G. W. Davis Corp.

National Labor Relations Board - Board Decisions

Mar 6, 1973

202 N.L.R.B. 204 (N.L.R.B. 1973)

204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. W. Davis Corporation and Barbara Joan Carter.
Case 25-CA-4941
March 6, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On October 11, 1972, Administrative Law Judge
James V. Constantine issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed a brief in support of said Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member
panel.I
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The complaint alleged and the General Counsel
contends that the Respondent discharged or laid off
Barbara Joan Carter, on or about March 14, 1972,
because she had filed a grievance against the
Respondent, or because Respondent believed she
had, and because she engaged in other union
activity,2 and that Respondent thereby violated
Section 8(a)(3) and (1) of the Act.
Carter was first employed by the Respondent in
May 1969. She was subsequently laid off, reem-
ployed in November 1969, and laid off again in June
1971. She served as treasurer of Local 59163 from
July 1970 until November 1971 when she quit that
post as she was leaving Indiana to seek work in the
State of Washington. On November 18, 1971, while
in layoff status, Carter notified the Respondent that
she, her husband, and her family were leaving for
Washington to seek work, and that her mail should
be forwarded there. Although the Respondent
contends that she stated at that time she was quitting,
the Administrative Law Judge credited Carter's
testimony that she did not.
During December 1971, Carter telephoned Jean
Gwin, Respondent's personnel manager, from the
i The Respondent's request for oral argument is hereby denied as, in our
opinion, the record in this case, including the exceptions and briefs,
adequately presents the issues and positions of the parties
2 The Administrative Law Judge found that Mrs Carter was not engaged
in such other union activity at any material time and hence recommended
that the complaint be dismissed insofar as it so alleged The Administrative
Law Judge's recommendation in this respect is hereby adopted
3 Local 5916, United Steelworkers of America, AFL-CIO, is the
contractual bargaining agent of Respondent's employees
4 It appears that the Respondent's operation is seasonal in nature, with
State of Washington, to inquire whether the plant
had reopened for work.' Again, in January 1972
Carter called Gwin for the same reason. On January
5, 1972, Horowitz, Respondent's assistant general
manager, wrote to Carter in Washington, advising
her that on November 18, 1971, she had given
Respondent notice that she was quitting, that her
name had been removed from the seniority list, and
that if she were reemployed it would be as a new
employee without seniority.5
Carter returned to Richmond, Indiana, about
February 5, 1972, and on Monday, February 7, she
personally asked Horowitz for reemployment. He
replied there was no work for her but said he would
get in touch with her when there was work available.
Carter again sought out Horowitz a few days later, at
which time she was told by Horowitz that she had
lost -her seniority. On February 16, 1972, Carter was
employed by the Respondent as a new, or probation-
ary employee.6
Carter remained in Respondent's employ until she
was terminated on March 14, 1972, shortly before the
end of the probationary period imposed by the
Respondent. Throughout this period of employment,
Carter complained that she should not have been
treated as a new employee or deprived of her
seniority. Horowitz admitted that he was aware of
these complaints during February and March 1972.
On the morning of March 14, 1972, Carter filled
out a grievance form, in which she sought to have her
seniority reinstated, and submitted it to various
members of Local 5916's grievance committee for
their signatures. None signed it and she left it with
Sammie Lewis, an employee and a member of that
committee. Subsequently, about noon that same day,
Carter was terminated. The Respondent contends
that she was terminated because she had been
creating a disturbance and was talking to other
employees on the production line, because she had a
history of absence and tardiness during her previous
period of employment, and because there had been
complaints about her from other employees.
The Administrative Law Judge, in agreement with
the General Counsel, concluded that the reasons for
Carter's termination advanced by the Respondent
were pretexts, and he found that her termination was
motivated by Respondent's knowledge, or its belief,
that she had filed a grievance. We do not agree.
peak employment normally being confined to the first several months of the
calendar year
5 Under the terms of the Respondent's collective-bargaining agreement
with Local 5916, new employees without seniority are considered probation-
ary employees for the first 30 calendar days of employment and may be laid
off or discharged "as exclusively determined by the Company" during that
period G C Exh 2, X, sec 51
6 The complaint does not allege that the Respondent violated the Act by
rehiring Carter as a probationary employee, and there is no evidence that it
was motivated by unlawful considerations in doing so
202 NLRB No. 35
G. W. DAVIS CORP.
Whether Respondent erred in concluding that
Carter had quit when she went to Washington in
November 1971 and in considering her a new
employee is not of controlling consequence in our
view. Respondent's right under the Act to terminate
Carter for any reason but a discriminatory one is
unaffected by her status as probationary employee or
employee with seniority.
Turning then to Respondent's purported reasons
for terminating her, we are not persuaded that they
are pretextual. With regard to the precipitate nature
of Carter's discharge at midday, Gwin testified that
probationary employees were frequently discharged
at midday and that to her knowledge this had
occurred in 1972. Horowitz testified that Respondent
has a procedure for review of probationary employ-
ees. Shortly before employees complete their 30-day
probationary period, Gwin presents him with a list of
those employees, with their date of hire and the date
on which they would complete their probationary
period. Horowitz then evaluates the employees'
performance and decides whether to discharge them
or not. Horowitz testified that this procedure was
followed in Carter's case, and further stated that,
during the month that Carter was employed in 1972,
6 to 8 probationary employees were so discharged.
