Champion Parts Rebuilders, Inc., Northeast Division

National Labor Relations Board - Board Decisions

Mar 8, 1982

260 N.L.R.B. 731 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Champion Parts Rebuilders, Inc., Northeast Division
and International Brotherhood of Electrical
Workers, Local 1592, AFL-CIO and Leona J.
Peters. Cases 6-CA-13048, 6-CA-13464, and
6-CA-13267
March 8, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On February 11, 1981, Administrative Law
Judge David L. Evans issued the attached Decision
in this proceeding. Thereafter, the General Counsel
and Respondent filed exceptions and supporting
briefs, and Respondent filed an answering brief to
General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings," find-
' The Administrative Law Judge found that Respondent violated Sec
8(a)(1) and (3) of the Act by issuing warning notices to employees tienry
Longo and Bertha Martin on January 8, 1980. allegedly for talking
during working time without performing work, but in actuality because
of Longo's status and protected activities as union vice president At the
hearing. howesver. the Administrative Law Judge refused to permit Re-
spondent to introduce evidence in the form of warning notices previously
issued to other employees for engaging in similar misconduct during
working time. While we find merit to Respondent's exception to the Ad-
ministrative Law Judge's ruling, inasmuch as such notices are relevant to
whether Respondent maintains an established, nondiscriminalory practice
of issuing such warnings. we remain persuaded that the exclusion of these
previously issued warning notices was not prejudicial and, therefore. we
adopt the Administrative Law Judge's findings and conclusions that the
notices issued to Longo and Martin violated the Act Thus. even assum-
ing that Respondent has maintained and enforced such a policy for valid
nondiscriminatory reasons in the past and that the warnings issued tIo
Longo and Martin thus wsere not unprecedented. se agree with the Ad-
ministrative Law Judge that Respondent's prolonged observation of the
conversation between Longo and Marlin without instructing them to
return to work, as well as Vice President Donald Savint's remark to De-
partment Supervisor Calvin Allen. "shit. write them up anyvsay." fiollos-
ing Allen's report of Longo and Martin's explanation for their citiduct, is
indicative that these employees would not have been disciplined In the
absence of Longo's union status and activities. Accordinglys se adopt the
Administrative Laws Judge's finding that these warning nolices violated
the Act
260 NLRB No. 98
ings, 2 and conclusions 3 of the Administrative Law
Judge only to the extent consistent herewith.
We agree with the Administrative Law Judge
that Respondent violated Section 8(a)(3) and (1) of
the Act by issuing warning notices to Barry Hill,
Henry Longo, and Bertha Martin in order to dis-
courage union activity. However, for the reasons
set forth below, we find, contrary to the Adminis-
trative Law Judge, that Respondent also violated
Section 8(a)(3) and (1) by discharging employee
Leona Peters and violated Section 8(a)(1), (3), and
(5) by altering certain established practices pertain-
ing to telephone and photocopying practices.
I. The discharge of Leona J. Peters
The credited testimony establishes that from No-
vember 1978 to the time of her discharge on Feb-
ruary 25, 1980, employee Peters filed five griev-
ances under the contractual grievance procedure.
More particularly, in November 1978, Peters filed
a grievance alleging that her immediate supervisor,
Calvin Allen, had directed abusive language at her.
Peters' credited testimony establishes that within
hours after settlement of this grievance, in a
manner favorable to Peters, Allen informed her
that "he would get me for reporting him." Within
the following 2 months, Peters filed two additional
grievances, one of which was also settled favorably
for Peters and concerned Supervisor Allen's im-
proper issuance of a warning notice. In March
1979, Peters filed another grievance, alleging that
Thlie (ieneral Counsel and Respondent har e excepted It certain credi-
hilitl findings made bh the Administrali'e LIais Judge It is the Board's
established policy not to overrule an adlministratlxe law judge's resolu-
loris xsiti respccl to credibility unless the clear preponderance of all l'
the rele.ant evidence convinces us that the resolutions are incorrect
Standard Dv 4a/ll Producrrt Inc. 91 NLRB 544 (1950), enfd IR8 F.'2d
t32 (3d Cir. 1951) We hase carefully examined the record and find no
basis for rexcrsing his findings
In sec 111i.. of his Decision. the Administrative Laws Judge inadsert-
ently referred to employee Martin as working at the Bobbie Brooks
plant, whereas the record reflects that Martin worked at the Pentsrlr.a-
nia Avenue plant where the events in question occurred This inadvertent
error does not affect the outcome of our Decision
3 While we agree f ith the Administrative Law Judge's conclusion that
Supervisor Calvin Allen's remarks to Henr) Longo on January 11, 1980,
did not violate the Act. we do not rely on the Admninistratiie L as
Judge's finding that i ongo's grievance-fihng activity was unprotected be-
cause it was "malicious and a decided abuse (if the grievance procedure "
Contrary to the Administrative I aw Judge, we find no record evidence
to support a finding that Longo's grievance was undertaken maliciously
or in bad faith. Rather, in finding longo's activits to be unprotected. se
rely solely oin the absence of evidence estahlishing that the matter raised
in the grie.xances. the alleged failure of Respondent's vice president.
Savini, itt sear safetl glasses in the plant, had any direct or reasonably
foreseeable impact upon terms and conditions of eniplosment of unit em-
ployees Thus. alry risk created by Savini's alleged failure toi wear safety
glasscs apparently affected otil) himself ind orily rcmtolel. If ai all, Iunit
employees In tiesw of these circumstances, and in the absence if record
eldernce x.:;arrranltig the inference o(f such an irnlpact upon terms and cton-
dition, of cnlp l nlernt. we find that ,ongio', grlc'sance-fihng act l. it) II
this regard xxas not protected Accordinigls csen assming that Allen's
remarks corlstitllttId a t ltreat Of discipline attributable to) such griesance
ictil lts, sc find that his renlmarks to Il org dId nol x ilal the ite Act
731
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Supervisor Donald D'Arco was performing bar-
gaining unit work. According to Peters' credited
testimony, Allen approached Peters shortly thereaf-
ter and informed her that he (Allen) could have
gotten her in a lot of trouble, that everyone was
now watching her, and that it was not right that
she had filed a grievance against Supervisor
D'Arco. Later that same month, Allen told Peters
that the Union was using her for a "guinea pig"
and that Peters would be "gone" if she did not
"wake up." Further, in September 1979, Allen in-
formed Union Vice President Longo that Respond-
ent would not pay certain vacation benefits to
Peters because Peters "had charges against the
company with the Labor Board, and she was also
suing them .... and that she could go to hell."
In October 1979, Peters returned to work fol-
lowing an authorized 5-month medical absence.
Upon her return, Respondent and the Union
reached an agreement wherein Peters was permit-
ted to perform work while sitting down due to her
medical condition. On January 29, 1980,4 Peters re-
quested that Supervisor Allen permit her to per-
form certain work while sitting down, at which
time Allen stated to Peters that she should not
have been hired in the first place, that she was not
fit to work, and that, if it were up to Allen, Peters
would not get workmen's compensation and would
have been fired long ago. Thereafter, during the
first week of February, the credited testimony es-
tablishes that Allen asked Peters, "when are you
going to wake up and quit filing so many griev-
ances-and wake up to what the company can do
for you, instead of being so much for the Union."
Peters replied, "probably never," to which Allen
responded that Peters would end up getting fired if
she did not. On February 8, Peters filed another
grievance against Allen, alleging harassment.
On February 20, 21, and 22, Peters was absent
from work because of illness. Peters telephoned
Respondent on February 20 and 22 and stated that
she would not be reporting for work. Peters also
drove to the plant on February 22 on two occa-
sions to secure a medical leave of absence and to
pick up her paycheck, but was unsuccessful in lo-
cating the employee service clerk responsible for
issuance of such leave. On Monday, February 25,
Peters reported for work at her scheduled work
shift, at which time Supervisor Allen immediately
asked Peters if she had secured a medical leave of
absence. Upon being informed that she had not,
Allen initially stated to Peters that she would prob-
ably be terminated and took Peters to Plant Super-
intendent Ronald Rupert. Rupert stated to Peters
and Allen, "she's all right Calvin, she called in,"
4 All dates hereinafter are in 1980, unless noted otherwise
and instructed Peters to go back to work. Howev-
er, later that day, Rupert informed Peters that she
was being terminated and remarked to Union Vice
President Longo that he (Rupert) and Allen had a
"misunderstanding" concerning Peters' employ-
ment status.
