Oakland Press Co., The, a wholly-owned subsidiary of Capital Cities Communications, Inc.

National Labor Relations Board - Board Decisions

Mar 12, 1982

260 N.L.R.B. 920 (N.L.R.B. 1982)

I)I-CISI)NS ()OF NA'I I()NAI. I.AB()R REI ATIONS 13()ARD
The Oakland Press Co., a wholly-owned subsidiary
of Capital Cities Communications, Inc. and
Deborah Booker. Case 7-CA-17554
March 12, 1982
DECISION AND ORDER
BY CHAIRMAN VAN I)E WATER AND
MEMBERS FANNING AND ZIMMERMAN
On September 28, 1981, Administrative Law
Judge Herzel H.E. Plaine issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief,
and Respondent filed a brief in opposition to the
General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' 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 be, and it hereby
is, dismissed in its entirety.
'We agree with the Administrative I al Judge Ihal Respoltdcnt did
not violate Sec 81a)(4) of the Act by discharging employee Booker
However, we do not rely on the Adnil istrative ILaw Judge'% finding that
it is questionable whether Booker filed the initial charge with the Board
on March 17. 1980, in good faith, or in order ito use the Board processes
to protect her personal feuding with her supervisor
DECISION
STATEMENT 01 TIHE CASE
HERZEL H. E. PL.AINE, Administrative Law Judge:
The issue in this case is whether the Respondent, The
Oakland Press Co., a wholly-owned subsidiary of Capital
Cities Communications, Inc., a newspaper publisher, dis-
charged Charging Party Deborah Booker, a news pho-
tographer, because she filed a charge against Respondent
with the National Labor Relations Board (the Board),
and by the discharge violated Section 8(a)(4) and (1) of
the National Labor Relations Act, as amended (the
Act);' or whether, as Respondent claims, it lawfully dis-
charged Booker because of her alleged abuse of the sick
' Sec K(a)(4) of the Act declares it shall he an unfair labor practice for
an employer to discharge or otherwise discriminate against an employee
because he has filed charges or given testimnony under the Act
260 NLRB No. 126
leave privilege and her dishonesty in connection with
sick leave
The complaint was issued on April 22, 1980, upon a
charge filed by Booker on March 24, 1980, following her
discharge by Respondent on March 21, 1980. In the
charge of March 24, Booker claimed that the discharge
was in retaliation for her filing a prior charge against Re-
spondent with the Board on March 17, 1980, in Case 7-
CA-17520. The allegations in the prior charge of March
17 were quite general, stating that since on or about De-
cember 1, 1979, Respondent restrained, coerced, and in-
timidated Booker because of her participation in protect-
ed concerted activities, in violation of Section 8(a)(l) of
the Act.
Simultaneously with her filing of the second charge of
March 24 (underlying the complaint in this case) Booker
withdrew her first charge of March 17 in Case 7-CA-
17520.
The case at bar, Case 7-CA-17554, was heard before
me in Detroit, Michigan, on November 10, 1980. Counsel
for the General Counsel and for Respondent have filed
briefs.
Upon the entire record, including my observation of
the witnesses and consideration of the briefs of the par-
ties, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Michigan corporation with its princi-
pal office and place of business in the city of Pontiac,
Michigan, where it has been engaged in the business of
publishing and printing a daily newspaper of general cir-
culation.
In calendar year 1979, a representative period, Re-
spondent, in the conduct of its publishing operations, had
gross revenue in excess of $1 million; held membership
in, or subscribed to, interstate news services, including
United Press International and Associated Press; pub-
lished nationally syndicated features; advertised national-
ly sold products the revenue from each of which exceed-
ed $500,000 annually; and purchased and received at its
place of business in Michigan newspaper, ink, and other
goods valued in excess of $500,000 which were trans-
ported directly to it in interstate commerce from suppli-
ers outside Michigan.
As the parties admit, Respondent is now, and has been
at all material times herein, an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
11. RESPONI)DENT'S BUSINESS OPERATIONS IN
REIATION TO THE CHARGING PARTY
Respondent is a daily newspaper with a circulation of
about 72,000 subscribers, and a staff of approximately
300 employees, operating in and about Pontiac, Michi-
gan.