It is undisputed that Carter built a record of
tardiness and absence during her earlier period of
employment, a record which may have been con-
doned or overlooked when she was rehired but on
which Respondent had a right to rely in light of her
subsequent behavior when considering whether to
retain her beyond the probationary period. As to
that, Horowitz testified without contradiction that he
observed Carter talking to other employees on the
production line on several occasions, and Gwin
testified, also without contradiction, that other
employees, as well as Carter's immediate supervisor,
Moore, registered complaints about her. Horowitz
further stated that one reason for terminating Carter
was a report to him from Moore that she had created
a disturbance on the production line. Moore denied
that she created a disturbance on March 14 and
further denied that he told Horowitz that she had.
The Administrative Law Judge gave great weight to
that seeming inconsistency, but Moore was asked
only if those events occurred on March 14, the
morning of the discharge, while Horowitz testified
only that the event and Moore's report took place,
without specifying a date when they occurred.
Even assuming that Respondent's reasons for
terminating Carter are suspect, it is not the Respon-
dent's burden to prove that it discharged her for dust
cause. The burden is on the General Counsel to
establish a discriminatory motive for the termination
by a preponderance of the evidence, if a violation is
205
to be found. This the General Counsel has failed to
do. There is simply no evidence that Respondent
knew, or believed, that Carter had filed a grievance.?
Horowitz denied knowledge of the grievance until
sometime after her termination. Sammie Lewis, a
member of Local 5916's grievance committee, who
physically possessed Carter's grievance on March 14,
denied that he showed it to Respondent or men-
tioned it before Carter's termination. Francis Wright,
Local 5916's president, William Lewis, and Sammie
Lewis, all members of Local 5916's grievance
committee, denied knowledge of Carter's grievance
until she unsuccessfully sought their signatures
thereon on March 14. All denied mentioning the
grievance or discussing the problem with representa-
tives of the Respondent at any time before her
discharge.
The record is also devoid of evidence that, even if
Respondent had known of Carter's grievance, it
would have been motivated to discharge her for that
reason. Local 5916 was certified as the collective-
bargaining representative of Respondent's employees
in March 1959. The current contract, effective from
July 1, 1968, provides for the filing and resolution of
grievances. So far as this record indicates, Respon-
dent has never objected to the utilization of the
grievance machinery. Indeed, the very morning that
Carter was discharged, Sammie Lewis and Horowitz
discussed a grievance which had been , filed by
another employee, Hoover. The record contains no
indication of adverse action against Hoover.8 Ac-
cordingly, we shall dismiss the complaint herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
I Respondent 's admitted knowledge that Carter was complaining about
her loss of seniority does not establish either as fact
" We also note that no other unfair labor practices have been alleged
DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Administrative Law Judge: This
is an unfair labor practice case litigated pursuant to
Section 10(b) of the National Labor Relations Act, herein
called the Act. It was commenced by a complaint issued on
June 22, 1972, by the General Counsel of the National
Labor Relations Board , herein called the Board , through
the Regional Director for Region 25 (Indianapolis,
Indiana), naming G. W. Davis Corporation as the
Respondent . Such complaint is based on a charge filed on
May 9, 1972, as amended on June 21 , 1972, by Barbara
Joan Carter , an individual.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In substance the complaint alleges that Respondent
violated Section 8(a)(1) and (3), and that such conduct
affects commerce within the meaning of Section 2(6) and
(7) of the Act. Respondent has answered admitting some of
the allegations of the complaint but denying that it
committed any unfair labor practices. -
Pursuant to due notice this case came on to be heard,
and was tried before me, at Richmond, Indiana, on August
1 and 2, 1972. All parties were represented at and
participated in the trial, and had full opportunity to
introduce evidence , examine and cross-examine witnesses,
file briefs, and offer oral argument. Respondent's motion
to dismiss when the General Counsel rested was denied.
All parties have submitted a brief. Respondent argued
briefly at the close of the case.
This case presents the issue of whether Respondent
unlawfully discharged Mrs. Carter because she filed a
grievance and engaged in other union activity, and because
Respondent believed she had done so.
Upon the entire record in this case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. AS TO JURISDICTION
Respondent, a corporation, is engaged at Richmond,
Indiana, in manufacturing and selling gasoline-powered
lawnmowers and related products. During the year
preceding the issuance of the' complaint, Respondent
purchased and received goods and materials valued in
excess of $50,000 directly from States other than the State
of Indiana. During the same period, it shipped products
valued in excess of $50,000 directly to States other than the
State of Indiana. I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that it will effectuate the purposes
of the Act to assert jurisdiction over Respondent in this
proceeding.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 5916, United Steelworkers of America, AFL-CIO,
herein called Local 5916, and United Steelworkers of
America, AFL-CIO, herein called Steelworkers, each is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. General Counsel's Evidence
Barbara Carter was first hired by Respondent on May
19, 1969. Thereafter, she was reemployed on November 26,
1969. (See G.C. Exh. 5A and B.) During this period, she
worked on both assembly lines 1 and 2, as well as in the
pressroom. She also became a member of Local 5916 and,
from July 1970 to November 22, 1971, served as its
treasurer. She resigned as treasurer on November 22, 1971.
(See G.C. Exh. 7.)
