Litton Educational Publishing, Inc.

National Labor Relations Board - Board Decisions

Dec 20, 1973

207 N.L.R.B. 1054 (N.L.R.B. 1973)

1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Book Division, Litton Educational Publish-
ing, Inc. and George M. Rassenfoss. Case
9-CA-7648
December 20, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On June 29 , 1973, Administrative Law Judge Max
Rosenberg issued the attached decision in this
proceeding . Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings , findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found , inter alia,
that the Respondent violated Section 8 (a)(1) of the
Act by unlawfully interrogating employee George
Rassenfoss , the Charging Party herein , by harassing
him, and by threatening him with reprisals in the
form of disciplinary action , ostensibly because of a
poor work record . Specifically , the Administrative
Law Judge found that the Respondent so treated
Rassenfoss because the latter manifested support for
the Union in its renewed effort to achieve majority
representative status among the Respondent's em-
ployees . He further found that the Respondent
thereafter suspended Rassenfoss for a 5-day period,
for similar reasons , in violation of Section 8(a)(3) of
the Act . We disagree.
Employee Rassenfoss was hired by the Respondent
on February 28, 1968. As more fully set forth in the
attached Decision , Rassenfoss was active in the
Union 's earlier organizing campaign which began on
September 1, 1971, and ended with a Board election
on February 11, 1972 . In the course of that campaign
Rassenfoss joined the Union , solicited authorization
cards from fellow employees, wore a union button,
and testified against the Respondent in a Board
proceeding arising out of that campaign. The current
organizational campaign commenced on October 1,
1972. During this campaign , Rassenfoss became a
member of the Union's in-plant organizing commit-
tee. It is conceded that these facts were well known
to the Respondent.
The Respondent contends that the several warning
both oral and written that it gave Rassenfoss, as well
as the subsequent 5-day suspension meted out to this
individual commencing March 21, 1973, resulted
solely from Rassenfoss ' poor work record , and not,
as the Administrative Law Judge concluded , in order
to dampen Rassenfoss' organization ardor. The
central question , therefore, is whether the Respon-
dent was motivated by Rassenfoss ' work record to
take disciplinary action against him , including
suspension , or whether. the Respondent was indeed
motivated by unlawful considerations in first warn-
ing, and then suspending , Rassenfoss.
In this respect , the uncontroverted evidence re-
vealed that in less than 1 year , immediately preced-
ing Rassenfoss' 5-day suspension , he had received
numerous warnings , both oral and written, for
unacceptable job performance . These warnings, only
a few of which are alleged to have been pretextually
administered , dealt with such things as horseplay,
loafing on the job, not following supervisors' instruc-
tions , and excessive use of restroom facilities during
working time . Specifically, of the 10 recorded
incidents which resulted in warnings during the
aforementioned period , the complaint alleges, and
the Administrative Law Judge found , that only the
last 3, all occurring within a 3-week period immedi-
ately preceding Rassenfoss ' suspension , resulted in
warnings which were administered for reasons
violative of Section 8(a)(1) of the Act. Concerning
the prior warnings not here in issue , the record
reveals the following : On February 15, 1972, Rassen-
foss was warned by Foreman Charles Conley about
having made excessive mistakes in filling orders
during the preceding 2-week period . On June 2, 1972,
Plant Manager Ulbricht reprimanded Rassenfoss for
having engaged in a 30 -minute personal phone
conversation and otherwise wasting time , that same
afternoon , when he should have been working. On
July 21, 1972, Ulbricht reprimanded Rassenfoss and
another employee for having engaged in horseplay.
On August 17, Ulbricht addressed a memorandum to
Rassenfoss , referring to a conference between Con-
ley, Ulbricht, and Rassenfoss the preceding day, in
which the latter's poor work record was reviewed
with him . The subjects enumerated in this memo
included: Spending too much time in the washroom,
excessive lateness , not following instructions, and
low production . Rassenfoss was warned that he must
improve his general job performance or be subject to
disciplinary action. On September 18, 1972, Conley
again warned Rassenfoss about his excessive trips to
the washroom and about wasting too much time
talking to other employees. On October 31, 1972,
Ulbricht again reprimanded Rassenfoss, this time for
attempting to do work outside of his job assignment,
for wasting time , and for not following instructions.