Employee Booker was a young woman who worked
in the photography department, which was part of the
larger editorial department, of the newspaper. She had
been a staff photographer for more than a year before
92()
THE OAKLAND PRESS CO.
her discharge in March 1980, and before that had been
an aide for about a year in the photo and editorial de-
partments. She started with the newspaper in October
1976, working first in the classified ads and circulation
departments.
As a staff photographer, Booker's job was to take
photos on assignments to supplement news stories, and,
on her own initiative, to take photos that stood on their
own merit. In March 1980 and earlier her work hours
were 8:30 a.m. to 5:30 p.m., Monday through Friday.
Booker was one of a staff of five photographers (four
males and herself the only female) plus a chief photogra-
pher, Edward Noble, who had been a photographer with
the paper for 20 years. Noble was supervisor of the pho-
tography department, in turn answerable to Michael
Wagner, the editor, with both responsible to the presi-
dent and publisher, Bruce Mcintyre. Noble, Wagner, and
McIntyre were admitted supervisors within the meaning
of the Act, but only Noble and McIntyre were directly
involved in the events that ended with Booker's dis-
charge.
Respondent had established work rules and policies for
the editorial department, including the photography
department, which had been posted on the general infor-
mation bulletin board. These had been in existence for a
number of years prior to 1980.
In the case of the sick leave policy, it had been in
effect and posted since at least March 12, 1974 (Resp.
Exh. 3, dated March 12, 1974) when, as the policy
stated, Respondent had a union contract with the news-
paper Guild; 2 and the work rules (Resp. Exh. 2) had
been in effect even earlier.
Of the work rules (Resp. Exh. 2) rule 4 prohibited an
employee's absence without properly notifying his super-
visor; and rule 18 prohibited an employee's abuse of sick
leave, including the falsification of sickness, failure to
report sickness, and failure to provide reasonable docu-
mentation or to submit to reasonable examination regard-
ing the nature of any sickness and inability to report to
work.
The sick leave policy (Resp. Exh. 3) was more de-
tailed. In relevant part it provided:
When you are ill, will you please remember the fol-
lowing practices, which are old ones but not always
honored:
The notification that you are sick must be made
to your immediate supervisor. It isn't sufficient to
notify whoever answers the phone, or leave mes-
sages. If you call and the supervisor is not availa-
ble, leave a message to the effect that you are
unable to report, but call back or have someone
call for you as soon as the supervisor can be
reached. Otherwise, the supervisor gets a second-
hand, usually inadequate message. He doesn't
know much about your condition or when you
might be coming back. If the supervisor can be
reached at home before the start of the work
period, notify him there. (The preceding informa-
2 The editorial employees were no longer represented h5 a union in
March 1980, according to Boolker's tettmonN
tion applies equally to those persons who are re-
placing supervisors on days off, etc.)
You should report, as promptly as conditions
permit, when you expect to return for work, and
if that is uncertain you should keep in daily touch
with the office about it. Otherwise, the schedul-
ing of other staffers becomes very difficult. (If
you are [on] long-term sick leave, having an op-
eration, etc., the daily call obviously does not
apply, but you should call at regular intervals to
describe your progress.)
Any of these steps may be taken by a relative or
friend, of course, if you are too ill to do so.
Notification, as described above, must be made
before the start of your shift unless there are cir-
cumstances which clearly make it impossible to do
so.
Sick leave is only for reasons of your personal ill-
ness, and may not be used for any other purpose.
Family emergency leave is covered elsewhere in
the office policies. Falsification of sick leave is a se-
rious offense which may result in disciplinary action
up to and including dismissal.
On the first day of each illness, and on such later
occasions as necessary, each supervisor or his assist-
ant will make a personal inquiry regarding the con-
dition of the sick employee and his probable return
to work. Notes on these inquiries will be forwarded
to the managing editor. Cause of illness will be
shown.