The Administrative Law Judge concluded that,
while Respondent had evinced hostility to the
grievance-filing activities of Peters, her discharge
was not attributable to such activities. The Admin-
istrative Law Judge based this finding primarily
upon evidence of Respondent's purported uniform
enforcement of a written, published rule that:
On the employee's third day off work, he/she
must call the employee service clerk and re-
quest a medical leave of absence .... Any
employee not abiding by the above will be
subject to disciplinary action, up to and includ-
ing discharge.
The evidence is clear, however, that Respondent's
application in the past of the foregoing rule con-
cerned instances where the employee in question
was absent for more than 3 days and, unlike Peters,
needed to secure a medical leave of absence to
cover the fourth day of absence. Moreover, the
evidence establishes that the foregoing rule was
promulgated pursuant to the following provision of
the governing bargaining agreement:
1. Loss of seniority-an employee's seniority
shall be lost and he will no longer be an em-
ployee of the Company for the following rea-
sons:
(n) He is absent from work for more than
three (3) consecutive work days without get-
ting a written leave of absence. [Emphasis sup-
plied.]
Accordingly, the Administrative Law Judge's reli-
ance upon Respondent's enforcement of the rule to
demonstrate that employees similarly situated to
Peters have been discharged in the past for the
same conduct is erroneous inasmuch as there is no
evidence that the rule has ever been applied to dis-
cipline an employee who was not absent for "more
than" 3 consecutive workdays.
Contrary to the Administrative Law Judge, we
are persuaded that Respondent's discharge of
Peters was discriminatory and violated the Act.
Thus, the credited testimony clearly establishes
that Respondent, and particularly Supervisor Allen,
displayed considerable hostility toward Peters be-
cause of her filing of numerous grievances. Most
732
CHAMPION PARTS REBUILDERS. INC
recently, in early February 1980, Allen informed
Peters that she would be fired if she did not "quit
filing so many grievances." Shortly thereafter,
Peters filed another grievance concerning Allen
and, 2 weeks later, Peters was, in fact, discharged.
In our view, the only reasonable inference to be
drawn is that Respondent acted true to its word
and that Peters' filing of grievances was a motivat-
ing factor in Respondent's decision to discharge
her. In addition to Respondent's animus toward
Peters' filing of grievances and the timing of the
discharge in relation to Respondent's most recent
expression of animus and Peters' filing of another
grievance, we also find of significance Respond-
ent's abrupt departure from Plant Superintendent
Rupert's initial indication that Peters had done
nothing improper because she had called in during
her absence. Rupert's subsequent comment to
Longo that he and Supervisor Allen had a "misun-
derstanding" is especially suspect in light of Allen's
particular animus toward Peters' grievance filing
and tends to demonstrate that Allen played a sig-
nificant role in effectuating Rupert's change of
mind and the ultimate decision to discharge
Peters. 5 Further, inasmuch as no probative evi-
dence was presented that employees similarly situ-
ated to Peters have been discharged in the past, we
conclude that Respondent has failed to meet its
burden of establishing that Peters would have been
discharged even in the absence of her protected ac-
tivities. Wright Line, a Division of Wright Line, Inc.,
251 NLRB 1083 (1980). Accordingly, we find that
Respondent in discharging Peters violated Section
8(a)(3) and (1) of the Act. 6
2. Changes in telephone and photocopying
practices
The credited testimony establishes that Respond-
ent has maintained a practice whereby Union Vice
President Longo, as well as other union officials,
has been permitted to use Respondent's interplant
telephone system to contact the Union's president
regarding grievances and emergencies. Pursuant to
this policy, Longo may request a supervisor to call
the supervisor of the union president, who will
then permit the president to return the call as soon
as possible. Respondent has also maintained a
policy of permitting the Union, upon request, to
photocopy documents, such as grievances, on plant
premises. Pursuant to this policy, the Union may
8 For this reason, we reject the Administrative Law Judge's explana-
tion for the "confusion" between Rupert and Allen as to the proper
action to be taken
^ In view of our finding that the discharge of Peters was unlawful, we
find it unnecessary to pass on the General Counsel's exception to the Ad-
ministrative Law Judge's dismissal of the 8(a)(
4 ) allegation pertaining to
Peters.
present such documents to a supervisor who, in
turn, performs the photocopying and returns the
documents to the union representative.
On January 10, Longo asked Supervisor Allen to
telephone the union president regarding a griev-
ance over payment of wages to two unit employ-
ees. Allen refused Longo's request and made appar-
ent reference to Longo's causing "trouble" for
Allen. Later that day, Union Steward Steve Work-
man, at Longo's instruction, asked Plant Superin-
tendent Rupert to photocopy the Union's griev-
ances concerning the warning notices issued to
Longo and employee Martin on January 8. Just as
Allen had denied Longo's request for telephone
privileges, Rupert summarily denied Workman's re-
quest to photocopy the documents. In addition,
commencing January 28, Respondent admittedly
changed its photocopying procedure by requiring
employees desiring to photocopy doctors' excuses
to present such documents directly to their supervi-
sors for photocopying, thereby bypassing the union
steward who formerly had the role of receiving the
document in the first instance and transmitting it to
the supervisor for photocopying.
The Administrative Law Judge dismissed allega-
tions that the foregoing conduct by Respondent
was discriminatorily motivated in violation of Sec-
tion 8(a)(3) and (1) and constituted unilateral
changes in terms and conditions of employment in
violation of Section 8(a)(5) and (1). The Adminis-
trative Law Judge did so on the basis that the
single refusals of Allen and Rupert regarding tele-
phone and photocopying practices, respectively,
were insufficient to constitute violations of the Act
and that, with respect to the admitted change in
photocopying of doctors' excuses, the Union failed
to object to the change and thereby presumably
waived its right to bargain. We disagree. We note
that the January 10 refusals on the part of Allen
and Rupert occurred only 2 days following Allen's
discriminatory issuance of warning notices to
Longo and employee Martin. Moreover, the record
reveals no credible business justification for the re-
fusals of January 10. 7 Accordingly, we find that
the refusals on that date were discriminatory and in
violation of Section 8(a)(3) and (1) of the Act. In
addition, we find that the refusals violated Section
8(a)(5) and (1) inasmuch as Respondent's conduct
constituted changes in established conditions of em-
ployment without affording the Union an opportu-
' We specifically reject the Administrative Law Judge's characteriza-
tions of the Union's requests as "baiting a trap" and "a tactic in a cam-
paign of vindictiveness" toward Respondent insofar as such characteriza-
tions may hase been relied upon to justify Respondent's conduct
733
I)ECISIONS OF NA I()NAI. L.AIBOR RELATIONS B()ARD
nity to bargain.8 Finally, we find that the admitted
change in bypassing the steward in the photocopy-
ing of doctors' excuses also violated Section 8(a)(5)
and (1). Unlike our holding in Citizens N'ational
Bank of Willmar, 245 NLRB 389 (1979), relied
upon by the Administrative Law Judge to support
his finding herein, there is no record evidence that
the Union had sufficient notice of an intended
change in the photocopying practice prior to its
implementation to place upon it the burden of de-
manding bargaining. See AM. A. Ittarrison Manufac-
turing Company, Inc., 253 NLRB 675 (1980).
CONCI USIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By issuing warning notices to Henry Iongo
and Bertha Martin on January 8, 1980, in order to
discourage their union activity or in order to inter-
fere with, restrain, or coerce those employees in
the exercise of their Section 7 rights, Respondent
violated Section 8(a)(1) and (3) of the Act.
4. By issuing warning notices to employee Barry
Hill on April 29 and 30, 1980, in order to interfere
with, restrain, or coerce Hill in the exercise of his
rights guaranteed by Section 7 of the Act and in
order to discourage his union activity, Respondent
violated Section 8(a)(l) and (3) of the Act.
5. By discharging Leona J. Peters because she
engaged in union and protected concerted activi-
ties, Respondent violated Section 8(a)(3) and (1) of
the Act.
6. By discriminatorily implementing changes in
its established practices pertaining to telephone use
and photocopying by union representatives, on Jan-
uary 10, 1980, in order to discourage the exercise
of union and protected concerted activities, Re-
spondent violated Section 8(a)(3) and (1) of the
Act.
7. By unilaterally implementing changes in its es-
tablished practices pertaining to telephone use and
photocopying by union representatives on January
10, 1980, and in its photocopying practice on Janu-
ary 28, 1980, without bargaining with the Union,
Respondent violated Section 8(a)(5) and (1) of the
Act.
8. The aforesaid unfair labor practices tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce and con-
R While the Administrative L-aw Judge credited testimony proffered by
Respondent that the Union has continued to utilize the previously exist-
ing telephone and photocopying practices subsequent to January 10, such
a finding has no bearing upon the lawfulness of Respondent's abandon-
ment of those conditions of employment on that date.
stitute unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the
Act.
