C. W. Sweeney & Co.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 721 (N.L.R.B. 1981)

C. W. SWEENEY & CO.
C. W. Sweeney & Co. and Office and Professional
Employees Union, Local No. 3, AFL-CIO and
Lena Diethelm. Cases 20-CA-14687 and 20-
CA- 14689
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On December 12, 1980, Administrative Law
Judge Leonard N. Cohen issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The National Labor Relations Board has consid-
ered the record and the attached Decision in light
of the exceptions and brief and has decided to
affirm the rulings, findings,' and conclusions of the
Administrative Law Judge only to the extent con-
sistent herewith.
The Administrative Law Judge found that Re-
spondent did not violate Section 8(a)(3) and (1) of
the Act when it discharged employee Lena Dieth-
elm, but did violate Section 8(a)(5) and (1) by re-
fusing to furnish Office and Professional Employ-
ees Union, Local No. 3, AFL-CIO, hereinafter the
Union, with information requested by it for the
purposes of collective bargaining. The General
Counsel excepted to the Administrative Law
Judge's failure to find that Respondent violated the
Act by discharging Diethelm. 2 We find merit in
that exception.
The facts with regard to Diethelm's discharge
are basically undisputed. Respondent and the
Union were parties to a collective-bargaining
agreement covering Respondent's office clerical
employees at its San Francisco facility. Diethelm
was employed in the bookkeeping department, and
served as one of the six union stewards under the
agreement. As steward, Diethelm was active in po-
licing the collective-bargaining agreement, and
filed a number of complaints about conditions in
the facility.3 In addition, on a number of occasions
' In fn. 15 of his Decision, the Administrative Law Judge stated that
employee Lena Diethelm normally worked 8 hours a day Monday
through Thursday and 4 hours a day on Friday for a 3&6-hour workweek.
In fact, the record reveals that she worked a 7-hour workday on Monday
through Thursday and 4 hours on Friday for a total of 32 hours of work
per week.
2 No exceptions were taken to the Administrative Law Judge's finding
that Respondent violated Sec. 8(a)5) of the Act as alleged.
I In the first 2 months of 1979 alone, Diethelm filed one written griev-
ance and made two oral complaints to Respondent concerning alleged
contract violations. The Administrative Law Judge found that Diethelm
was the Union's most active steward at Respondent's facility.
258 NLRB No. 96
Diethelm sought and received time off without pay
to attend arbitration hearings.
In late February 1979, 4 the Union requested that
Diethelm be given leave to attend an arbitration
hearing on March 7. In response to this request, Jo
Murphy, Respondent's administrative assistant, met
with Diethelm and expressed reluctance to grant
the requested leave. She also stated that she was
considering transferring Diethelm to the account-
ing department because of the excessive time
which Diethelm spent on grievances and the nature
of the bookkeeping work. Diethelm insisted that
leave to attend arbitration hearings was mandatory
under the contract, and further stated that the
threatened transfer, if implemented, would be dis-
criminatory. Diethelm was permitted to attend the
March 7 hearing, and she was not transferred.
At the March 7 hearing, Diethelm spoke with C.
W. Sweeney, Respondent's president, who told her
that certain reports for which she was responsible
were in fact incomplete and that she would have to
account for this and other work deficiencies.
Diethelm accused Sweeney of harassing her, which
Victor Van Bourg, Respondent's attorney, denied.
In late March, Diethelm's father became serious-
ly ill, and Diethelm was absent during much of
April, with Respondent's permission, to care for
her father. 5 On May 1, Diethelm requested leave
for May 4, 7, and 8, in connection with her father's
illness. Diethelm's immediate supervisor, John
Deignan, initially approved the request, but on
May 3, at Murphy's direction, Deignan rescinded
his permission. In response to the rescission of her
leave, Diethelm contacted the Union and also cir-
culated a petition and a handbill which stated, inter
alia:
Yesterday Jo Murphy denied me permission to
take 2-1/2 days personal leave to help my
father, which my boss had previously ap-
proved. Our union contract provides that the
employer may grant leave for personal reasons
and may not discriminate in denying such
leave. While others may have been allowed
leave for emergencies or even to extend their
vacation time, I am being denied it ....
Here's how you can help me. (1) Sign the peti-
tions being circulated insisting that I be per-
mitted the time off I need. (2) Make a commit-
ment to stay at Sweeney until our next con-
tract is ratified. Sweeney is not a benevolent
* Unless otherwise noted, all dates hereinafter are in 1979.
The Administrative Law Judge found that Respondent was sympa-
thetic to Diethelm's problem and permitted her to use accumulated sick
leave to attend to her father for short periods as medical emergencies
arose. On some of these occasions, Diethelm would give 2 or 3 days'
notice for her intended absence, while on others she gave short notice.

721
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer. He wants all union supporters (in-
cluding stewards) out. We must be united. In
unity we will have the strength to fight for
our best contract ever.
Diethelm did not present the petition, which was
signed by approximately 40 employees, to Re-
spondent, because in the interim Respondent decid-
ed to grant her request for leave on May 7 and 8.
On May 11, the Union requested that Diethelm
be granted leave to attend an arbitration hearing.
On May 14, Diethelm requested additional leave
for a nonemergency dental appointment. Deignan
denied the latter request for leave. At the same
time, Deignan gave Diethelm a "final warning" for
excessive absenteeism, which stated, inter alia, that
Diethelm's "attitude of defiance, disregard and fail-
ure to improve, has created an atmosphere which is
effecting [sic] the efficiency and morale of the de-
partment as a whole." On May 16, Diethelm asked
Deignan about her request for leave to attend the
May 17 hearing. Deignan denied her request with-
out explanation, whereupon Diethelm contacted
the Union. That afternoon, she was informed that
Van Bourg had approved her attendance at the
hearing, and she did attend the hearing.
Respondent discharged Diethelm on June 5, after
her return from a previously scheduled 1-week va-
cation. 6 Diethelm reported to work on Monday,
June 4, and was seated at her desk when Deignan
approached her and asked her why she was at
work that day. Deignan added that he had not ex-
pected her to return until the following day, and
requested that she leave. He told her that since her
vacation period encompassed Memorial Day, a
holiday, the collective-bargaining agreement re-
quired that she extend her vacation by I day. 7
6 Diethelm asked for and received a I-week vacation from Monday,
May 28, through Friday, June . May 28 was celebrated as Memorial
Day and Respondent's offices were closed.
' Art. 10 of the collective-bargaining agreement, covering vacations.
provides in pertinent part:
Section 3. Employees with one year and less than five years of
continuous service shall receive two weeks vacation with pay per
year.
Section 7. There shall be no compulsory splitting of vacations.
However, at the employee's option, vacation time may be split. An
employee who splits their vacation may exercise their seniority
rights for the initial period. However, subsequent selection shall be
made after all employees have made their initial selection. Employ-
ees who selected to split their vacation time may do so in two (2)
segments within the calendar year.
Section 10. The minimum vacation period to be scheduled shall be
one week.
Section II. In the event any of the holidays enumerated in Article 9
occur during the period of any employee's vacation, an additional day's
When Diethelm expressed her desire to work that
day, Deignan directed her to come to his office,
which she did after 5 or 10 minutes. In Deignan's
office, Deignan continued to insist that Diethelm
was still on vacation and that she could not work
until the next day, to which Diethelm responded
that she would not leave unless she was physically
removed. At this point, Deignan left his office in
search of another supervisor to witness this con-
frontation. During Deignan's absence, Diethelm
left his office and some time later left Respondent's
premises. On June 5, Diethelm reported to work
and worked for most of the day. That afternoon
Diegnan issued Diethelm a termination letter,
which (1) referred to the May 14 warning letter;
(2) stated that Respondent had a longstanding prac-
tice, which was incorporated in the collective-bar-
gaining agreement and explained to Diethelm, of
requiring employees to schedule vacations in week-
long increments and to extend their vacation by the
requisite number of days if a holiday fell within the
vacation week;8 (3) stated that Diethelm responded
in a "bellicose fashion" to Deignan's order to leave
work on June 4 and "continued to make statements
in a loud and antagonistic manner outside of [Deig-
nan's] office which caused major disruption in the
work of other employees in the department and the
surrounding area, and, upon entering Deignan's
office, declared that she would not leave the prem-
ises unless removed bodily"; and (4) concluded that
this and other conduct demonstrated Diethelm's
defiance of her supervisor and disruption of the de-
partment sufficient to warrant her discharge.
