Alfred M. Lewis, Inc.

National Labor Relations Board - Board Decisions

Aug 4, 1980

250 N.L.R.B. 1392 (N.L.R.B. 1980)

I)E1CISIO()NS ()O: NA I I()NAI I AB()R Rt. A ' IONS BO()ARI)
Alfred M. Lewis, Inc. and Roger Hendershot and
Paul V. Gregan, Harlan Swetnam, Peter Brix,
David Woodard, Derol Cheatham, Robert
Riland, Jr., Kendall C. Jones, Jack Nelson anrd
Paul E. Jaynes. Cases 28-CA-3628, 28-CA-
3714, and 28-CA--3714-2
August 4, 1980
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MF:MHI RS
JENKINS AND PENI .I.O
On February 1, 1980, Administrative Law Judge
Gerald A. Wacknov issued the attached Supple-
mental Decision in this proceeding. Thereafter, the
General Counsel filed exceptions and a supporting
brief, and Respondent filed an answering brief,
cross-exceptions, and a brief in support of its cross-
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 Supplemental Decision in light of the ex-
ceptions and briefs and has decided to affirm the
rulings, findings, and conclusions of the Adminis-
trative Law Judge only to the extent consistent
herewith.
On May 18, 1977, the Board found, inter alia,
that Respondent violated Section 8(a)(5) and (1) by
instituting a production quota and disciplinary
system.' The Ninth Circuit enforced the Board's
Order,2 and provided for reinstatement and back-
pay for those employees who were discharged, sus-
pended, or otherwise disciplined or denied work
opportunities "solely" as a result of the unlawful
system. 3 We agree with the Administrative Law
Judge that this language is a departure from the
Board's usual remedial provisions. The General
Counsel has not challenged the language, however,
and we accept the Ninth Circuit's judgment as the
law of the case.
The Administrative Law Judge found that em-
ployee George McCown was not discharged solely
as a result of the unlawful production quota and
disciplinary system implemented by Respondent in
July 1975. 4 He observed that the August 12 termi-
nation statement cited "attitude" and "low produc-
tion" as the reasons for the discharge, and found
that McCown's bad attitude could be partly attrib-
1 229 NLRB 757.
2 Alfred M. Lewis. Inc. v N. L.R.B., 587 F. 2d 403 (9th Cir 1978)
a The word "solely" also appeared in the make-whole portion (of the
Board's Order
4 Unless otherwise specified, all dates herein refer to 1975
250 NLRB No. 183
uted to both his prior discharge in connection with
the marijuana incident and to his disrespect for Su-
pervisor Fred Numkena. The Administrative Law
Judge therefore concluded that McCown's attitude
constituted a separate rationale for his discharge,
since it was not entirely a response to the produc-
lion quota system. Contrary to the Administrative
Law Judge, however, we find for the reasons
below that McCown was discharged solely as a
result of the unlawful system and the prescribed
counseling which was a part of it.
Under the system, Respondent required each em-
ployee to meet a daily production standard of 95
percent of the crew average. The record discloses
that McCown reacted negatively to this standard,
and that his production suffered as a result. We
note that in a July 10 memo Supervisor Numkena
indicated that he informed McCown that his pro-
duction was inadequate and that he should pick up
his pace. Numkena then observed that McCown
"looked at me and proceeded to label his merchan-
dise at a very slow pace as to intimidate me for my
comments." Numkena also recalled that, when in-
structed to improve his performance, McCown
"waved his hand and proceeded to ignore me and
went back at his slow pace to work." On July 14,
McCown announced that he was unable to work
because of Numkena's attempts to increase his pro-
duction, and walked off the job in the middle of
the day.
It is also noteworthy that, in the arbitration pro-
ceeding which upheld the discharge, Respondent
contended in its brief that McCown "was simply
capable of producing more but had made up his
mind that he would deliberately defy his supervi-
sors and stall and slow down to test the system."
