The Rogers Mfg. Co.

National Labor Relations Board - Board Decisions

Oct 11, 1965

155 N.L.R.B. 117 (N.L.R.B. 1965)

THE ROGER5 MFG. CO. 117
3. The Respondent has not terminated the employment of Clarence Patterson and
James L. Johnson in violation of Section 8(a)(3) and (1) of the Act, as alleged in
paragraphs VII, VIII, and IX of the complaint.
4. The Respondent has engaged in no unfair labor practices warranting the issu-
ance of a remedial order.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is
recommended that the consolidated complaint in Cases Nos. 38-CA-23 (formerly
13-CA-6685 ) and 38-CA-31 (formerly 13-CA-6794) be, and it hereby is, dismissed.
The Rogers Mfg. Co. and International Chemical Workers Union,
AFL-CIO. Case No. 8-CA-3767. October 11, 1965
DECISION AND ORDER
On July 26, 1965, Trial Examiner Louis Libbin issued his Decision
in the above-entitled proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor practices and recommend-
ing that it cease and desist therefrom. and take certain affirmative
action, as set forth in the attached Trial Examiner's Decision. There-
after, Respondent filed exceptions to the Trial Examiner's Decision and
a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings made by the Trial Examiner 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 and the entire record in this case, including the
exceptions and brief, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
[The Board adopted the Trial Examiner's Recommended Order.] 2
1 These findings and conclusions are based , in part, upon credibility determinations of
the Trial Examiner , to which the Respondent has excepted , alleging that the Trial Exam-
iner was biased and prejudiced . After a careful review of the record , we conclude that the
Trial Examiner 's credibility findings are not contrary to the clear preponderance of all
the relevant evidence. Accordingly , we find no basis for disturbing the Trial Examiner's
credibility findings in this case, and we reject the charge of bias and prejudice on the
part of the Trial Examiner . Standard Dry/ Wall Products, Inc., 91 NLRB 544, enfd. 188
F. 2d 362 ( C.A. 3).
2 The note paragraph immediately below the signature line at the bottom of the Ap-
pendix attached to the Trial Examiner's Decision is amended to read: "In the event the
above-named employee is presently serving in the Armed Forces of the United States,
we will notify her of her right to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military Training and Service Act of 1948,
as amended , after discharge from the Armed Forces."
155 NLRB No. 17.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on February 8, 1965, by International Chemical Workers Union,
AFL-CIO, herein called the Union, the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region 8 (Cleveland, Ohio), issued his
complaint, dated March 26, 1965, against The Rogers Mfg. Co., herein called the
Respondent. With respect to the unfair labor practices, the complaint alleges that
Respondent engaged in unfair labor practices within the meaning of Section 8 (a) (1)
and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended,
herein called the Act, by discharging employee Sarah LaRue on February 2, 1965,
and thereafter refusing to reinstate her, because of her union membership and activi-
ties. In its duly filed answer, Respondent admits the discharge and refusal to rein-
state but denies, generally, all unfair labor practice allegations.
Pursuant to notice, a hearing was held before Trial Examiner Louis Libbin at
Akron, Ohio, on May 12 and 13, 1965. All parties were represented at the hearing
and were given full opportunity to be heard, to examine and cross- examine witnesses,
to introduce relevant evidence, and to file briefs. On June 14, 1965, the General
Counsel and Respondent filed briefs, which I have fully considered.
For the reasons hereinafter indicated, I hereby deny Respondent' s motion to dis-
miss the complaint and find that Respondent violated Section 8(a)(1) and (3) of
the Act.
Upon the entire record in the case, and from my observation of the demeanor of
the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, The Rogers Mfg. Co., an Ohio corporation, maintains its principal
place of business and plant in Akron, Ohio, where it is engaged in the manufacture
of automobile parts and other products. Respondent annually ships products, valued
in excess of $50,000, from its Akron, Ohio, plant to locations outside the State of
Ohio; Respondent also annually receives at its Akron, Ohio, plant, goods valued in
excess of $50,000 from points outside the State of Ohio.