On the above facts, the Administrative Law
Judge found that Respondent did not violate Sec-
tion 8(a)(3) of the Act when it discharged Dieth-
elm for her conduct in protesting Deignan's order,
as he found her actions so outrageous and disrup-
tive as to remove them from the Act's protection.
He also rejected the General Counsel's alternate ar-
gument that, even if Diethelm's actions on June 4
were unprotected, Respondent violated Section
8(a)(3) by seizing upon such conduct as a pretext
for discharging a union activist. Applying the
Board's teaching in Wright Line, a Division of
Wright Line, Inc.,9 the Administrative Law Judge
found that the General Counsel failed to make a
prima facie showing that protected conduct was a
"motivating factor" in Respondent's decision to
discharge Diethelm. He found, moreover, that,
vacation shall be allowed for each holiday so occurring. (Emphasis sup-
plied.]
The Administrative Law Judge found that, in fact, no evidence was
presented that Deignan and Diethelm, prior to June 4, ever discussed the
operation of this contract provision
9251 NLRB 1083 (1980).
722
C. W. SWEENEY & CO.
even if a prima facie case has been shown, Re-
spondent has met its burden of showing that it
would have discharged Diethelm even absent the
protected conduct. The General Counsel has ex-
cepted to the Administrative Law Judge's findings
with regard to Diethelm's discharge. As noted, we
find merit in this exception.
Applying Wright Line, we find, contrary to the
Administrative Law Judge, that the General Coun-
sel established a prima facie showing that Dieth-
elm's union activity was a motivating factor in her
discharge. The record is clear that Diethelm was
an active union steward, and took leave on a
number of occasions to attend arbitration hearings
and otherwise to conduct union business. It is also
clear that, on more than one occasion, Respondent
expressed its displeasure with Diethelm's union ac-
tivity. In February, Administrative Assistant
Murphy stated that union matters and grievances
were taking up too much of Diethelm's time, and
because of the nature of the work in the bookkeep-
ing department Murphy was thinking of transfer-
ring her to the accounting department. In early
March, Sweeney, Respondent's president, informed
Diethelm that there were problems with her work
for which she would be held accountable. Thereaf-
ter, in May, Respondent issued a warning to Dieth-
elm for excessive absenteeism, occasioned in large
part by Diethelm's time off for union activities. On
these facts, we conclude that a motivating factor in
Respondent's decision to discharge Diethelm was
its displeasure over her vehement support for the
Union.
We further find that Respondent has not success-
fully rebutted the General Counsel's prima facie
case by showing that Diethelm would have been
discharged for her protest of Deignan's order to
leave the premises on June 4 even absent her activ-
ities on behalf of the Union. As the Administrative
Law Judge recognized, Diethelm was engaged in
concerted activity when she protested Deignan's
interpretation of the contract's vacation provisions.
However, Respondent argues that Diethelm's con-
duct was so opprobrious as to lose the protections
of the Act and warrant the discharge. We do not
agree. The record lacks any evidence that this al-
tercation in any manner disrupted Respondent's
production, or even that any employees heard
Diethelm's statement that she would not leave the
premises unless she was removed bodily. The cred-
ited testimony reveals that Diethelm was not loud
or abusive during either of her two conversations
with Deignan in asserting her desire to work on
June 4; in fact employee Betty Cogiati credibly tes-
tified that Deignan raised his voice when first di-
recting Diethelm to leave, while Diethelm respond-
ed quietly, without yelling or screaming. More-
over, Deignan's actions in summoning another su-
pervisor to witness Diethelm's refusal to leave belie
Respondent's contention that Diethelm's actions
disrupted its operations; if Diethelm's protestations
had been as vociferous and disorderly as Respond-
ent contends, other employees and supervisors pre-
sumably would have heard the altercation and
ceased working. The absence of such evidence
leads us to the conclusion that Diethelm's efforts to
remain at work on June 4 were not so outrageous
or disruptive as to remove her from the protections
of the Act. '
Furthermore, Respondent has failed to demon-
strate that Diethelm's attendance record or job per-
formance was so much more deficient than that of
other employees as to require her discharge in the
absence of union activities. As noted by the Ad-
ministrative Law Judge, Respondent did not intro-
duce documentary evidence of Diethelm's attend-
ance record and job assignments, although this evi-
dence was available to it. Nor did Respondent in-
troduce evidence, also available to it, of the attend-
ance records of other employees. In fact, the only
evidence presented by Respondent to support its
contention that Diethelm was excessively absent
was the May 14 warning and Deignan's unsupport-
ed testimony that no employee in his department
had an absentee record as bad as Diethelm's, which
forced him to reassign certain matters from her to
other employees. On this bare record, unsupported
by testimony or documentation available to Re-
spondent, we find that Respondent has not rebutted
the General Counsel's prima facie case. We there-
fore find that Respondent violated Section 8(a)(3)
and (1) of the Act when it discharged Lena Dieth-
elm and we shall order that Respondent reinstate
her with backpay, as set forth in the section of this
Decision entitled "The Remedy," and take the ac-
tions set forth therein.
THE REMEDY
Having found that, in addition to the violations
found by the Administrative Law Judge, Respond-
ent violated Section 8(a)(3) and (1) of the Act by
discharging Lena Diethelm, we hereby order that
Diethelm be offered reinstatement to her former
position or, if that position no longer exists, to a
substantially equivalent position, without prejudice
to her seniority or other rights and privileges pre-
viously enjoyed, and that she be made whole for
any loss of pay suffered by her as a result of the
discrimination against her, as prescribed in F. W.
" OMC Stern Drive. a Division of Outboard Marine Corporation. 25.1
NLRB 486 (1980)
723
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Woolworth Company, 90 NLRB 289 (1950), with in-
terest thereon to be computed in the manner pre-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977). See, generally, Isis Plumbing & Heating Co.,
138 NLRB 716 (1962)."
CONCLUSIONS OF LAW
1. The Respondent, C. W. Sweeny & Co., is an
employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Office and Professional Employees Union,
Local No. 3, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act, and
is the exclusive representative for the purposes of
collective bargaining of the employees in the fol-
lowing described unit:
All employees including bookkeeping and data
processing employees employed at its San
Francisco, California, facility excluding tempo-
rary employees, guards and supervisors as de-
fined in the Act.
3. Respondent has violated Section 8(a)(3) and
(1) of the Act by discharging employee Lena
Diethelm on June 5, 1979, for engaging in protect-
ed concerted activities.
4. Respondent has violated Section 8(a)(5) and
(1) of the Act, since on or about June 6, 1979, by
failing and refusing to provide the aforesaid collec-
tive-bargaining representative with information re-
lating to the 1979 vacation schedules for all its unit
employees and documentation regarding the ab-
sences of and warnings issued to Lena Diethelm
during her term of employment.
5. The foregoing unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
C. W. Sweeney & Co., San Francisco, California,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, or otherwise discriminating
against, employees because of their exercise of
rights guaranteed them by Section 7 of the Act or
activities on behalf of Office and Professional Em-
ployees Union, Local No. 3, AFL-CIO, or any
other labor organization.
(b) Refusing to bargain collectively with Office
and Professional Employees Union, Local No. 3,
" In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
AFL-CIO, by failing and refusing to furnish it
with the 1979 vacation schedules for all unit em-
ployees and attendance records of and warnings
issued to employee Lena Diethelm.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of rights guaranteed them by Section 7 of
the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Lena Diethelm immediate and full rein-
statement to her former position or, if such position
no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or other
rights and privileges previously enjoyed, and make
her whole for any loss of earnings in the manner
set forth in the section of this Decision entitled
"The Remedy."
