Liberty Men's Formals, Inc.,

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1303 (N.L.R.B. 1981)

LIBERTY MEN'S FORMALS. INC.
Liberty Men's Formals, Inc. and Denise D. Angell.
Case 6-CA-13372
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 12, 1981, Administrative Law Judge
Thomas F. Howder issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
' In scc. II. par I, of the Administrative Law Judge's Decision, he r-
roneousv slated that Respondent, rather than the Charging Party and
other employees, complained to Plant Supervisor Sheffey that they had
not been properly paid for the Memorial Day Holiday. The error is
hereby corrected.
In sec. It.11, par. 12, of the Administrative Law Judge's Decision, he er-
roneously stated that Sheffey gave Angell. rather than former employee
Pace. permission to work a reduced week to deal with a babysitting
problem That error is also hereby corrected
DECISION
STATEMENT OF THE CASE
THOMAS F. HOWDER, Administrative Law Judge: This
case was heard before me on December 2 and 3, 1980, at
Pittsburgh, Pennsylvania. The General Counsel's com-
plaint alleged that Liberty Men's Formals, Inc. (hereafter
Respondent), violated Section 8(a)(1) of the National
Labor Relations Act (hereafter the Act), in that said Re-
spondent discharged employee Denise D. Angell after
she concertedly complained to Respondent regarding the
wages, hours, and working conditions of Respondent's
employees and because she gave testimony at a Pennysl-
vania Unemployment Compensation Board of Review
proceeding on behalf of a fellow employee.
Respondent denies the allegations of the complaint. It
asserts that the discharge was based solely on the com-
plainant's failure to work the 40 hours a week required
of full-time employees.
258 NLRB No. 179
Upon consideration of the entire record and the briefs,
and upon my observation of the witnesses and their de-
meanor. I make the following:
FINI)IN(S o0 F,-l I
I. JURISI)IC IION
By its answer and amended answer. Respondent
admits jurisdiction. Respondent is a Pennsylvania corpo-
ration with an office and place of business in Carnegie,
Pennsylvania, where it is engaged in the wholesale and
retail rental of tuxedos. During the 12-month period
prior to the issuance of the complaint, Respondent pur-
chased and received at its Carnegie, Pennsylvania. facili-
ty products, goods, and materials valued in excess of
$50,000 directly from points outside the State of Pennsyl-
vania. At all times material herein, Respondent is, and
has been, an employer within the meaning of Section
2(2) of the Act, engaged in commerce and in operations
affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
It. Al.LEEiD UNFAIR I ABOR PRACIICES
The Charging Party has been employed since 1977 as
a seamstress in Respondent's alteration department. On
or about May 30, 1979, Respondent. employees Sylvia
Pace, Isatu McWilliams Kpakiwa, and others complained
to Richard Sheffey. the plant supervisor, that they had
not been paid for the Memorial Day holiday according
to the method they believed to be be applicable. Sheffey
referred them to Gary Kravitz, the vice president of Re-
spondent.
After lunch on that day, complainant, Pace, and
Kpakiwa came upon employee Doris Hopkins and Kra-
vitz in the alterations department, who were discussing
the issue of holiday pay. They joined the discussion, and
Kravitz informed them that they misunderstood the
method used to compute their pay. The employees con-
tinued to complain that they had not been properly paid
for the holiday, because it was their impression that they
would receive a day's pay for Memorial Day without
working and double time in addition to that for any
hours actually worked. Kravitz denied that this was the
agreement and the argument continued loudly until it at-
tracted the attention of Melvin Singer, the president of
Respondent.
After the disagreement was explained to him, Singer
appeared to side with the employees, but retired to his
office with Kravitz to discuss the matter in privacy.
They then met individually with the employees except
for complainant and Pace, whom they met with jointly.
Respondent agreed to pay time and one half for all hours
worked over 40 that week. excluding the 8 hours holiday
pay.
After complainant and Pace returned to the alteration
department, Edythe Neiberg, a supervisor, overheard an-
other employee complain to Sheffey about Memorial
Day pay. Neiberg told complainant and Pace, "See what
you all have caused, having a discussion out in the open
like this instead of going into the office to discuss it you
have all the other employees in an uproar [sic]."
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DECISIONS OF NATIONAL LABOR RELATIONS 3()ARD
The next day, the discussion of Memorial Day pay
arose again among complainant. Pace, Hopkins, and
Kpakwa. Neiberg interrupted and told them that the
office was not the place to discuss it and that any errors
would he corrected. Complainant argued that "no error
was made, that it was intentional, because Kravitz had
said they intended to pay us that way and that the only
thing that was going to straighten the place out was to
get a union in there." Neiberg replied that in the past,
when employees had tried to unionize Respondent. they
had been fired.