On about November 18, 1971, because of a layoff for
lack of work, Mrs. Carter told Mrs. Gwin, Respondent's
personnel manager, that the former was moving to the
State of Washington and asked Mrs. Gwin to mail W-2
forms to an address there . But Mrs . Gwin was not told that
Mrs. Carter was quitting her job . However , Mrs. Carter's
husband and children went with her to Washington and
she also stopped renting a house in Richmond . Neverthe-
less, Mrs. Carter's husband quit his job in Richmond when
they moved to Washington, and one of her children
attended school while the family lived in Washington.
In November 1971, Mrs. Carter left Indiana to go to
Longview, Washington, where she remained until February
1, 1972. She did so because Respondent closed down
because business was slack . In December 1971, Mrs . Carter
telephoned Mrs. Jean Gwin , Respondent 's personnel
manager , inquiring whether the plant had reopened for
work. Although stating that "they weren't back to work
yet," Mrs. Gwin replied that Mrs. Carter had quit. The
latter denied that she quit.
Again in January 1972, Mrs. Carter called Mrs. Gwin to
ask if "they had gone back to work yet." When Mrs. Gwin
replied in the negative , Mrs. Carter stated she would return
in February, but offered to come sooner if she were needed
before then . She also wrote to Mrs. Gwin to the same effect
about January 19, 1972. (See G.C. Exh. 3C.)
About February 5, 1972, a Saturday, Mrs. Carter arrived
at Richmond. The following Monday she spoke to
Respondent 's assistant general manager , Irving Horowitz,
asking him for employment . He replied there was no work
for her, but he would get hold of her. Two or 3 days later
she again spoke to him. This time Horowitz told her that
she had lost her seniority and that she had resigned from
the Union. He had also written to her to this same effect.
(See G.C. Exh. 3B.) On February 16, 1972, she was again
employed by Respondent as 'a new employee. (See G.C.
Exh. 5C.)
Thereafter, Mrs. Carter spoke to Carl Himelick, J. C.
May, Bill Lewis, Sammie Lewis, and Francis Wright, all
connected with Local 5916, concerning her seniority. May
is its steward, Wright its president and chairman of the
grievance committee , and the Lewises are members of said
grievance committee . Then on March 14 , 1972, she filed a
grievance with Sam Lewis because a member of the
grievance committee is "supposed to sign it ." See G.C.
Exh. 6 for the written grievance , where Mrs. Carter insists
that she did not quit, therefore, did not lose her seniority.
She also asked Bill Lewis and Francis Wright to sign said
grievance , but each refused to do so. So she ended up
leaving it with Sam Lewis.
At about 10 a.m. on the next day, March 15, J. C. May
told Mrs. Carter that he had heard she would be laid off at
noon of that day. Then at about 1l a.m. her foreman,
James Moore, notified her that she would be laid off at
noon but she would have to direct her questions to
assistant general manager, Horowitz . This caused Mrs.
Carter to call Carl Himelick at the union hall to apprise
him that she had been laid off. Himelick advised her to go
to Horowitz with him to see about her job. May also
invited her to return to the shop so he could be with her
when she spoke to Horowitz. But she did not return to the
plant that day. The next day Mrs. Carter called on Sam
Lewis at the plant, when she ascertained from him that he
had not yet turned in her grievance.
G. W DAVIS CORP. 207
The foregoing is an abridgment of Mrs. Carter's
testimony . Another witness for the General Counsel,
Respondent 's assistant general manager , Irving Horowitz,
testified substantially as follows.
In manufacturing lawnmowers , Respondent operates
two production lines. Mrs. Carter worked primarily on line
2 under Foreman James Moore. In late 1971, she left for
the State of Washington and in February 1972, she asked
Horowitz "for her job back ." After she was rehired on
February 16, 1972, Horowitz heard "rumors" in the plant
that Mrs. Carter talked to various employees about her
seniority.
Although Mrs . Carter filed a grievance on March 14,
1972, with Sammie Lewis, Horowitz did not learn of it
"until sometime after her employment was terminated,"
when Lewis presented him with the grievance 7 to 10 days
after March 14 . On said March 14, Horowitz instructed
Foreman Moore to discharge Mrs. Carter . This decision
was "based on representations by Moore that [Carter] was
. . . creating a disturbance . . . [by] arguing with union
officials and . . . with fellow employees while at work .. .
she was conversing with people on either side of her on the
[production ] line."
Continuing , Horowitz asserted that his decision to
terminate Mrs. Carter also was influenced by (a) the fact
that upon reviewing her personnel file he discovered that
she had , during her previous employment , three repri-
mands for absenteeism , a very poor work record, and
lateness, (b) that Respondent 's personnel and payroll clerk
reported to him complaints regarding Mrs. Carter's
conduct on the line, and (c) because Mrs. Carter was a
probationary employee she could be let go for any or no
reason at any time within 30 days of being hired . In fact,
Horowitz informed Mrs. Carter "that she was coming back
as a probationary employee" when he hired her in
February 1972.
Another witness for the General Counsel , Jean Gwin,
Respondent 's personnel manager, testified substantially as
follows.
On December 13, 1971, Mrs. Gwin received a letter from
Mrs. Carter stating that the latter was returning to
Richmond and inquiring of Gwin when Carter's name
comes up "for returning to work, and to get in touch with
her at the Richmond [telephone number ] I gave you." (See
G.C. Exh. 3A.) Not long after this, Horowitz wrote to Mrs.