(b) Expunge from its files any reference to the
June 5, 1979, discharge of Lena Diethelm and
notify her in writing that this has been done and
that evidence of her unlawful disciplinary action
will not be used as a basis for future discipline
against her.
(c) Furnish the Union with the 1979 vacation
schedules of all unit employees.
(d) Furnish and/or make available to the Union
all records including timecards and payroll records
relating to the attendance of and warnings issued to
Lena Diethelm during the entire term she was em-
ployed.
(e) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(f) Post at its premises in San Francisco, Califor-
nia, copies of the attached notice marked "Appen-
dix." 2 Copies of said notice, on forms provided by
the Regional Director for Region 20, after being
duly signed by Respondent's representative, shall
be posted by Respondent 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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
12 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the ords in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
724
C. W. SWEENEY & CO.
(g) Notify the Regional Director for Region 20,
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
WE WILL NOT discharge, or otherwise dis-
criminate against, our employees because they
engaged in union activities or other concerted
activities for their mutual aid or protection.
WE WILL NOT refuse to bargain collectively
with Office and Professional Employees
Union, Local No. 3, AFL-CIO, as the exclu-
sive bargaining representative of our employ-
ees by refusing to furnish said labor organiza-
tion with the 1979 vacation schedules for all
unit employees and all records and documents
relating to the attendance of and warnings
issued to Lena Diethelm.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL offer Lena Diethelm immediate
and full reinstatement to her former position
or, if such position no longer exists, to a sub-
stantially equivalent position, without preju-
dice to her seniority or other rights and privi-
leges previously enjoyed, and WE WILL make
her whole for any loss of earnings she may
have suffered as a result of our discrimination
against her, with interest.
WE WILL expunge from our files any refer-
ences to the June 5, 1979, discharge of Lena
Diethelm and WE WILL notify her that evi-
dence of this unlawful discharge will not be
used as a basis for future discipline against her.
WE WILL, upon request, bargain collectively
with Office and Professional Employees
Union, Local No. 3, AFL-CIO, by furnishing
to the above-named labor organization as the
exclusive representative of our employees in
the bargaining unit described below the 1979
vacation schedules for all unit employees and
all records and documents relating to the at-
tendance of and warnings issued to Lena
Diethelm. The bargaining unit is:
All employees including bookkeeping and
data processing employees employed at our
San Francisco, California, facility excluding
temporary employees, guards and supervi-
sors as defined in the Act.
C. W. SWEENEY & CO.
DECISION
STATEMENT OF THE CASE
LEONARD N. COHEN, Administrative Law Judge: This
matter was heard by me on February 26, 1980, in San
Francisco, California, pursuant to complaints issued on
August 16 and November 19, 1979,1 in Cases 20-CA-
14687 and 20-CA-14689, respectively, by the Regional
Director for Region 20 of the National Labor Relations
Board. The complaints, which were consolidated for
hearing by order dated November 19 are based on
charges filed on July 6. The complaints allege that Re-
spondent violated Section 8(a)(1) and (3) of the National
Labor Relatins Act, as amended, by its discharge of
Lena Diethelm on June 5 and subsequently violated Sec-
tion 8(a)(5) of the Act by refusing to furnish certain doc-
uments and information to the Union in the course of
processing grievances filed by Diethelm.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. The
General Counsel has filed a brief which has been careful-
ly considered.
Upon the entire record of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent is a California corporation with its princi-
pal place of business in San Francisco, California, where
it is engaged in the administration of union trust funds
and pension plans and the processing of health and wel-
fare claims. During the past calendar year, Respondent
performed services valued in excess of $50,000 in States
other than the State of California. Accordingly, Re-
spondent admits, and I find, that at all times material
herein Respondent has been an employer engaged in
commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Office and Profes-
sional Employees Union, Local No. 3, AFL-CIO, herein
referred to as the Union, is, and has been at all times ma-
terial herein, a labor organization within the meaning of
Section 2(5) of the Act.
Unless otherwise specified. all dates refer to 1979
725
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts"
I. The 8(a)(1) and (3) allegations
From the time Lena Diethelm first began her employ-
ment with Respondent in July 1976 until her discharge
on June 5 she was employed as a class III bookkeeper in
the bookkeeping department under the direct supervision
of John Deignan, that department's manager. In October
1976 Diethelm was elected to act as shop steward and
she held that position throughout her entire term of em-
ployment.
3
Prior to receiving a written warning on May 14 Dieth-
elm received one written warning in 1977 and one
in
1978, both for insolence and disrespect towards manage-
ment officials. Although the record is not clear, it ap-
pears that each of these warnings was grieved.
4 Al-
though Diethelm was only I of 6 shop stewards repre-
senting the approximately 120 unit employees employed
in the 9 separate departments, it is undisputed that since
at least the beginning of 1980, if not for some time prior
thereto, Diethelm had been one of the most active and
vocal union members. Her activities and attitude in moni-
toring Respondent's compliance with the collective-bar-
gaining agreement can best be described as vigilant.'
The three major factual questions raised at the hearing
concerning Diethelm's discharge involve her union activ-
ities, her rate of absenteeism,
6 and her production level
during the first 5 months of 1980. In view of the interre-
lationship of these issues, the matters can best be treated
in a chronological recitation.'
I Except where specifically noted, the material facts regarding the
events leading to Diethelm's discharge are not in dispute. The following
account is based on the uncontroverted and, in large measure, corrobo-
rated testimony of Diethelm and/or her immediate supervisor, John
Deignan. the bookkeeping department's manager.
I Respondent and the Union were parties to a collective-bargaining
agreement effective November I, 1976, to October 31, 1979. covering Re-
spondent's office clerical employees. The parties stipulated that since No-
vember I, 1979, the collective-bargaining agreement has been extended
pending ongoing negotiations and that at the time of the hearing a tenta-
tive settlement on a new contract had been reached. The record does not
disclose whether the parties had a bargaining relationship prior to 1976.
Art. 3 of the collective-bargaining agreement in effect during 1979
provides that warnings become null and void after 6 months front the
date of issue.
Diethelm has been a member of the Union since approximately 1970.
In addition to her activities chronicled above. Diethelm has been a
member of a rump group of union members who publish their own
monthly newsletter, the purpose of which she described as offering "con-
structive criticism" to the Union.
6 All of Diethelm's absences, whether sick leave, vacation, union busi-
ness, or leave without pay, were approved by Respondent.
' Serious conflicts in the testimony of the two principal actors-Dieth-
elm and Deignan-do exist on the following questions: (I) whether Deig-
nan ever spoke to Diethelm regarding her attendance record prior to is-
suing her a written warning on May 14; (2) what instructions Deignan
had received from C. W. Sweeney, Respondent's president, regarding
Diethelm and when such remarks were passed on to Diethelm; and (3)
whether Diethelm, on the morning of June 4. ever told Deignan that Re-
spondent would have to bodily remove her from the facility. Neither
Diethelm nor Deignan was a particularly impressive witness. Althugh
Deignan appeared to be a trustworthy individual who was honestly
at-
tempting to recall the facts as accurately as possible, he testified in a ram-
bling and at limes confused manner. Additionally, with the exception of
the events of the morning of June 4, he was for the most part unable
to
recall with any real degree of specificity what was said In conversations
On January 24, Diethelm spoke to Deignan and in-
formed him that the location of another employee's desk
near an electrical socket created a safety hazard. Deig-
nan indicated he would look into the matter and, within
a day or two thereafter, Deignan resolved the problem
by moving the affected employee's desk.
On January 25, Diethelm filed a grievance on behalf of
all the unit employees regarding their vacation rights.
Subsequently, in April, Diethelm, along with Union Rep-
resentative Eric Pace, met with Sally Matteson, Re-
spondent's official designated to handle all grievances, to
discuss the matter; and in early June, after Diethelm's
discharge, the issue was resolved to the satisfaction of
all.
Around the middle of February, Deignan called Dieth-
elm into his office and informed her that Sweeney had
observed Diethelm speaking to another union steward
while at work and that she was not to perform union
business on company time. Diethelm answered that she
was not discussing union business during that particular
conversation.