On November 6, 1972 , Conley again cautioned
Rassenfoss against excessive mistakes and warned
207 NLRB No. 154
AMERICAN BOOK DIVISION 1055
that, if no improvements were made, there would be
some changes. With respect to the foregoing, it is
neither alleged nor found that the warnings, repri-
mands, and admonition directed toward Rassenfoss
were motivated by any factor other than the
employee's poor work record.
It is clear from the record before us that other
employees were similarly warned for failure to
perform their work satisfactorily. However there is
no evidence that any other employee received
warnings as frequently as did Rassenfoss. It is also
clear that certain problems were common throughout
the plant and were dealt with by the Respondent
accordingly. In this respect, the Respondent held a
general meeting of employees on February 28, 1973,
and discussed the company rule requiring employees
to use the restrooms before or after work, or during
lunch or the break periods, which the Respondent
provided. Employees were told that they were
spending too much time in the restrooms and that
abuse of the company rule would be followed by
suspension or termination. Rassenfoss was at the
meeting and was aware of the company rule
regarding use of restrooms.
Against this background, the Administrative Law
Judge found that the next three warnings which
Rassenfoss received, during the month of March,
when he was suspended, were administered for
unlawful reasons. On March 1, 1973, Rassenfoss was
admonished by Plant Manager Ulbricht as a result of
a disagreement Rassenfoss had with his immediate
supervisor, McKenzie. On that occasion, Rassenfoss
was again cautioned against wasting time while he
should have been working.
On the following day, Rassenfoss was observed, for
the first time, openly wearing a union button while at
work. As to this incident, the Administrative Law
Judge apparently credited Ulbricht's version of the
incident that he told Rassenfoss, "I don't care what
kind of button you have on, if you don't follow the
rules and regulations around here, it doesn't make
any difference," but concluded this could only be
interpreted as a threat that Rassenfoss would be
separated from the Respondent's employment rolls if
he persisted in -espousing the Union's cause by
wearing the Union button.
Similarly, the Administrative Law Judge held that
when Foreman Conley reprimanded Rassenfoss for
excessive talking on March 6, exclaiming:
What do you think you are trying to do? Do you
think you're trying to f- over the red head
[Ulbricht] and I? As far as that Union button
goes, it doesn't- mean a thing to either of us.
He berated Rassenfoss, not for any legitimate
purpose, but rather because of the latter's union
activities. Finally, the Administrative Law Judge
held that the reprimand administered to Rassenfoss
on March 20 for excessive use of restroom facilities
and the ensuing 5-day suspension were likewise the
result of Rassenfoss' union activities, and not
because of any legitimate concern with this employ-
ee's poor work record or breach of the Respondent's
rule.
Contrary to the Administrative Law Judge and in
view of Rassenfoss' documented poor work record
during the year preceding his 5-day suspension, we
do not believe that the record supports his interpreta-
tion of the most recent warnings to Rassenfoss in
March and his ensuing suspension as harassment,
threats, or reprisals related to Rassenfoss ' organiza-
tional activities. Nor do we find, in the factual
circumstances described above, that Ulbricht's refer-
ence to the union badge worn by Rassenfoss
necessarily amounts to an unlawful threat. Rather,
all the incidents are as reasonably construable as
lawful warnings as they are subject to the interpreta-
tion which the Administrative Law Judge placed on
them. Thus, we find it equally plausible that
Ulbricht's comment to Rassenfoss at the time he
mentioned the button referred merely to Rassenfoss'
defiance in the face of the reprimand he received the
preceding day.