Upon the above-admitted facts, I find, as Respondent admits in its answer, that
Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
H. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, the record shows, and I find, that Inter-
national Chemical Workers Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES 1
Sarah LaRue had been employed by Respondent from September 16, 1946, until
her discharge on February 2, 1965. At the time of her discharge, she was operating
a punch press and was the most senior among the female employees. During her
almost 20 years of employment, Respondent's only dissatisfaction with her work
occurred about 5 or 6 years before her discharge, at which time she was given 3 days
off for shearing a die. She was discharged on February 2, 1965, allegedly for having
been absent from work for 3 consecutive days without reporting off.
The sole issue litigated in this proceeding in whether Respondent was discrimina-
torily motivated in discharging LaRue and seized upon her alleged absences without
reporting off as a pretext to cloak its discriminatory motivation.
A. LaRue's union and concerted activities
Sarah LaRue was an active union protagonist during the Union's organizational
campaign. The Union won a Board election on December 11, 1964, and was certi-
fied as exclusive bargaining representative on December 18, 1964. The Union then
scheduled a mass meeting to consider contract proposals, among other things; when
the female employees were assembled in the plant lunchroom, LaRue informed them
1 Unless otherwise indicated, the factual findings are based on evidence and credited
testimony which is either admitted or undented.
THE ROGERS MFG. CO. 119
of the mass meeting and urged all to attend. One of the employees posed the ques-
tion about not wanting to join the Union . LaRue replied that those who did not
want to join were still invited to attend the mass meeting but explained that they
would not have a voice in the proceedings . Another girl raised the question of a
closed shop . LaRue stated that there was no such thing as a closed shop anymore
but that it would be possible to have a union shop . She then explained to the girls
the meaning of a union shop.
About a half hour after LaRue returned to work from lunch, Wilber Dean, her
foreman and immediate superior , who was admitted by Respondent to be a super-
visor within the meaning of the Act, came over to talk to her at her press. Dean
stated that there would always be people working at the plant who did not belong to
the Union , regardless of what anyone else said . He also stated that they did not
need a union and that the Company had always been fair with the employees and
had given them benefits . He then added that he wanted her to know that he knew
she had been attending union meetings , and that he knew there was going to be
another union meeting and that LaRue would attend . LaRue admitted that she had
attended previous meetings and would attend the next one which was scheduled for
4 p.m. the following day.
LaRue was elected a union Trustee and a member of the Union's negotiating com-
mittee. Three negotiating sessions with representatives of Respondent were held
prior to LaRue 's discharge . These sessions were held from about 7 to 9 p.m. on
January 18 and 26 and on February 1, 1965. LaRue attended and actively partici-
pated in all these sessions , advancing counterproposals to Respondent 's offers.
B. The circumstances surrounding LaRue's absences from work
LaRue was absent from work from January 25 to February 4, 1965, because of
a kidney infection . She worked on the first shift which started at 7 a.m. About
5.30 a.m. on Monday , January 25 , the first day of her absence , she telephoned the
home of employee Thelma Brittain with whom she rode to work, and informed
Brittain that she would not be coming to work because she was sick . Brittain stated
she would tell them when she got in , but LaRue replied that she herself would call in.
About 6:30 a in., LaRue, following her customary practice , telephoned the plant and
spoke to Tony Bonfilio, a working leadman on the third shift who happened to answer
the telephone. She stated that she was sick and asked Bonfiglio to report her off.
Bonfiglio noted the call and the message on the calendar pad in Plant Manager
DeHaven 's office. Shortly thereafter , he saw Waring Winter, the general foreman
of the first shift, and told him that LaRue had called and reported off. Winter replied,
"Okay." About 10 minutes later, Thelma Brittain arrived at the plant. As she
walked by, she saw Winter and told him that LaRue could not come in because she
was sick. Winter replied that LaRue had already reported off. Foreman Dean, who
was LaRue 's immediate supervisor , was out sick that day.2
LaRue's infection caused her "to run to the bathroom continually " when she moved
around, as was the case when she worked ; but it was different if she sat quietly. For
that reason she continued to attend the bargaining sessions where she could sit with-
out moving . Respondent was represented at those meetings by General Manager
Loper, Plant Manager DeHaven, Treasurer or Controller McMahon, Attorney Brown,
and Labor Relations Consultant Rector.