On or about February 23, Diethelm again approached
Deignan and on this occasion informed him that an em-
ployee had not been granted certain leave time in ac-
cordance with the contract's terms. Deignan answered
that he would look into the matter. As was the case with
Diethelm's late January request concerning the moving
of a desk, Deignan, within a few days, corrected the
problem to the satisfaction of the affected employee.
In late February, Diethelm was called into the office
of Jo Murphy, Respondent's assistant administrator.
Murphy showed her a letter from the Union requesting
that Diethelm be granted leave to attend an arbitration
hearing on March 7. Murphy stated that she did not
know if she could grant the request because there had
been a previous grievance regarding pay for stewards.,
Diethelm answered that there was no problem since the
Union would pay for her time. Deithelm added that, in
any event, a steward's attendance at an arbitration hear-
ing was mandatory leave," and she accused Murphy of
with Diethelm and when such conversations took place. On the other
hand, Diethelm was able, for the most part, to recall both the details of
conversations and their dates. However, she did not impress me as an en-
tirely candid witness. In this regard, she appeared to color her testimony
and at times displayed a selective memory with respect to certain conver-
sations (which she no doubt believed would be detrimental to her case),
such as the one in which she was warned about "stale" work found in
her desk. Moreover, in evaluating the probabilities inherent in their re-
spective testimony on these issues, I am persuaded that with the excep-
tion of the date Deignan gave for a conversation he had with Sweeney
regarding Sweeney's interest in Dielhelm's work, Deignan's versions are
the more probable. Especially persuasive was the improbability of Dieth-
elm's testimony that, notwithstanding her admitted record of absenteeism
during the first 9-1/2 months of 1979, her immediate supervisor never
spoke to her about the subject.
' Murphy, an admitted supervisor still employed by Respondent, did
riot testify. No explanation was offered.
' The grievance underlying the March 7 arbitration hearing was filed
by another steward who, by that time, had left Respondent's employ
Deithelm testified that she had helped investigate the matter.
"' The meaning of this remark was never clarified
" Art. 2, sec. 4, of the collective-bargaining agreement provides:
Leave on union activities. Employees with more than one year of
service shall he granted leaves of absence by the employer without
Continued
726
C. W. SWEENEY & CO.
harassing her. Murphy responded that, due to the fact
that Diethelm was spending so much of her time on
grievances and because of the very nature of the work in
the bookkeeping department, she (Murphy) was consid-
ering giving Diethelm a lateral transfer to the accounting
department. Diethelm answered that such a transfer
would be discriminatory because of her activities as a
shop steward. Nothing further was said during the meet-
ing, 2 and Diethelm was permitted to attend the March 7
arbitration hearing.
Diethelm did in fact attend the March arbitration hear-
ing. Present for Respondent was Sweeney and Respond-
ent's attorney, Victor Van Bourg, neither of whom testi-
fied at the present hearing. The testimony of Diethelm
regarding her conversations with Sweeney and Van
Bourg at the arbitration hearing, as well as her testimony
regarding a conversation she had with Deignan that took
place at work apparently upon her return from the arbi-
tration hearing, is somewhat vague and confusing. Al-
though the record is far from clear, apparently at some
unidentified time on March 6 or 7 Deignan went through
Diethelm's desk at work and found that certain reports
to which Diethelm had been assigned were not updated
for, while at the arbitration hearing, Sweeney, in the
presence of Van Bourg, informed Diethelm that there
was a problem with the Utah financial reports and that
she would be in trouble when she returned to the office.
Sweeney further told her that the negative things he
found out about her work both shocked and surprised
him and that she would have to account for that. When
Diethelm accused Sweeney of harassing her, Van Bourg
interrupted and informed her that he would not permit a
client to harass an employee who acted as a steward or
otherwise engaged in union activities. Van Bourg then
informed Diethelm that, if she had any documentation
regarding alleged harassment, she should turn it over to
him and he would see to it that the matter was correct-
ed.
As noted, Diethelm, also at or about the same time,
had one or more conversations with Deignan regarding
her work. During the first of these conversations, Dieth-
elm testified that Deignan, after going through her desk
while she was out of the office, told her that her work
was in disarray and that her desk was in a mess. Dieth-
elm further admitted that she did in fact recall someone
in management telling her that material had been found
in her desk which was stale and related back to Janu-
ary. 13
pay for a period not to exceed 2 weeks. Such leaves of absence by
mutual agreement may be extended for a] like period if written per-
mission is secured from both the union and the employer. However.
an employee who is elected or hired to fill a position with the union
shall be granted a leave of absence up to 3 years for one such term
only.
Diethelm interpreted this provision as requiring Respondent to grant
leave to all five or six stewards to attend an arbitration hearing if request-
ed by the Union.
' Nothing further was ever mentioned about a transfer of Diethelm
from the bookkeeping department. Diethelm admitted that, when she was
absent from work, no one worked on the accounts assigned to her.
'' It is not at all clear whether Diethelm as attributing this remark to
Deignan for Sweeney. In view of her testimony that Deignan in fact in-
structed her to store material in her desk, it would appear more probable
that Sweeney made this statement. Deignan's testimony regarding what
According to Diethelm's testimony, around the middle
of March in a meeting with Deignan she gave him the
minutes of a trust payment she had prepared. Deignan
took the document and left his office. A short time later,
Deignan called her back into his office and stated that
Sweeney was giving him a bad time and was bugging
him about being too easy on her. Deignan allegedly
added that, because of her, his life was miserable and
very uncomfortable. Diethelm answered that, if Sweeney
would just live up to the contract, there would not be
these kinds of problems. Diethelm specifically denied
that Deignan ever stated in this or any other conversa-
tion she had with him prior to May 14 that her absentee-
ism was mentioned as a problem.
Deignan admitted that Sweeney in fact did talk to him
about Diethelm's work but asserted that the conversation
took place in January or in February rather than in
March. According to Deignan, Sweeney told him-and
he repeated shortly thereafter to Diethelm-that
Sweeney wanted Deignan to watch her more carefully
and to make sure that she got her work out in a timely
fashion. Deignan also testified that in a separate conver-
sation with Diethelm around March 10 he reminded her
that she had reports to do and that she needed to be
present at work more in order to complete them." As
noted in footnote 7, above, Deignan's version of these
conversations is credited.
By Diethelm's own figures, during the period January
I to June 4, she was absent from work approximately
130 hours. s Of this total figure, Diethelm was paid for
all but approximately 30 hours of personal leave and ap-
proximately 20 hours of leave while she was engaged in
union business, attending grievance meetings and arbitra-
tions. While the record is again somewhat vague with
regard to the specifics of Diethelm's attendance record,
it appears that a majority of her total leave during 1979
was in April and was in connection with a serious and
subsequently fatal illness to her father.
In late March, her father became paralyzed due to a
cancerous tumor and he remained hospitalized from that
time until approximately June 1. During the month of
April, Diethelm was absent between 2 and 3 weeks as-
sisting with the care of her father. Diethelm admitted
that during this time, Respondent, and specifically Deig-
nan, was extremely sympathetic to her problem and per-
mitted her to use sick leave even though the collective-
bargaining agreement did not require Respondent to pay
specific work product she was working on during March is vague and
does not shed much, if any, light on the matter.
" Documentary evidence regarding both Diethelm's attendance for the
period up to mid-May, as well as the specifics of what tasks and trusts
Diethelm was working on during this period, were available to Respond-
ent at the time of the instant hearing. In fact, some of this information
was summarized in reports and memoranda Deignan prepared or caused
to e prepared in June and thereafter. As will be discussed in greater
detail later, these documents were forwarded to the Union in late De-
cember in connection with the Union's request for information. Unfortu-
nately. neither counsel at the hearing attempted to make use of this infor-
mation as substantive evidence. This failure leaves the record before me
somewhat in a state of disarray.