As previously stated, the Respondent had ex-
pressed growing concern over excessive use of
restroom facilities and had emphasized this fact at a
general meeting with employees less than 1 month
before Rassenfoss' suspension . At this meeting
employees were warned that continued infractions
would result in suspension . There is no evidence that
any other employee ignored the warnings the
Respondent issued at this meeting . The Respondent
contends that Rassenfoss' latest infraction was the
"straw that broke the camel's back." On that
occasion, the Respondent's warehouse manager
reviewed Rassenfoss' entire work record and con-
cluded that it was poor and merited the disciplinary
action recommended by the warehouse foreman.
Significantly, Rassenfoss himself concedes that,
following his restoration to duty, after the suspen-
sion, he was, for the first time, able to limit restroom
visits to those occasions when employees were on
their workbreaks. In view of the foregoing, we are
not persuaded that the General Counsel has sus-
tained his burden of showing that the Respondent's
purpose in disciplining Rassenfoss was unlawful.
Finally, we do not agree that the Respondent
coercively interrogated Rassenfoss on October 24,
1972. Rassenfoss' own testimony reveals the jocular
manner in which Ulbricht asked Rassenfoss, a
known member of the in-plant organizing committee,
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether he himself had signed a card, and subse-
quently offered to augment the latter's supply of
blank authorization cards. It is obvious that the
comment by Ulbricht was facetious and not in
violation of Section 8(a)(1) of the Act. In any event,
it was isolated and would not warrant our finding a
violation based thereon.
In view of the foregoing, we shall dismiss the
complaint herein in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint be,
and it hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
MAx ROSENBERG , Administrative Law Judge : With all
parties represented , this case was tried before me in
Cincinnati , Ohio, on May 17 , 1973, on a complaint filed by
the General Counsel of the National Labor Relations
Board and an answer filed thereto by American Book
Division, Litton Educational Publishing, Inc., herein called
the Respondent.' The issues raised by the pleadings relate
to whether Respondent violated Section 8(a)(3) of the
National Labor Relations Act, as amended , by suspending
employee George M. Rassenfoss for a 5-day period
commencing on March 21 , 1973, because of certain
activities in which he had indulged on behalf of the United
Papermakers and Paperworkers , AFL-CIO, herein called
the Union, and whether Respondent independently violat-
ed Section 8(a)(1) of the Act by other conduct to be
detailed hereinafter . The parties waived the filing of briefs.
Upon the entire record made in this proceeding,
including my observation of the demeanor of the witnesses
who testified , I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
Respondent, a wholly owned subsidiary of Litton
Industries, Inc., is a New York corporation engaged at its
Florence, Kentucky, location in the warehousing and
distribution of books to elementary and high schools in the
Greater Cincinnati, Ohio, Area, and elsewhere. The
Florence warehouse is the only location involved in this
proceeding. During the annual period material to this
proceeding, Respondent sold and shipped directly, in
interstate commerce, educational materials valued in
excess of $50,000 from its warehouse in Florence, Kentuc-
ky, to customers located outside the State of Kentucky.
The complaint alleges , the answer admits, and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The General Counsel contends that Respondent sus-
pended George M. Rassenfoss for a 5-day period com-
mencing on March 21, 1973, because of his known
sympathies for, and activities on behalf of, the Union, and
thereby violated Section 8(aX3) of the Act. The General
Counsel further asserts that Respondent violated Section
8(a)(1) when, during the period from October 20, 1972, to
March 20, 1973, Warehouse Manager Robert Ulbricht and
Foreman Charles Conley engaged in coercive acts of
interrogation and harassment of Rassenfoss, and otherwise
threatened him in a manner offensive to the statute.
Respondent pleads that Rassenfoss suffered the suspension
primarily because of his excessive visits to the men's room
during working time , and, secondarily, due to other
derelictions of duty. It therefore denies that the disciplinar-
y action taken against him offended Section 8(a)(3), and
denies that any other conduct of these supervisors ran
afoul of Section 8(a)(1).