The conclusion that McCown was slowing down
to test the system is consistent with the frequent
references to speed in Numkena's memos. On July
10, Numkena indicated that he told McCown that
"he moved too slowly" and that "he strutted along
when he should walk at a good swift pace and de-
velop a sense of urgency toward his work." On
July 13, Numkena recalled that he urged McCown
to go faster and increase his pace, and, on August
6, he noted on several occasions that McCown was
still not improving his speed.
In light of the above, we find that McCown's
bad attitude was inextricably intertwined with Re-
spondent's production quotas, and that his attitude
toward the quota system in turn caused his low
production. Therefore, we find that "attitude" and
"low production" are not separate and independent
issues, and that consequently McCown was dis-
charged solely as a result of the system.
1392
ALFRED M. I EWIS. INC.
We note that the result would not be altered
even if it is assumed that attitude formed a separate
basis for the discharge, apart from low production.
We find that, to the extent that McCown's attitude
may be a separate problem, it is the result of the
unlawful counseling he received from Fred Num-
kena,5 which was in turn part of a system unlaw-
fully introduced by Respondent without bargain-
ing. Numkena's July 13 memo provides extensive
evidence of McCown's negative reaction to that
counseling. Numkena observed that McCown re-
quested twice to be left alone, insisted three times
that he did not need help, and ignored Numkena's
comments on four other occasions. When reminded
that he should refrain from talking and concentrate
on production, McCown angrily stated, "I'll talk
any time I want to and nobody can tell me not to."
McCown also said that he knew how to perform
his job and that Numkena could not show him any-
thing. In his August 6 memo, Numkena observed
that McCown "shrugged his shoulders" and contin-
ued working in response to counseling, and indicat-
ed that he was not going to discuss his production
any further. Additionally, McCown's negative re-
action was undoubtedly reinforced by the persist-
ent nature of the counseling. The record discloses
that four counseling memos were written between
July 6 and his second discharge on July 16, and
that six were written between his July 28 reinstate-
ment and his third discharge on August 11.
Accordingly, we conclude that McCown's atti-
tude, to the extent that it may be viewed as sepa-
rate and independent from "low production" under
the unlawfully introduced quota system, developed
as a reaction to Respondent's counseling in imple-
menting the system. McCown had a right to refuse
this unlawful counseling, and therefore his failure
to accept it cannot be used as a legitimate basis for
his discharge.
The Administrative Law Judge also found that
McCown's bad attitude derived, at least in part,
from his first discharge on March 18 in connection
with the marijuana incident, and his subsequent re-
instatement without backpay on June 8 pursuant to
an arbitration award. We find, however, that this
incident was essentially unrelated to either
McCown's attitude or to Respondent's decision to
discharge him. After McCown was reinstated, Su-
pervisor Dale Brant noted in a June 13 memo that
McCown was determined to obtain his backpay
"one way or another," and concluded that he had
a "very poor opinion" of Respondent. The memo
I The court of appeal. noted that the Board found that the counseling
%ras an integral part of the disclplinarF system 587 F 2d at 410 1 is
therefore clear that the Board', finding that the disciplinar, sstem arn s
unla.wful encompassed a finding that the counseling 'Aas unlav, ful
also recorded McCown's comment that he "had no
hard feelings against anyone in this department and
would do his job as usual." In a June 16 memo,
Respondent's superintendent of operations, Cald-
well, observed that McCown intended to sue the
security service involved in the marijuana incident,
and concluded that he had a "bad attitude" toward
Respondent.
However, the record discloses no evidence that
the marijuana incident was ever mentioned again
after June 16 by either McCown or Respondent,
and on subsequent occasions Respondent referred
to McCown's attitude in an entirely different con-
text. In his July 13 memo, Numkena concluded
that McCown had a poor attitude, after summariz-
ing a lengthy counseling session in which McCown
repeatedly ignored or rejected Numkena's efforts
to increase his production. The memo indicates
that McCown's attitude was expressed exclusively
as contempt for the counseling process and not in
terms of any lingering resentment over the marijua-
na incident.