'" Diethelm normally worked 8 hours a day Monday through Thurs-
day and 4 hours a day on Friday for a 36-hour workweek During this
period of over 5 months she was absent approximately 18 percent of the
time
727
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sick leave for absences due to someone else's illness. This
2 to 3 weeks of sick leave was not taken in one or two
lump periods but was apparently spread over most of the
month in 1- or 2- or 3-day periods as medical emergen-
cies arose. On some of these occasions, Diethelm would
give 2 to 3 days' notice of her intended absence, and on
others she was unable to give more than a day's or less
notice.
On Tuesday, May 1, Diethelm spoke to Deignan and
requested additional leave for Friday, May 4, and
Monday and Tuesday, May 7 and 8, in connection with
her father's illness. Deignan granted the leave. However,
on Thursday afternoon, May 3, Deignan called her into
his office and informed her that Murphy had instructed
him to tell her that she could not have the requested
leave for the next 2-1/2 days. Later that afternoon,
Diethelm called the Union and spoke to George Davis,
the Union's secretary-treasurer. According to Diethelm,
Davis stated that Respondent's switchboard was by then
shutdown and that he would contact Respondent in the
morning. The following morning, Diethelm handbilled
Respondent's employees with the document she had
drafted the prior evening. The document or handbill
states, inter alia:
Yesterday Jo Murphy denied me permission to take
2-1/2 days personal leave to help my father, which
my boss had previously approved. Our union con-
tract provides that the employer may grant leave
for personal reasons and may not discriminate in
denying such leave. While others may have been al-
lowed leave for emergencies or even to extend their
vacation time, I am being denied it.... Here's how
you can help me. (1) Sign the petitions being circu-
lated insisting that I be permitted the time off I
need. (2) Make a commitment to stay at Sweeney
until our next contract is ratified. Sweeney is not a
benevolent employer. He wants all union [support-
ers] (including stewards) out. We must be united. In
unity we will have the strength to fight for our best
contract ever.
Accompanying the handbill, Diethelm circulated a peti-
tion for employee signatures. Neither the petition, which
was signed by approximately 40 employees, nor the
handbill was presented at that time to Respondent, for at
some time earlier that same morning, Diethelm had
spoken to Davis and he had informed her that he had
spoken to Murphy and that leave for May 7 and 8 had
been granted. After speaking with Davis, Diethelm ap-
proached Deignan and he confirmed that her request for
the additional leave had been granted.
Either immediately before or after Diethelm confirmed
the granting of the approval with Deignan, Matteson
called Diethelm at her desk and asked her to come up to
the office. According to Matteson's credited account,
during the course of this conversation Matteson assured
Diethelm that the call and the request to speak to her
had nothing to do with any adverse action to be taken
against Diethelm. Diethelm demanded that Matteson put
that in writing. Matteson again requested that Diethelm
come to her office and stated that it would not be neces-
sary to bring along a shop steward. Several minutes
later, Diethelm, accompanied by a shop steward, arrived
at Matteson's office. Matteson again explained to Dieth-
elm that there was no action being taken against her and,
since she had defied the instructions to come alone, Mat-
teson sent the two of them away without any further
conversation. According to Matteson, Diethelm unsuc-
cessfully attempted to argue the matter further and Mat-
teson again asked Diethelm to leave which she eventual-
ly did. Later that same day, Diethelm returned to Matte-
son's office alone and apologized. Matteson accepted the
apology but she warned Diethelm that if she ever in-
dulged in that type of action again, a warning letter
would be issued. 16
By letter dated Friday, May II11, the Union yet again
requested that Diethelm be granted leave to attend an ar-
bitration hearing scheduled for May 17.'7 On Monday
morning, May 14, Diethelm gave Deignan a note re-
questing several hours' leave for the purpose of having
her teeth cleaned. At some unidentified point during
either May 14 or 15, Deignan denied this request after
speaking with his supervisor, Murphy. According to
Deignan, since they only work a half day on Fridays, he
felt it was an abuse to ask for sick leave for a dentist's
appointment that could be handled on a Friday after-
noon. On the afternoon of May 14, Deignan called
Diethelm into his office and, in the presence of another
steward, gave Diethelm a written warning which states:
This employee, although cautioned numerous
times, has continued in a pattern of excessive absen-
teeism. In considering the issuance of this warning
letter, management has taken into consideration this
employee's previous attendance record; this worker
has been absent from the job an average of 91.36
hours per year, over a two year 9 month period of
employment.
In his evaluation, it has been deemed necessary to
evaluate the excessive absenteeism record of this
employee, which has become so frequent as to
render the employee's services of little or no value
in providing necessary services to the clients in-
volved.
Management has attempted through counseling
and warnings to assist in the improvement of this
employee's record of attendance and having failed
to see an improvement, has no alternative but to
issue this letter as a final warning.
This employee who has persisted in an attitude of
defiance, disregard and failure to improve, has cre-
16 Diethelm's version differs markedly from Matteson's. According to
Diethelm, when Matteson called her and requested to see her, Diethelm
asked if it were going to be a disciplinary matter. Matteson told her not
to argue and hung up the phone. Diethelm, accompanied by another shop
steward, then went to Matteson's office. Matteson then yelled at both of
them about the presence of the other steward Matteson then stated that
it did not involve a disciplinary matter. When Diethelm asked that Matte-
son put that in writing, Matteson refused and ordered them to leave. The
shop steward who accompanied Diethelm to Matteson's office did not
testify.
" The record discloses neither the subject of the grievance underlying
this arbitration hearing nor Diethelm's involvement therewith, if any.
728
C. W. SWEENEY & CO.
ated an atmosphere which is effecting the efficiency
and morale of the department as a whole.
On May 16, Diethelm asked Deignan about the request
for leave to attend the May 17 arbitration hearing. When
Deignan denied this request without explanation, she im-
mediately contacted the Union by telephone. Subse-
quently that same afternoon, she was informed by the
Union that Van Bourg had cleared her attendance for
the hearing and Diethelm, in fact, did attend the hearing
which lasted approximately 1-1/2 hours.
According to Diethelm's uncontroverted testimony,
around May 23 she was in Deignan's office when the
phone rang and she heard Deignan state, "She signed up
just like everyone else. Well, do you want Lena to come
down and talk to you? Well, she signed up and she has
permission to go on vacation." When Deignan hung up
the phone, he infonmed Diethelm that he had been
speaking with Matteson and that Matteson had wanted
to know why Deignan had granted Diethelm her vaca-
tion time." Deignan then stated that, when Matteson
asked if Diethelm's work was caught up, he answered
that it was as current as it could be. Deignan then added,
"If your work had to be caught up, Christ, nobody
would go on vacation in this place."
On Monday, June 4,'9 Diethelm reported to work and
was seated at her desk by approximately 8:30 a.m. Short-
ly thereafter, Deignan noticed Diethelm, approached her
desk, and asked why she was at work that day. Deignan
added that he had not expected her to return until the
following day and that he wanted her to leave the prem-
ises. Deignan, who by this time was speaking in a loud
and somewhat excited voice, further stated that, since
there was a holiday during her 5-day vacation time, she
was, according to the contract, supposed to extend her
vacation by 1 day.20 Diethelm answered that she was
18 In late April, Diethelm signed the vacation schedule requesting as
her vacation period Monday, May 28, through Friday, June 1. May 28 of
that year was celebrated as Memorial Day and Respondent's operations
were shutdown. Each department had its own one-page vacation sched-
ule which all employees signed.
"9 With the exception of Deignan's failure to testify regarding his hall-
way conversation with Diethelm. I found Deignan's testimony regarding
the material aspects of the June 4 incident as the more probable version.
Therefore, the following account is based on his testimony which is in
part corroborated by the testimony of Betty Cogliati, a clerk in the book-
keeping department who was called as a witness for the General Counsel.
The limited portion of the incident that Cogliati witnessed will be specifi-
cally noted. Other than the two principals, no other witnesses to the
entire incident were called to testify.
20 Art. 10, "Vacations," of the collective-bargaining agreement pro-
vides, inter alia, the following:
Section 3. Employees with one year and less than five years of
continuous service shall receive two weeks vacation with pay per
week.
Section 7. There shall be no compulsory splitting of vacations.