9. The General Counsel has failed to establish by
a preponderance of the evidence that Respondent
has otherwise violated the Act.
THI REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order it to
cease and desist therefrom and to take certain af-
firmative action in order to effectuate the policies
of the Act.
We shall order that Respondent offer Leona J.
Peters immediate and full reinstatement to her
former job or, if her job no longer exists, to a sub-
stantially equivalent position, without prejudice to
her seniority or any other rights and privileges pre-
viously enjoyed. Moreover, we shall order that Re-
spondent make her whole for any loss of earnings
she may have suffered as a consequence of the dis-
crimination against her by payment to her of a sum
equal to what she would have earned, less net
earnings, to be computed in the manner prescribed
in F. W. Woolworth Company, 90 NLRB 289 (1950).
Interest on the backpay shall be computed as set
forth in Florida Steel Corporation, 231 NLRB 651
(1977). 9 See, generally, Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
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,
Champion Parts Rebuilders, Inc., Northeast Divi-
sion, Lock Haven, Pennsylvania, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Issuing warning notices to employees in order
to interfere with their exercise of the rights guaran-
teed by Section 7 of the Act or in order to discour-
age activity on behalf of the Union.
(b) Discharging or otherwise discriminating
against employees for engaging in union activities
or other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protec-
tion.
(c) Implementing changes in established practices
pertaining to telephone and photocopying by union
representatives in order to discourage the exercise
of union and other concerted activities for the pur-
pose of collective bargaining or other mutual aid or
9 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
734
CHAMPION P'ARTS RFHBUILDERS. INC
protection, and without affording the Union an op-
portunity to bargain over such changes.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Expunge from their respective personnel and
all other files the warning notices issued to employ-
ees Bertha Martin and Henry Longo on January
10, 1980, and the warning notices issued to employ-
ee Barry Hill on April 29 and 30, 1980.
(b) Offer Leona J. Peters immediate and full re-
instatement to her former position or, if her posi-
tion no longer exists, to a substantially equivalent
position, without prejudice to her seniority or
other rights and privileges previously enjoyed, and
make her whole for any loss of earnings she may
have suffered as a result of the discrimination
against her in the manner set forth in the section of
this Decision entitled "The Remedy."
(c) 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.
(d) Revoke any unilateral change pertaining to
photocopying of doctors' excuses discontinued on
January 28, 1980, until such time as Respondent ne-
gotiates with the Union in good faith until agree-
ment or an impasse in negotiations is reached. I0
(e) Post at its plants in Lock Haven and Mill
Hall, Pennsylvania, copies of the attached notice
marked "Appendix."' t Copies of said notice, on
forms provided by the Regional Director for
Region 6, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
'0 In view of our adoption of the Administrative Layw Judge's finding
that Respondent's other telephone and photocopying practices hare not
been discontinued subsequent to January 10. 1980. Ae will not order Re-
spondent to take any other affirmative action in this regard
I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words In the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National L abor Relations Board "
what steps the Respondent has taken to comply
herewith.
APPE'NDIX
NOTICI To E1fPI o-ItIiS
POSTIt BY ORIDER 01: IHE
NA I ION xi L.XBOR RrI ATIONS BOARD
An Agency of the United States Government
WVi; W.I. NOT issue warning notices to em-
ployees because they have engaged in activi-
ties protected by Section 7 of the Act and/or
in order to discourage their membership in or
activity on behalf of International Brotherhood
of Electrical Workers, Local 1592, AFL-CIO.
WE Wil.l NO'T discharge or otherwise dis-
criminate against employees because they have
engaged in activities protected by Section 7 of
the Act and/or in order to discourage their
membership in or activity on behalf of Interna-
tional Brotherhood of Electrical Workers,
Local 1592, AFL-CIO.
Wi: WiLt. NOT discriminatorily implement
changes in established practices pertaining to
telephone use and photocopying by union rep-
resentatives in order to discourage membership
in or activity on behalf of International Broth-
erhood of Electrical Workers, Local 1592,
AFL-CIO, and/or the exercise of activities
protected by Section 7 of the Act.
WE wll.[. NOt unilaterally implement
changes in established practices pertaining to
telephone use and photocopying by union rep-
resentatives without bargaining with Interna-
tional Brotherhood of Electrical Workers,
Local 1592, AFL-CIO.
WE wlI.. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them under Section 7 of the Act.
WE WILL expunge from their respective per-
sonnel files, and all other files, the warning no-
tices issued to Henry Longo and Bertha
Martin on January 8 and the warning notices
issued to Barry Hill on April 29 and 30, 1980.
WF wnL. offer Leona J. Peters full and im-
mediate reinstatement to her former job or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to her
seniority or other rights and privileges, and
WI wit.L make her whole for any loss of earn-
ings she may have suffered as a result of our
discrimination against her, with interest there-
on.
WFi wil., upon request by the above-named
Union, revoke any unilateral change pertaining
735
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to photocopying of doctors' excuses until such
time as we negotiate with the Union in good
faith until agreement or an impasse in negotia-
tions is reached.
CHAMPION PARTS RlFBUlII.I)IRS, INC.,
NORTHI ASTI DIVISION
DECISION
STAIEMINIT 01 THE CASE
DAVID L. EVANS, Administrative Law Judge: Upon
charges filed by International Brotherhood of Electrical
Workers, Local 1592, AFL-CIO (herein called the
Union), and Leona J. Peters, an individual, against
Champion Parts Rebuilders, Inc., Northeast Division
(herein called Respondent), the General Counsel issued a
complaint alleging violations of Section 8(a)(l), (3), (4),
and (5) of the National Labor Relations Act, as amend-
ed, herein called the Act. Respondent filed an answer to
the complaint denying commission of any unfair labor
practices. Hearing was held before me on July 17 and 18,
1980.1 The General Counsel and Respondent have filed
briefs which have been carefully considered.
Upon the entire record and from my observation of
the demeanor of the witnesses and the inherent probabil-
ities and improbabilities of the testimony of each witness,
I make the following findings and conclusions:
1. THE OPERArTIONS 01 RESPONDENT
Respondent is and has been at all times material herein
engaged in the manufacture and repair and wholesale
distribution of automobile parts. Solely involved in this
proceeding are Respondent's plants in Lock Haven and
Mill Hall, Pennsylvania. During the 12-month period im-
mediately preceding the issuance of the complaint herein,
in the course and conduct of said operations, Respondent
shipped goods and materials valued in excess of $50,000
directly from said Pennsylvania facilities to points locat-
ed outside the Commonwealth of Pennsylvania. The
complaint alleges, Respondent admits, and I find that Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. ALLEGED UNI AIR LABOR PRACTICES
A. Background
Respondent is engaged in the remanufacture of auto-
motive parts for nonretail distribution. Although it has
many plants throughout the country, solely involved in
this proceeding are Respondent's three plants of its
northeast division. Two of these plants are located in
Mill Hall, Pennsylvania; one on Water Street and one on
Pennsylvania Avenue. The third is located in Lock
I All dates are in 1980 unless otherwise specified.
Haven, Pennsylvania, and is often referred to as the
Bobbie Brooks plant. Division manager is James Ca-
meron; reporting immediately to Cameron is Operations
Manager Charles Bowers. Under Cameron and Bowers
are the respective plant managers, James Cottel at the
Bobbie Brooks plant, Bruce Williams at Water Street,
and Ron Rupert at the Pennsylvania Avenue plant. Ca-
meron reports to Vice President of Manufacturing
Donald Savini and Company President Charles
Schwartz, both of whom are headquartered in Respond-
ent's main office in Chicago. There are approximately
325 production employees in the northeast division all of
whom have been represented by the Union for the past
30 years.
In April 1977, through internal union procedures, the
president and apparently several other officers of the
Union were ousted from office. They were replaced by
other individuals including Michael Smith and Henry
Longo, president and vice president, respectively. Smith
testified that the ousted officers were rejected by the em-
ployees because they were "company men." Whatever
the reason, it is undisputed that the new officials were
far more militant than their predecessors. From the first
of 1969 through April 28, 1977, there were 53 grievances
and no unfair labor practice charges filed. However,
from that date until the hearing date, 210 grievances and
18 Board charges were filed by individuals and/or the
Union, principally by Longo.
