Maryland Cup Corp.

National Labor Relations Board - Board Decisions

Sep 10, 1969

178 N.L.R.B. 389 (N.L.R.B. 1969)

MARYLAND CUP CORP.
Maryland Cup Corporation and International Union
of District 50, United Mine Workers of America.
Case 5-CA-4211-2
September 10, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On April 16, 1969, Trial Examiner John G. Gregg
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial
Examiner's Decision 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
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent
herewith.
The Trial Examiner found that the Respondent
violated Section 8(a)(3) and (1) of the Act by
discharging Mrs. Esther Morris on September 23,
1968. He found that the reason given for her
discharge, excessive absenteeism, was pretextual and
that in fact she had been terminated because of her
activities on behalf of the Union We do not agree.
While we adopt his finding that the Respondent was
aware of Mrs. Morris's prominence in the Union's
organizing campaign and was aware of her remark,
uttered after the Union lost an election in August
1968, to. the effect that "we will be back next year,"
it is our opinion that the evidence adduced at the
hearing does not support the conclusion that she was
discharged for discriminatory reasons.
The Respondent contends that Mrs. Morris had
been warned twice in 1968 about her attendance
record and, in September 1968, her absenteeism
became aggravated. The record indicates that she
was on vacation for the week of August 19-23 and
then was on a previously approved leave of absence
from August 26-30. She did not report to work for
the week of September 2-6. Whether the latter
absence was authorized in advance was in dispute at
the hearing, and the Trial Examiner did not resolve
the conflicting testimony. The record does indicate,
389
however, that even if the final week of absence was
approved before it was taken, as Morris claimed,
the approval was given not by her own supervisor,
who had authorized the first 2 weeks of leave, but
by a leadman. There is no showing that the leadmen
,had ever informed Morris' supervisor that he had
-told Morris to take a third week off. Mrs. Morris
worked the week of September 9-13, but she did not
report for work during the week of September
16-20. Although it is questionable whether she
complied with a plant rule requiring that an
employee call in when absent for 3 days,'
Respondent does not contend that she was
terminated solely for allegedly violating this rule.
When she came in to claim her check on Friday,
September 20, she was told to pick it up Monday
morning at the personnel office. On reporting to
that office on Monday. September 23, 1968, Mrs.
Morris was informed by Mr. Weber, a personnel
assistant, that she was terminated.'
The Trial Examiner's conclusion that the reason
advanced by Respondent was pretextual is based in
part upon his finding that certain supervisory and
management personnel expressed slightly different
reasons for the discharge Thus, production manager
Ritgert apparently thought that she had been
terminated for failure to call in within three days of
her absence. We are unwilling to accord great
importance to his opinion, or to any conflict it may
present, as he was only tangentially involved and
may well not have been fully informed. The Trial
Examiner also thought it significant that her
personnel card listed her as discharged for
"absenteeism, poor working habits" despite the fact
that there was no evidence that her performance had
been unsatisfactory. We can accord little probative
value to the additional reference to poor working
habits; this does not necessarily indicate that
Respondent was searching for a pretext, but may as
logically be taken to indicate Respondent's
knowledge that, in addition to her record of
absences, she had frequently reported to work late
and left early, as detailed hereinafter.'
'Mrs. Morris claims that she complied with the rule , but her -own
testimony is contradictory . She testified that she knew she should have
called in on her first day out, but that she did not attempt to do so until
the second day, Tuesday At one point, she testified that she called in
Tuesday but the line was busy, later, she claimed that she had called in
twice that day but that no one answered the phone . She testified that she
called in after 4 p.m. Wednesday and told a woman that she would be out
sick for the remainder of the week The Respondent denies ever receiving
this message . Mrs Morris testified that she did not know the identity of
the woman who took the message , the page covering the day in question
was torn out of the call-in book next to the telephone and was never
recovered.
'Mr Weber testified that before he told her that she was terminated,
Mrs Morris presented a medical excuse for the prior week and asked for
an additional 1 or 2 weeks off "since she was not feeling quite up to par
even though the doctor ' s note said that she could return on the 23rd " Mrs
Morris denied asking for extra time off. The Trial Examiner made no
resolution of these conflicting versions of the meeting.