As Respondent's president, McIntyre, testified, he had
helped draft the work rules and the sick leave policy,
and, in addition to their posting, had caused copies to be
distributed to the editorial employees in 1974 and again
in October-November 1979. 3 McIntyre further testified
that, as the combined rules and policy stated, dishonesty
in connection with sick leave was deemed to be a serious
offense which could result in dismissal.
Additionally, Supervisor Noble testified to writing a
special memo dated March 12, 1980, to the five members
of his photography staff, of which Booker was one, re-
minding them, as the sick leave policy already stated,
that it was important if the employee was going to miss
work because of illness to inform him (Noble) at home,
or if he was unavailable to inform the morning-shift pho-
tographer on duty or other available photographer.
' In Ihi, connectilin, Booker , ho iolned the photolgraphy department
In 1978. laimed niii ro hare rcceiled or to hasc seen cipi', I, i (hehe Work
rule, arid the hic.k ase, pollcs until the "eek In hich she ,as dis-
charged Ilhte ueek or M;irch 17 198I) tier stlpersi,or. Edard Nohle,
estified he did not recall gllugs her topies lf suth rules and sick lease
pollc'
921
I)ECISIONS OF NATIONA. I.ABOR REI.ATIONS O()ARD
Noble posted the memo (Resp. Exh. 4) on March 12 on a
special bulletin board maintained for the photographers
and asked that each of them sign it. Four of the photog-
raphers signed the memo (using first names or nick-
names). Booker was absent on March 12 without having
complied with the already existing requirement of direct
notification to Noble or other photographer. She claimed
she did not see the March 12 memo when she came in
on March 13, and did not sign it, but may have seen it at
a later date. However, photographer Ed Vanderworp,
who in Noble's absence was in charge of assignments on
March 13, testified that he placed the memo on Booker's
assignment book to make sure she would see and get tihe
memo, and further testified that he saw her pick up both
the assignment book and the memo on the morning of
March 13. 1 credit Vanderworp over Booker in viewr of
problems with her credibility, noted infra.
IlI. THI I)ISC HAR(,i 0: I. Mt' OYE ! FIOOKiFR
A. Events Leading to the Dischurgte
Booker testified that she awakened in the early morn-
ing of Monday, March 17, 1980, experiencing sharp pains
in her stomach, diarrhea, and nausea, and feeling ex-
hausted and depressed. At 6:15 a.m. she telephoned the
newspaper city desk and talked to an assistant to the city
editor, Joe Grimm, asking him to relay word to Supervi-
sor Noble of the photography department that she was
ill and would not be coming in for work. At that early
hour, calling the city desk, as she had done, was the only
way to reach the paper or its departments, until the
switchboard opened at 8 a.m. Supervisor Noble, in his
testimony, acknowledged that he was notified by Grimm
sometime after 7 a.m. that Monday morning that Booker
would be absent.
According to Booker, she was able to get an appoint-
ment with her doctor for 11:45 that morning. Booker
lived in a suburban area of Detroit and the doctor, Dr.
Anthony Aenlle, lived in another suburban area. Booker
got her fiance (now husband), David Mikonczyk to drive
her to the doctor's office, leaving from her house be-
tween 10:30 and 11 a.m. Mikonczyk testified that he had
his own appointment with another doctor elsewhere, and
that he dropped Booker at her doctor's office, went off
and kept his appointment, and returned for Booker at
Dr. Aenlle's. Judith Wolfe, medical assistant and recep-
tionist for Dr. Aenlle, corroborated, with aid of the doc-
tor's records (G.C. Exh. 3), that Booker saw and was ex-
amined and treated by Dr. Aenlle on March 17, and that
among other things he prescribed medication to relieve
pain.
Booker and Mikonczyk further testified that at or
about I p.m. he picked her up at her doctor's office, and,
because neither had had any food that morning, he drove
to a restaurant near her home for lunch and theni back to
her home, arriving there about 3 p.m. They found a note
on the door to Booker from Supervisor Noble.