Whether these grievances and charges have had any
bases or not, it is clear that they have engendered ani-
mosity on the part of Respondent's management as is un-
disputed and/or found herein. For example: (1) Cameron
stated simply that he hates Henry Longo; (2) Cottel has
asked Smith at least four times to get rid of union ste-
ward Barry Hill; (3) on January 11, Savini told Smith
that Longo was the "number one problem" in the plant
and if Longo were removed so would the problems at
the plant; and (4) as found herein, Savini ordered the is-
suance of a warning notice for Longo simply because of
his status and activities as vice president of the Union.
The General Counsel attempted to adduce other evi-
dence of animosity on the part of Respondent, but I re-
jected such proof as it preceded the date of, and was
within the purview of, a settlement agreement which had
been approved by the Regional Director, and that agree-
ment had not been set aside.
On the other hand the Union has made clear that it, in
turn, holds hostility toward management. For example:
(1) Smith has told Cameron to his face and in writing
that he is an "ignorant ass hole of a plant manager"; that
he is the "biggest fool of them all"; that "it would be so
beautiful making a big ass out of you"; that he had "told
them at the union meeting that you are out of your god-
damn mind"; that he could not believe that Champion
was wasting millions of dollars on a plant run by Ca-
meron; that "its tough shit if you can't handle your job";
and that "I guess you just want these employees to work
for your grateful nigger wages." (2) When invited to par-
ticipate in the ground breaking ceremony of a new plant
which Respondent is building to replace the two Mill
Hall plants, the Union not only refused to participate but
736
CHAMPION PARTS REBUILDERS, INC.
also issued press releases vilifying the management to the
public stating: "We will not be used as a public relations
tool by the company to promote the false impression to
the general public and our members that the current rela-
tionship between the company and the IBEW is friendly
and cooperative. We also do not want the company to
distort this refusal to attend their ceremony and create a
negative public impression of organized labor." The
press release was circulated to the local newspaper and
radio station. (3) Cottel, who is a native of North Caroli-
na, has been referred to by Longo to his face as a "rebel
scab," and, as found herein, chief steward Hill has re-
ferred to Cottel as a "rebel scab mother fucker" when
talking to his supervisor. (4) As a remedy for an alleged
contract violation, discussed herein, the Union asked that
the offending supervisor be discharged. (5) As many as
eight grievances were solicited by Longo for one alleged
violation, as discussed herein.
This is all to say that, at the time of the events herein
described, labor relations at Respondent's northeast divi-
sion were conducted in a hostile atmosphere.
B. Issuance of Warning .otices to Longo and Martin
on January 8
On January 8 Savini (who did not testify) toured the
Pennsylvania plants during a trip from his office in Chi-
cago. Savini was accompanied on the tour by Cameron.
On that date, employee Bertha Martin was working in
the armature department on the fiber machine at the
Bobbie Brooks plant. While she had worked in that de-
partment since the previous September, and worked on
the fiber machine "about 2 weeks off and on," according
to Martin, when Savini and Cameron passed by her
work station, she was engaged in an "end fiber" oper-
ation which she had performed for only "45 minutes to
an hour," according to the uncontradicted testimony of
Martin. Assigned to the machine next to Martin was
Longo who is married to the niece of Martin's husband.
Cameron testified that, as he and Savini walked by the
Longo-Martin work area, they observed the two em-
ployees doing nothing. Cameron specifically described
Longo as leaning on a press and Martin leaning on a cart
containing armatures. According to Cameron, he and
Savini stopped and watched Longo and Martin; and
"they were conversing for 5 to 8 minutes"; and neither
had anything in their hands. After "observing [Longo
and Martin for] 5 to 8 minutes," Cameron and Savini
went to the desk of Department Supervisor Calvin
Allen. Cameron told Allen to go "ask Mr. Longo what
he was doing."
Allen testified that Cameron and Savini approached
him and asked if he knew what Longo and Martin were
doing and he volunteered to go find out. Allen testified
that, when he approached them, Longo was leaning on
his press and Martin was standing beside the cart next to
Longo's press which was 8 to 10 feet from Martin's ma-
chine. Martin was turned facing Longo and his press, her
back to the fiber machine. Allen asked Longo and
Martin what they were talking about and Longo replied
that Martin was asking him questions about putting on
end fibers. When asked on direct examination if Longo
or Martin elaborated on the problem, Allen testified that
they did not; he was not asked if he asked the employees
what the problem was. When further asked on direct ex-
amination if Longo had anything in his hands, Allen
stated, "[N]o, he didn't"; when asked if Martin had any-
thing in her hands, he replied, "[N]ot to my knowledge."
When asked what he did then, Allen replied that he re-
turned to Savini and Cameron and reported that Longo
and Martin had replied that they were talking about end
fibers.
Cameron and Allen testified that neither of them (nor
Savini) believed there was any problem which could
take 5 to 8 minutes (presumably plus whatever time had
elasped between the report of Savini and Cameron to
Allen and Allen's walk to and inquiry of Longo and
Martin). When asked on direct examination why he did
not believe it, Allen replied: "If there was a problem
there-you know, with the machine that was putting on
end fibers, then they woulda probably told me .... "
Cameron testified that he did not believe the explanation
since neither employee had an armature (or anything
else) in hand during the 5 to 8 minutes he and Savini had
observed them. Cameron testified: "I told Calvin Allen
to write 'em up."' Allen, when asked if either Savini or
Cameron told him to issue a written warning notice re-
plied that: "We all decided that."
Martin and Longo testified that the subject of their
conversation in question was Martin's inability to line up
end fibers as they were being inserted into armatures,
that he stayed at her machine and he at his, and that the
conversation lasted only I to 2 minutes, and then they
went back to work. Both testified that after they re-
turned to work Allen approached the area and spoke
only to Martin. Martin testified that Allen stated to the
employees that Savini had sent him to see what they
were talking about. Martin testified that she replied,
"work" and Allen replied, "okay" and walked away.
Later that day, according to Longo and Martin, Allen
instructed the two employees to escort him to the office
of Plant Manager Rupert. Present in the office were
Longo, Martin, Allen, and a shop steward Steve Work-
man. (The current contract requires the presence of shop
steward when discipline is being dispensed.) Longo and
Workman placed Rupert there; Martin did not mention
Rupert. Longo, Martin, and Workman testified that
Allen announced that he was being required to "write-
up" Longo and Martin because Savini had watched them
talking for 5 minutes. Longo, Martin, and Workman fur-
ther testified that Longo protested and asked what Savini
had said when Allen told Savini that Martin had ex-
plained that they were talking about work. According to
all three of the General Counsel's witnesses, Allen re-
plied that Savini had replied to him: "Shit, write them up
anyway."
Rupert testified, but was not asked if he was present
when the warning notices were issued to Longo and
Martin. Allen testified that he gave the warning notices
to Longo and Martin at their machines, not in Rupert's
office; that the only mention of Savini was that it was he
who had seen Longo and Martin standing around and
Longo and Martin acknowledged to him (Allen) that
they had seen Savini; and that Longo's only response
737
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was: "Jam it up [your] ass; its another NLRB case."
Allen was asked on direct examination and testified:
Q. What was the substance of your reply to
Longo when he rasied the point that he had an
excuse for standing there for 5 minutes?
A. That it wasn't a-yeah-a satisfactory reason.
Q. To who [sic]?
A. To any of us.
Martin testified that on January 9, on an occasion
when she and Allen were walking to the first aid room,
Allen said: "You know I didn't want to write you up,"
and that he further said then "that he had to, Savini said
to do it." Allen was not asked about this alleged admis-
sion on direct examination. Allen was asked on cross-ex-
amination and testified:
Q. After you wrote up Longo and Martin, do
you remember walking with Martin to the first-aid
station the next day or so?
A. Yes I do.
Q. And isn't it true that you really didn't want to
write-
A. -I don't like to write anybody up.
Q. But you said you didn't want to write her up?
A. If it came-I don't like to write anybody up
because I didn't see this incident. I actually did not.
Q. (By Mr. Olcrest) What did you say to her
wherever you were going?
A. I told her I don't like to write anybody up.
Allen could not remember any employees ever having
received a disciplinary warning notice for standing
around talking, and Respondent produced no evidence of
such discipline having been imposed before.
My credibility resolutions are as follows: Martin was
over at Longo's press not to receive instruction on the
end fiber operation which was to be conducted 10 feet
away from her, but to gossip. Savini and Cameron saw
them talking, but the two executives did not waste 5 to 8
minutes of executive time, or any time, just because any
two employees were not working. I do not know how
long it was that Savini and Cameron observed Longo
and Martin; but, whatever amount of time it was, only
because one of the employees was Henry Longo, union
vice president who personally was the source of so many
grievances. Whether the warning notice was issued on
the production floor or in Rupert's office, I believe, and
find, that Allen told Workman, Longo, and Martin that
he had relayed their explanation to Savini but Savini had
replied: "Shit write them up anyway." I further find
that, as Martin testified, Allen told her the next day that
he had not wanted to write Longo and her up, but that
Savini made him do it.