'Mrs. Morris testified, and Mr Weber denied, that on September 23 the
latter told her she was terminated for not calling in within 3 days, sloppy
work habits, and eating and drinking on the line The Trial Examiner
made no credibility resolution of these conflicting versions of the meeting,
as indicated above
178 NLRB No. 59
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While the voluminous records adduced at the
hearing are somewhat confusing , it is clear that in
the 15 months that she was employed , Mrs. Morris
was absent at least 60 times and was late or left
work early 18 times. Some of these absences may
have been excused , but their sheer number supports
Respondent ' s contention that she was unreliable and
could not be depended upon to man her work
station on a regular basis. Mrs. Morris's job,
removing cups from a conveyor belt and packing
them in boxes , was one that had to be performed
regularly if production schedules were to be met.
Although the Trial Examiner made no finding in
this respect , the record convinces us that , due to her
erratic attendance , Respondent could reasonably
have believed that her continued employment would
have a deleterious effect on its production schedules.
While differences in length of employment render
difficult analogy to the records of other employees,
it was established at the hearing that discharges by
Respondent for absenteeism were numerous.
In reaching our conclusion herein , we find
noteworthy the absence of any union animus on the
part of Respondent . An election was held at
Respondent ' s plant on August 23, 1968, which the
union lost . No independent violations of Section
8(a)(1), in connection with the election or otherwise,
are alleged or shown . Despite Mrs. Morris's
prominent role in the organizing campaign, it
appears that after the election Respondent was
extraordinarily lenient with her. Even though, as the
Trial Examiner found , Respondent had spoken to
her on two occasions , in March and June 1968,
about her absenteeism , she was not penalized for
missing work but was allowed to return to work.
Her high rate of absence , reported or not , continued
after that date to the time of her discharge. Even
where an employee may report the reasons for
continued absence , or may have what appear to be
justifiable excuses for such absences , an employer
may well decide that an absence -prone employee is
of no value to his business. It would appear that the
Respondent here had an ample basis for reaching
such a decision as to Mrs. Morris . In our view, the
General Counsel has not satisfactorily established
that Mrs. Morris was discharged for union
activities , and we shall dismiss the complaint herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the complaint
be, and it hereby is, dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN G. GREGG, Trial Examiner : This proceeding under
Section 10(b) of the National Labor Relations Act was
heard in Baltimore , Maryland , on January 30 and 31,
1969, and February 6, 1969 , pursuant to due notice. The
complaint, which issued on December 10, 1968, on a
charge dated September 25, 1968, alleged that the
Respondent engaged in unfair labor practices proscribed
by Section 8(a)(1) and (3) of the Act by discharging an
employee because of her union activities . The Respondent
answered generally denying the charges. Briefs were filed
by the Respondent and the General Counsel and have
been carefully considered . The motion of the General
Counsel to correct the record as to certain minor errors as
set forth in his Appendix A [omitted from publication] to
the brief of the General Counsel is hereby granted.
Upon the entire record in the case and from my
observation of the demeanor of the witnesses as they
testified , there are hereby made the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent is and at all times material herein has been
a corporation duly organized under and existing by virtue
of the laws of the State of Maryland having a place of
business in Baltimore County, Maryland , where it is
engaged in the manufacture and sale of paper products.
Respondent , in the course and conduct of its business
operations , during the preceding 12 months, a
representative period , purchased goods valued in excess of
$50,000 which were shipped directly from points located
outside the State of Maryland . During the same period
Respondent sold and shipped products valued in excess of
$50,000 directly to points and places located outside the
State of Maryland
Respondent is, and at all times material herein has
been, engaged in commerce within the meaning of Section
2(6) of the Act.