At the end of the negotiating session on Tuesday, January 26 , Plant Manager
DeHaven asked LaRue how she felt. She replied that she did not feel too good and
2 The findings in this paragraph are based on the credited testimony of LaRue , Brittain,
and Bonfiglio , who was the union president . My observation of their demeanor while
testifying under oath convince me that they are candid and forthright witnesses who
are entitled to full credence . I was not similarly impressed by Respondent ' s witnesses,
particularly Winter, who denied that either Bonfiglio or Brittain spoke to him about
LaRue that morning, although he did admit that he got to the plant about 6.30 a m.,
that Bonfigllo did "possibly " talk to him, and that he " imagine[d ]" he did see Thelma
Brittain that morning but could not recall any conversation with her . Moreover, the
clear preponderance of all the evidence shows that it was customary for Bonfiglio to
answer the telephone and receive reports from employees reporting off when his foreman
was busy or not in the vicinity , as was the case on January 25 , and Plant Manager
DeHaven admitted that the calendar in his office was on occasion used for making such
notations regarding absences , although he denied seeing any such notation concerning
LaRue that morning.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"couldn't get an appointment to go to the doctor until Thursday," which was Janu-
ary 28. She added that she was afraid and that she "thought it might be colon
trouble." 3 LaRue did visit the doctor on January 28.
The next negotiating meeting was held on Monday evening, February 1. When
DeHaven came down to the plant vestibule to open the plant door for Labor Rela-
tions Consultant Rector, LaRue and Union Business Agent Harrison also walked in.
LaRue then said to DeHaven in a "more or less joking" manner that "you may not
believe this but I am still sick. I have to go to the doctor." She also stated that she
thought she "had some kind of a kidney infection." DeHaven replied, "Okay." 4
C. The discharge of, and refusal to reinstate, LaRue
By letter dated February 2, 1965, and signed by McMahon, Respondent's con-
troller, LaRue was advised as follows:
As you are aware, the policy of this Company is that any employee who does
not report off from work for three consecutive days is considered as having quit
their employment.
Although we are sorry that you have shown no further interest in employment
with our Company, you have our best wishes for your future plans.
LaRue did not receive this letter until about 10 a.m. on February 4. That morn-
ing, she reported to the plant for work about 6:45 a.m. and found that her timecard
had been pulled. She asked the employees in the vicinity if they knew anything
about it, and they replied that they did not. As she went past Kirkpatrick, the fore-
man on the third shift, he handed her a workcard for a job assignment. She told
Kirkpatrick that she did not know whether she was working that day because her
timecard had been pulled. She then went to and asked General Foreman Winter
if he knew anything about her timecard .5 He helped her look "all through the rack"
but could not find her card. She asked if she should work that day and they could
make out another card for her later. When Winter made no reply, LaRue went to
the restroom in her own department to get her apron. Kirkpatrick then informed
her that he had spoken on the telephone to DeHaven, who stated that her card had
been pulled. She then went to the office where she called a cab and went home.
Later that morning she called the plant and asked to talk to DeHaven, informing the
office girl that she wanted to know why her timecard was pulled. After a pause,
the office girl informed her that DeHaven stated she was no longer employed with
the Company.
On February 8, the Union filed an unfair labor practice charge with the Board's
Regional Office, alleging that LaRue had been discharged because of union activities.