The virtually certain commonality of the alleged em-
ployee misconduct undoubtedly prompted the expression
of regret by Allen to Martin the day after the warning
notices were issued. Not that Longo and Martin were
not wasting at least some time; they were. But they
could not have been the first employees in the 30-year
history of the plant to have been guilty of wasting time.
Although Respondent has preserved all warning notices
(even those which were issued years before), no similar
notices were produced.
Stopping the waste of time upon its discovery was not
Respondent's objective. Had it been, Savini and/or Ca-
meron and/or Allen would simply have told the employ-
ees to "get to work." None did; not even after Allen was
sought out and dispatched to investigate and found the
employees still talking. The only conceivable reason for
the failure to issue the clearly justifiable imperative to
get to work was that Respondent's primary objective
was not to spur production, but to impose discipline.
I find and conclude that the notices were ordered by
Savini to seize upon the indisputably not unprecedented
dereliction of Longo and Martin to mete out unprec-
edented discipline. The reason for Savini's unprecedented
action was Longo's status as union vice president and his
grievance and unfair practice filing activities, all of
which has made him a thorn in Respondent's side since
the change of union leadership in 1977. This was retribu-
tion caused by protected activity and, as such, the Janu-
ary 8 issuance of the warning notices to Longo and
Martin constituted violations of Section 8(a)(l) and (3) of
the Act, and I so find and conclude.
C. The Alleged Threat to Longo by Allen on
January 11
The complaint alleges that on January 11 Allen threat-
ened Longo with discipline because he was taking time
to clean his safety glasses.
To give this contention its due consideration certain
background is necessary: Although its literal wording
was not placed in evidence, it is undisputed that Re-
spondent has a rule that all persons in certain working
areas must wear safety glasses. On January 9 Longo filed
a grievance alleging that the day before Savini had failed
to wear safety glasses in an area where they were re-
quired. On January 10 he filed another grievance against
Savini alleging the same violation on January 9. Longo
also toured the plant soliciting2 the same grievance from
other employees and was successful in seven cases. The
grievances were answered by Rupert's stating that "the
company will abide by the safety glasses rule." Longo
(and Workman) rejected the answers as "unsatisfactory."
When asked on cross-examination if he had expected Re-
spondent to do anything more, Longo answered: "No. I
expected them to abide by it."
To the substance of the threat allegation: Longo testi-
fied that on January 11 he was cleaning his safety glasses
as was his usual practice and:
Calvin Allen hollered at me: he says, "Hey, Longo,
put those glasses on." I looked at him and I said,
"I'm cleaning them-they're dirty." He said, I don't
care-you don't take those glasses off after 7
As Longo himself testified: "As I was talking to different people
about it, they said they also seen Mr Savini the foillowing--he previous
day without them, plus on the 91h I said, 'would you people sign a
grie.ance?' And they all agreed to it"
738
CHAMPION PARTS REBUII.DERS, INC
o'clock starting time anymore." I said, "Well, any-
time they are dirty we always take them off and
clean them." He says, "Well, I'm going to see about
if I can write you up."
Workman testified that he saw Allen after the exchange
and Allen told him also that he was going to investigate
the possibility of writing up Longo for cleaning his glass-
es. Employee Ruth Phillips was also called by the Gen-
eral Counsel to corroborate Longo. She testified that she
was 2 feet away from Longo and Allen. that she did
hear Allen, "holler" to Longo to tell him to get his glass-
es on, and that Longo replied, "I'm cleaning."
Allen testified that Longo was leisurely cleaning his
glasses, that he told Longo that he was going to wear
the glasses out if he continued wiping them, that Longo
laughed but did not move until he told Longo to "go
back to work," and that Longo "just laugh[ed] and final-
ly he start[ed] moseying back to his job."
The General Counsel contends that he has proved by
the testimony of Longo, Phillips, and Workman that a
threat to discipline Longo was made and that the threat
was made because Longo had filed, or caused to be filed,
the several grievances over Savini's not wearing his
glasses earlier in the week, that the grievance activity
was protected, and that therefore the threat violated Sec-
tion 8(a)(l) of the Act.
I disagree. While I credit the testimony of Longo
(which was corroborated by Workman) that Allen stated
that he would see if he could vwrite up Longo, I also
credit Allen's testimony that Longo was dallying in
cleaning his glasses. a
I believe that Allen stated that he would investigate
the feasibility or disciplining Longo because of the exces-
sive time Longo took to clean the glasses. But whether
the time was excessive, or whether the clasped time is
what prompted the statement, the statement was not a
"threat" to do anything other than investigate whether
discilpine could be imposed. Longo was yelled at by
Allen; but he was not threatened.
But assuming a threat was made, there was still no
statutory violation. The General Counsel's theory is that
the nine grievances filed because Savini was without
safety glasses earlier in the week prompted the "threat."
However, that grievance-filing activity was not protect-
ed. The good faith of the grievance filing is suspect at
best since Savini's violation of Respondent's rule is some-
thing of a bizarre subject for a grievance where there
was no apparent danger to employees. But the action of
filing two grievances, the soliciting of seven more, and
the rejection of the only answer that could have been
given were all malicious and decided abuses of the griev-
ance procedure, and, therefore, not protected concerted
activity.
" Specifically, I do not believe Longo's testimony Ihat Allen, after hie
had only momentarily paused to clean the glasses. told him he could
never again take his glasses off after 7 a.m Allen, a seemingly sensible
man, did not confront the prolific grievance-filer L ongo after only a mo-
mentary pause, and no supervisor in possession of his faculties would tell
an employee never to take safety glasses off while it is undisputed that
there is a specific area and facility for cleaning those glasses (Certainly
Phillips, who was 2 feet away. did not testify to such a directive )
Accordingly, I shall recommend that this allegation of
the complaint be dismissed.
D. The A41eged Changes in Telephone and
Photocopying Privileges
The complaint alleges that, in violation of Section
8(a)(l), (3), and (5) on or about January 10, Respondent
unilaterally and discriminatorily discontinued its prior
practices with regard to allowing the Union to use its in-
terplant telephone system and policy regarding the use of
photocopying equipment. In bringing this contention
before the Board, and possibly the courts, what the Gen-
eral Counsel does is rely on part of Respondent's con-
duct during the petty action-reaction cycle the parties
engaged in after Savini ordered the discipline of Longo
and Martin on January 8.
1. Telephone use
Regarding the telephones, the past practice had been
that. for grievances and emergencies, the Union's chief
steward at any of the three plants or the Union's vice
president (Longo) could request his respective supervisor
to call Union President Smith's supervisor. That supervi-
sor allowed Smith to return the calls as soon as possible.
This practice was involved in a settlement agreement ex-
ecuted by the parties and approved by the Regional Di-
rector on August 24, 1979.
During the morning of January 10 Longo took time
out from his grievance-soliciting plant tour to ask Allen
to call Union President Smith. According to Longo the
request regarded a grievance which was "about two em-
ployees in here over pay for work which they per-
formed." Just why Longo selected that hour of the on-
going embroilment to file a pay grievance was not asked.
In an act of obvious case building, before he asked to
call Smith, Longo asked employees Martin and Phillips
to stop working and witness his request. As he testified,
Longo told Martin and Phillips that he was asking them
to be witnesses because he knew Allen would refuse his
request. There was no evidence of any such refusal
having occurred since August 24, 1979, so how Longo
knew he was baiting a trap is unknown.
At any rate, Allen fell for it; he refused that one re-
quest 4 and the General Counsel contends that a violation
of Section 8(a)(l), (3), and (5) of the Act is accordingly
established.
Not every breach of a contract, or even a settlement
agreement,' is a violation of Section 8(a)(l), (3), and/or
(5). The General Counsel produced no other nonhearsay
examples of such refusals. Moreover, Respondent ad-
duced credible evidence which demonstrated that the
practice has not been disestablished.6 Accordingly, I
shall recommend that this allegation of the complaint be
dismissed.
I I discredit Allen', teslimonN that he agreed to have Smith called hut
simply forgot
I Noite.orrlhs is the Il.ct that the ettlemient agreement was not set
aside
it is not riec. essir to detail this cildence as it vas not rehutted. nor
was it questionred in the (icrlerli Coulnsel'. olherwisc excellent brief
739
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Photocopying practice
Prior to January 10 Respondent had allowed the
Union to have copied documents such as grievances and
minutes of meetings upon request. The practice was for
stewards to present the originals to a supervisor who had
them copied and returned to the steward. No statement
of need for particular copies had ever been required ac-
cording to this record.