Similarly, Jeff Thrasher indicated in his August
11 termination memo that McCown was being dis-
charged because he had not fulfilled the July 28 re-
instatement conditions that he change his attitude
and improve his production. The memo was pri-
marily concerned with McCown's failure to meet
the production quota and his continuing resistance
to Numkena's counseling, and there is no indication
that Thrasher considered the marijuana incident as
an influence on McCown's attitude. We therefore
conclude that when Respondent discharged
McCown it perceived his attitude problem as being
related to his failure to accept the unlawful produc-
tion quota and counseling system, and not to any
lingering resentment concerning the marijuana inci-
dent. Our finding in this regard is in accordance
with the Ninth Circuit's observation that the sus-
pensions and discharges were effected "pursuant to
the program"6 and because the employees "failed
to meet the production quota." 7
We find, therefore, that McCown was dis-
charged solely as a result of Respondent's unlawful
production quota and disciplinary system and is en-
titled to backpay as set forth in the Administrative
Law Judge's Supplemental Decision.
' 5X7 F 2d at 40h The courl ofr ppcall, did not mentlion NMWC(o n h.
name, but Indica;lel Ill 111 5 that it .*as referring to three emnplo), c¢. dl,-
charged hby )ecember 1975 McCou n . as one of the three employee,
discharged b5 that date
57 15 2d ai 412
1393
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. George McCown was discharged solely as a
result of Respondent's implementation of the un-
lawful production quota and disciplinary system.
2. George McCown made the requisite diligent
search for employment following his discharge,
and the backpay amounts and periods are accurate-
ly set forth in the backpay specification, as modi-
fied in the Administrative Law Judge's Supplemen-
tal Decision.
THE REMEDY
Having found that George McCown was dis-
charged solely as a result of Respondent's imple-
mentation of the unlawful production quota and
disciplinary system, we shall order Respondent to
offer him immediate and full reinstatement to his
former position or, if it no longer exists, to a sub-
stantially equivalent position, without prejudice to
his seniority or other rights and privileges previ-
ously enjoyed. We shall also order Respondent to
make George McCown whole for the loss of earn-
ings he has suffered, by paying to him the sum of
$49,334, plus interest, until his backpay is paid and
less appropriate tax withholdings, for that portion
of his backpay period running through June 5,
1979; together with such additional backpay, plus
interest, until his backpay is paid and less appropri-
ate tax withholdings, as shall accrue after June 5,
1979, until he receives a valid offer of reinstate-
ment or terminates his employment with Respond-
ent. We shall also order Respondent to pay to the
Western Conference of Teamsters' Pension Trust,
on behalf of McCown, the sum of $3,223.85 for
contributions due as of June 30, 1979; together
with such additional pension trust contributions as
shall accrue after June 30, 1979, until McCown re-
ceives a valid offer of reinstatement or terminates
his employment with Respondent.* Interest shall be
computed in accordance with the formula set forth
in Isis Plumbing & Heating Co., 138 NLRB 716
(1962), and backpay accruing after June 5, 1979,
shall be computed in accordance with the formula
set forth in F. W. Woolworth Company, 90 NLRB
289 (1950).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Alfred M. Lewis, Inc., Phoenix, Arizona, its offi-
cers, agents, successors, and assigns, shall offer
George McCown immediate and full reinstatement
*The Remedy and Order herein appear as amended by the Board's
Order Granting Motion for Reconsideration and Amending Supplemental
Decision and Order. issued April 27, 1981
to his former position or, if it no longer exists, to a
substantially equivalent position, without prejudice
to his seniority or other rights and privileges previ-
ously enjoyed, and make him whole for any loss of
earnings incurred in the manner set forth in the