Supervisor Noble testified that he had arrived at the
office at 7 a.m. that morning (March 17), and was in-
formed thereafter by Grimm of the city desk that Booker
had called in sick. Since she had not called him at home,
or called him later at the office after the first early call
to the city desk (contrary to the directions of the sick
leave policy, heading II above), and since he was obliged
by the same policy to make an inquiry on the first day of
illness as to the employee's condition and probable return
to work, Noble telephoned Booker at home, he said, at
7:30, at 8:30, and again at 10:30 a.m., but got no re-
sponse. He drove to her home about 11:30 a.m., saw her
car with her assigned photographic equipment on the
seat, knocked on her door but received no response, and
put a note on her door to call him as soon as she re-
turned or, if he was not in, to leave a message with one
of the photographers.
Booker testified that she had heard no telephone rings
at her home that morning before leaving for the doctor.
When she and her fiance, Mikonczyk, saw and read Su-
pervisor Noble's note at or about 3 p.m., Mikonczyk told
her, he said, to call Noble at once. She was of a different
view, saying she was afraid of being "set up" to be
fired; and they decided to go to the National Labor Re-
lations Board Office in Detroit. where, after about an
hour's drive, they arrived about 10 or 15 minutes after 4
p.m.
According to Booker, she met with a Board agent at
the Detroit Office (later identified as Charles Morris) for
a total of about 5 to 10 minutes, but gave him no written
statement at that meeting. She told the Board agent she
felt she was being set up to be fired by Respondent, and
wanted the Board agent to be a witness by listening in
on the telephone call which she was required to make to
her supervisor. Board Agent Morris told her there was
no telephone in the office in which they were meeting,
and that she should use the pay phone down the hall
from where they were. She went to the pay phone, and,
joined by her fiance, telephoned Respondent's photo-
graphic office. Photographer Rolfe Winter answered,
saying that Supervisor Noble was not there. Booker said
she had a note from Noble to call, and asked Winter did
he know what Noble wanted. Winter replied, "no," and
she told him to leave a message that she had called. This
was at 4:33 p.m., by fiance Mikonczyk's watch, said
Booker and Mikonczyk.
Booker then returned to the office where she had met
with Board Agent Morris and completed what she had
to say. She claimed she told him that her supervisor,
Noble, had labeled her a "troublemaker" and had taken
her to the publisher's office several times, and that, alleg-
edly, on these occasions she had asked for the presence
of a person to act as a representative or as a witness for
her, but had been denied such. And that was all she told
the Board agent, said Booker.
The Board agent wrote out a charge against Respond-
ent which Booker signed and filed. The charge stated,
"Since on or about December 1, 1979, the above-named
employer has restrained, coerced, and intimidated Deb-
orah Booker because of her participation in protected
concerted activities" (G.C. Exh. 5). According to
Booker, Board Agent Morris did not explain the lan-
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sl w 'llle ; iltI,,I hlir I toll 11,l kt'l' S 1' ilsi '1u IJ t liid appeaIilr ltl Jt i as,
t'tlnltlg c.%ii t Nobhlt, i rappal ilil 5 ,ICTlr lig T rii hIer i l h l id l Ilhc h il dis n -
Cf111lnlilt igrllln l lit i s ; I \IS ll ;Ii I iir/g T1. Ii , pl l *i;grp~phcrs
922
THF OAKLAND[ PRESS CO
guage or what it meant, saying only that he thought he
should keep the charge general. As the parties stipulated.
the charge was time-stamped and filed with the Board at
4:52 p.m. on Monday, March 17, 1980.5
Booker testified that she returned to work the next
day, Tuesday, March 18, but had no conversation with
Supervisor Noble until Wednesday, March 19, when he
asked where she had been on Monday, March 17. when
he came to her home. She replied, she said, at the doc-
tor's.
Supervisor Noble, who acknowledged awareness of
Booker's telephone call to him which had been received
about 4:30 p.m. on Monday, March 17, by photographer
Rolfe Winter, testified that Booker and he actually talked
on Tuesday, March 18, when he asked her the nature of
her illness and she, allegedly, replied that it was none of
his business and asked him why he had come to her
house. Noble replied, he said, that it was his business to
find out if she was coming to work or to verify the ill-
ness. Booker said nothing about visiting a doctor, ac-
cording to Noble, but simply said, "I was sick, so what?'"
I credit Noble.