On January 10, apparently at some point after solicit-
ing the Savini (safety glasses) grievances, and having
made his case of a telephone use refusal, Longo, accord-
ing to his testimony, told Workman to "go out to Ron
Rupert's office and get a copy of the two grievances that
we filed for both of Martin and myself pertaining to the
8th when Savini wrote us up . . . I'd like to have a copy
of them-so in case they are lost, we'd have our copy."
As was the case of the telephone, there is no evidence
that Respondent had previously denied the Union the use
of the photocopying machines. But the timing of the re-
quest (2 days after the grievances were filed and in a
course of culminating confrontations), the gratuitous
statement of need, the inexplicable fear of loss of the
original, and a decidedly self-righteous mien in express-
ing that fear while testifying have all lead me to con-
clude that Longo knew that he was baiting another trap.
This time Rupert fell in. When Workman asked for
copies of the Longo-Martin grievances Rupert said, ac-
cording to the undisputed testimony of Workman: "No."
In addition to the single refusal, the General Counsel
bases his contention on one admitted change in the pho-
tocopying procedure. Since January 28 Respondent has
required employees to present doctor's excuses to super-
visors for copying rather than allowing them to be
routed through stewards. As Rupert credibly testified the
change was made when Longo lost the doctor's excuse
for an employee which caused delay of the holiday pay
of the employee (Leona Peters) and caused another dis-
pute between Respondent and the Union. There is no
evidence that the Union ever objected to this single
change in the procedure.
Finally, the General Counsel's contention that the pho-
tocopying policy was changed rests on answers to two
questions posed during the course of the hearing. Smith
was asked on direct examination and testified:
Q. Okay. What had been the practice with regard
to using company photocopying facilities since Jan-
uary 10, 1980?
A. There hasn't been any. Do not get copies
made of anything [sic].
On cross-examination Rupert was asked by counsel for
the General Counsel and testified:
Q. And isn't it a fact that you told [the Board
agent investigating the charge] on February 5, 1980,
that you discontinued making copies of documents
for union officials because they were requiring too
many copies? Isn't that a fact?
A. I probably said that as far as them asking for
any copies, yes.
Smith's answer is wholly conclusionary and, without
supporting examples, unworthy of credit. Moreover, Re-
spondent produced credible testimony (unnecessary to
detail since it was not rebutted) that photocopies are still
being made upon request. In view of that evidence I
need not decide exactly what Rupert was admitting to, if
anything, in his discussion with the Board agent. Specifi-
cally, the "admission" proves that the policy was "dis-
continued" for no particular period of time beyond Ru-
pert's one refusal to Workman.
Therefore, the General Counsel's case rests only on
the single refusal by Rupert on January 10 to make
copies of the January 8 Longo-Martin grievance and the
admitted change in the procedure for making copies of
doctors' excuses. Again, not every failure to follow past
practices, or even contracts, establishes a violation of
Section 8(a)(5). As for the admitted change regarding
doctors' excuses, the Union made no objection to the
change although it indisputedly knew of it. Citizens Na-
tional Bank of Wilmar, 245 NLRB 389 (1979). Nor does
the single refusal to copy the Longo-Martin grievance
constitute a change in the terms and conditions of em-
ployment of any of the unit employees upon which an
8(a)(3) violation can be predicated. Finally, it would ill
serve the purposes and policies of the Act to issue any
order on that single refusal where the request was plain-
ly a tactic in the campaign of vindictiveness initiated by
Longo after the (albeit unlawful) issuance of the January
8 warning notices to him and Martin.
Accordingly, I shall recommend that this allegation of
the complaint be dismissed.
E. The Warnings to Barry Hill
Barry Hill was employed as a machine operator at the
Bobbie Brooks plant. He was the chief shop steward of
the production employees at that facility, a position to
which he was appointed sometime in January 1980. At
all times material herein, and until shortly before the
hearing, John Kennedy was a foreman at that facility
and Hill's immediate supervisor. Before becoming a su-
pervisor Kennedy was the chief shop steward. A bar-
gaining unit member at the time of the hearing, Kennedy
was clearly biased in favor of the Union's case herein,
even to the degree to which he initially refused to testify
at all when called by Respondent. The few concessions
he made when questioned by Respondent's counsel were
clearly given grudingly, and assessing his credibility has
been a particularly tedious problem.
Plant Manager James Cottel has experienced a great
deal of difficulty dealing with Hill as chief shop steward.
Smith credibly testified that in the first 4 months that
Hill served as chief shop steward Cottel asked Smith to
replace Hill. Cottel admitted on cross-examination to
making this request at least twice.
In mid-April the employees in Kennedy's department
were placed on a 4-day workweek. On April 28, when
he arrived at work, Hill observed Kennedy performing
certain bargaining unit work. Hill credibly testified that
he told Kennedy that Kennedy could not be doing that
bargaining unit work and Kennedy replied: "If I can't be
doing things like that, people aren't going to be getting
740
CHANMPION PARTS REBUII.DFRS, INC
away with things they have been getting away with."
Kennedy essentially admitted this response. One of the
things employees had been "getting away with" was fail-
ing to punch in upon arrival at work. There was abun-
dant credible evidence by the General Counsel's wit-
nesses that, when employees had forgotten to punch in
upon their arrival in the morning, the supervisors simply
wrote in their time. This was true even though Respond-
ent's plant rules specify as an offense: "5. Failure to
punch timecard without legitimate excuse." The penalty
for the first breach of this rule is a "verbal wvarning."
Such verbal warnings are actually reduced to writing
and therefore are considered here as "written warnings"
(not to be confused with the written warnings which are
the second step of a progressive disciplinary system).
The day after Hill chastised Kennedy for performing
bargaining unit work, Hill did not punch in. Hill testified
that he arrived at 6:35 a.m., 5 minutes before the earliest
point at which employees are permitted to punch in for
the shift starting at 7 a.m. Hill testified that he was im-
mediately beseiged by employees and stewards with var-
ious problems about the plant which he immediately
began to investigate. When the 6:58 a.m. warning buzzer
sounded, Hill testified, he was in a location remote from
both the timeclock and his work station. Hill testified
that he decided to go directly to his work station to be
there on time instead of punching in.
Hill testified that at 7:10 a.m. he was approached by
Kennedy and shop steward Dana Confer. Further, ac-
cording to Hill, Kennedy handed Hill a warning notice
stating that Hill had "forgotten to punch in." The writ-
ten warning notice states as the infraction: "Plant Rule
Number 5. Failure to punch timecard with legitimate
excuse." At that point, according to the undisputed testi-
mony of Hill, Confer left; therefore, there were only two
witnesses to Hill's response to Kennedy. According to
Hill, his response was this:
And, I said to John Kennedy-I says, "I guess
Henry Longo was right what he said about Jim
Cottel." And Kennedy says, "What's that?" And, I
said, "He is a rebel scab." And, John Kennedy said,
"Do you want me to tell him that?" I said, "I don't
care." And he turned and left.
As noted, Cottel is a native of North Carolina. Kennedy,
whose sympathies clearly lay with the Union, was eva-
sive when asked by Respondent's counsel to testify to
the full response made by Hill. However on April 30,
Kennedy issued Hill a written warning notice (for use of
abusive language) stating:
During a disciplinary action yesterday, Mr. Hill re-
quested I give Mr. James Cottel a message for him
as follows: "You can tell that rebel scab mother
fucker up front he go fuck his self."
Hill denied the embellishment; Kennedy would admit no
more than that Hill stated that Cottel could "screw him-
self." Neither witness was credible. Hill first denied
making any part of the above-quoted remark recorded
by Hill on the warning notice; then, as he had done on
direct examination, admitted stating that he had called
Cottel a rebel scab. I do not believe Hill's denials and
Kennedy's evasiveness betrayed him I believe, and find,
that Hill's response was precisely as recorded by Kenne-
dy on the April 30 warning notice as quoted above.
Nothing was said to Hill about his vulgar response on
April 29. Hill filed a grievance over the warning notice
for failing to punch in which le was issued that date.
On April 30, Hill filed a grievance alleging that, on
April 24, Supervisor Wayne Williams violated Respond-
ent's written rule listed as an intolerable offense: "Steal-
ing company property or personal property of employ-
ees." The grievance stated that Williams had violated
this rule by: "Stealing Union property and confiscating
and searching personal property on 4/24/80." As the
"settlement requested" Hill asked: "To comply with the
penalty set forth in the plant rules, established by' the
company under intolerable offenses of up to and includ-
ing discharge." Although the subject of this grievance
was not litigated herein, the allegation thereof generally
was that Supervisor Wayne Williams had opened an en-
velope, addressed and identified as an interunion commu-
nication, which had been placed in the interplant mail.