IL THE LABOR ORGANIZATION INVOLVED
International Union of District 50, United Mine
Workers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that the Respondent did, on or
about September 23, 1968, terminate the employment of
Esther Morris and has at all times since that date failed
and refused to reinstate her to her former or substantially
equivalent position because of her membership in,
assistance to, or activity on behalf of the Union, or
because she engaged in concerted activities with other
employees of the Respondent for the purpose of collective
bargaining or mutual aid or protection , and that thereby
the Respondent did discourage and is discouraging
membership in a labor organization by discrimination in
regard to hire and tenure of employment or terms or
conditions of employment , and did interfere with, restrain,
and coerce its employees and is interfering with,
restraining , and coercing its employees, in the exercise of
their rights guaranteed in Section 7 of the Act, and did
thereby engage in and is thereby engaging in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act
MARYLAND CUP CORP. 391
A. The Union Activities of Esther Morris
Esther Morris testified essentially that she was
employed by the Respondent on June 12. 1967, and was
terminated on September 23. 1968. She started at an
hourly rate of pay of 51.64 and at the time of her
termination was being paid at the rate of $2.09 per hour,
enjoying several raises during the period of her
employment. Morris testified that she became involved
with District 50 of the United Mine Workers of America,
then signed a union card in January 1968, and further that
she solicited other employees at the Owings Mill plant to
sign authorization cards. Morris testified further that
during the campaign she had passed out literature on
behalf of the Union on three or four occasions, passing
out literature at the Owings Mill plant in February 1968.
and March 1968. Her name was included in the literature
as a union adherent, in fact as a member of the organizing
committee. Morris also testified that she wore badges,
buttons, and blouses indicating her sympathy and
adherence to the Union. She started wearing badges in the
month of July 1968. wearing the buttons, a blouse
indicating union sympathy and badges alternately. She did
this from July 1968, until the start of her vacation on
August 19, 1968.
Morris testified to discussions which she had with
Amlong. plant manager at Owings Mill, on numerous
occasions beginning in the month of July when Amlong
would visit the packing lines daily to talk with employees
including Morris. These discussions went on for a period
until the time that Mrs. Morris started her vacation on
August 16, 1968, and had to do with the subject of the
Union. Mrs. Morris testified additionally to conversations
with Mr. Freedman, the Respondent's head of
manufacturing, who in the course of a meeting gave a
lecture in which he discussed the subject of the Union.
At the end of the lecture, according to Morris,
Freedman asked it anyone had anything to say and
Morris was given the opportunity to speak, Morris then
told Freedman that she had been insulted by the lecture
and objected to his calling active union members "union
pushers." Morris testified that this latter confrontation
with Freedman took place on August 14, lust 2 days
before she entered on her vacation.
Morris testified further, that at the time the election
was held, August 23, 1968, she' was an observer for the
Union at both sessions She also attended the conference
held just prior to the election with representatives of the
Respondent. At this conference Morris objected to having
the employees led to the election stage by leadmen or
supervisors. She also attended the counting of the ballots
on the day of the election, in the company of the
Respondent's hierarchy, including Amlong, Ritgert,
Freedman, Johnson, Haulsee, Levi, and all the department
heads. At the counting of the ballots which indicated a
defeat for the Union, Morris was one of several who
stated "we will be back next year."
I credit the testimony of Esther C. Morris whom I
found to be a straightforward and sincere witness, relative
to her union activity as outlined above and her discussions
concerning the Union with representatives of the
Respondent. The credible evidence of record
preponderantly supports a finding and I find that Esther
Morris was an active union supporter and that the
Respondent was aware of her activity. I find that the
Respondent was aware of Morris union activity as early
as February 16, 1968, when leaflets were distributed to the
employees on all three shifts. Morris actively engaged in
the distribution of this leaflet, prominently identifying her
as a member of the organizing committee. Under these
circumstances I land that the Respondent had knowledge
of her activity and her role in the campaign dating from
that time, as well as throughout the period from
mid-February through the date of the election in August
1968.
B The Discharge of Esther Morris
Mrs. Morris testified that when she was hired she was
instructed that the policy of the Respondent was that an
employee absent because of sickness was to call in within
a 3-day period. The employees were given a telephone
number to call. Testimony of record also indicated that
she was supplied with a copy of the Respondent's
published work rules.