Supervisor Noble further testified that after a discus-
sion with Publisher McIntyre it was decided that Booker
would not be paid for the day of her absence, March 17.
and Noble sent her a memorandum to that effect on
Thursday, March 20, which she received that afternoon.
The memo stated that because Booker was not home on
March 17 after calling in sick, because she had not made
contact with her supervisor or anyone else in the photo
department regarding the absence in accordance with
longstanding policy, and because she could not be locat-
ed on check by the supervisor, she would not be paid for
March 17 (G.C. Exh. 6). Booker said she also received a
copy of the 1973 policy statement, which she claimed
she saw for the first time that Thursday afternoon.
Publisher McIntyre testified that late in the afternoon
of Thursday, March 20, he received from the Board a
copy of the March 17 charge filed by Booker against Re-
spondent, which copy was time-stamped in at the
Board's Office on March 17. McIntyre said he tele-
phoned Supervisor Noble at home that Thursday night
to ask if he knew about it. When Noble answered that he
did not, Mcintyre got in touch with Respondent's
lawyer, Zinser. telling him of the charge filed by Booker
on the day she had called in sick and asking Zinser to
ascertain, if he could, whether it was filed in person by
her. Zinser ascertained from the Board that Booker had
filed the charge in a visit to the Board's Detroit Office
on March 17, and informed McIntyre of it the next day,
Friday, March 21.
Publisher McIntyre and Supervisor Noble decided to
have Booker repeat the circumstances of her absence
from work on March 17. As a result, at noon on Friday,
March 21. Noble asked Booker to accompany him to a
meeting in the office of the business manager, Mannie
Munoz, without telling her the purpose of the meeting
It should he noted that filhing her dit..ihargc 4 d;!, Iltcr ltrl .March
21, employee HBooker filed ;i ch.lrge II Mnrch 24 (iulrotl "tllilh re't ti h
colmpalillt in this cal;T) a;lleging thit Ilt h %1x dilxll;lrgcd di.rin lllllOlrilk
in relaliatllil foir filing Ihe firti chalrge f Ntalrt 17 - tloskcer. ,nlhl.l-
neousl 5. she lilhdlre thel ' firs hilarge of M.lr, h I17
She accompanied Noble and asked for representation or
a witness on her behalf She named two news reporters
each of whom apparently declined to become involved.
but succeeded in getting a third employee she named,
intern reporter Peter Madrid.
The meeting proceeded with Business Manager
Munoz, Supervisor Noble, and employees Madrid and
Booker present. Noble asked Booker to repeat for him
her activity on the "sick" day. Monday. March 17. She
answered. "I told you I had gone to the doctor." Noble
interjected that she had not said so before, to which she
replied that she had. Noble then asked her did she go
anywhere else, and she answered, "no." Madrid testified
the question "was, was that [the doctor's] the only place
that she had gone, and her response w'as, 'yes. '"
The meeting lasted about a minute and a half accord-
ing to the participants. Booker asked if it had been taped,
and Noble declined to answer her, but testified that it
had not been taped.
At the end of the day. Booker was served with a
notice of immediate discharge (G.C.Exh. 7). The notice
said that she had been previously advised she would not
be paid for her absence on March 17 because of the sus-
picious circumstances surrounding her alleged sickness,
and that now that Respondent was certain that she had
lied she vwas being discharged immediately for dishonesty
and abuse of the sick leave policy.
Publisher McIntyre testified he made the decision di-
recting Supervisor Noble to fire Booker after learning
what transpired at the meeting in Munoz' office, which
indicated to him that Booker had been guilty of abuse of
sick leave and dishonesty'. Supervisor Noble further ex-
plained that she was not fired for failing to contact him
personally regarding her absence. or for failing to call
him immediately on finding his note at her home to call
him, but weas fired for dishonesty in taking a day of sick
leave to do personal business. In this connection, Noble
pointed out that at the time Booker had over 3 weeks of
accrued vacation leave that she could have taken in peri-
ods of I day, or that she had the privilege of taking a
leave of absence without pay for personal business.