However, at the employee's option, vacation time may be split. An
employee who splits their vacation may exercise their seniority
rights for the initial vacation period. However. subsequent selection
shall be made after all employees have made their initial selection
Employees who selected to split their vacation time may do so in
two (2) segments within the calendar year
there and wanted to work. Deignan then told her to
come to his office. He left the area and, according to
Cogliati's testimony, Diethelm remained at her desk
typing for 5 to 10 minutes.2
About 10 to 15 minutes later, Diethelm went into
Deignan's office. Once again he told her that she was not
supposed to be at work that day and that he wanted her
to leave. According to Deignan, Diethelm at this time in-
formed Deignan that the only way she would leave the
premises was if he had her physically removed. 22 Deig-
nan then told her to remember those words and that he
was going to get someone else from management to
come and witness Diethelm's threat.2 3 Deignan then left
his office, found another supervisor, and the two of them
returned to Deignan's office. By this time, Diethelm had
left his office. According to both Deignan and Matteson,
who was informed of the incident upon her arrival at the
facility at or about 9:30 a.m. that morning, Diethelm re-
mained in the general area in the breakroom and outside
the building for up to an hour and a half.2 4
On June 5, Diethelm reported for work at her normal
time and worked without incident until late in the after-
noon when she was called into Matteson's office. There,
in the presence of Deignan and another shop steward,
she was handed a termination letter which reads:
With reference to the warning letter given to the
employee [Lena Diethelm] under the date of May
14, 1979, the employee was granted vacation of one
week at her request, commencing May 28, 1979.
Under the collective bargaining agreement, less
than one week's vacation may not be granted.
Historically, the usual practice of this firm has
Section 10 The minimum vacation period to be scheduled shall be
one week.
Section I I. In the event any of the holidays enumerated in Article
9 occur during the period of any employee's vacation, an additional
day's vacation shall be allowed for each holiday so occurring.
21 Diethelm testified that during this first meeting she asked Deignan if
she could talk to someone and that he answered, "Well, come to the
front office." Diethelm then testified that within a few minutes of this
conversation she. accompanied by a fellow union steward. Rose Phelps.
encountered Deignan in the hallway near the breakroom. Diethelm testi-
fied that Deignan again told her that she was not supposed to be at work
that day and that she should leave She again answered that she was
there and was ready to do the substantial amount of work which awaited
her. Deignan again told her to leave. According to her testimony, she left
the hallway and within a very short period of time went to his office and
spoke with him alone. Although, as noted above. Deignan did not men-
tion this hallway conversation during his testimony, he does refer to it in
the discharge report prepared on June 5.
22 Diethelm denied ever telling Deignan that he would have to have
her physically removed from the premises. As noted. I do not credit this
denial
2: Diethelm testified that in this as well as the two earlier conversations
with Deignan she simply argued that the collective-bargaining agreement
did not require her to take an extra day's vacation. Diethelm testified that
she knew of perhaps 40 to 50 employees who took their vacations In less
than I week's time When pressed to identify any such employees, she
identified one employee who took less than a 5-day vacation in either
1978 or 1977 and another employee ho took less than 5 days at a time
during Christmas of 1978. Cogliati. who had been employed for approxi-
mately 6 years. testified that she :(ook a vacation in late 1979 for less than
5 days Cogliati further testified that the remaining times during her em-
ployment she took her vacations in 5-day increments.
:' According to Diethelm, she left the facility before 9 o'clock and im-
mediately went to the union hall
729
I
*
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
always been to incorporate and extend the vacation
time to include any holiday which may fall within
the period for which vacation is requested. Employ-
ee was advised by the Departmental Manager at the
time her vacation was approved and was further ad-
vised of the contract provisions on this and on prior
occasions when the question of leave time was dis-
cussed. 25
At 8:30 a.m., June 4, 1979, the employee ap-
peared for work and was advised her attendance
was not expected until June 5, 1979 by her Depart-
mental Manager, in accordance with the collective
bargaining agreement requirement.
The employee responded in a bellicose fashion
and was requested by the Departmental Manager to
cease argument and to come into his office. The
employee continued to make statements in a loud
and antagonistic manner outside of the Department-
al Manager's office which caused major disruption
in the work of other employees in the department
and in surrounding areas. The Departmental Man-
ager requested the employee to leave the premises
and returned to his office.
The employee [Lena Diethelm] did not leave the
office and presented herself to the Departmental
Manager in his office and recommenced the argu-
ment. Upon request again being made that she
leave, she responded, "You will have to remove me
bodily."
The Departmental Manager reiterated instruc-
tions for the employee to leave the premises and
when she refused, he left to take up the matter with
the Personnel Department.
This is further evidence of the disregard and fail-
ure on the part of this employee to follow instruc-
tions, of arguments with and defiance of the depart-
mental manager's authority with respect to not only
this incident but also incidents involving the use of
the telephone for personal calls, etc. 26 This has con-
tinued in disruption of the operation of the depart-
ment and the efficiency and morale of other em-
ployees.
Lena Diethelm is therefore terminated for cause
effective at the end of the working date of June 5,
1979.
Deignan testified that notwithstanding Diethelm's on-
going absentee problems, the reason he instructed her to
leave work on June 4 was to make sure that she was off
5 days in a row and thereby insure that she could not
come back in at a later time, take I day's leave and
hence "really disrupt my flow of work."
2. The 8(a)(5) allegations
Grievances were filed by Diethelm protesting both the
May 14 written warning2 7 and her June 5 discharge. On
"2 No evidence was presented that Deignan and Diethelm had ever.
prior to June 4. discussed the operation of these contract provisions
26 The references to incidents involving the use of the telephone appar-
ently refer to incidents occurring in the latter portion of 1978.
2 The General Counsel does not allege that the issuance of the w ritten
warning on May 14 constitutes a violation of the Act. Nonetheless. I ind
June 6, the Union, represented by Pace and Diethelm,
met with Matteson concerning the grievance filed over
the warning.2 8 At that time, Pace requested information
regarding the number of hours or days that Diethelm
had been absent from work during her employment, as
well as examples of how Diethelm had been belligerent
and bellicose. Matteson replied that she knew from con-
versations with Deignan that Diethelm had been cau-
tioned on prior occasions regarding her absenteeism. Ad-
ditionally, during this meeting Matteson requested that
the Union furnish it with specifics regarding when al-
leged acts of harassment and discrimination against
Diethelm had taken place.
By letter dated June 8, the Union requested that Re-
spondent furnish it with the following documentation:
"(1) Ms. Diethelm was cautioned several times in rela-
tion to attendance; (2) Ms. Diethelm has received several
warnings on attendance; (3) Ms. Diethelm has been
absent an average of 91.36 hours per year; (4) Ms. Dieth-
elm has been defiant and this has affected the efficiency
and the morale of the department; (5) Ms. Diethelm's
services have been of little or no value to the company."
By letter to the Union also dated June 8, Respondent
stated, inter alia:
We requested specifics at the June 6 meeting as
to when harassment and discrimination as alleged
occurred and under what circumstances. At that
time, we were advised that upon submission of a
letter of request such detailed information would be
forthcoming.
We will appreciate receiving the detailed itemiza-
tion of such occurrences from this grievant or from
your offices.
By letter dated June 21, the Union requested copies of
the vacation schedules for all departments and "docu-
mentation of accusations made in connection with Ms.
Diethelm being cautioned about attendance, receiving
several warnings, being defiant, etc."
Finally, by letter dated June 25, Respondent, in answer
to the Union's June 21 letter, stated, inter alia:
With reference to your request for copies of va-
cation schedules, we are not amenable to compli-
ance with your request.
Concerning your request for documentation for
various requests [sic] concerning deficiencies of Ms.
Diethelm's abilities to perform the prerequisites of
an employee of this company, if you will provide this
office with the documentation requested in the griev-
ance alleged by Ms. Diethelm of harassment and dis-
crimination, we will be pleased to consider your request
for documentation. [Emphasis supplied.]
that this subject was fully litigated without objection at the hearing and
that it is sufficiently related to the subject matter of the complaint to jus-
tify specific findings with regard to whether it constitutes a separate vio-
lation of Sec. 8(a)(3) and (I). Greif Bros. Corporalton, 238 NLRB 240
(1978); Alexander Dawsonr. Inc.. d/b/a .Alexanderi Restauran and Lounge,
228 NLRH 165 (1977).
2' The following acoount is based on the documentary evidence as well
as the composite testimony of Diethelm. Pace, and Matteson. Where ma-
terial conflicts in their testimony occur, they will be specifically noted.