Carter on January 5, 1972, advising her that she informed
Respondent on November 18, 1971, that she had quit and,
therefore , her name had been removed from the seniority
list and that she had to "seek re-employment . .. as a new
employee with no seniority ." (See G.C. Exh . 3B.) There-
upon, on January 18, 1972, Mrs. Carter wrote Mrs. Gwin
"even though I don ' t get my regularjob back I do want to
go back to work as soon as they call everyone back." (See
G.C. Exh. 3C.)
Mrs. Carter 's "period of employment in 1971 ended
November 18." In connection with Mrs. Carter 's written
grievance , Horowitz wrote something thereon denying it.
Then Mrs. Gwin typed thereon that Mrs. Carter "resigned
Nov. 18th, 1971. Mr. Horowitz reply, 1-5-72, . . . if
rehired it would be as a new employee without seniority.
Barbara Carter was rehired 2- 16-72 as a new employee
and laid off 3-14-72." (See G .C. Exh. 6.)
On November 18, 1971, Mrs. Carter called on Mrs. Gwin
and stated that Carter was quitting , that she was moving
her family to the State of Washington , gave Gwin an
address to which Carter's W-2 form should be transmitted,
and stated she was resigning as an officer of the Union. As
a result , Mrs. Gwin notified the Indiana Employment
Security Division that Mrs. Carter had quit . (See G .C. Exh.
4.) In addition a notation was made on Mrs. Carter's
timecard that she "quit as of 11 -18-71." (See Resp. Exh.
1.)
On January 4, 1972 , Mrs. Carter from Washington called
Mrs. Gwin "to see if she could have her job back." Mrs.
Gwin told her that if Mrs . Carter came back it would be as
a new employee with no seniority . This caused Mrs. Carter
to say that only Mrs. Gwin knew the former had quit and
should not mention it to anyone . Mrs. Gwin refused to
withhold this fact from others because "other people did
know."
The General Counsel 's final witness was James Moore,
Respondent 's production foreman . A conspectus of
Moore's testimony is set forth at this point . In November
1971, Mrs. Carter told him she "was leaving the state" but
did not say that she was quitting . When Mrs. Carter
returned to work in February 1972, she worked under him
on the production lines. Horowitz told him she came as a
new employee . Sometime after 11 a.m. on March 14, 1972,
Horowitz notified Moore to "lay off " Mrs. Carter at 11:30
a.m., but Horowitz gave no reason for taking this action.
So Moore laid off Mrs. Carter at 11:30 a.m . without
mentioning to her why she was being so laid off . Further,
Moore claimed Mrs . Carter did not cause a disturbance on
March 14 , and he never told Horowitz that she did.
B. Respondent 's Evidence
James Moore also gave evidence as a witness for
Respondent. An adequate abridgment of his testimony in
this latter capacity follows. According to him , Mrs. Carter
"lost quite a bit of time" as an employee prior to
November 1971. In fact he issued her a "notice of
reprimand . . . number three . . . for . . . excessive
absenteeism" on March 23 , 1971 (see Resp . Exh. 3), and he
knows "of other reprimands . . . she has got " for excessive
absenteeism . This absenteeism resulted because she had
minor children so that she often left work before quitting
time to take care of them . However, he always excused her
when she asked to go home during the day to attend to her
children . Further , Mrs. Carter always "bitched " whenever
she was taken off her regular job and assigned to another
one. But she always did the work . Finally, Moore
"understood" that , when Mrs. Carter returned in February
1972, "she was a new employee."
Respondent 's bookkeeper , Janet Wolfery , testified that
of November 18, 1971, she was present and heard Mrs.
Carter tell -Mrs. Gwin, Respondent 's personnel manager,
that Mrs. Carter was quitting and moving to the State of
Washington , and that Mrs . Carter further said that she was
going to tell Francis (Jess) Wright that because of this she
was resigning as an officer of the Union.
An employee of Respondent , William Lewis , who is a
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
member of the grievance committee of Local 5916, testified
that on March 14, 1972, Mrs. Carter presented him with a
written grievance and asked him to sign it. Since he replied
he knew nothing about the facts, she walked away with the
paper. As far as he knows, she never resigned from Local
5916.
Sammie Lewis, an employee of Respondent and also a
member of said grievance committee, testified that on
March 14, 1972, Mrs. Carter brought a written grievance to
him. Without signing it, he instructed her to take it to the
committee's chairman, Francis Wright, because Wright
"always signed it first." So Mrs. Carter left carrying the
paper with her. Later that day she returned, placed the
grievance on his desk, and said, "You can either sign it or
throw it in the trash." Thereupon Lewis took the paper and
remarked, "I hear that you had quit ... and if you get
Francis Wright to sign it I will sign it" However, Mrs.
Carter insisted that she did not quit. At no time did she tell
Lewis that she had quit. Lewis did nothing with the paper.
Two or 3 days later Mrs. Carter accused Sammie of
causing her to be laid off. But he denied this. When she
asked him what he did with her written grievance, he
replied that it still lay in his desk drawer. Then he offered
to accompany her "right now" to take it up with Horowitz.
Although Mrs. Carter did not accept this offer and left
immediately, Lewis did go to see Horowitz.
When Lewis went in to see Horowitz, he presented the
grievance of Mrs. Carter to him. At no time prior to this
had Lewis talked to Horowitz about said grievance or
shown it to him. Such grievance was not signed by Lewis or
any other member of the grievance committee, and only
the top half of it had been filled out when Lewis gave it to
Horowitz, i.e., the part ending with the words "as a new
employ." (See G.C. Exh. 6.)