Morris testified that she discussed her vacation about
the second week in July with her supervisor Crais,
indicating that a vacation in August would be satisfactory,
and that Crais had given her on August 19 for her
vacation week. According to Mrs. Morris, she then
requested and he granted an additional 2-week leave of
absence to follow her week's vacation. Mrs. Morris
testified that Crais inquired what she was going to do
during that time and she told him she was going to take a
trip. According to Mrs Morris, Crais told her to report
hack to work on September 3, but as she was in a rush
she did not realize that a return on this date would only
have meant a one week instead of a two week extension.
She later called the plant and talked to Bob Johnson and
was told by Johnson that instead of returning on
September 3, she could return on September 9, which
would give her the additional 2 weeks leave of absence.
Mrs. Morris testified that during her vacation she
visited the plant on the Thursday prior to the election for
the purpose of attending a meeting for the employees on
the second shift. She testified that she returned to work on
Monday September 9, 1968. She then worked the entire
week from the 9th to Friday the 13th. She was due to
return to work on Monday the 16th. According to Morris,
she was out the week of September 16, but she called the
plant on Tuesday, September 17, and got a busy signal.
she called again Wednesday afternoon a little after 4
o'clock and talked with a young lady whom she could not
identify. She asked this individual to give Bob Johnson a
message that she was sick and would be out for the rest of
the week. Morris testified that she saw a doctor on
Wednesday, September 18, and received a medical
certificate from the doctor.
Morris testified that on Friday, September 20, 1968,
during that same week that she was absent for illness, she
went to the plant to pick up her paycheck. According to
Morris, Johnson greeted her with the remark "1 thought
that you had quit. No one had heard from you " Morris
dented this and told Johnson of her phone call. Johnson
was unable to locate her check, told her to report into
personnel on Monday morning. When Morris did so,
Weber, a personnel assistant for the Respondent told her
that no one had heard from her and that she was
terminated, giving as the reason, absenteeism for not
calling in within three days, sloppy work habits, and
eating and drinking on the line.
Morris testified that she had never been warned nor
disciplined for any reason by the Respondent, except for
the receipt of a slip relating to a missing tube in April or
39 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May 1968. Mrs. Morris specifically denied that her
Supervisor Crais had ever talked to her or warned her
about absenteeism or lateness . The record is devoid of any
indication that Mrs. Morris work was other than
satisfactory , and indicates that during her tenure she was
given several raises.
David Levi , personnel director for the Respondent for
over 11 years , testified that the Respondent had a practice
of discharging employees for excessive absenteeism and
that roughly during the period September 1, 1968, to
October 21 , 1968, approximately 20 to 35 employees were
discharged for that cause. Mr Levi testified significantly
as follows:
Q. What is that policy'?
A. We of course require the employees who are
absent to call in.
Q. This is obviously an unexcused absence that I am
referring tog
A. And employees who absent themselves without
calling in subject themselves to disciplinary action by
not calling in by the 3rd day'?
Q Would this be cause for termination?
A. Not normally, no
Q. So what is the general nature of the policy?
A. The general absentee policy is that when a person
is absent or his absenteeism gets to a point where it
affects our production or scheduling requirements, we
have to release that person from our employ .
Levi testified further that if a person had excessive
absenteeism and called in during a period of a 3-day
absence, that would have a bearing on the consideration of
her overall absence record in terms of discipline . However,
according to Levi, it would have had no bearing on Mrs.
Morris discharge Levi testified that whether or not Mrs.
Morris had called in would not have had any bearing on
her case because of the nature of her absenteeism , because
she was discharged for "excessive" absenteeism.
Levi testified further in connection with the call-in
telephone , that the telephone is located in the production
area out on the floor. He testified that no one is given
responsibility for answering that telephone and that the
telephone could be answered by anyone when it rings. Levi
testified that the Respondent " attempts" to make a record
of calls that come in relative to absences . Calls which
come to the telephone relative to absences are noted in a
book marked "Absentee Log Book." Levi stated that no
one has specific responsibility for maintaining this log
book . According to Levi, when the question arose as to
whether or not Mrs. Morris had called in on the dates in
question . he examined the log book for September 17
through September 20 and found that those pages were
missing from the log book . An investigation was made but
the pages were not found, nor did the Respondent find out
what happened to those pages.
