threat of discharge violated Section 8(a)(1) of the Act I also accept the testimony of Mrs Giaquinta that Foreman Hohler told her that if he heard "any more talk about the Union, he would fire me " In this connection, it is significant that Mrs Giaquinta's aunt , Horsely, had asked Mrs Giaquinta to sign an antiunion petition and, when she refused, told her that she had assisted in U S CHEMICAL AND PLASTICS DIV 1139 obtaining her a job with the Respondent on the under- standing that Mrs Giaquinta would not belong to the Union Hohler, having overheard this conversation, ques- tioned Mrs Giaquinta and, after she had related what had occurred and stated that she had refused to sign the antiunion petition, remarked that if he heard any more talk about the Union he would have Banahan fire her Mrs Giaquinta's testimony is corroborated by Sandra Lee Mercier and Hohler's testimony on the point is equivocal at best Moreover, it is to be noted that Hohler, so far as it appears, did not reprimand Horsely for her part in the conversation or for her antiunion activities Nor did Horsely testify Accordingly, I find that Hohler made the statement on this occasion and that it was violative of Section 8(a)(1) of the Act Concerning the layoff and eventual termination of Marshall, I come to the conclusion that the 1-day disciplinary layoff given him in August was not motivated by antiunion considerations, however, I am persuaded that his termination on October 25 was so motivated My reasons for so concluding follow I have no doubt he was ill with a migraine headache on August 18 and 19 He testified that he did in fact telephone the plant on both days to report his need to be off, at first stating that he talked to Banahan and then, being reminded that Banahan was on vacation that week, asserted that he spoke to Hohler On the other hand, Hohler vigorously denied that he had ever spoken by telephone with Marshall There seems to be no doubt about the fact that when he did report to work on Friday, August 20, his timecard was missing and that Foreman Hohler told hum that he should see President Maggiore before he could go to work When he did see Maggiore, the latter told him that he had missed too many days and that he had been tardy too many times, and, in consequence, he was given a disciplinary layoff for that day If in fact he had called in on August 18 and 19, it would seem strange indeed that his timecard would be missing when he came to work on the 20th On balance, I am persuaded that he did not inform the Respondent of the fact that he would be off on the 18th and 19th 3 The termination of Marshall on October 25 stands on a considerably different footing This event came about 2 weeks after Marshall had met with Banahan on the grievances of Rohrer and the Giovannis In both cases, Banahan reacted with hostility and told Marshall that the problems of other employees were none of his business It is also to be noted that the termination came 2 days before the scheduled negotiating meeting Marshall did not testify as to the reason for his tardiness on October 25, but in this connection he did relate that on occasion he was late because of some mechanical defect in his 1954 automobile which he was "restoring " Counsel for the General Counsel in the posthearing brief argues that three named employees had worse records of tardiness and absenteeism than Marshall However, a review of the employment records indicates that most of these instances were with permission, in contrast to those of Marshall On the other hand, 3 I find it unnecessary to determine whether Marshall told Maggiore as the latter testified that he and his wife had been unable to get through on the telephone on its face this appears quite implausible 4 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings Marshall's employment record shows that he had not been tardy or absent during October prior to the incident of October 25 I credit Marshall 's testimony that Foreman Hohler told him that if Marshall had not been in attendance at a union meeting he would not have received the warning notice and a 1-day disciplinary suspension Admittedly, Marshall was a good worker On balance, I very much doubt that his 30-minute lateness in reporting on October 25 would in and of itself have caused the Respondent to terminate him I come to the conclusion that his membership in and prominent activity in behalf of the Union was a moving factor in a decision to terminate him Accordingly, I find that Marshall was discharged on October 25 in violation of Section 8(aX3) and (1) of the Act CONCLUSIONS OF LAW 1 By discontinuing the coffeebreak for female employ- ees, the Respondent engaged in an unfair labor practices affecting commerce within the meaning of Section 8(a)(1) of the Act 2 By questioning employees concerning their member- ship in and activities in behalf of the Union, the Respondent also violated Section 8(a)(1) of the Act 3 By terminating the employment of Kenneth Mar- shall on October 25, 1971, the Respondent violated Section 8(a)(3) and (1) of the Act 4 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act 5 By giving a disciplinary layoff to Kenneth Marshall on August 23, 1971 , the Respondent did not violate Section 8(a)(3) and (1) of the Act THE REMEDY In order to effectuate the policies of the Act , I find it necessary that Respondent be ordered to cease and desist from the unfair labor practices found and from any other invasions of the Section 7 rights of employees , and to take appropriate affirmative action Having discriminatorily discharged employee Kenneth Marshall , I find it necessary that Respondent be ordered to offer him full reinstatement with backpay , computed on a quarterly basis plus interest at 6 percent per annum, as prescribed in F W Woolworth Company, 90 NLRB 289 and Isis Plumbing & Heating Co, 138 NLRB 716, from the date of the discharge to the date reinstatement is offered Upon the foregoing findings of fact and conclusions of law, upon the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended ORDER4 Respondent, U S Chemical and Plastics Division, ALCO Standard Corporation, Canton, Ohio, its officers, agents, successors, and assigns, shall 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 1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1 Cease and desist from (a) Discharging or otherwise discriminating against any employee for supporting Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any other union (b) Coercively interrogating or threatening any employee about union support or union activities (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act 2 Take the following affirmative action which I find will effectuate the policies of the Act (a) Offer Kenneth Marshall reinstatement to his former job or, if the job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole in the manner set forth in the section of this Decision entitled "The Remedy " (b) Notify the said employee, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces (c) Rescind its notice of June 14, 1971, discontinuing the coffeebreak for female employees (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to determine the amount of backpay due (e) Post at its premises in Canton, Ohio, copies of the attached notice marked "Appendix "5 Copies of said notice, on forms provided by the Regional Director for Region 8, 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director for Region 8, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith 6 5 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 6 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 8 in writing, within 20 days from the date of this Order, what steps 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 The National Labor Relations Board having found, after a trial, that we violated Federal law by discharging and threatening to discharge employees who engaged in union activity WE WILL offer Kenneth Marshall full reinstatement, and pay him for the earnings lost as a result of his discharge, plus 6-percent interest WE WILL NOT discharge or discriminate against any employee for supporting Oil, Chemical & Atomic Workers International Union, AFL-CIO, or any other union WE WILL NOT threaten to discharge employees because of their union or concerted activities WE WILL NOT unlawfully interfere with our employ- ees' union activities US CHEMICAL AND PLASTICS DIVISION ALCO STANDARD CORPORATION Dated By (Representative) (Title) We will notify immediately the above-named individual, if presently serving in the Armed Forces of the United States, of his right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service and the Universal Military Training and Service Act 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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 1695 Federal Office Building, 1240 East Ninth Street, Cleveland, Ohio 44199, Telephone 216-522-3725 Copy with citationCopy as parenthetical citation