Rassenfoss was hired by Respondent on February 28,
1968. It is undisputed and I find that, on September 1,
1971, the Union embarked upon an organizational cam-
paign among Respondent's employees at the Florence
warehouse, which culminated in a Board election in Case
9-RC-9367 on February 11, 1972. Thereafter, objections
were filed, challenges were lodged to certain ballots, and
unfair labor practices were filed in Case 9-CA-6686. The
objections, challenges, and unfair labor practice allegations
were consolidated for hearing before an Administrative
Law Judge which opened on August 30, 1972, and closed
on October 15, 1972.2 It is uncontroverted and I find that,
in addition to joining the Union during that campaign,
soliciting the membership of other employees, and wearing
a union button, Rassenfoss gave testimony in the Board
hearing as a witness on behalf of the Union.
I further find that, on or about October 1, 1972, the
Union launched another drive to enlist the collective
support of the employees. In this venture, Rassenfoss
became a more active union adherent. He was appointed
as a member of the Union 's in-plant organizing committee,
wore a union decal, spoke on behalf of the Union, and
encouraged employees to join its ranks. That Respondent's
officials soon learned of Rassenfoss ' enlarged role on
behalf of the Union is amply demonstrated by the
testimony of Warehouse Manager Ulbricht who acknowl-
edged that "I knew that [Rassenfoss] was the organizer, he
11was on the in-plant committee ... .
Rassenfoss testified that, on October 20, 1972, he had a
conversation at work with Supervisors Ulbricht and
Conley. Ulbricht instigated the colloquy by asking,
"George, did you sign a union card?" Rassenfoss replied in
the affirmative and added that "I'd sign another one if I
had it." Ulbricht remarked, " I don't know why you'd be so
stupid as to sign another card," at which point Conley
1 The complaint, which issued on April 17, 1973, is based upon charges March 15, 1973, and April 11, 1973, respectively.
filed on March 13 , 1973, and April 9, 1973, respectively, and served on 2 Decision in that consolidated proceeding is still pending.
AMERICAN BOOK DIVISION
interjected that, "Well, Bob [Ulbricht], you know he
would." Ulbricht and Conley chuckled about the matter,
and the conversation terminated.
Rassenfoss further testified that, on October 24, 1972, he
was approached by Ulbricht and another discussion
followed. Ulbricht inquired whether the employee had a
sufficient number of union authorization cards for distrib-
ution, and Rassenfoss replied that he had. Ulbricht then
stated, "Well, if you need any more, I've got some
upstairs."
On March 1, 1973, Rassenfoss apparently had a
disagreement with his superior, McKenzie, and this was
brought to the attention of Ulbncht and Conley.3 On
March 2, 1973, Rassenfoss for the first time openly wore a
union button on his person while at work which measured
some 3 inches in diameter, and which bore the legend
"UPP [the Union] In-Plant Committee." According to
Rassenfoss, he was the sole employee to display the button
during the current organizational campaign.4 Rassenfoss
testified that, later in the day, Ulbricht passed the former's
work station and, observing the union insignia, comment-
ed, "George, I see you've raised your colors." Rassenfoss
replied, "Not for what you think," to which Ulbricht
retorted, "Well, George, with your attitude you won't be
around here much longer."
It is Rassenfoss' testimony that, while he was performing
his chores on the morning of March 6, 1973, Foreman
Conley walked up to him and berated Rassenfoss for
talking on three occasions that, day. Conley then ex-
claimed, "What do you think you are trying to do? Do you
think you're trying to f- over the red-head [Ulbricht ] and
I? And as far as that union button goes, it doesn't mean a
thing to either of us." Rassenfoss testimonially denied that
he had been wasting time that morning, although he
admitted that on one occasion he had greeted a fellow
employee for a few minutes.
Events abided until the morning of March 20, 1973.
Rassenfoss testified that, at about 11:15 a.m., he heard the
call of nature and repaired to the men's room. After
leaving the room to return to work, Conley beckoned to
Rassenfoss and summoned him into Conley's office. When
Rassenfoss arrived, Conley stated, "You know you've been
in there eight minutes?" and accused the employee of
having visited the lounge on four occasions that day.