Levi testified that the Respondent tries always and
constantly to review the attendance records of all of its
employees , that this is basically one of the responsibilities
of the department heads; the production department.
"When it appears that a person's record is getting to a
problem stage or approaching a problem stage, or has
been drastically changing from a good record to a poor
one, we try to counsel these people and talk to them; or
rather with them ." Levi testified that this is normally done
by the department head , who in the case of Mrs. Morris
would be Crais. Levi testified that if the discussion is not
heeded , and the poor record continues, and further counsel
and further talks by the department head or by other
management people in the plant does no good, the
Respondent many times has to terminate the employee for
that reason.
Testimony by Crais, Morris supervisor, indicated that
while he was her supervisor he talked to Morris about her
absence record and her lateness record two times: once on
March 13, 1968, about absenteeism, and once on June 27,
1968, about absenteeism and lateness. According to Crais,
he made a notation of these discussions on the back of her
personnel card and in fact there is such a notation on the
card. Crass stated that he told Mrs. Morris that if her
absenteeism continued he would have to release her. He
stated that her absenteeism straightened up a little after
the first warning and that he called her into the office
again in June at which time Mrs. Morris gave him her
excuse. Crais testified that he told her this time that if he
had to talk to her every couple of months about her
excessive absenteeism he would have to terminate her.
Crais stated that, concerning Mrs. Morris' vacation leave,
he authorized her only I additional week after her
vacation. Crais stated that Mrs. Morris was supposed to
return to work the day after Labor Day which would be
September 3 on a Tuesday and that the first time he
heard from Mrs. Morris was on Wednesday, September 4,
when she called him on the call-in phone and asked
whether she was still carried on leave of absence When he
said no, that he had only authorized her to be gone i
week, according to Crais, Morris said that she had asked
for 2 weeks and they were having a discussion on this
when Crais finally told Mrs Morris that since it was
already Wednesday and she had missed Tuesday and
Wednesday, and there were only 2 more days left in the
week, he authorized her to be off for the rest of the week
as a leave of absence. While Crais in his testimony could
recall specifically that he had warned Mrs. Morris about
her absenteeism and had warned her of an impending
discharge. and could recall that she had discussed with
him the reason for her absences, he could not recall any of
the reasons advanced by Mrs. Morris. Although Mrs.
Morris had worked for him for 9 months, 'Crais stated
that the first time he had discussed her absenteeism with
her was on March 13, 1968. From my observation of
Crais as he testified and his testimony I found him evasive
in his answers and strained in his effort to testily
concerning his version of the alleged warnings given to
Mrs. Morris I do not credit his testimony. While the
notations on Morris personnel card indicate that Crass
talked to Morris about absence and lateness, 1 am
convinced in view of straightforward and sincere testimony
of Morris that the discussions at most were casual and not
of a nature to satisfy the execution of the stated policy of
the Respondent which would require the counselling and
further counselling of employees prior to discharge.
Schoonmaker, who was Mrs. Morris' supervisor in the
place of Crais at the time of Morris' discharge, testified
that on the 19th of September, Bob Johnson, the working
leader, informed him that Crais had instructed Johnson to
watch certain employees and that Esther Morris was one
of them. After listening to Johnson's statement about
Morris' absenteeism, Schoonmaker discussed it with
Crais, who said he had talked to Morris twice, and that
Schoonmaker should refer to Crais' personnel file where it
was noted by Schoonmaker that Crass had talked to Mrs.
Morris twice. Schoonmaker testified as follows:
Q. Incidentally when Mr. Johnson said that Mr.
Crais told him to watch Esther Morris, did he say he
was to watch her for any particular thing)
MARYLAND CUP CORP. 393
A. No. That her absentee record was in excess and
any more might be cause for dismissal.