section of this Supplemental Decision entitled "The
Remedy." Respondent shall also make payments to
the Western Conference of Teamsters' Pension
Trust, on behalf of McCown, in the manner set
forth in the section of this Supplemental Decision
entitled "The Remedy."8
MEMBER PENELLO, dissenting:
I did not participate in the Board's original Deci-
sion and Order in this proceeding wherein it held
that Respondent violated Section 8(a)(5) and (1) of
the Act by, inter alia, unilaterally instituting a pro-
duction quota and disciplinary system. 229 NLRB
757 (1977). Thereafter, the Board's Order was en-
forced in pertinent part by the United States Court
of Appeals for the Ninth Circuit, 587 F.2d 403
(1978). As stated by the Administrative Law Judge,
both the Board's Order and the court's Judgment
departed from established law by limiting the reme-
dial provisions to employees discharged "solely" as
a result of Respondent's unlawful actions. Howev-
er, the parties to this litigation, the Administrative
Law Judge, and my colleagues have all accepted
this language as the law of the case and I shall as
well. Applying this unusual standard to the facts
presented here, I would find, contrary to my col-
leagues, and for the reasons stated by the Adminis-
trative Law Judge, that employee George
McCown was not discharged solely as a result of
Respondent's unlawful production quota and disci-
plinary system, but rather was also discharged for
an independent reason, namely his poor attitude.
Accordingly, I conclude that Respondent is not re-
quired to offer reinstatement to McCown and does
not owe him any backpay.
s See MAe.rvweaiher Optical Company, 240 NLRB 1213 (1979) As part
of the remedy herein, Member Jenkins would require the payment of in-
lerest on all pension trust contributions until the date that payment of the
contributions is made.
SUPPLEMENTAL DECISION
GERALD A. WACKNOV, Administrative Law Judge:
On May 18, 1977, the Board issued its Decision and
Order in this proceeding wherein it held that the Re-
spondent violated Section 8(a)(l) and (5) of the Act, inter
alia, by unilaterally instituting a production quota system
and attendant disciplinary procedure. Alfred M. Lewis,
Inc., 229 NLRB 757 (1977). The Board's Order was en-
forced by the United States Court of Appeals for the
Ninth Circuit. Alfred M. Lewis, Inc. v. N.L.R.B., 587
F.2d 403 (9th Cir. 1978).
1394
ALFRED M. LEWIS, INC.
A. The Facts
I. Positions of the parties
During the aforementioned proceedings it was not dis-
puted that Respondent had suspended 10 employees and
discharged 3 other employees, one of whom was George
McCown, the only alleged discriminatee directly in-
volved herein, for failure to meet certain production
quotas. Rather, the principal issue in the underlying pro-
ceedings was whether the establishment of the produc-
tion quota system constituted a unilateral change in vio-
lation of Section 8(a)(5) of the Act. The court agreed
with the Board that such a violation had been committed
and enforced the Board's Order. Respondent has fully
complied with the remedial provisions of the court's
judgment with respect to all but one employee, George
McCown, basing its refusal to offer reinstatement and
pay backpay to McCown on the precise language of the
said judgment.
Thus, the court ordered, inter alia, that Respondent:
(c) Offer all employees discharged, suspended, or
otherwise disciplined or denied work opportunities
solely as a result of Petitioner's unlawful actions de-
scribed above, immediate and full reinstatement to
their former positions or, if they no longer exist, to
substantially equivalent ones, without prejudice to
their seniority or other rights privileges. [Emphasis
supplied.]
(d) Make whole all employees who were dis-
charged, suspended, or otherwise denied work op-
portunities solely as a result of Petitioner's unlawful
actions described above. In all cases involving back-
pay and/or benefits, the amounts thereof shall be
computed in the manner set forth in F. W. Wool-
worth Company, 90 NLRB 289 (1950), with interest
added thereto in the manner set forth in Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962). [Emphasis
supplied.]