During the morning of March 14, 1972, at about 10 or 11
a.m., Lewis talked to Horowitz about another grievance,
that of employee Hoover, but did not mention Mrs.
Carter's grievance during the conversation although it had
previously been presented to Lewis at about 9 or 9:15 a.m.
that morning.
Francis Wright, president of Local 5916 and chairman of
its grievance committee, testified in substance as follows.
On about November 18, 1971, Mrs. Carter told him in the
presence of Union Steward May that she was resigning as
an officer of the Union because she was "quitting and
going to the State of Washington." During 1971, Horowitz
asked Wright and May to try to "straighten out" Mrs.
Carter because of her excessive absences from work.
Complying therewith, Wright did discuss this subject with
Mrs. Carter.
About March 14, 1972, Mrs. Carter requested Wright to
sign her grievance. But Wright told her he could not do it
because "she had quit and she was a probationary
employee." Neither before nor after this did Wright discuss
this grievance with her or with management.
Respondent's personnel manager, Jean Gwin, who had
previously been called as a witness for the General
Counsel, also appeared as a witness for Respondent. As the
Respondent's witness she testified substantially as follows.
On November 18, 1971, Mrs. Carter told Mrs. Gwin that
the former "was quitting and moving to Washington and
resigning as an officer of the Union." Accordingly, Mrs.
Gwin entered this fact in Mrs. Carter's personnel file and
also "sent a form into the state . . . Unemployment
Security Commission of the State of Indiana." See G.C.
Exh. 4 for the latter document and Resp. Exh. I for the
notation in Mrs. Carter's personnel file.
In addition, Mrs. Gwin "marked off" Mrs. Carter from
Respondent's November 1971 seniority list. (See Resp.
Exh. 4.) Further, Mrs. Gwin excluded Mrs. Carter's name
from Respondent's seniority lists for December 1971, and
January, February, and March 1972. (See Resp. Exh. 5, 6,
7, and 8.) Copies of all seniority lists, including the
foregoing, are given to President Francis Wright of Local
5916 and to Respondent's supervisors and are also posted
at the plant's bulletin board for employees. At no time did
Mrs. Carter contact or question Mrs. Gwin relative to the
information disclosed in these posted lists.
In 1971 Mrs. Carter had an absentee problem, usually on
Friday, the payday, when she was "either tardy or she left
in the middle of the day." This is reflected in her timecards.
(See Resp. Exh. 9.)
Following Mrs. •Carter's being rehired on February 16,
1972, Foreman Moore came to the front office "quite
upset" because Mrs. Carter had become an employee at
the plant. In fact, he told Mrs. Gwin that he refused to give
Mrs. Carter a timecard. But Moore offered no explanation
for his attitude towards Mrs. Carter.
Explaining Respondent's procedure on layoffs, Mrs.
Gwin stated that those in such status were recalled by Mrs.
Gwin according to seniority. But Mrs. Gwin did not follow
this procedure as to Mrs. Carter in January and February
1972, because Mrs. Carter "was no longer in our employ."
However, Mrs. Gwin did pursue it in said January and
February for other employees who had been laid off.
Further , it is Respondent's policy to terminate or even
occasionally temporarily layoff during the day probation-
ary employees without giving any reason for such action.
Respondent closed its case with testimony by Irving
Horowitz, its assistant general manager , who testified
essentially as follows. Early in February 1972, Mrs. Carter
asked him "if work was available" because she was
"desperately in need of work" and her husband was not
working, but he informed her that nothing was available
for her at that time. However, he did hire her on February
16, telling her on that occasion that "she was coming in as
a new employee." She agreed to this by "nodding her head
and uh huh but nothing further than that." From February
16 to March 14, 1972, Horowitz spoke to Sammie Lewis on
various matters, but none of them referred to Mrs. Carter.
Between February 16 and March 14, 1972, Horowitz laid
off six to eight probationary employees. A list of the names
of probationary employees about to complete their
probationary service of 30 days (See G.C. Exh. 2, art. 51)
are given to Horowitz by Mrs. Gwin approximately "a
week prior to an employee's entry into the Union with the
date that they are to enter the Union." This list includes
the date of hire. Thereupon Horowitz passes "judgment
... on their performance for the last thirty days . . . I
either discharge them or permit them to go into the
Union." About March 10 or 12, 1972, Horowitz received
such a list containing the name of Mrs. Carter.
G. W. DAVIS CORP. 209
C. General Counsel's Rebuttal Evidence
Mrs. Carter mentioned to William Lewis, a member of
the grievance committee of Local 5916, on more than one
occasion while employed by Respondent in 1972 that she
"wanted her seniority ." She also talked to Sammie Lewis in
the same period concerning the identical subject . She spoke
to each in the plant . And both William and Sammie were
present and within hearing distance when she discussed
this subject at the union hall with Union Officials J.C. May
and Carl Himelick while she was working for Respondent
in 1972. Further , whenever she was absent or left work
before the workday ended she always had the permission
of Horowitz to do so.