730
C. W. SWEENEY & CO.
On June 27, the parties met for the second and final
time to discuss the merits of Diethelm's grievances. The
same three individuals were present. While the testimony
regarding this meeting is somewhat sketchy, it appears
that Pace again requested the same information. Matte-
son did not provide any written documentation at that
time and merely stated that it would be "too burden-
some" to provide the Union with the requested informa-
tion regarding employees' vacation schedules. During
either this meeting or the first meeting, or for that matter
both meetings, it appears that Matteson verbally in-
formed the Union of several incidents where she be-
lieved Diethelm had been belligerent or bellicose.
The parties eventually agreed not to take Diethelm's
warning and discharge to arbitration but to allow the
matter to be resolved by the National Labor Relations
Board. The matter remained unchanged until late De-
cember when Respondent's counsel furnished the Union
with the following information or documentation: (1) A
copy of Diethelm's June 4 discharge report; (2) a copy
of Diethelm's written warning dated May 14; (3) a copy
of an internal memorandum from Deignan to Sweeney
dated June 8 reciting in detail Diethelm's work perform-
ance; (4) a copy of an internal memorandum from Deig-
nan to Sweeney dated June 13 reciting in some detail
Diethelm's attendance since December 1978; 29 (5) a copy
of a written warning issued to Diethelm on or about
February 22, 1978; and (6) a copy of a written warning
issued to Diethelm on or about April 20, 1977.30 In addi-
tion, Respondent supplied a five-page "work-up sheet"
allegedly compiled from Respondent's payroll records
which shows Diethelm's use of sick leave, vacation, time,
and personal leave without pay since she first com-
menced her employment. Further, included in this packet
of documents are Diethelm's "timecard worksheet[s]" for
the years 1977 through 1979. Aside from the fact that
these sheets are barely legible, they are, without explana-
tion from some official or employee responsible for their
preparation, virtually incomprehensible.
B. Analysis and Conclusions
1. The discharge of and warning to Diethelm
The General Counsel contends that Diethelm was at
all times on the morning of June 4 engaged in protected
concerted activities and that such conduct formed the
basis for her termination. In the alternative, the General
Counsel argues that Respondent seized upon the incident
of June 4 as a pretext for ridding itself of a key union
supporter. Contrary to these contentions, I am not per-
suaded that the General Counsel has met his burden of
establishing by a preponderance of the credible evidence
that Diethelm was warned and/or discharged because of
her protected protest of alleged contract violations or
that Respondent was otherwise motivated by union
animus.
It is well settled that an employee is engaged in pro-
tected concerted activities when he or she, either acting
:g As to items 3 and 4, see the discussion at fn. 14, above.
" As to items 1, 2, 5, and 6, both Diethelm and the Union had received
copies of such documents when the events occurred and each was in pos-
session of such documents prior to the June 6 meeting.
alone onl in concert with his fellow employees, complains
or inquires about contract violations, and a violation of
the Act is established if the employer penalizes the em-
ployee for asserting such rights under the contract.3t
Likewise, it is equally well settled that the merits of an
underlying claim or dispute are irrelevant to the issue of
whether the employee was engaged in protected concert-
ed activities.32
The question then becomes whether Diethelm on the
morning of June 4 exceeded the bounds of lawful con-
duct by engaging in such a serious act of misconduct so
as to render her unfit for further service.33 In determin-
ing when an employee loses the protection of the Act by
engaging in opprobrious conduct, the Board, in Atlanta
Steel Company, 245 NLRB 814 (1979), restated the fac-
tors to be balanced: (1) the place of the discussion; (2)
the subject matter of the discussion; (3) the nature of the
employee's outburst; and (4) whether the outburst was in
any way provoked by an employer's unfair labor prac-
tices.
Here, Deignan, at approximately 8:30 a.m., approached
Diethelm at her desk and infonmed her that she was not
supposed to be at work that day and instructed her to
leave. When Diethelm began arguing with Deignan's in-
terpretation of the collective-bargaining agreement,
Deignan repeated his instructions for her to leave. Deig-
nan then ordered her to his office and he left the area.
This conversation took place on the floor of the book-
keeping department where, at the time, at least one other
employee was working within hearing distance. Rather
than immediately complying with Deignan's orders,
Diethelm remained at her desk for between 5 and 15
minutes typing.
At or about 8:45 she went to Deignan's office and con-
tinued the argument over the interpretation of the con-
tract. When Deignan again ordered her to leave, Dieth-
elm replied that Respondent would have to forcibly
remove her from the facilities. Deignan left his office to
secure a witness to this statement. During the interim,
Diethelm apparently thought better of her remark and
voluntarily left the work area, although she remained in
the general vicinity for another hour or hour and a half.
Diethelm's unprovoked conduct on the morning of
June 4, both on the work floor as well as in her supervi-
sor's office, clearly amounted to an outrageous and dis-
ruptive act of insubordination which removed her from
the protective mantle of the Act. I have considered the
cases cited by the General Counsel and find them inap-
posite. Those cases fall into three separate categories.
The first category3 5 deals with individual employee com-
" Potlatch Corporation 236 NLRB 707, 709 (1978): .4RO, Inc., 227
NLRB 243 (1977).
2 .4RO. Inc.. supra at 243. John Sexton & Co.. a Divivion o Beatricl
Food Co., 217 NI.RB 80 (1975)
3: Milk Wagon Drivers Union v. Meadowmnor Dairies. Inc,. 312 U.S
287, 293 (1941)
'4 Although the record does not disclose how many other employees
observed or overheard this conversation, it would appear likely that
more than the one employee who testified at the hearing about the conl-
versation would have been present in the area However. this is mere
speculation and does not enter into my coinsideration
as Merlyn Bunnev and Clarence Bunner. Partner, d/bh/a Bunney Bros.
Consrrucrio, Company, 139 NLRB 1516 (1962); ushrrnm ransporrarion
Continued
731
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaints under the contract regarding working conditions.
The employees in question did not refuse a direct order.
The second line of cases36 involves utterances by em-
ployees in reponse to an employer's antiunion speech or
statements at group meetings. The third line of prece-
dents cited by the General Counsel" involves an em-
ployer's attempt to prevent employees from displaying a
boycott sign while they were off duty outside the facili-
ty.
I now turn to the General Counsel's alternative argu-
ment, to wit: Respondent seized upon Diethelm's con-
duct of June 4 as a pretext t rid itself of an active and
troublesome union supporter. The Board in its recent de-
cision in Wright Line, a Division of Wright Line, Inc., 251
NLRB 1083 (1980), set forth the applicable test in all
cases alleging violations of Section 8(a)(3) and (1) which
turn on the employer's motivation. First, the General
Counsel is required to make a prima facie showing suffi-
cient to support the inference that the protected conduct
was a "motivating factor" in the employer's decision.
Once this is established, the burden then shifts to the em-
ployer to demonstrate that the same action would have
taken place even in the absence of the protected con-
duct.
As evidence of alleged union animus, the General
Counsel cites Murphy's late February conversation with
Diethelm in which she mentioned thinking about trans-
ferring Diethelm to another department because the
latter was spending to much time away from her work
involved in union business. Additionally, the General
Counsel argues that Sweeney's negative remarks to
Diethelm at the March 7 arbitration hearing about Dieth-
elm's productivity, as well as Deignan's earlier state-
ments to her in which he relayed Sweeney's concern
about conducting union business on company time, evi-
dence "a pattern of harassment" because of Diethelm's
aggressiveness in filing grievances and because of her re-
peated attendance at grievance and arbitration proceed-
ings.3 8 Contrary to the General Counsel, I do not view
these remarks as establishing the requisite quantum of
union animus to support a finding that Respondent's
treatment of Diethelm was motivated by any unlawful
considerations. Rather, I view these remarks, when taken
in the context of the entire case, as evidencing a real and
legitimate concern on the part of Respondent that the
work to which Diethelm was assigned was simply not
being done in a timely fashion. In this regard, Diethelm
admitted that no one worked on the trust accounts as-
signed to her when she was absent and the record dem-
Co., Inc., 142 NLRB 1150, 1157 (1963), enforcement denied 330 F.2d 683
(3d Cir. 1964); Graphic Arts Engraving Co.. Inc., 197 NLRB 644 (1972);
and N.L.R.B. v. Interboro Contractors Inc., 388 F.2d 495, 500 (2d Cir.