The next negotiating session was held on February 15 and was also attended by
LaRue. At this meeting, Union Representative Ashton asked Respondent's Attorney
Brown when LaRue would be put back to work. Brown replied that he understood
she had not been reported off, that it was now in the hands of the National Labor
Relations Board, and that he would let the Board handle it. Brown also referred to
a company policy about not reporting off for 3 days. LaRue stated that she had
never heard of such a policy. When Brown asked her why she had not reported off,
LaRue replied that she had. Rector also stated that she could not be taken back,
that the Company had a definite policy about an employee having automatically quit
if she had not reported off for 3 consecutive days, and that other employees had been
terminated for violating the same rule. During the middle of the bargaining session,
the union representatives caucused to consider the wage demands. During the dis-
cussions after the caucus, LaRue told Rector that she had reported off by telephone
to Tony Bonfiglio on January 25.
4 The findings in this paragraph are based on LaRue 's credited testimony , which is
essentially admitted by DeHaven. He admitted that she told him she was sick and had
to find out what was wrong with her, that she had "something wrong with her insides"
but did not know what it was, and that she was trying to get a doctor's appointment.
I do no credit DeHaven's testimony that on that occasion LaRue also specifically asked
him to report her off to her supervisor for the next day.
* The findings in this paragraph are based on the credited testimony of LaRue and
Harrison. I do not credit the denials of DeHaven and Rector.
6 Her immediate supervisor, Foreman Dean, was not present at that time.
THE ROGERS MFG. CO . 121
D. Respondent's asserted reason for the discharge and concluding findings
General Manager Henry Loper testified that the sole reason for LaRue's discharge
was her absence for 3 consecutive days without notice to the Company, in violation
of Respondent's alleged long-established, written, and publicized rule. He further
testified that her notification to Plant Manager DeHaven at the negotiating meeting
on the evening of January 26 was only considered as notice that she would not report
the following day, January 27; that her 3-day period of absence without notice con-
sisted of Thursday and Friday, January 28 and 29, and Monday, February 1; and
that her termination notice was sent on Tuesday, February 2. Although admittedly
fully aware of her union membership and participation in the bargaining sessions
during her absence from work, he denied that this had anything to do with the deci-
sion to terminate her.
Upon consideration of the entire record as a whole, and more particularly the
following specified factors, I reject Respondent's asserted defense and find that the
discharge of, and refusal to reinstate, LaRue was discriminatorily motivated.
1. Assuming the existence of the alleged rule, it was never publicized
or made known to the employees
Respondent's top management representatives testified that during their entire
employment with Respondent, which ranged up to 14 years in some cases, there has
been in existence an inflexible, written rule that an employee who is absent must
report off at least once within a 3-day period or be regarded as having automatically
quit his employment; that from time to time special notices to that effect have been
posted on all the timeclocks; and that employees and newly hired employees were
also orally informed of the existence of this rule. Yet, Respondent offered no writ-
ten proof of such rule or notice in evidence; nor did it explain its failure to do so.
Although Respondent called as witnesses General Manager Loper, Office Manager
McMahon, Plant Manager DeHaven, and General Foremen Winter and Kirkpatrick,
none testified that they had posted or had ordered posted a notice pertaining to this
3-day rule; nor did they testify that they had ever orally informed the employees
generally or specifically of this alleged company rule. Even estimates made by
Respondent's witnesses as to when they had allegedly last seen such a notice posted
varied from 6 or 8 months prior to the instant hearing in the case of DeHaven, to
a "couple of months" before the hearing in the case of Kirkpatrick, to 3 or 4 weeks
before the hearing in the case of Winter. Indeed, Kirkpatrick's version of the posted
rule differed from that of Respondent's other witnesses; for he testified that the notice
which he saw stated that if employees do not call in "every day within the three days,"
they would be considered an automatic quit. And of the approximately 180 employ-
ees working for Respondent, it failed to produce a single employee to testify to the
existence of such a rule or to having heard about it or having seen any notice to that
effect.