B. i'he Discharge--'ot an [,Unfjir Labor Practlce
In determining whether Respondent's discharge of
Booker \was motivated by her filing a charge with the
Board or whether it was motivated by her abuse of, or
dishonesty in connection with, the sick leave privilege,
there are several factors to be considered.
In 1980, Booker was absent four times, including on
March 17, and claimed I day's sick leave each time. In
connection with this kind of absence, Respondent had no
practice of requiring the employee to produce a doctor's
memorandum, and did not ask her for any.
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the ','1' Iq ilc l lif.-kcr had \trltl Ifli 1l
923
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concerning the absence of March 12, just 5 days
before the March 17 absence, Booker testified that she
had stomach pains and nausea but could not get a doc-
tor's appointment that day; however, she did go to the
Michigan Department of Civil Rights in Detroit (an
hour's drive from her home) where she filed a charge
against Respondent (alleging violations against her as a
female under Federal civil rights statutes (Resp. Exh. 1)).
Booker testified she was paid for the day since she was
on claimed sick leave. She further testified that she never
said she stayed home that day. However, she admitted
that 12 days later on March 24, when, after her dis-
charge by Respondent, she spent over 7 hours with
Board Agent Morris in preparing an affidavit for the
Board in the case at bar, she did not tell Agent Morris
she had gone to the Michigan Department of Civil
Rights on March 12 (because, she said, "he didn't ask"),
yet her Board affidavit states she stayed at home on
March 12, and does not say she went to other places.
Booker's actions on March 12, and her deviousness
and lack of candor concerning these actions, impress me
that she was not above abusing the sick leave privilege
and concealing it. She did so concerning the absence of
March 12, and, while Respondent was not aware of the
deception of March 12 when it discharged Booker, I am
persuaded that she engaged in the same kind of decep-
tion when she absented herself from work for the whole
day of March 17.
What is also questionable is whether Booker ap-
proached the Board on March 17, in good faith, to
obtain use of Board processes to protect or to improve
the working conditions of a group of employees alleged-
ly represented by her and was speaking for their benefit
and not merely for herself, thereby engaging in protected
concerted activities; or whether she was attempting to
misuse Board process for personal purposes. The record
is devoid of any evidence of the former, and contains in-
timations that Booker was engaged in personal feuding
with Supervisor Noble. Compare Northeastern Dye
Works, Inc., 203 NLRB 1222, 1223 (1973).
She had come to the Board, said employee Booker, to
obtain a Board agent as a "witness" in a telephone call
she was required to make to her supervisor, because, she
claimed, she was being set up to be fired. The Board
agent avoided becoming embroiled as a witness or par-
ticipant, and had her sign and file a "general" charge
which he did not explain and she did not understand,
and which she simultaneously withdrew when she filed a
second charge a week later, claiming she was fired for
filing the first charge. To treat the first charge as a bona
fide filing would appear in the circumstances here to
permit Booker to misuse resort to Board processes as a
means to avoid ordinary employee obligations to Re-
spondent for her personal purposes when she was not in
the course of engaging in protected concerted activities
under the Act.
In this view of the situation, I do not regard Gulf &
Western Manufacturing Company, Mackintosh-Hemphill
Division, 232 NLRB 61 (1977), urged by counsel for the
General Counsel, as a dispositive precedent for treating
as an unfair labor practice an employer's discipline of an
employee who used part of a sick leave day to file a
Board charge.'
Rather, because Booker was pursuing personal pur-
poses (not protected concerted activities) and misusing
the Board or its processes for that end, it seems to me
Respondent was not inhibited in applying its discipline
for the employee's abuse of the sick leave privilege and
deception concerning it. In this regard, the employee
was given a second chance to explain to Respondent her
absence and activities on March 17, and claimed only
that she was ill and went to her doctor and nowhere
else. By her own account, at hearing this was over and
complete by midday of March 17 when she went on
other personal matters and deliberately delayed calling in
to her supervisor until the end of the day, though, by
general and specific requests, required to call earlier.
However, because (so far as Respondent knew) the
dishonesty in connection with the use of the sick leave
was a first offense, and because the discipline imposed
was discharge, the contention, that the penalty would
not have been as severe if the personal business had not
been use of some of the "sick" leave time to go to the
Labor Board, deserves examination.