During the same month, May 1979, complainant
voiced other complaints to Sheffey regarding the lack of
sick days for the employees.
Complainant testified that during August 1979 she con-
templated returning to school and that she was given
permission to work part time by Neiberg, who had
cleared it with Sheffey. In addition, Neiberg wrote a
letter of recommendation for Angell. Angell thereafter
worked an average of 24 hours per week until she was
discharged on November 5, 1979.
Respondent discharged Pace on September 19 and
Kpakiwa on October 17. On October 29, 1979, Angell
testified on behalf of Pace at a hearing before the Penn-
sylvania Unemployment Compensation Board of Review.
At that hearing, Angell testified that Sheffey had given
permission to Pace to work reduced hours until a baby-
sitting problem could be resolved. Kravitz testified that
no such permission was ever given to Pace.
Angell's employment by Respondent was terminated I
week after this hearing, on November 5, 1979. She was
informed by Sheffey that her termination was due to :ier
failure to work the 40 hours per week Respondent re-
quired for full-time employees.
Complainant, Pace, and Kpakiwa filed a complaint
with the Pennsylvania Human Rights Commission
(herein the Commission) in December 1979. At a fact-
finding conference held by the Commission in January
1980, Respondent contended that the employees were
discharged because they were poor workers. Complain-
ant testified during the hearing of the instant case that
Kravitz commented at the Commission hearing that Re-
spondent had intended to terminate these employees after
the Memorial Day incident but had had difficulty finding
replacement seamstresses. Pearl Pabarue, an investigative
factfinder for the Pennsylvania Human Rights Commis-
sion present at the factfinding conference, corroborated
Angell's testimony on this point. Kravitz absolutely
denied making this statement.
Respondent's position is that the sole motivating factor
behind the discharge of Angell was her failure to work
the 40-hour week required of full-time seamstresses, the
employment basis on which she was hired.
During the summer of 1978, complainant was pregnant
and was permitted to work a reduced number of hours
to accommodate her condition. She returned to work the
week of April 17, 1979, as a full-time employee, working
the requisite hours until June 13. At that time she asked
Sheffey if she could shorten her hours to deal with a ba-
bysitting problem and, according to Sheffey, she ,was
given permission to do so for a limited time until the
problem was taken care of. With one exception, Angell
worked 40-hour weeks until the week of July 18. 1979.
She then took a 2-week vacation, in accordance with Re-
spondent's policy for full-time employees with 2 years of
service.
It is Respondent's contention that when complainant
returned from vacation during the week of August 8,
1979, she began working an unauthorized shortened
workweek and that, when Sheffev questioned her, she
told him that she was unable to work on Thursdays and
Fridays. He testified that he told her that this would not
be satisfactory, but she continued to work only 3 days
each week during the next 2 weeks. He again told her
that the requirement was for 40 hours per week and that
she would be fired if she did not return to a 5-day work-
week.
It was then, Respondent alleges, that it was deter-
mined that Angell must be replaced and, to serve that
end, newspaper advertisements were run for a seamstress
during the week of September 1, 1979. At this point
complainant's attendance improved, and the running of
ads was suspended.
During the week ending September 19, 1979, the com-
plainant again began working a 3-day week and, accord-
ing to Sheffey, he cautioned her anew although she con-
tinued to insist that she could not work Thursdays and
Fridays. On September 16, 1979, Respondent resumed
running the advertisements. From September 19 to No-
vember 5, 1979, the complainant worked a maximum of
24 hours each week. Respondent ran newspaper ads
during the weeks of September 16, 23, and 30, and Octo-
ber 7, 14, and 21, 1979
Respondent hired Thu Pellek at the end of October
1979 and when it was assured that Pellek was able to do
the work, Respondent discharged complainant on
Monday, November 5, 1979.
Respondent also introduced evidence that Angell's
predecessor in the position worked an average of 40
hours per week, as does Thu Pellek, her replacement.
Ill. THE ISSUE
The issue in this case is whether Respondent engaged
in unfair labor practices within the meaning of Section
8(a)(1) by discharging the complainant because she con-
certedly complained to Respondent regarding wages,
hours, and other terms and conditions of employment,
and because she testified at a Pennsylvania Unemploy-
ment Compensation Board of Review proceeding on
behalf of a former fellow employee.