On the other hand, six witnesses for the General Counsel, who had been employed
by Respondent for periods ranging from 2 months to 18 years, credibly testified that
they had never heard or been informed of such company rule or had ever seen any
notice posted to that effect; no employee testified to the contrary. Indeed, employee
William Cedars, who was hired for the first time within 2 weeks after LaRue's dis-
charge and during the time when Respondent claimed others were discharged alleg-
edly for violating this rule, credibly testified without contradiction that he was not
informed of the existence of such a rule at the time of his employment although he
had been interviewed by both McMahon and DeHaven. The undisputed testimony
of employee witnesses shows it to have been the practice that when employees were
absent for any period of time exceeding 3 days, they called in and reported off only
on the first day of their absence.
I seriously doubt that there was in fact such a rule as that claimed by Respondent.
However, assuming the existence of the alleged nile, I am convinced and find that
it was never made known or publicized to the employees.
2. Assuming the existence of the alleged rule, it was never enforced prior
to the commencement of LaRue's absence in January 1965
According to the credited and undisputed testimony of all the employees who tes-
tified, the practice in the case of an absence extending for 3 days or more, prior to
LaRue's discharge, was to report off only on the first day of the absence and then to
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
return to work when the reason for the absence no longer existed; none was ever
reprimanded or disciplined for following this practice. The existence of this prac-
tice is graphically illustrated in the case of LaRue herself. General Counsel's Exhibit
No. 4 is LaRue's absentee record, which was prepared at General Manager Loper's
request prior to her discharge. This shows that on four occasions in 1964 LaRue was
absent for periods exceeding 3 days, without any notation appearing thereon to indi-
cate that she had reported off.6 In addition, LaRue credibly testified without con-
tradiction that throughout her over 18 years of employment with Respondent she
had never reported off more than once during any period of absence and that was
always on her first day of absence. The undisputed evidence shows that LaRue was
never warned or reprimanded or disciplined for following this practice. Respondent
made no effort to explain the disparate treatment accorded to LaRue after she became
an active union negotiator.
Finally, Respondent itself produced no convincing evidence of prior enforcement
of such a rule. Although General Counsel's Exhibit No. 3, entitled "Employee Disci-
plinary Report," was admittedly in use until January 5, 1965, and although "unre-
ported absence" is one of the reasons for warning or separation printed on that
report, Respondent did not produce a single such report showing a discharge for
unreported absences. Nor is Respondent's position supported by the exhibit which
it did offer. For Respondent's Exhibit No. 1, under the section headed "LEFT OF
OWN ACCORD," shows only that Ronald F. Mulhollen left "to accept other work."
The exhibit shows no entry in the section headed "DISCHARGED," although "unre-
ported absence" is one of the printed reasons listed in that section. DeHaven was
the only Respondent witness who could vaguely remember the name of a single
person discharged prior to January 27, 1965, allegedly for violating this rule during
his 7 years of employment. Respondent offered no explanation of the circumstances
surrounding this alleged discharge or any evidence to corroborate DeHaven's vague
recollection in this respect.
I am convinced and find that prior to the commencement of LaRue's absence in
1965, Respondent's practice was not to enforce its alleged 3-day rule, which was
repeatedly violated with impunity.
3. LaRue had satisfied the requirements of the alleged rule
As previously found, consistent with custom and practice which she had followed
for over 18 years and which other employees also followed, LaRue called in and
reported off on the first day of her absence on the morning of January 25. In addi-
tion to writing her message on the calendar pad in DeHaven's office, Bonfiglio
informed General Foreman Winter, who later that same morning acknowledged to
employee Brittain that LaRue had already reported off. At the negotiating meeting
on the evening of January 26, LaRue told Plant Manager DeHaven, in response to
his inquiry, that she did not feel too good, that she could not get a doctor's appoint-
ment until Thursday, January 28, and that she was afraid "it might be colon trou-
ble." DeHaven was thus put on notice as to the possible nature of her illness and
that her continued absence would be due to this illness. Although General Man-
ager Loper testified that an employee need not call in again if he indicates in advance
the nature of the illness and that be will be absent because of it for an extended
period, Respondent nevertheless accepted LaRue's statement as satisfying the report-
ing off requirements only for the following day, January 27, and began counting the
3-day period of absence beginning with January 28. By thus insisting on form over
substance, Respondent was in this case ignoring its own admitted realistic and prac-
tical interpretation and application of its alleged rule. Moreover, even accepting
LaRue's words literally, their plain accepted meaning was that she would be absent
at least through January 28, which would make the 3-day absence period start with
January 29 and continue up to February 3. Finally, as previously found, before
the commencement of the negotiating session of February 1, LaRue informed
DeHaven that she was still sick and had to go to the doctor and that she thought
she "had some kind of kidney infection." Even Respondent conceded that such
information would again stop the running of the 3-day period. Although, as pre-
viously found, DeHaven at that time replied that it was "okay," LaRue was dis-
charged the next day.