Schoonmaker testified that he examined Morris' record
in Crais' personnel file and then discussed it with
Assistant Plant Manager Ritgert. and "it was decided at
that time that she should be dismissed because of
excessive absenteeism." Said Schoonmaker, "l turned it
over to Mr. Ritgert, which the final decision was then
made." For his part Ritgert testified that when
Schoonmaker came to him after Schoonmaker had
discussed the matter with Crais, "These two had reached
a decision to let her go," and that he was asked for his
opinion, which was to concur in the decision. Following
this. Ritgert called the personnel office and gave
instructions that he would like to remove Mrs Morris
from the payroll because of excessive absenteeism. Ritgert
testified that after Mrs. Morris was terminated he was
approached by employee Turnbaugh who queried him as
to the reason Morris was discharged. Ritgert testified he
told Turnbaugh that Morris was discharged for excessive
absenteeism. In her testimony Turnbaugh stated that
Ritgert said that Morris was discharged because of her
absence of 3 days without notice. It would appear that
there were variances in the versions of the discharge
advanced by Ritgert. and Schoonmaker. Schoonmaker
indicating that the final decision was made by Ritgert,
Ritgert indicating that the decision had already been made
by Crais and Schoonmaker. It is clear from the record
that whether it was the final decision of Schoonmaker or
Ritgert or not, their role in the decision was played
without personal knowledge of the record of Mrs. Morris.
It is also clear that Schoonmaker who was then Morris'
department head did not counsel Morris on her
absenteeism. I do not credit Ritgert's statement that he
told Turnbaugh that Morris was discharged for excessive
absenteeism. Ritgert appeared evasive in his testimony
and while indicating that he was not aware that Morris
was engaging in conduct on behalf of the Union, stated
that he was present at the meeting at which Freedman
spoke and Mrs. Morris objected to some of his remarks. I
simply do not credit the testimony of Ritgert. I credit
Turnbaugh's version that Ritgert told her that Morris was
terminated because of her absence without call-in.
C. Discussion and Conclusions
The issue is whether Mrs. Morris was terminated by
the Respondent because of her union activities, or because
of the reasons advanced by the Respondent; absenteeism
and poor work habits. In determining this question the
burden of proof is on the General Counsel to establish and
sustain the allegations of the complaint by a
preponderance of the credible and probative evidence of
record. There is no question on this record but that Mrs.
Esther Morris engaged in activities protected by Section 7
of the Act and, as found hereinabove, that the Respondent
knew of such conduct prior to the discharge.
In determining whether Mrs. Morris' discharge was for
union activities or for cause it is necessary to consider the
employer's true underlying motive. Even though a lawful
cause for discharge is available it is no defense where the
employee is actually discharged because of his or her
union activities. N.L.R.B. v. Ace Comb Company, 141
NLRB 489. In determining the question of motive there is
no compulsion to accept the employer's assigned reason
for discharging employees "when there is reasonable cause
for believing that the ground put forward by the employer
was not the true one, and that the real reason was
dissatisfaction with the union activity," Great Atlanticand
Pacific Company, Inc v. N.L.R.B, 354 F.2d 707, 709
(C. A. 5).
I have considered carefully the testimony of this record
and I am persuaded that Morris was discharged because
of her union activity. I am convinced that there was more
than a coincidental connection between her union activities
and her termination. The record reveals activity by Mrs.
Morris in support of the union during the campaign,
increasing in intensity as the time of the election
approached On the day of the election Mrs. Morris was
very much in attendance and very active. At the earliest
opportunity, within the period of one month thereafter,
the Respondent, based on the alleged excessive
absenteeism of Mrs. Morris terminated her employment.
At this time aside from the question of absenteeism, Mrs
Morris appeared on the record to have been a satisfactory
employee rewarded with several increases in pay. Under
these circumstances. in my opinion a convincing case of
discharge for cause would have to be made to overcome
the inference that the discharge was due to her union
activities. Dannen Green and Milling Company v.