Iv. DISCUSSION
Under the National Labor Relations Act, employees
have the right to engage in concerted activity on behalf
of themselves and other employees with respect to
wages, hours, and conditions of employment. WLCY--
Tl Inc.. a subsidiary of Rahall Communications Corp.,
241 NLRB 294 (1979). Hawthorne Mazda, Inc., 251
NLRB3 313 (1980). C..M.C Mining Inc.. 235 NLRB 28. 34
(1978). In Hawthorne Mazda Inc.. supra at 315, the Board
stated:
130()4
LIBERTY MEN'S FORMALS. INC.
Section 7 of the Act guarantees employees the
right to engage in "concerted activities for the pur-
pose of mutual aid or protection." It is axiomatic
that employees who band together for the purpose
of presenting grievances to their employer are en-
gaged in protected, concerted activity .... Simi-
larly, an employee engages in protected activity
when he presents to the employer grievances on
behalf of other employees.
The reasonableness of the employees behavior. ie.,
whether they were correct or mistaken regarding the
employer's position is irrelevant to the employees right
to engage in such protected activities. N:.L.R.B v. Wash-
ington Aluminum Company, Inc., 370 U.S. 9, 16 (1962).
NL.R.B. v. Mackay Radio & Telegraph Co., 304 U.S.
333, 344 (1938).
The Board has held that the filing of an unemploy-
ment compensation claim is a protected concerted activi-
ty. Krispy Kreme Doughnut Corp., 245 NLRB 1053
(1979). See also Self Cycle & Marine Distributor Co., 237
NLRB 75 (1978), where the Board reversed the Admin-
istrative Law Judge's finding that such claims did not
constitute protected concerted activity.
In its brief, Respondent claims that Angell's actions do
not fall within the meaning of protected concerted activi-
ty because her actions of May 30, 1979, were "an indi-
vidual action meant to benefit herself." In support of
this, Respondent quotes from Angell's conversation with
Singer and Kravitz:
Well, he asked us to explain how we thought we
should have been paid and Mrs. Pace explained to
him that she thought she should get time and one
half for every hour worked over forty hours and
also be paid double time for the Memorial Day holi-
day that she worked, and that in fact, if she were
paid like that then she would have more money
coming to her and Mr. Kravitz stated that if you
figure it out that way then they did owe her more
and they would straighten it out and she would be
paid the following week.
Then they asked me, Mr. Kravitz and Mr. Singer,
the same thing and I explained to them that I felt
that I should have been paid the same way, that
particular week, I didn't have overtime but I would
have been paid double time for that holiday, which
I was never paid for. [Emphasis supplied.]
Respondent asserts that this testimony indicates that
the complainant acted solely for her own benefit and
that no testimony was heard that she approached the
management for any employee other than herself. Re-
spondent cites Hawthorne Mazda. Inc.. supra, where the
Board found that the activity in question was in concert
when the employee referred to "we" and "us." 251
NLRB at 315.
Respondent's choice of this particular selection from
the complainant's testimony cannot obscure the fact that
Angell, on that and other occasions. spoke for herself
and for her coworkers. During the beginning of that
same conversation, before Singer joined the group. she
stated:
[T]hey were discussing the holiday pay, that we had
not been paid for.
So, Mr. Kravitz went on to explain to u that we
didn't understand how we had been paid and the
way that they have computed it with the computer.
And we went on to explain to him that well. if that
was the way they did it iwe could understand that.
but the money should come out the same and the
way w have figured our pay, the money wasn't
coming out the same because we had been told that
every hour over forty hours was time and a half
and that if you worked a Memorial Day holiday
you would be paid double time.
For example, if you worked four hours, we would
be paid eight hours, if you worked five hours you
would be paid ten, and when we figured out the
dollar amount in our pay checks, that we had not
been paid that way. [Emphasis supplied.]
In addition, Angell had approached Sheffey about sick
days for the employees, and had testified on behalf of
Pace at an unemployment compensation hearing.
It is clear that Respondent's contention that Angell's
actions do not constitute protected concerted activities is
without merit.
The pivotal question here, then, is Respondent's
motive for its discharge of Angell. Was it her failure to
work 40 hours a week, as Respondent alleges? Or was it,
as the General Counsel seeks to establish, an attempt to
put an end to her activities regarding wages and condi-
tions of employment? In Wright Line, Inc., a Division of
Wright Line, Inc., 251 NLRB 1083 (1980), the Board dis-
tinguishes between "pretext cases" and "dual motive"
cases.