I find that, without being aware of the existence of the alleged 3-day rule, LaRue's
conduct was such as to constitute an actual compliance with it.
G These were as follows: 10 days from January 1 through January 13; 4 days from
march 10 through 13; 10 days from April 6 through 17; and 5 days from August 16
through 21. These did not involve Lincoln Insurance or industrial compensation claims.
THE ROGERS MFG. CO. 123
4. Disparate treatment accorded LaRue by the unexplained and
elaborate investigation of her prior absentee record
Loper testified that Respondent's policy did not permit any considerations to stay
the operation of the 3-day rule; that the rule was a rigid and inflexible one; and that
its violation automatically resulted in the employee's discharge. Yet, he admitted
that before invoking the rule in LaRue's case, he had McMahon's staff prepare an
elaborate and detailed schedule of her prior absenteeism since January 1964, a sched-
ule which appears in the record as General Counsel's Exhibit No. 4 Loper could
give no satisfactory explanation for this investigation in view of his testimony that
the rule was automatic and inexorable. Although he testified at one point that he
was not concerned with any absentee, especially, but only with her absences since
January 25, 1965, he later admitted that he "investigated all of the ramifications of
her absentee record." Thus, he went to the trouble of putting red check marks on
this exhibit, indicating each day LaRue was absent from January 1, 1964, to
February 2, 1965; an "X" was also placed next to each period of absence of 3 or
more days' duration. As previously noted, there were four such periods in 1964.
While first testifying that he had consulted only with McMahon before deciding to
send LaRue a discharge letter, he later testified that before making his decision he
reviewed LaRue's absentee record with McMahon and DeHaven, separately. Loper
admitted that this procedure of preparing and reviewing an employee's absentee rec-
ord was not followed in the case of other employees discharged in January and
February 1965 allegedly for violating this same 3-day rule. When asked if there
was any particular reason why he did it in LaRue's case and not in the others, he
testified, "as a matter of curiosity."
Why was Loper curious about LaRue's past absentee record if the company's pol-
icy would not permit it to have any bearing on the operation of its 3-day rule?
Why was LaRue's case treated differently in this respect? What was Loper search-
ing for in his investigation and examination of her prior absentee record? I am
convinced that the answer warranted by the record is that he was looking for evi-
dence to support or bolster a reason which could be seized upon as a seemingly
plausible basis for her discharge. The correctness of this conclusion, which I have
reached, is verified by the fact that during the investigatory stages of this case Loper
admittedly told the Board's investigator that LaRue was released because of her
"excessive absenteeism."
5. Shifting reasons asserted for LaRue's discharge
As previously noted, Loper admitted that, when the Board's agent was investi-
gating the unfair labor practice charge prior to the issuance of the instant complaint,
he told the Board's investigator that LaRue was discharged because of her "exces-
sive absenteeism." Presumably realizing that General Counsel Exhibit No. 4 shows
a remarkable decline in LaRue's unexcused absences in the period immediately pre-
ceding her discharge, Loper abandoned this defense at the hearing, specifically
denied that "excessive absenteeism" was a factor considered in the decision to dis-
charge her, and testified that he relied solely on her alleged failure to comply with
the 3-day absentee rule.