Moreover, the "Notice to Employees" attached to the
court's judgment contains similar language.
The Board's Order contains the following paragraphs
which correspond to those above-quoted paragraphs of
the court's remedial Order:
(c) Offer all employees discharged, suspended, or
otherwise disciplined or denied work opportunities
as the result of the institution of production quota
and disciplinary systems in July 1975, and on March
29, 1976, and/or the refusal to allow union repre-
sentation at counseling sessions and disciplinary in-
terviews, immediate and full reinstatement to their
former positions or, if they no longer exist, to sub-
stantially equivalent ones, without prejudice to their
seniority or other rights and privileges.
(d) Make whole all employees who were dis-
charged, suspended, or otherwise denied work op-
portunities solely as a result of the institution of said
production quote and disciplinary systems and/or
refusal to allow union representation at counseling
sessions and disciplinary interviews in the manner
set forth in the section of this Decision entitled
"The Remedy." [Emphasis supplied.]
Interestingly, the word "solely" does not appear in the
Board's paragraph (c), above, but does so appear in the
following paragraph, (d), above. Moreover, the notice to
employees attached to the Board's Order contains no ref-
erence whatsoever to the word "solely" but reads as fol-
lows:
WE WILL offer all employees discharged, sus-
pended, or otherwise disciplined or denied work
opportunities as a result of the unilateral institution
of said production quota and disciplinary systems,
or refusal to allow union representation at counsel-
ing sessions and disciplinary interviews immediate
and full reinstatement to their former positions or, if
they no longer exist to substantially equivalent ones,
without prejudice to their seniority or other rights
and privileges.
WE WILL make whole all employees who were
discharged, suspended, or otherwise denied work
opportunities as the result of the unilateral institu-
tion of said production quota and disciplinary sys-
tems, or refusal to allow union representation at
counseling sessions and disciplinary interviews.
Respondent maintains that, unlike the other employees
involved herein, McCown was not discharged solely as a
result of his failure to meet the unilaterally established
production quota, which was admittedly a reason for the
discharge, but that he was also discharged for a second-
ary and independent reason; namely, his "poor attitude,"
and that therefore the court's judgment does not require
Respondent to either offer reinstatement or pay backpay
to McCown.
The General Counsel acknowledged at the hearing
that the court's above- quoted remedial language consti-
tutes a radical departure from well-established Board and
Ninth Circuit precedent.' Nevertheless, despite the fact
that neither the Board's Decision and Order nor the
court's opinion and judgment contain any explanation
whatsoever for such a departure from established law,
the counsel for the General Counsel emphasized that she
was not attempting to challenge such language. Rather,
the General Counsel enunciated a willingness to accept
the court's judgment as the law of the case and, in at-
tempting to fit McCown's case within the ambit of the
court's judgment, maintains that McCown was in fact
solely discharged as a result of the unilaterally imposed
production quota and disciplinary system. Thus, the
General Counsel argues that McCown's alleged poor at-
titude, rather than being a separate and distinct phenom-
enon, resulted directly from Respondent's persistent im-
plementation of the unlawful quota and disciplinary sys-
tems, and therefore that the dual reasons advanced by
Respondent for McCown's discharge are intertwined to
such an extent that they are inseparable.
I See The Youngstlown Otreoputhic Hospirul A4srIiuron. 224 NLRB 574
(1976), reversed on other grounds 574 F2d 891 (hth Cir 1978). Western
Exlcrminalor Companyv %\ L.R.B, 5W5 F 2d 1114 (9th Cir 1977)
1395
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. McCown's employment history
McCown began working at Respondent's grocery
warehouse on about October 4, 1970, and held various
jobs thereafter. There is no evidence showing that his
employment was considered to be other than entirely sat-
isfactory until he was discharged on about March 28,
1975,2 along with three other employees, as a result of a
marijuana smoking incident in Respondent's parking lot.