The envelope contained a pair of glasses, not just papers,
and whether the glasses were personal property or com-
pany property or safety glasses or non safety glasses was
not established and I need not decide the matter here.
Hill testified that he presented the mail-opening griev-
ance to Cottel on the morning of April 30 and Cottel re-
plied that he was asking for a "pretty strict settlement re-
quest on it." Hill replied that if it had been an employee
he would have been fired. As stated by Hill on direct ex-
amination: "We asked for the discharge of Wayne Wil-
liams." Nothing was then said to Hill by Cottel about his
remark to Kennedy the previous day, although Cottel
admitted that he knew of the remark the afternoon
before the presentation of the mail-opening grievance.
At 10 a.m. on April 30, Cottel approached Hill at
Hill's work station. According to Hill, and as admitted
by Cottel, Cottel asked Hill to withdraw the mail-open-
ing grievance and Hill refused. Further, according to
Hill, Cottel stated: "If you want to play games like that
we can play games too." This latter remark by Cottel is
not denied, and I found Hill credible in that testimony.
About 2 hours later, according to the credible testimo-
ny of Hill: "John Kennedy, come up to my work station,
and he asked me what I had said to Cottel to make him
so mad? And I asked him what he was talking about?
And he said that now he had to write me up for insubor-
dination .... " Kennedy then presented Hill with a
warning notice for abusive language, the gravamen of
which is quoted above.
When it came to testifying about his own actions, Ken-
nedy was all non est mea culpa. Kennedy attempted to
defend his issuance of the first warning notice to Hill on
the grounds that the occasion was the third time he
knew of that Hill had failed to punch in. Hill described
the "three-strikes" standard as his own, not necessarily
Respondent's in general. As stated by Respondent's brief,
page 5: "Respondent's rule with respect to punching in is
not necessarily uniformly applied. Thus, certain supervi-
sors will issue a warning after a first instance of failing to
741
DECISIONS OF NATIONAL. IABOR RELATIONS BOARD
punch in, while others, including Kennedy, allow em-
ployees three chances." This is another way of saying
that there is no uniform application of the rules regard-
ing failure to punch in on time and Hill's personal policy
appeared to be nothing more than a self-serving justifica-
tion created specifically for the situation at hand.
I do not accept Kennedy's or Respondent's rationaliza-
tions. The warning notice was issued the day after Ken-
nedy warned Hill that employees were no longer going
to get away with infractions which had theretofore been
overlooked if supervisors were not going to be allowed
to do bargaining unit work. I find, and conclude, that the
April 29 warning notice was an implementation of Ken-
nedy's retributive "get tough" policy which was institut-
ed because Hill, in his protected activity as chief ste-
ward, objected to Kennedy's performing bargaining unit
work. Accordingly, I find and conclude that the issuance
of the notice to Hill on April 29 violated Section X(a)(l)
of the Act.
Hill's response to Kennedy was indisputably profane
and abusive and at first blush would seemingly constitute
just cause for some sort of discipline. However, the issu-
ance of the warning notice was plainly an act of dispa-
rate treatment; Smith, as quoted above, has said worse
directly, and in writing, to Cameron and nothing came
of it. 7 Moreover Hill's action was in reaction to an un-
lawful imposition of discipline. Blue Jeans Corporution
and Whiteville Manufacturing Company, 170 NLRB 1425
(1968). Finally, Hill's remarks were ignored until he filed
and then refused to withdraw the grievance about
Wayne Williams' opening of "Union" mail. I find that in
this case the discipline was caused by what immediately
preceded it, the indisputedly protected activity filing the
mail-opening grievance, no matter what its merit. Ac-
cordingly, I find that the issuance of the April 2() warn-
ing notice to Hill likewise constituted a violation of Sec-
tion 8(a)(l) and (3) of the Act.
F. The Discharge of Leona Peters
1. Background
Leona Peters was discharged by Respondent on Feb-
ruary 25. The General Counsel contends that Peters was
fired in violation of Section 8(a)(l), (3), and/or (4) of the
Act because: (1) she filed grievances; (2) she filed unfair
labor practice charges; (3) she filed workmen's compen-
sation claims; and/or (4) Respondent wished to rid itself
of Peters who, by virtue of an agreement negotiated
through the processes of collective bargaining, had se-
cured the privilege of being assigned "sit-down" duty.
Respondent answers that Peters was fired solely because
she violated its written, generally published rule that:
On the employee's third day off work, he/she must
call the employee service clerk and request a medi-
cal leave of absence .... Any employee not abid-
ing by the above will be subject to disciplinary
action, up to and including discharge.
7 That both Smith and Hill are union supporters or officials does not
detract from the disparate nature of the treatment. exas' Industries. Inc.,
174 NLRB 563 (1969).
Peters, an employee with an extensive record of medical
leaves of absence, admits actual knowledge of this rule,
and admits that she was absent on February 20, 21, and
22 without securing such leave from the employee serv-
ice clerk, the clerk's supervisor, or Peters' supervisor.
However, the General Counsel contends that application
of the rule in Peters' case was discriminatory and/or un-
reasonable and that the real reason for Peters' discharge
was her protected concerted activities toward which Re-
spondent had specifically expressed animus.
Peters was first employed by Respondent in August
1977. Her tenure had been checkered with medical
leaves of absence: She injured herself on the job in No-
vember 1977 and was absent for 5 months. She returned
in March 1978 and was off for 2-1/2 weeks in August
1978 with a back injury. She then returned and worked
until May 1979 when she had surgery. Walking into the
plant on return from that leave, on June 14, 1979, she fell
and was again off work until October 1979. When she
returned, she was assigned light or sit-down duty pursu-
ant to an agreement with the Union and continued work-
ing until February 20, when, according to Peters, she
became sick with flu.
At all times material herein Peters' supervisor was
Calvin Allen who reported to Plant Manager Ronald
Rupert who, in turn, reported to Division Manager Ca-
meron. In November 1978, Peters filed the first of five
grievances. The topic was that Supervisor Allen had
used abusive language toward her. The grievance was
taken to Rupert who made Allen apologize. According
to Peters, within hours after Allen apologized, "he told
me that he would get me for reporting him." This testi-
mony is not denied and I credit it. Further according to
Peters, she was absent 2 days because of "nerves" imme-
diately after this incident and when she returned Allen
gave her a warning notice for excessive absenteeism even
though she had presented a doctor's excuse. Peters filed
a grievance over this warning notice and the notice was
withdrawn. Peters' third grievance was filed in Decem-
ber 1978 or January 1979 over the failure to receive ap-
propriate wages for work she had done. Peters did not
know the disposition of this grievance and never re-
ceived the money she sought.
On March 1, 1979, Allen sent Peters from her first
floor work area to the second floor level on an errand.
On the second floor Peters noticed Supervisor David
D'Arco performing what she apparently considered to
be bargaining unit work. She reported this to Union Vice
President Henry Longo, but she did not file a grievance
at that point. Peters testified that, on March 3, she was
approached by Allen who, according to Peters, stated
that it was not very smart to have reported D'Arco, and
that "everybody" would be watching her and she should
be careful or "be on my toes." On March 5, 1979, Peters
filed a grievance over D'Arco's working, and on March
7, 1979, further according to Peters, she was again ap-
proached by Allen who told her that he could have
gotten her in a lot of trouble for filing a grievance, that
he could have lied and said she was on the second floor
without permission, that everyone was now watching
her, and that it was not right for her to have filed a
742
CHAMPI()N I'ARTS REBUIIDERS, INC
grievance against D'Arco. Peters testified that she re-
plied: "I told him if he didn't get off my back I was
going to file one against him." Further, according to
Peters, on March 12, 1979. Allen "told me the Union
was using me for a guinea pig, and he said Henry Longo
and Mike Smith will have their jobs-and you'll be gone
if I didn't wake up." Allen generally denied saying any-
thing to Martin about the D'Arco grievance other than
that he would never send her to D'Arco's department
again. I find Peter's specific testimony more credible
than Allen's general denial, and find that the exchanges
occurred as described to by Peters.
In addition to the grievance over the warning for ex-
cessive absenteeism in November 1978, Peters also filed
an unfair labor practice charge which she testified was
withdrawn before the hearing, although there is no evi-
dence that the Regional Director ever made a decision
to issue a complaint. Peters filed a charge herself on Sep-
tember 27, 1979, regarding the failure to receive vacation
pay which is mentioned above. The charge was with-
drawn when she actually received the pay.