6. Loper's unexplained interest in LaRue's participation in the
negotiating sessions during her absence from work
Loper admitted that on page 4 of Respondent's Exhibit No 4 he put the initials
"MPG" opposite the dates of January 26 and February 1, 1965, to indicate that
LaRue had attended the union bargaining meetings on those evenings. When Loper
was asked by the General Counsel to "give me some explanation as to why you
have noted on here that she attended those meetings," he testified, "as a matter of
interest." When he was further pressed to explain "why it interested you that she
would be attending these bargaining sessions," he testified, "I am interested in all
of the ramifications of this particular incident whether or not she was at a meeting or
ill as far as being off." Yes, despite his professed practice of "tak[ing] to heart
these employees" and wishing "to do the best possible" for them, Loper admittedly
was not sufficiently interested to ask LaRue at the bargaining meeting why she was
still absent from work.
Here then is another unexplained instance of Loper's interest and curiosity. Such
an interest would be understandable if Respondent were contending that the fact
that LaRue attended the union bargaining sessions while claiming that she was too
ill to work entered into its decision to discharge her. However, when Respondent's
counsel were specifically asked at the hearing whether they were taking that posi-
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, they positively stated that they were not. They made it perfectly clear that
they were relying solely on the fact that she had been absent on 3 successive days with-
out allegedly calling in to report off, in violation of the Company 's alleged rule, and
that whether or not they may have believed that she was not in fact too sick to work
did not enter at all into the decision to discharge her. Why then Loper 's interest in
her attendance at the bargaining session ! Loper was one of the Respondent 's repre-
sentatives who had also attended these bargaining sessions and was therefore fully
aware of LaRue 's presence and participation at these meetings.
I am convinced that Respondent resented LaRue's ardent union support and her
continued attendance and participation in the negotiating sessions . The correctness
of this conclusion seems to be verified by the statement in Respondent 's brief that
LaRue "did not neglect her union activities because she felt that the Union was
running the plant ." When the opportunity arose, it seized upon it to rid itself of a
zealous and aggressive union advocate . Upon consideration of all the foregoing
and the entire record as a whole, I am convinced and find that Respondent 's asserted
defense was advanced as a pretext to cloak a discriminatory motivation and that
LaRue 's discharge and the failure to reemploy her were truly motivated by her
continued participation in the negotiating meetings and by antiunion considerations?
By such conduct , Respondent discriminated in regard to her hire and tenure of
employment , thereby discouraging membership in the Union in violation of Section
8(a)(3) and ( 1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occuring in connec-
tion with the operations of Respondent described in section I, above, have a close,
intimate , and substantial relation to trade, traffic , and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I will
recommend that it cease and desist therefrom and take certain affirmative action
which will effectuate the policies of the Act.
Having found that Respondent violated Section 8(a) (3) and ( 1) of the Act by
discharging Sarah LaRue on February 2, 1965, I will recommend that Respondent
offer her immediate and full reinstatement to her former or substantially equivalent
position , without prejudice to her seniority or other rights and privileges , and make
her whole for any loss of earnings she may have suffered as a result of the discrimi-
nation against her, by payment to her of a sum of money equal to that which she
normally would have earned as wages from the date of her discharge to the date of
Respondent 's offer of reinstatement, less her net earnings during such period, with
backpay and interest thereon to be computed in the manner prescribed by the Board
in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716.
Because of the character and scope of the unfair labor practices herein found, I
will recommend that, in order to effectuate the policies of the Act, Respondent cease
and desist from in any other manner interfering with, restraining , and coercing
employees in the exercise of their rights guaranteed by Section 7 of the Act .8
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. International Chemical Workers Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
7I find no merit in Respondent 's contention that such a finding is negated by Respond-
ent's Exhibits Nos. 2 through 7. These exhibits consist of form discharge letters , identi-
cal to that issued to LaRue. Two of them are dated January 27 , 1965, which was 2 days
after the commencement of LaRue's last absentee period. The remaining five are dated
subsequent to the filing of the instant unfair labor practice charge. The circumstances
surrounding these terminations were not litigated . None of the employees involved were
called as witnesses ; nor was any claim made that they were unavailable . And Respond-
ent's contention that the Union's failure to file a charge in their behalf demonstrates that
they were not union members, is just a non sequitur.
sN.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (CA. 4).