D. Concluding Findings and Discussion
Initially, I find that Mrs. Carter at no time material was
engaged in union activity. This is because the record is
entirely devoid of evidence that she was involved in or
pursued conduct intended to aid, assist, or benefit Local
5916 or any other union. Hence I find that she was not
terminated for union activity, and, therefore, recommend
that the portion of the complaint alleging that she was let
go for union activity be dismissed. See Rotax Metals, Inc.,
163 NLRB 72, 79; Pacific Electricord Co., 153 NLRB 521,
361 F.2d 310 (C.A. 9).
1. As to whether Mrs. Carter quit
It is my opinion, and I find, that Mrs. Carter did not quit
on November 18, 1971, when she was on layoff status, but
that she merely left the State of Indiana with her family on
that date intending to return but entertaining the possibili-
ty of remaining in Washington if she found satisfactory
employment there. On this issue, I credit Mrs. Carter's
testimony and do not credit Respondent's evidence not
consonant therewith.
It is true, and I find, that when Mrs. Carter left on
November 18 her husband had quit his job in Richmond.
While this fact cannot be ignored, and I have considered it,
nevertheless it is not conclusive on the issue of whether
Mrs. Carter intentionally severed her employment status
with her employer in Richmond, the Respondent herein.
Further, I also find that Mrs. Carter asked Mrs. Gwin on
said November 18 to mail the former's W-2 form to a
Washington address. But this is not conclusive that Mrs
Carter had moved permanently from Richmond. Rather it
is consistent with Mrs. Carter 's contention, which I credit,
that because her layoff by Respondent probably would
continue until February 1972, she desired to receive her
mail in Washington until then.
Another fact, which I find, tending to detract from Mrs.
Carter's contention that she did not quit is that she
enrolled her minor children in school in Washington. But
this establishes only that she did not want her children to
get behind in their schooling, and does not compel the
conclusion that she intended to remain permanently in
Washington. In fact, since she had been on layoff status
since May 1971, and since such seasonal layoff usually had
in the past lasted until February of the following year, she
remained an employee. Thus it is reasonable to assume
that Mrs. Carter entertained a reasonable expectancy of
being recalled . Hence Mrs . Carter was free to absent
herself from Indiana from May to the following February
without creating the impression that she had abandoned
her employment in Richmond
In any event , I credit Mrs . Carter that she did not quit on
November 18, 1971, and that she did not tell anyone that
she was quitting . It is true she resigned her office as
treasurer in Local 5916 on November 18, 1971. But this is
understandable, as she could not fulfill the duties of said
office while away in the State of Washington . Hence I find
that such resignation does not require a finding that she
quit her job. I find that Mrs. Gwin did write "quit" on
Respondent 's records pertaining to Mrs. Carter . But I find
she did so on the basis of statements made to her, as she
testified , by other employees that Mrs. Carter had quit.
These statements do not prove anything since such
employees did not testify at the trial as to the source of
their knowledge.
The president of Local 5916 testified that Mrs. Carter
told him she quit . It may be that he mistakenly thought she
quit Respondent's employ when she informed him that she
was resigning as treasurer of the Local. But it is significant
that he did not say that she resigned from the Union, thus
indicating that she did not quit her job . As noted above, I
credit her that she did not tell him that she had quit her
job.
I do not credit Horowitz that he told Mrs. Carter that she
started as a new employee when he hired her in February
1972, and that she acquiesced in this assertion. Rather, I
credit Mrs . Carter that she did not say this. Her version is
more reasonable because she immediately sought her
seniority as soon as she returned to work, a fact
inconsistent with the idea that she considered herself a
probationary employee lacking any seniority. Then, again,
Horowitz testified that he heard from employees that Mrs.
Carter was claiming in February and March 1972 that she
was not-,a new hire and that she was entitled to seniority
based on her entire length of service . It is difficult to
comprehend why he did not tell such employees , or tell
Mrs. Carter after hearing such employees , that Mrs. Carter
was hired as a new employee and could not claim seniority
as a probationary employee . His silence under the
circumstances has probative value that Mrs. Carter's
testimony should be credited not only on the basis of
demeanor but also because of the failure of Horowitz to do
anything about what he heard in the plant.
2. As to the cause of Mrs Carter's termination
As found above, Mrs. Carter did not quit. Accordingly, I
find that when she returned to work in February 1972 she
was not a probationary employee and, consequently, she
was entitled to resort to the grievance procedure specified
in the contract . Of course, if she were a new hire following
her quitting , she could be terminated for any reason-ex-
cept an unlawfully discriminatory one-before her proba-
tionary period expired , i.e., within 30 days from the date
her new employment commenced . (See G .C. Exh . 2, art.
51, p. 18) As a matter of law, even if she is not a new hire
but is treated as an employee on layoff status who has been
recalled to work, she may nevertheless be terminated for
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
good cause, bad cause, or no cause at all so long as
unlawfully discriminatory motives do not enter into the
decision to release her as an employee.