Rassenfoss acknowledged that he had frequented the room
once during working time, but denied that he had made as
many visits as Conley alleged. Conley then remarked,
"What are you, trying to do, f- over the company? .
The company's too big for you to do that to.... You're
too small of a person.... You've f- the company for the
last time." Conley inquired whether Rassenfoss had
anything to say, and the latter answered in the negative.
On the afternoon of March 21, 1973, and according to
Rassenfoss' testimony, he was called into Ulbricht's office.
In Conley's presence, Ulbricht informed Rassenfoss that
"I've just received a write-up about you yesterday
involving, you going to the restrooni:... We give you
a Rassenfoss had previously experienced disagreements with Work
Leaders Herb Payton and Reno Denton. It is undisputed and I find that,
with respect to the incident involving Peyton, Ulbricht "agreed" with
Rassenfoss that the latter possessed a legitimate grievance and, regarding
the matter involving Denton, Ulbricht "partially agreed" that there was
1057
break times and your lunch time to take care of your little
needs- ... We wrote you up in September [1972] and ,also
we said something on February 28 [ 1973 ] at the employees'
general meeting about using the john excessively. . . . In
lieu of this I'm going to give you a five day suspension." At
this juncture, Conley interjected and stated that "you do
that four times a day. That's sixty minutes-that you screw
the company out a day." At the conclusion of the
discussion, Ulbricht handed Rassenfoss his paycheck,
adding that "I'm going to give you a five day suspension"
Ulbricht concluded with "maybe you'll wake up and pay
attention to our rules on the 29th when you come back to
work." Following his suspension , Rassenfoss was reinstat-
ed and has been continuously employed by Respondent.
Before turning to a consideration of the reasons which
Respondent claims impelled Rassenfoss' lawful suspen-
sion, it might be well first to assess the evidence relating to
the General Counsel's contention that Ulbricht and Conley
interfered with, restrained, and coerced Rassenfoss in his
exercise of rights guaranteed under Section 7 of the Act
prior to his suspension from duty on March 21, 1973,
which, as the General Counsel asserts, belies Respondent's
claim of legal motivation for disciplining Rassenfoss.
As heretofore chronicled, Rassenfoss assumed an active
role in the initial organizational campaign which the Union
launched on September 1, 1971, and rendered testimony on
its behalf in a Board-conducted hearing which began on
August 30, 1972, and terminated on October 25, 1972. He
averred that, on October 20, 1972, with the advent of the
second campaign by that labor organization, Ulbricht
inquired whether he had signed "another" union authoriza-
tion card and commented that "I don't know why you'd be
so stupid as to sign another card." Conley, who was present
during this conversation, volunteered that "you know he
would." When called to the stand, both Ulbricht and
Conley categorically denied that any such discussion took
place on that day. I do not credit their denials, not only
because they failed to impress me with their candor as
witnesses , but also because their testimony regarding
subsequent events was so incongruous as to lack plausibili-
ty. Thus, Ulbricht was questioned as to whether, on
October 24, 1972, he asked Rassenfoss if the latter
possessed a sufficient quantity of union designation cards
and whether he was in need of additional ones. Ulbricht
admitted that he had done so. When pressed for an
explanation for this inquiry and offer, Ulbricht recounted
that an organizational drive was in progress at the time and
the chief union organizer had sent him a letter containing
an authorization card. Concurrently, three employees who
had received such` cards had turned them over to Ulbricht,
who stored them in his office. Despite the fact that
Ulbricht, by his own admission, was unalterably opposed
to the unionization of his facility, and that he knew that
Rassenfoss "was the organizer" for the Union and "wag on
the in-plant committee," I deem it implausible that
Ulbrtcht's statements to Rassenfoss on this occasion were
intended solely as a friendly gesture to assist Rassenfoss in
substance in Rassenfoss' complaint . Without any reprimand , Rassenfoss
was transferred to another work leader.
4 Foreman Conley testified and I find that Rassenfoss ' was the only
worker whom Conley had observed wearing a button on and after March 2,
1973.