THE ROGERS MFG. CO. 125
2. By discriminating with respect to the hire and tenure of employment of Sarah
LaRue, thereby discouraging membership in the above-named labor organization,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, I hereby recommend that Respondent, The Rogers
Mfg. Co., Akron, Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf of International Chemical
Workers Union, AFL-CIO, or any other labor organization, by discriminatorily
discharging or refusing to reinstate employees, or by discriminating against them in
any other manner in regard to their hire and tenure of employment or any term or
condition of employment.
(b) In any other manner interfering with, restraining, or coercing employees in
the exercise of their right to self-organization, to form, join, or assist the above-
named or any other labor organization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain from any or all
such activities, except as authorized in Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative action which is necessary to effectuate the poli-
cies of the Act:
(a) Offer to Sarah LaRue immediate and full reinstatement to her former or
substantially equivalent position, without prejudice to her seniority or other rights
and privileges, and make her whole for any loss of earnings she may have suffered as
a result of the discrimination practiced against her, in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to determine
the amount due as backpay.
(c) Notify the above-named employee if presently serving in the Armed Forces
of the United States of her right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act
of 1948, as amended, after discharge from the Armed Forces.
(d) Post at its plant in Akron, Ohio, copies of the attached notice marked
"Appendix." fl Copies of said notice, to be furnished by the Regional Director for
Region 8 (Cleveland, Ohio), shall, after being duly signed by authorized representa-
tives of the Respondent, be posted by Respondent immediately upon receipt thereof,
and be maintained by it for a period of 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by said Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the said Regional Director, in writing, within 20 days from the date
of this Decision, what steps the Respondent has taken to comply therewith.10
OIn the event that this Recommended Order Is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" In the notice. In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
10In the event that this Recommended Order Is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of Interna-
tional Chemical Workers Union, AFL-CIO, or in any other labor organization,
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by discriminatorily discharging or refusing to reinstate employees , or by dis-
criminating against them in any other manner in regard to their hire and tenure
of employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization , to form, join, or
assist the above-named or any other labor organization , to bargain collectively
through representatives of their own choosing , to engage in other concerted
activities for the purpose of collective bargaming or other mutual aid or pro-
tection, or to refrain from any or all such activities , except as authorized in
Section 8(a) (3) of the Act, as amended.
WE WILL offer to Sarah LaRue immediate and full reinstatement to her former
or substantially equivalent position , without prejudice to her seniority or other
rights and privileges , and will make her whole for any loss of earnings suffered
as a result of the discrimination against her.
All our employees are free to become or remain , or refrain from becoming or
remaining , members of the above -named or any other labor organization.
THE ROGERS MFG. CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE -In the event the above-named employee is presently serving in the Armed
Forces of the United States we will notify him of his right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948 , as amended , after discharge from the Armed
Forces.
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.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board' s Regional Office, 720 Bulk-
ley Building , 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465.
Von Per Ahe Van Lines , Inc. and Office Employes International
Union, AFL-CIO, Local 13 . Cases Nos. 14-CA-3386 and 14-CA-
3565.1 October 11,1965
DECISION AND ORDER
On June 28, 1965, Trial Examiner Howard Myers issued his Decision
in the above-entitled proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor practices and recommend-
ing that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's Decision. There-
after , Respondent filed exceptions to the Trial Examiner's Decision
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
1 Subsequent to hearing , Case No. 14-RC-4881 was severed from this consolidated
proceeding and remanded to the Regional Director for Region 14 for further processing.
On August 18, 1965, the Regional Director set aside the election in Case No. 14-RC-4881
on the basis of Petitioner 's objections.
155 NLRB No. 2.