1967).
a Prescott Industrial Products Company, 205 NLRB 51 (1973); Will &
Baumer Candle Co., Inc., a Wholly Owned Subsidiary of Syracuse China
Corporation, 206 NLRB 772 (1973); and Howell Metal Company. 243
NLRB 136 (1979).
31 Coors Container Company. 238 NLRB 185 (1978).
3" The General Counsel also argues that Respondent was provoked and
irritated by Diethelm's handling and solicitation of signatures on a peti-
tion protesting the denial of her leave in early May. Neither the handbill
nor the petition was presented by Diethelm to Respondent and neither
was ever discussed with her. Further, it appears that the requested leave
was granted after the handbilling occurred.
onstrates that during this period of time Diethelm was
not current in her work. In fact, the record establishes
that Diethelm had certain of the trust accounts taken
away from her and given to other employees.
Even if one were to conclude by this evidenoe, when
coupled with the evidence of Diethelm's vigorous en-
forcement of the collective-bargaining agreement, that
the General Counsel has met his burden of establishing a
prima facie case, a review of Respondent's case demon-
strates that the same action would have taken place even
in the absence of the protected conduct. Diethelm,
throughout the first 5-1/2 months of the year, was absent
for a variety of reasons an inordinate amount of time.
Only a small portion of this total was attributable to ab-
sences for union business. As discussed above, these ex-
cessive absences had a significant negative impact on her
production.
Diethelm's union activities clearly predated early April
when her father became critically ill. The record estab-
lishes, and Diethelm in fact admits, that during the
month of April Respondent was both extremely coopera-
tive and generous with Diethelm regarding allowing her
to take extensive sick leave for the care of her father. It
was only in mid-May when Diethelm requested sick
leave to have her teeth cleaned that Respondent, not un-
reasonably, concluded that Diethelm was abusing its
good faith. Without belaboring the discussion further, I
find, in agreement with Respondent, that the General
Counsel has failed in his ultimate burden of proving this
case by a preponderance of the credible evidence. Ac-
cordingly, I shall recommend that the Board dismiss
those portions of the complaint relating to Diethelm's
warning and subsequent discharge.
2. The refusal to furnish information
It is well settled that under Section 8(a)(5) of the Act
an employer is obligated to furnish a union with request-
ed information if there is a probability that such data is
relevant and will be of use to the union in fulfilling its
statutory duties and responsibilities as the employees' ex-
clusive bargaining representative. N.L.R.B. v. Acme In-
dustrial Co., 385 U.S. 432, 435-436 (1966). Respondent
here supplied none of the requested information to the
Union until late December, some 6-1/2 months after the
Union's initial request. Additionally, the information that
was subsequently furnished was neither complete nor
otherwise sufficient for the Union to prepare its case in
connection with the grievances filed by Diethelm.
As set forth in its letter of June 8 (see sec. III,A,2, par.
2, above), the Union requested documents on six separate
subjects. These subjects fall into four general categories:
(1) the 1979 vacation schedules of all unit employees; (2)
evidence that Diethelm had been absent an average of
91.36 hours per year; (3) evidence that Diethelm had
been cautioned or warned about her attendance and defi-
ant attitude; and (4) evidence that Diethelm's services
"have been of little or no value to the company."
With regard to the vacation schedules, the record es-
tablishes that the Union's request simply required Re-
spondent to turn over to it a one-page schedule from
each of the nine departments. Respondent, apparently
732
C. W. SWEENEY & CO.
operating under the mistaken belief that the Union was
requesting that it make a full survey of every employee's
vacation history, refused this request on the grounds that
it was burdensome. Any confusion on Respondent's part
could have been easily clarified had it simply asked the
Union what vacation schedules it was talking about. In
fact, the same clarification could have been accomplished
had Matteson simply raised the subject with Deignan or
any of the other department managers more familiar than
she with Respondent's day-to-day operations. Moreover,
Respondent was fully apprised at the hearing regarding
specifically what was sought; nonetheless, the Union's re-
quest is apparently still outstanding and Respondent's
continued failure to comply can no longer be attributed
to an inadequacy of communications. 39
As to the information or documentation regarding
Diethelm's average yearly absences, Respondent offers
no defense to its long delay in furnishing such informa-
tion other than the fact that Diethelm or the Union had
other means to obtain such information. This defense is
clearly without merit.4 0 Moreover, in its June 21 letter
Respondent conditioned turning over this, as well as the
other information sought, on the Union's first supplying
it with certain information. Such a conditioning is clearly
unlawful. 41
With regard to those portions of the Union's request
seeking documentary evidence that Diethelm had been
cautioned or warned about her attendance and defiant at-
titude, Respondent defends on the grounds that by the
contract both the Union and Diethelm had already re-
ceived and had in their possession such evidence by June
6. It is clear that the Union was not limiting its request in
this regard to formal written warnings but was seeking
any documents in Respondent's exclusive possession
which would support Respondent's claim. If, as Re-
spondent apparently now claims, no such documents in
fact existed, Respondent, to relieve itself of any liability
in this regard, had merely to so inform the Union. It
chose not to do this simple act but instead placed its un-
lawful condition on the furnishing of such information.
Finally, with respect to that portion of the Union's re-
quest for documentary evidence establishing that Dieth-
elm's "services have been of little or no value to the
company," Respondent defends on the grounds that no
such documents could have existed. Clearly this phrase,
as used by Respondent in its June 5 discharge report,
was merely stating the subjective conclusion of manage-
ment and did not refer to any documents or information
in existence to which the Union is entitled.
Accordingly, I conclude that by failing and refusing to
provide such information as set forth in items 1, 2, 3,
39 Connecticut Light and Power Company, 229 NLRB 1032. 1035 (1977):
Ohio Power Company, 216 NLRB 987. 990, fn. 9 (1975).
American BeefPackert. Inc.. 193 NLRB 1117. 1120 (1971)
s Fetzer Broadcasting Company, 227 NLRB 1377. 1382 (1977).
above, Respondent refused to bargain collectively in
good faith in violation of Section 8(a)(1) and (5) of the
Act.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has committed unfair
labor practices, I will recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the purposes and the poli-
cies of the Act. Specifically, I will recommend that it be
ordered to provide the 1979 vacation schedules for all
unit employees and make available to the Union all re-
cords and documents, including timecards and payroll
records, relating to absences and warnings issued to
Diethelm during her entire term of employment.
CONCLUSIONS OF LAW
1. Respondent C. W. Sweeney & Co. is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Office and Professional Employees Union, Local
No. 3, AFL-CIO, is the exclusive representative for pur-
poses of collective bargaining of the employees in the
following described unit:
All employees including bookkeeping and data
processing employees employed at Respondent's
San Francisco, California, facility excluding tempo-
rary employees, guards and supervisors as defined
in the Act.
3. Respondent has not violated Section 8(a)(1) and (3)
of the Act by issuing a written warning to Lena Dieth-
elm on on about May 14.
4. Respondent has not violated Section 8(a)(3) and (1)
of the Act by discharging employee Lena Diethelm on
or about June 5.
5. Since on or after June 6, 1979, Respondent has
failed and refused to provide the aforesaid collective-bar-
gaining representative with information relating to the
1979 vacation schedules for all its unit employees and
documentation regarding the absences of and warnings
issued to Lena Diethelm during her term of employment.
[Recommended Order omitted from publication.]
733