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accomplishing the very objective which Ulbricht opposed.
I therefore credit Rassenfoss ' testimonial utterances that,
on October 24, 1972, Ulbricht interrogated him concerning
the quantum of his supply of union cards with a design to
dampen his organizational ardor and to thwart and harass
his desires for collective representation.
I have found that Rassenfoss commenced openly to wear
his "in-plant committeeman's" badge for the first time on
March 2, 1973. He testified that, on the same day, Ulbricht
noticed the insignia and remarked that "I see you've raised
your colors" and that "with your attitude you won't be
around here much longer." When queried whether he
made the statements which Rassenfoss had attributed to
him, Ulbricht responded, "That's partially correct." Ul-
bricht went on to recite that "the previous day is when I
had George [Rassenfoss] and Charley [Conley] in the
office and I had reprimanded George, told him that I
didn't want any more actions on his part in that way [an
apparent reference to the McKenzie incident]. The next
day I'm downstairs, my usual routine of walking through
the warehouse three or four times a day, and I passed by
George and I noticed that he had a UPP [Union] button
on. I guess I got about three steps past him and I turned
around and I looked at.him and I said, `Well, George, I see
you've got your colors up.' And he said, `Yes.' And I said,
`Well, I just want you to remember one thing, George. Just
remember what I talked to you about yesterday, and I
don't care what kind of button you have on, if you don't
follow the rules and regulations around here, it doesn't
make any difference.' " I credit Rassenfoss ' testimony
that, in his March 2, 1973, discussion with Ulbricht, the
latter threatened that Rassenfoss would be separated from
Respondent's employment rolls if he persisted in espousing
the Union's cause by wearing the union button. In light of
the fact that Ulbricht had already reprimanded Rassenfoss
on the preceding day regarding his run-in with McKenzie,
and in view of Ulbricht's confessed antipathy to the
organization of the Florence installation, I am persuaded
that Ulbricht's comment that "if you don't follow the rules
and regulations around here, it doesn't make any differ-
ence" had reference to Rassenfoss' engagement in union
activities and constituted a threat of discharge if he
persisted in those activities.
I do not credit Foreman Conley's testimony that the
reprimand which he delivered to Rassenfoss on March 6,
1973, was prompted by the fact that the latter had
conversed with employees on three different occasions
during working hours. As in the case of Warehouse
Manager Ulbricht, Conley was not exactly enthralled by
the intelligence that the Union had reinstituted its
organizational drive. Moreover, as in the case of Ulbricht,
Conley learned on March 2, 1973, that Rassenfoss was the
only employee at the plant who wore an "in-plant
committeeman's" button, and Conley also knew, as early
as October 20, 1972, that Rassenfoss was in the forefront of
that campaign which began earlier that month. Against this
backdrop, as well as the circumstance that Rassenfoss had
received only one previous warning about excessive talking
in over 5 years of employment with Respondent,5 I find it
difficult to comprehend why, according to Rassenfoss'
undenied testimony, Conley would have admonished the
employee with the exclamation, "What do you think you
are trying to do? Do you think you're trying to f- over the
red-head [Ulbricht] and I? As far as that union button
goes, it doesn' t mean a thing to either of us."6 In short, I
find that, on March 6, 1973, Foreman Conley both
harassed and threatened Rassenfoss with potential discipli-
nary action because he patently manifested his support for
the Union in its renewed effort to achieve majority
representative status among Respondent's employees.
Finally, I find, based upon Rassenfoss' undisputed
testimony, that, on March 20, 1973, Conley threatened the
former with loss of employment due to his engagement in
union activities by Conley's statements that "What are you
trying to do, f- over the company? . . . The company's
too big for you to do that to. . . . You're too small of a
person. . . . You've f- the company for the last time."
In sum , based upon the foregoing findings of fact, I
conclude that Respondent offended the provisions of
Section 8(a)(1) of the Act by the following conduct of its
supervisory personnel:
A. By Ulbricht's coercive interrogation of Rassenfoss
on October 20, 1972, as to whether the employee had
executed a union authorization card, and by Ulbricht's
implicit threat of retaliation made on this date to
Rassenfoss for having done so.