N.L.R.B., 130 F.2d 321, 328 (C.A 8). While union
membership or activities does not insulate an employee
against termination, cause may not be asserted to shield
an employer against the consequence of a discriminatory
termination where the employee would not have been
terminated but for his union activities or membership. The
circumstances of each case must be weighed to determine
what motivations truly dominate the employer in
discharging the employees. N.L.R.B. v. Jones Sausage
Conpan} and Jones Abbatior Company, 257 F.2d 878,
(C.A 4). An employer may discharge employees as he
sees fit; may discharge in the interest of efficiency, or
from personal animosity or mere whim, but in discharging
an employee he may not discharge him on the grounds of
union affiliation or activity. A justifiable ground for
dismissal is no defense if it is a pretext and not the
moving cause. N L.R B. v. Solo Cup Company, 357 F.2d
521 (C.A. 8).
In the case at hand I am convinced that the cause for
the discharge advanced by the Respondent was pretextual
and that Mrs. Morris would not have been discharged but
for her union activity.
The Respondent contends that Morris was discharged
for excessive absenteeism in conformance with a
well-established practice of the Respondent to discharge
employees with records of excessive absenteeism. The
Respondent to support this contention, provided evidence
of other alleged discharges by the Respondent. It is
interesting to note in examining the records of the other
employees allegedly discharged by the Respondent for
excessive absenteeism that some of the discharges were
based exclusively on absenteeism, while others included
the additional charge of "poor working habits" or "poor
worker " Some included comments such as "do not
rehire,""would not rehire," "good worker when here,"
"very poor worker," and "would not rehire." It is not
possible to make an intelligent or meaningful comparison
between these examples of discharge and that of Morris.
There is no way of ascertaining the breadth and scope of
the judgment made in these cases nor any reasonable
method of comparing these discharges with that of Mrs.
Morris. It does appear that poor work habits were cited
as the basis for a determination not to rehire in many
cases. Morris' personnel card, like several others, included
the notation "discharged. absenteeism, poor working
habits, do not rehire."
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no question but that on this record the
Respondent's rules clearly required Mrs. Morris to give
proper notice in case of absence from work The rules
included the caveat "if unable to contact the department
head you should leave a message with the working leader
in your department or if he is not available, secure the
name of the person taking your telephone message." The
rule indicated that noncompliance with this rule would he
cause for appropriate disciplinary action. There is no
indication of what that action might be. The same is true
for absenteeism.
Many of the cases advanced by the Respondent in
support of its contention that the Company had a long
and well-established practice of discharges for excessive
absenteeism simply do not support that contention. As
was brought out in the testimony of record, some of the
examples involved employment of only several days
duration where the employee did not return the following
week. While these are labeled as discharges for
absenteeism by the Respondent, it is clear that the
Respondent used an extremely broad brush in so
categorizing the discharge and that these examples have
little if any similarity to the case of Mrs. Morris In my
view little weight may be accorded them for the
proposition that the employee involved was actually
discharged for excessive absenteeism within the meaning
of the terms as explained by Levi, the Respondent's
personnel director, and which- includes the element of
impact of absenteeism on production. Additionally, other
examples advanced by the Respondent involve
employment of a much shorter duration than that of Mrs
Morris and similarly are not comparable An examination
of those few examples having at least a basic similarity
with the case of Mrs Morris in that the length or term of
employment extends over at least a period of one year or
more reveals again no basis for meaningful comparison.
Most significantly, while the numbers of days of absence
appear at first blush to be comparable, on further
examination it becomes clear that in the case of Mrs.
Morris, for the year 1968, her record of unexcused
absences, totaling approximately about 5 from January 1,
1968, to August 30. 1968, could as reasonably be
characterized as a fairly good record rather than a
"horrible" record. Additionally, the other cases advanced
by the Respondent provide no basis for a determination of
the nature of the absence involved, or whether excused or
not excused. While the evidence of record establishes the
fact that the Respondent indeed discharged employees on
the broad grounds of absenteeism, in the absence of more
meaningful criteria for comparison I am not inclined to
view the discharge of Morris as conforming to any pattern
well-established on this record. Testimony adduced
through the Respondent's managers indicates that the
Respondent's policy in its application would require
discharge where the excessive absenteeism interfered with
production. There is no manner in which there may be
determined from this record the yardstick by which
interference with production was to be determined or if in
fact such a yardstick existed. Nor is it possible from the
record to determine whether any judgment was exercised
in determining whether or not Mrs. Morris' absenteeism
met. the criterion of interfering with production.On the,
contrary, the testimony of record would indicate that no
such judgment was made at any time in the procedure
starting with Johnson's notice to Schoonmaker that
Morris was to be watched and culminating in the
discharge for absenteeism and poor work habits.