It is my opinion, and I find, that Mrs. Carter was
terminated because Respondent knew, or at least believed,
that she had filed a grievance protesting her not being
granted seniority when she returned to work on February
16, 1972, and that the reasons given at the hearing (none
was given to her when she was terminated) are pretexts to
disguise the true reason. This ultimate finding is based on
the entire record and the following subsidiary findings,
which I hereby find as facts.
a. Protesting or complaining about a seniority rating is
an activity protected by the Act, and discharging an
employee for such conduct contravenes Section 8(a)(1) of
the Act. The Singer Company, 198 NLRB No. 122; Masco
Products, Inc., 198 NLRB No. 70. Further , it is not
incumbent upon Mrs. Carter that she show that her
grievance was meritorious; her conduct is protected by the
Act if the claim is colorable and made in good faith "even
though it may ultimately fail." Rotax Metals, Inc., 163
NLRB 72, fn. 2. I find that her claim was made in good
faith and that it was colorable and plausible. Cf. Singer
Company, 198 NLRB No. 122.
b. It is elementary that the present case must fail unless
the General Counsel establishes that Respondent knew of
Mrs. Carter's claim. In this connection I find that
Horowitz, on his own testimony, heard from employees
that Mrs. Carter was claiming she had been denied her
seniority. This constitutes knowledge. But I also find
knowledge may be inferred from the fact that Mrs. Carter
was abruptly discharged in the middle of a workday and
for a false reason. That false reason is that Horowitz stated
that in part Mrs. Carter was discharged because Foreman
Moore on March 14, 1972, told him that Mrs. Carter was
disrupting the production line when, as a matter of fact,
Moore, Respondent's witness, stated he did not so inform
Horowitz on that day. In this respect I credit Moore that
he uttered no such statement to Horowitz that day and do
not credit Horowitz that Moore so told him.
In addition, no reason was given to Mrs. Carter as to
why she was being terminated. This also warrants the
inference, and I draw it, that Respondent had knowledge
that she was protesting her seniority rating. Such knowl-
edge may well have been transmitted to Horowitz by Lewis
while they were discussing employee Hoover's grievance.
"The failure to give a reason ... by management for the
discharge of employees properly may be considered by the
Board . . . in determining the real motive which activated
the discharge." Virginia Metalcrafters, Inc, 158 NLRB 958,
962.
c. Although Horowitz contends Mrs. Carter was
discharged in part for causing a disturbance on the
production line, as reported to him by foreman Moore on
March 14, 1972, Moore nevertheless expressly denied that
he observed anything wrong on that date and also denied
he complained of Mrs. Carter's conduct on March 14 to
Horowitz Such inconsistency warrants the inference-and
I draw it-that a discriminatory motive prompted the
discharge of Mrs. Carter. And I find that such motive
resulted from her grievance or complaint relating to her
seniority , an activity protected by the Act.
d. Further , Mrs. Carter was abruptly terminated in the
middle of the day notwithstanding that foreman Moore
found nothing wrong on that day warranting a precipitous
discharge . Abruptness of a discharge warrants the finding
-and I so find-that such discharge was prompted by a
discriminatory intent . N.L.R.B. v. Montgomery Ward &
Co., 249 F.2d 497, 502 (C.A. 2); N.L. R.B. v. Sutherland
Lumber Co., Inc., 452 F.2d 67, 69, In . 4 (C.A. 7); Arkansas-
Louisiana Gas Company, 142 NLRB 1083, 1085-86. "It is
well established that direct evidence of discriminatory
motivation is not necessary to support a finding of
discrimination . Such intent may be inferred from the
record as a whole." Heath International, Inc., 196 NLRB
No. 42. The record herein fairly permits such a finding,
and I so find.
e. No warning was given to Mrs. Carter after she
returned to work on February 16, 1972, that her conduct
subjected her to the risk of being terminated. I find that it
is reasonable to infer-and I do so-that an employee
would be alerted that he is encountering possible discipli-
nary action by conduct treated as objectionable by his
employer . Hence I find that , under the circumstances, the
failure to caution Mrs . Carter of the possibility of
discharge is laden with probative value in ascertaining the
activating reason for her discharge . E. Anthony & Sons, Inc.
v. N L R. B., 163 F .2d 22, 26-27 (C.A.D.C.).
N.L.R B v. National Seal, 336 F.2d 781 (C.A. 9), upon
which Respondent relies, does not clash with the foregoing
findings . It was decided on the ground that the evidence
did not disclose that the employer in that case was
prompted by discriminatory motives in releasing a proba-
tionary employee . Unlike the facts in that case, I have
found that Respondent in the instant case was induced by
discriminatory considerations in discharging Mrs. Carter.
I. Upon this aspect of the case it is worth mentioning
that "direct evidence of a purpose to discriminate is rarely
obtained , especially as employers acquire some sophistica-
tion about the rights of their employees under the Act; but
such purpose may be established by circumstantial
evidence ." Come Corporation v. N. L. R. B., 375 F.2d 149,
152 (C.A. 4). Accord, Hartsell Mills v. N L.R.B., I1 I F.2d
291, 293 (C.A. 4). "Nowadays it is usually a case of more
subtlety." N L.R.B. v. Neuhoff Bros, 375 F.2d 372, 374
(C.A. 5).
g. Although Horowitz claimed that in part Mrs . Carter
was discharged because of her bad work record prior to
November 18, 1971, I find that this is a pretext . This is
because Mrs. Carter was allowed to return to work on
February 16, 1972, notwithstanding such alleged past
unsatisfactory attendance and work performance. By
permitting her to return to work despite such alleged
deficiencies, Respondent overlooked or condoned them.
By reviving them on March 14 , 1972, after they had been
ignored , Respondent may be found-and I so find-to
have used them as a pretext to disguise the real reason, i.e.,
discharging her for engaging in activity protected by the
Act.
In this connection inconsistencies in the testimony of
Respondent 's officials support the inference that Mrs.