B. By Ulbricht's coercive interrogation of Rassenfoss
on October 24, 1972, as to whether the latter possessed
union designation cards for distribution, and by Ulbricht's
concurrent harassment of Rassenfoss by Ulbricht's offer to
provide additional cards for Rassenfoss' use.
C. By Ulbricht's threat to discharge Rassenfoss, uttered
on March 2, 1973, because Rassenfoss actively supported
the Union.
D. By Conley's threat of disciplinary action made on
March 6, 1973, to Rassenfoss, and Conley's harassment of
Rassenfoss because he actively espoused the Union's
cause.
E. By Conley's threat of reprisal, made to Rassenfoss
on March 20, 1973, and his consequent harassment of
Rassenfoss , because of his engagement in union activities.
I turn next to a consideration of Rassenfoss' suspension
from duty on March 21, 1973.
As indicated heretofore, the General Counsel maintains
that Rassenfoss received this disciplinary action at the
hands of Respondent because he was a known, active
proponent of the Union. In framing its defense to this
issue , Respondent, at the outset, professed that Rassenfoss
was suspended primarily because of his repeated jaunts to
the water closet during working hours. It was stipulated by
the parties and I find that, during the course of Rassenfoss'
employment, Respondent conducted monthly meetings of
employees, which were attended by Rassenfoss, in the
course of which it made known its policy against the excess
use of the restrooms during working time. The last of such
5 This warning was delivered on September 18, 1972, some 6 months episode when he testified that "I told George that regardless of what kind of
prior to the event in question . button he wore, he still had to follow the work rules as far as the company
6 In part, Conley corroborated Rassenfoss ' testimony regarding this was concerned."
AMERICAN BOOK DIVISION
meetings prior to Rassenfoss' suspension occurred on
February 28, 1973, and I am satisfied on this record that
Rassenfoss was present at this convocation . Respondent
sought to establish through the testimony of Conley and
Ulbricht, as well as documentary evidence, that Ras`senfoss
had visited the restroom on four occasions for a total of 32
minutes on March 20, 1973, -during working time , and that
this was the straw that finally broke the proverbial camel's
back. As set forth above, Rassenfoss acknowledged that-he
had absented himself-from work on one occasion that day
to relieve himself, but denied that he had made any
additional sorties, to the men's room . Curiously , Respon-
dent submitted into evidence a document entitled "Record
of Verbal Warning" relating to Rassenfoss which is dated
March 20, 1973, and which was-signed by Conley. In this
report, Conley recited that the reason for the warning was
"Going too [sic] the bathroom for 8 . minutes at 11:25." No
mention is made of any other derelictions in this regard on
that day.