As set out under section II above, Respondent's sick
leave policy, posted since 1974, has declared that falsifi-
cation of sick leave is a serious offense which may result
in disciplinary action up to and including dismissal. Pub-
lisher McIntyre testified that he viewed acts of dishones-
ty and falsification very seriously and regarded such acts
as dischargeable offenses. In looking back over the 10
prior years, McIntyre recalled four cases of discharge for
dishonesty.
The first was the case of Mabel Franklin, discharged
in 1978 for making unauthorized long-distance telephone
calls at company expense. Publisher McIntyre conceded
that Franklin was a 3-month employee who had been
given a previous warning and was discharged when she
repeated the offense.
The second was the case of Phil Laporte, discharged
in 1979 for falsification of an advertising invoice, a first
offense. 8
The third was the case of Gary Bainbridge, discharged
in 1979 for falsifying a sales call report, a first offense.
The fourth was the case of Ralph O'Neal, discharged
in 1972. O'Neal was an editorial employee who had re-
' The Board found in Gul' d& Western that the employee, in filing a
charge with the Board (in reference to an existing union contract and
with another employee) during part of a "sick" day. was engaged in pro-
tected concerted activity for which the employer unlawfully penalized
him, noting that the employer was fully cognizant of the employee's asth-
matic and difficult breathing problems which legitimately occasioned sick
days when he could not physically perform his duties of working at an
open hearth in a steel mill, but was not confined to bed or to home and
could take a chauffeured ride to and from the Board Office. It should
also be noted that the employee did not deny to his employer that he had
gone to the Board Office
' Counsel for the General Counsel's claim that lIaporte's case ended
onl) in a reprimand is not borne out by the record (Resp Exh 6) An
early June 19q7 memorandum to Lapoirte from a supervisor appears to
hase attempted to wash out the transaction as not misconduct, and to put
the memio in the file as a reprimand. but later June memoranda show that
this ssas nlot accepted by higher authority and Laporte was discharged
l.aporte"s simultaneous letter acknov.ledging mlsconduct and attempting
to resign w"as not accepted by Respotident, and the discharge was final
924
I tHi ()AKILANI) PRESS CO)
ported being sick and had stayed out 3 weeks wsithout
communicating with his supervisors. Publisher McIntyre
conceded the possibility that O'Neal may have created
the appearance of having abandoned his job, but never-
theless the discharge was made.
While none of these were replicas of Booker's case,
they do substantiate the point that Respondent regarded
dishonesty as a serious offense, and that it discharged
employees for such offenses, including first offenses.
Whether Respondent's conduct be analyzed pursuant
to the mode of Wrighr Line. a Division of Wright Line.
Inc., 251 NLRB 1083 (1980), or of Limestone Apparel
Corp., 255 NLRB 722 (1981), and see also V.:L.R.B. v.
Charles Batchelder Company Inc., 646 F.2d 33 (2d Cir.
1981), 9 it having been established that Respondent has
not tolerated employee dishonesty in the past and has
discharged employees found engaging in it including first
offenders, I find that Respondent's punishment of
Booker, by discharging her for abuse of the sick leave
privilege and dishonesty in connection with it, was not
invoked as a pretext because she used part of the sick
leave to go to the Board, but that the penalty would
9 Note also the cin.Curring opinion, id at 41
have been imposed even if she had engaged in other per-
sonal business unrelated to sick leave and had attempted
to conceal the fact from Respondent.
The complaint should be dismissed.
CONCI USIONS OF LAW
I. The General Counsel did not establish that Deborah
Booker was discharged by Respondent in violation of
Section 8(a)(4) and (1) of the Act.
2. Respondent established that Deborah Booker was
lawfully discharged.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 1'
The complaint is dismissed.
"' In the event no exception% are filed as provided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, clonclusions, and recommended Order herein shall, as pro'slded
in Sec 102 48 of the Rules iland Regulations, he adopted by the Board and
become it, findings, conclusini,l and Order, and all objections thereto
,hall be deemed wuaised for all purposes
925