G. W. DAVIS CORP.
Carter was laid off for a discriminatory reason prohibited
by the Act. Thus, Horowitz insisted that Mrs. Carter was
terminated and not laid off. But Foreman Moore testified
that Horowitz told him to layoff Carter. (See Tr. p. 99.) On
the other hand Mrs. Gwin first alluded to the fact that Mrs.
Carter quit on March 14 (see Tr. p. 26), but noted on
Respondent's records that Mrs. Carter was "laid off
3-14-72." (See G.C. Exh 6, last line.)
h. Foreman Moore gave no reason to Mrs. Carter when
he dismissed her on March 14. This warrants the
inference-and I draw it-that Mrs. Carter was discrimi-
natorily terminated. N L.R.B. v. American Casting Service,
365 F.2d 168, 172 (C.A. 7); N L.R B. v. Plant City Steel
Corp., 331 F.2d 511, 515 (C.A. 5).
I. In addition, I find that Horowitz neither conducted a
fair and impartial investigation of Mrs. Carter's alleged
faults nor offered her an opportunity to explain her alleged
misconduct or otherwise to defend herself. Yet she was
terminated without even the semblance of a chance to
vindicate herself. Failure to conduct a fair investigation
under these circumstances is evidence of a discriminatory
attitude toward the employee affected thereby. Norfolk
Tallow Co, Inc., 154 NLRB, 1052, 1059. And the failure to
ask Mrs. Carter of her version of this incident amounts to
evidence of a discriminatory motivation towards her.
Service Technology Corporation, 196 NLRB No. 160.
J Finally, in order to find that Mrs. Carter's termina-
tion was inspired by discriminatory considerations it is not
imperative to find that her protected activity was the only
element responsible therefor. It is sufficient to find she was
discharged unlawfully if a substantial ground leading to it
was her protected activity notwithstanding that a valid
reason may also have simultaneously existed for discipli-
nary measures against her. N.L.R.B. v. Lexington Chair
Co, 361 F.2d 283, 295 (C.A. 4); N L.R.B. v. Whitin
Machine Works, 204 F.2d 883, 885 (C.A. 1); Sinclair Glass
Co v. N.L R.B., 465 F.2d 209, 211 (C.A. 7). I expressly find
that Mrs. Carter's protected activity was a substantial-but
not necessarily the only-ground leading to her discharge.
It is axiomatic, and I recognize, that the Board may not
pass judgment upon the reasonableness or severity of a
discharge, for this rests exclusively within the rights of
management. N.L R.B v. United Parcel Service, 317 F.2d
912, 914, (C.A. 1). But this rule of law will not protect an
employer who, in substantial part, is discriminately
motivated in discharging an employee. N.L.R.B. v. Long-
horn Transfer Service, Inc., 346 F.2d 1003, 1006 (C.A. 5). As
noted above, I have found that Mrs. Carter's protected
activity in substantial part contributed to her being
terminated on March 14, 1972.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The activity of Respondent set forth in section III,
above, found to constitute an unfair labor practice,
occurring in connection with its operations described in
section I, above, has a close , intimate , and substantial
relation to trade, traffic , and commerce among the several
States , and tends to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
211
As Respondent has been found to have engaged in an
unfair labor practice, I shall recommend that it be ordered
to cease and desist therefrom and to take specific action, as
set forth below, designed to effectuate the policies of the
Act.
Inasmuch as Respondent unlawfully terminated Mrs.
Carter, it will be recommended that Respondent be
ordered to offer her immediate and full reinstatement to
her former position or, if such is not available, to one
which is substantially equivalent thereto, without prejudice
to her seniority and other rights and privileges. It will also
be recommended that she be made whole for any loss of
earnings suffered by reason of her termination.
In making Mrs. Carter whole Respondent shall pay to
her a sum of money equal to that which she would have
earned as wages from the date she was terminated to the
date she is reinstated or a proper offer of reinstatement is
made, as the case may be, less her net earnings during such
period. Such backpay, if any, is to be computed on a
quarterly basis in the manner established by F. W.
Woolworth Company, 90 NLRB 289, with interest thereon
at 6 percent calculated according to the formula set forth
in Isis Plumbing & Heating Co., 138 NLRB 716. It will also
be recommended that Respondent preserve and make
available to the Board or its agents, upon reasonable
request, all pertinent records and data necessary to aid in
analyzing and determining whatever backpay may be due.
Finally, it will be recommended that Respondent post
appropriate notices..
It is my opinion, and I find, that the termination of Mrs.
Carter does not reflect a general disregard of or hostility to
the Act. Accordingly, I find that a broad remedial order
against Respondent is not warranted. Rather, I find that it
will adequately effectuate the policies of the Act to enjoin
Respondent from repeating the conduct found above to
constitute a violation of the Act and similar or like
conduct.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Local 5916 and Steelworkers each is a labor
organization within the meaning of Section 2(5) of the Act.
2. Respondent is an employer within the meaning of
Section 2(2), and is engaged in commerce within the
meaning of Section 2(6) and (7), of the Act.
3. By terminating Barbara Joan Carter for presenting a
grievance to it, said conduct being an activity protected by
the Act, Respondent has engaged in an unfair labor
practice condemned by Section 8(a)(1) of the Act.
4. The foregoing unfair labor practice affects com-
merce with the contemplation of Section 2(6) and (7) of the
Act.
5. Respondent has not engaged in any other unfair
labor practices alleged in the complaint.
[Recommended Order omitted from publication.]