To buttress further Respondent 's position that Rassen-
foss was a flagrant offender of its rule against the abusive
use of the restroom and that this primarily triggered his
suspension , Conley testified that Rassenfoss had a tenden-
cy to leave his work on an average of 4 days a week and
that on each day he made a total of four trips to the
bathroom with each lasting a uniform 8 minutes . Accord-
ing to Conley, he warned Rassenfoss about these peregri-
nations approximately 10 times during the first 3 months of
1973, and voiced similar objections on an equal number of
occasions during the last 3 months of 1972. Yet, the record
shows that , prior to his suspension, Rassenfoss received
warnings on only two occasions , and these occurred on
August 17, 1972, and September 18, 1972, more than 6
months before he was suspended . That Respondent seized
upon Rassenfoss ' bathroom habits as a pretext to discrimi-
natorily suspend him from duty because of his union
activities is, in my opinion, amply demonstrated by
Respondent's own documents which were received into
evidence. Thus, on February 27, 1973, Conley issued a
"Record of Verbal Warning" to employee Joe Steffen who
performed the same job as Rassenfoss . In this directive,
Conley listed "Wasted time & excessive trip [sic] to the
bathroom" as the reason for the warning , and stated that
"I told Joe that he was talking too much and going to the
bathroom more than anyone in the company. I also told
him the next time he will be suspended for three days and
if once more he will be terminated." Despite the fact that
Steffen was, in Conley's words, the real miscreant in the
abuse of Respondent's restroom rule, no disciplinary
action was taken against him . Moreover, the same holds
true for employee Eric Kmman. On May 22, 1972, Kinman
was written up by Conley who cautioned that "he would
have to improve his production and spend less time in the
bathroom. I [Conley] gave him one month to improve or
he will be replaced." Kinman apparently did not display
any improvement in his work habits within the span of
time alloted to him, as evidenced by another warning he
received from Conley on October 26, 1972. Again, no
disciplinary action was meted out to him. Finally, Ulbricht
testified and the parties thereupon stipulated that no
employee had ever been suspended from duty because he
1059
had- violated Respondent's proscription against excessive
absences during worktime to visit the restroom.,
Confronted with the collapse ;of this defense, Respondent
then attempted to draw upon other bases to establish the
legality , of Rassenfoss ' suspension. These ,attempts proved
too frivolous to warrant serious consideration ,- For exam-
ple, Respondent claimed that a factor which was taken into
consideration in disciplining Rassenfoss was that he had
received an unauthorized telephone call during work hours
relating to a baseball game . The record establishes that this
incident, which was only - one involving telephone calls,
occurred as far back as June 2, 1973, and related to a
baseball team which both Conley and Ra'ssenfos's man-
aged . Moreover, Rassenfoss testified without contradiction
that the office "knew . . . I wasn't supposed to get a call
but the call came through anyway."
Respondent next claimed that ' Rassenfoss - had "engaged
in horseplay on the job. The only evidence relating to this
activity indicates that another employee had "goosed"
Rassenfoss and the other employee received. Still another
of Respondent 's defenses revolved around the circum-
stance that, on October 31, 1972, Ulbricht observed
Rassenfoss typing up labels for parcel post shipments.
When queried about this activity, Rassenfoss told Ulbncht
that the girl who normally performed this task was not at
work. Ulbncht stated that the lady was on the job, and the
matter ended . Finally, Respondent claimed that Rassen-
foss talked excessively at work, and made many errors.
This defense must , too, fall , because the record is replete
with evidence that other employees engaged in the same
conduct without suffering suspension or other discipline.
On the record before me, I am convinced and find that
Rassenfoss received a 5-day suspension from duty on
March 21, 1973 , not because of any asserted work
deficiencies or lapses, but because Respondent sought to
punish him for joining and actively assisting the Union in
its second organizational campaign to attain representa-
tional status among Respondent's employees . By this
conduct, I conclude that Respondent violated Section
8(a)(3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent 's opera-
tions described in section I, above, have a close and
intimate relationship to trade, traffic , and commerce
among the several States , and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices, I shall recom-
mend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
I have found that Respondent suspended George M.
Rassenfoss from his employment on March 21, 1973, for a
5-day period because he engaged in activities on behalf of
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union. I shall therefore recommend that Respondent
make Rassenfoss whole for any loss of pay which he may
have suffered as a result of the discrimination practiced
against him. The backpay provided for herein shall be
computed in accordance with the Board's formula set forth
in F. W. Woolworth Company, 90 NLRB 289, with interest
thereon at the rate of 6 percent per annum computed in the
manner prescribed in Isis Plumbing & Heating Co., 138
NLRB 716.
Upon the basis of the foregoing findings of fact and
conclusions, and upon the entire record in this case, I
hereby make the following:
CONCLUSIONS OF LAW
1. 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
meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of the rights guaranteed in Section 7
of the Act, Respondent has engaged in and is engaging in
conduct proscribed by Section 8(a)(l) of the Act.
4. By suspending George M. Rassenfoss, thereby
discriminating in regard to his hire and tenure of
employment, in order to discourage membership in and
activity on behalf of the Union, Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8 (aX3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.]