When Peters returned to work after surgery in Octo-
ber 1979 (and a 5-month absence), an agreement was
reached between Respondent and the Union and, accord-
ing to Peters, it was decided: "That I could work on my
legs as long as I could stand it, and then I'd be getting a
sitting down job for the remainder of the day." On Janu-
ary 29, 1980, she asked for a sitting down job and Allen
told her that "I wasn't fit to vwork-that I shouldn't have
been hired: and if it were up to him, I wouldn't get
workmen's compensation . . . he told me that if it has
[sic] been up to him I would have been fired long ago."
Peters further testified that several times before that date
Allen had told her that she was not fit to work and she
should not be drawing compensation. Peters specifically
testified that in early February 1980 Allen again told her
that she would be fired if it were up to him.
Peters further testified that, in the first week of Febru-
ary 1980, Allen asked her: "When are you going to wake
up and quit filing so many grievances-and wake up to
what the company can do for you, instead of being so
much for the Union?" Peters testified that she replied,
"Probably never." And that Allen "told me that I would
end up getting fired if I didn't." Allen denied this testi-
mony but, again, I found Peters credible.
On February 8, Peters filed a grievance against Allen
for harassment stating that he was "on my back all the
time .... " The grievance was denied and its ultimate
disposition was not disclosed during the hearing.
2. The discharge
Peters testified that she was ill the morning of Febru-
ary 20. The Employer has a rule that employees who are
ill may be discharged if they fail to call in on two
successive days of absence. Peters called into the plant
switchboard to report that she would be absent that day.
She was given a verification number (1953) by the
switchboard operator. On February 21 she did not call
in. On February 22 Peters called again to the switch-
board operator to report her absence and receive the
verification number 1959. This call was made before 8
a.m. Peters asked the switchboard operator to talk to
Ann Getz. the employee service clerk, to secure the re-
quired medical leave of absence. According to Peters,
the switchboard operator replied that Getz would not be
in until 8 a.m. At II a.m. Peters drove to the plant and
went to Getz' office to attempt to secure a medical leave
of absence. No one was at Getz' office. Getz' office is
next door to that of Plant Manager Cameron. Peters tes-
tified that Cameron's door was closed when she went by
the offices; according to this record she did not knock
on the door or indicate to any office clerical that she
wished to speak to Cameron. On that visit to the plant
she went from the office area to the production area
where she left a note with employee Reggie Falls ad-
dressed to Allen asking Allen to give Falls her paycheck
which was due that day. She did not leave any note re-
questing Allen to get her placed on a medical leave of
absence and did not express any difficulty in contacting
Getz.
Peters made a second trip to the plant on February 22
to pick up her check. She was asked on direct examina-
tion why she did not contact any member of manage-
ment when she returned to the plant at I p.m. and she
replied: "Because I was in a hurry to get to the doctor."
Peters further testified that she called again at 3:25
p.m. in an attempt to contact Getz and was again told,
apparently by the switchboard operator, that Getz was
not in. She did not attempt to contact any supervisor and
when asked on direct examination why not she replied:
"I didn't know who else to ask or it says on the board
that you contact Ann Getz."
Peters further testified that when she arrived at work
at 7 a.m. on February 25 she was asked by Allen if she
had received a medical leave of absence. She replied
negatively and Allen responded that he thought she
would be terminated. Allen took her to Rupert's office
where he reported the matter to Rupert. According to
Peters, Rupert replied: "She's all right Calvin, she called
in." Rupert and Allen told Peters to go back to work.
At 10:15, further according to Peters, Rupert called
her into his office and stated: "I'm sorry Leona. When
you were in here at 7 o'clock I made a mistake . . . I
have to terminate you." Longo, who was present as the
Union's representative at the discharge interview, asked
why Rupert had changed his mind from earlier in the
morning and, according to Peters, Rupert replied: "Be-
cause I did." Longo testified that Rupert's response was
that: "Well, Calvin and me had a misunderstanding."
Longo further testified on behalf of the General Coun-
sel in Peters' case that on September 14, 1979, when he
had filed a complaint regarding the failure of Peters to
receive vacation pay, Allen responded to him that it was
Cameron's decision not to pay the money because:
"Leona Peters had charges against the company with the
Labor Board, and she was also suing them, and she
wasn't going to get the goddamn money." And that she
could "go to hell." Although he gave some testimony re-
garding his exchange with Longo about the delayed va-
cation pay of Peters, Rupert did not deny these state-
ments, and I find that they occurred as related to by
Longo,
743
DECISIONS OF NATIONAL LABOR RELATI IONS BOARD
In an attempt to show disparate treatment, the General
Counsel points to the case of employee Peter Eyer who.
on April 21, was reinstated despite the fact that he had
been discharged for overstaying a leave of absence. It
suffices to say that, in Eyer's case, the violation was
overstaying a leave of absence which had been secured
and not the failure to secure a leave of absence which is
the case of Peters. Respondent adduced evidence
through Getz that the following employees were dis-
charged for failure to secure leaves of absence on the
third day: Vincent Falls on April 9, 1979; B. Eisenhower
on April 14, 1979; Ronald Fiedler on October 10, 1979;
and Donald Wise on December 6, 1979.
The cases of Falls, Eisenhower, Wise, and Fiedler
prove that not only did the rule exist (although that fact
is not disputed), but also that it had been uniformly en-
forced; therefore, I find that the General Counsel has
failed to show disparate treatment in regard to the dis-
charge of Peters.
Thus, the General Counsel is left with the contention
that the enforcement of the rule in Peters' case was arbi-
trary and the real motivation was the protected concert-
ed activities of Peters and the animus directed toward
her because of that activity.
It is true that the rule does not state literally whom an
employee is to contact if the employee service clerk is
not available, as was the case on February 22 when Getz
was absent each time Peters attempted to contact her.
However, it cannot be argued that, when an employee
has a known responsibility which he or she cannot fulfill,
the employee may simply shrug it off. Commonsense as-
suredly gained by anyone with any industrial experience
mandates that the employee's supervisor, or any poten-
tially concerned supervisor, is to be contacted. Peters
made two trips to the plant on February 22 and at least
two telephone calls, all the time knowing that, as well as
reporting her absence, she needed to be placed on a
medical leave of absence because it was the third con-
secutive day of her absence for medical reasons. She
passed by Cameron's door but did not knock to deter-
mine whether he was present then or not.8 She exercised
enough presence of mind to know that a note to a super-
visor was sufficient to receive her paycheck that day, but
she did not leave a note with anyone to inform Respond-
ent that she was attempting to be placed on a medical
leave of absence but could not contact Getz. It was not
arbitrary of Respondent to have expected the same mini-
mal effort by Peters to contact some supervisor to ex-
plain that she was unsuccessfully attempting to comply
with the known, and previously enforced, rule which
was a condition of her continued employment.
R This factor renders moot Respondent's motion to strike Smith's re-
buttal testimony that Cameron could not have been in his office.
Respondent evinced hostility to grievance-filings such
as that of Peters, and this hostility had been directed spe-
cifically toward grievance-filing and other protected ac-
tivity by Peters. However, there is no reason to believe
that her discharge was an exercise in arbitrariness actual-
ly premised on unlawful animus, especially in view of
the unrebutted evidence of uniform enforcement of the
rule which she violated.9
Accordingly, I find and conclude that the General
Counsel has failed to prove by a preponderance of the
evidence that Peters was discharged in violation of the
Act.
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
CONCI.USIONS Oi LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By issuing warning notices to Henry Longo and
Bertha Martin on January 8, 1980, in order to discourage
their union activity or in order to interfere with, restrain,
or coerce those employees in the exercise of their Sec-
tion 7 rights, Respondent has violated Section 8(a)(l) and
(3) of the Act.
4. By issuing warning notices to employee Barry Hill
on April 29 and 30, 1980, in order to interfere with, re-
strain, or coerce Hill in the exercise of his rights guaran-
teed by Section 7 the Act and in order to discourage his
union activity, Respondent has violated Section 8(a)(1)
and (3) of the Act.
5. The aforesaid unfair labor practices tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce and constitute unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6. The General Counsel has failed to establish by a
preponderance of the evidence that Respondent has oth-
erwise violated the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]
W" hile there was initially some confusion between Rupert and Allen
as to the proper action in Peters' case. this is adequately explained by the
fact that the day production shift reports at 7 a m.. and employee service
clerk Getz and Cameron did not report until 8 a.m and were therefore
unavailable for consultation and final decision.
744