Pretext cases are those in which an employer's assert-
ed justification for discipline is a sham, and for which no
legitimate business reason exists. In dual motive cases the
decision to discipline involves two factors, i.e., a legiti-
mate business reason and the employer's reaction to em-
ployees who engage in union or other protected activi-
ties.
I'rior to Wright Line two tests for dual motive cases
existed. At one extreme courts found a violation if the
decision to discipline resulted "in part" because of pro-
tected activities. At the other extreme courts applied the
"dominant motive test." which placed on the General
Counsel the burden of proving that the discipline would
not have taken place in the absence of protected activi-
ties.
Wright Line establishes a middle ground test as the
preferred method, the "causation" test. The General
Counsel must make a prima Jacie shos inmg that protected
activities were a motivating factor and, once such a
prima acie showing is established, the employer must
demonstrate that such action would have been taken in
the absence of participation in protected activities by the
complainant.
1(305
DECISIONS OF NATIONAL LABOR RELATI()NS BOARD
An employer has a legitimate interest in having its em-
ployees work the number of hours the employer deems
necessary to perform the tasks at hand. As noted by
Singer, Respondent is in a business where time is of the
essence, the customer must have the merchandise on a
date certain. To require Angell to work 40 hours per
week, or an amount close to that number, when she was
hired to work on a full-time basis, is certainly reasonable
and to fire her for failing to fulfill this obligation is not a
pretext.
However, the General Counsel has established the pos-
sibility of a dual motive. Kravitz' statement at the Penn-
sylvania Human Rights Commission hearing that Re-
spondent intended to discharge the employees after the
Memorial Day incident indicates that complainant's pro-
tected activities were a motivating factor. Although Kra-
vitz denied having made the statement during his testi-
mony in this case, the corroboration provided by Pa-
barue of the Commission, who had little incentive to dis-
semble on this point, has convinced me that this state-
ment was, in fact, made by Kravitz. Her disinterest in
the outcome of this case must be contrasted with the evi-
dent interest of Kravitz.
The General Counsel has established that Angell's pro-
tected activities were a motivating factor in Respondent's
decision to discharge her. Respondent has the burden of
demonstrating that such action would have taken place
anyway. I believe that Respondent has surmounted this
obstacle.
It has been Respondent's practice over the past several
years to employ three full-time, i.e., 40 hours per week,
seamstresses. The complainant's predecessor in the posi-
tion worked those hours, as does her successor Respond-
ent has a legitimate interest in the number of hours its
employees work.
Although Neiberg testified that she wrote a letter of
recommendation for Angell to enable the complainant to
return to school, Sheffey, the plant supervisor, denied
having given permission for Angell to work the short-
ened week. He was the proper person to have given per-
mission for such an adjustment to her hours. His testimo-
ny was credible and persuasive.
The fact that 6 months elapsed between the Memorial
Day pay incident and the discharge of Angell, and the
fact that Respondent ceased running an advertisement
for her replacement when her attendance showed signs
of improvement are further indications "at the decision
to fire Angell had a legitimate business .,.. The coinci-
dence of timing between Angell's tes-: :' ln y at the Penn-
sylvania Human Rights Commissir aring and her dis-
charge indicates that her appearan., ihere may also have
been a motivating factor, but, as her replacement had al-
ready been hired, the decision to terminate the complain-
ant had clearly been made previously.
It is my conclusion, therefore, that Respondent had
reason to fire Angeil, and would have taken that action
apart from any protected activities in which she en-
gaged. Her refusal to work the hours Respondent set
was that reason.
CONCI.USIONS O LAW
1. Complainant was engaged in protected concerted
activities.
2. Complainant has made a prima facie showing that
such protected conduct was a motivating factor in the
decision to terminate complainant's employment.
3. Respondent has met its burden of demonstrating
that the same action would have taken place in the ab-
sence of the protected activity.
Upon the foregoing finding of facts, conclusions of
law, and the entire record in this proceeding, and pursu-
ant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended:
ORDER'
The complaint herein is dismissed in its entirety.
' In the event lno cxepiion, are filed as pro' ided h Sec. 102.46 f the
Rules and Regulations of the National l.abor Relations Hoard, the find-
ings, conclusions, and recommended Order herein hall, a provided in
Sec. 102.48 of the Rules and Regulations, he adopted by the Board and
become its findings, conclusions and Order, and all objections thereto
shall he deemed ssai'cd fr all purposes
130h