Additionally, while the Respondent advanced "poor
work habits" and "eating on the line" as additional
reasons for Morris' discharge, the testimony of record
completely negates these assigned causes On the contrary,
the record indicates that Mrs. Morris was complimented
on her work and in fact, and most significantly, given
several pay raises during the period of her employment.
Accordingly, in assigning these causes as the basis for
Mrs. Morris' termination, I am persuaded that the
Respondent was advancing pretextual reasons for the
discharge in an effort to clothe the discharge with
apparent legitimacy and to obscure the true motive for the
discharge
I am convinced and I find from the testimony of record
and for each of the reasons herein discussed that the
Respondent, aware of the increasing tempo of Mrs.
Morris' union activity, and anticipating continued activity
by her in line with her statement that "we will be back
next year," used the absentee record of Mrs. Morris as a
pretext for her discharge, thereby attempting to obscure
the true motivation for the discharge which was to
terminate her employment because of her union activity
protected by the Act, and that such action constituted a
violation of Section 8(a)(3) and (1) of the Act.
The Respondent's counsel argues that no inference
should he drawn herein inasmuch a, the record is devoid
of any evidence of antiunion animus manifested toward
Mrs. Morris or any other union adherent. Counsel for the
Respondent also adverts to Lozano Enterprises v.
N.L R B, 357 F.2d 500, 502. Unlike Lozano the inference
arising herein from the union activity and the following
discharge is not dissipated by the explanation advanced by
the Respondent for the discharge. I found this explanation'
surrounded by an ambience of strain and am convinced it
is not, under all the circumstances. a reasonable
explanation. I am not convinced that Morris was warned
prior to discharge, nor am I convinced that the
Respondent in fact discharged Morris for excessive
absenteeism affecting production or scheduling
requirements. Nor did the Respondent on this record
prove the existence of a well-established practice of
discharge in cases such as that of Morris. I am not
convinced, as argued by the Respondent, that Morris was
not singled out for discharge but was dealt with wholly in
accordance with the consistent application of the
Company's well-known and longstanding policies and
practices with respect to absenteeism. It is from the
Respondent's act in discharging Morris close on the heels
of her increasing union activity and the election, and the
failure of the reasons advanced for her discharge to
withstand scrutiny that the pretextual nature of the
allegation of discharge for excessive absenteeism, poor
work habits, and eating on the line is inferred. 1 am
convinced that the Respondent was in fact substantially
and dominantly motivated by its desire to discharge
Morris in order to discourage the union activity of its
employees protected by the Act and that but for her union
activity Morris would not have been discharged.
THE REvIEDY
Having found that F spondent discriminated in regard
to the tenure of employment of Esther Morris by
discharging her because of her union activities, I will
recommend that she be reinstated to her former or
substantially equivalent position and that the Respondent
make Esther Morris whole for any loss of pay she may
have suffered because of the discrimination against her by
MARYLAND CUP CORP.
payment to her of a sum of money equal to that which
she would normally have earned as wages during the
period from the discriminatory discharge to the date of
offer of reinstatement , together with interest thereon, less
net earnings during said period , the backpay to be
computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB
289, and N.L.R.B. v. Seven - Up Bottling Co, 344 U S.
344.
CONCLU SIONS OF LAW
1. The business operations of the Respondent constitute
and affect trade. traffic and commerce among the several
States within the meaning of Section 2(6) and (7) of the
Act.
395
2. International Union of District 50, United Mine
Workers of America. is a labor organization within the
meaning of Section 2 (5) of the Act.
3. By interfering with, restraining , and coercing its
employees in the exercise of rights guaranteed by Section
7 of the Act, the Respondent engaged in, and is engaging
in, unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By discriminating with regard to the tenure of
employment of Esther Morris in order to discourage
membership in a labor organization, the Respondent
committed unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
[Recommended Order omitted from publication.]