Following an arbitration proceeding wherein it was
found that the evidence pertaining to McCown and an-
other employee was not sufficiently "clear and convinc-
ing" to show that they participated in smoking marijua-
na, the two employees were reinstated but were awarded
no backpay because the arbitration panel determined that
the two employees "have not been completely truthful in
their testimony."
Upon his return to work on or about June 8, McCown
was interviewed by several supervisors or officials of Re-
spondent. A memo of one interview, dated June 13, writ-
ten by Supervisor Dale Brant, is as follows:
On June 10, I had a talk with George to find out
what his attitude was upon his return to work on
June 8, 1975. He told me he had no hard feelings
against anyone in this department and would do his
job as usual. He did however make the comment
that he was going to get paid for his time off, one
way or the other. He left me with the following im-
pressions:
1. He is a very cocky, unstable person.
2. He has a very poor opinion of the Co.
3. He is a very good example of what A. M.
Lewis people aren't.
4. He is out to get what he can as easily as he
can.
Another memo by another supervisor, dated June 16,
states:
At 5:15 P.M. on this date I talked to George and
asked him what he meant by his comment to Dale
Brant that he intended to get his money (meaning
back pay or lost wages) back?
George said he planned to take civil action
against Burns Guard Service, because he thought
that he had been wronged. He has a bad attitude
toward the Company and feels that we were not
fair to the employees involved in the incident. He
thought we should have had a meeting with the em-
ployees, the Union and the Burns Guards.
McCown was transferred to the grocery warehouse on
July 6 and was assigned the work of filling grocery
orders. Thereafter, McCown was supervised by Fred
Numkena, who had held this supervisory position only
since early 1975, and who had worked in the warehouse
only a short time prior to becoming a supervisor. At or
about the same time, the second phase of Respondent's
unlawful production quota system; namely, the disciplin-
2 All dates or time periods hereinafter are within 1975, unless stated to
be otherwise.
ary procedure consisting of a series of warnings, suspen-
sions, and ultimately discharge for failing to meet the
production quota, was placed in effect in the grocery
warehouse.
Pursuant to the production quota system whereby su-
pervisors were instructed to engage in the daily counsel-
ing of employees in order to cause them to improve their
production to a predetermined standard, set at 95 percent
of the crew average for the day, Numkena immediately
began counseling McCown for his low production. The
memoranda of such counseling sessions are lengthy and
voluminous. The memoranda of counseling sessions on
July 7, 8, and 10 show that McCown was requested by
Numkena to try to do better, and that McCown attribut-
ed his failure to meet the production quota to his new-
ness on this particular job, having been recently trans-
ferred to the grocery warehouse. However, a second
counseling session also occurred on July 10, and Num-
kena's lengthy memo of the conversation is as follows:
I told George McGowen that his production at
lunch was below 100 units per hour and I asked him
to pick up his pace and try to do better. He looked
at me and proceeded to label his merchandise at a
very slow pace as to intimidate me for my com-
ments. I told him that he did drop in production
from Tuesday and I told him that he needed to
move faster if he was going to improve his ability.
He told me that he was doing the best he could
and that he didn't know the merchandise locations.
I told him that he appeared to go to the correct
merchandise knowingly and that moving faster
would improve his production.
He stated that that wasn't the problem and that I
didn't know what the real problem was. He said
that he hurt himself in a kite flying accident and
said that he hurts all over. He said that if he called
in sick that we'd be all over him for absenses.
I then told him that if he couldn't move any
faster, then he should cut down on his socializing in
the aisles. I said that I've seen him on a number of
occasions talking to another employee on company
time and that just as I came to talk to him, he was
socializing (talking) with another employee and that
perhaps if he talked less and used that time for pro-
ductivity he would show a better performance. I
told him that I was here to help him and that his
improvement by me and him helping would make
him a better employee. I asked him if he wanted to
improve himself and be a better person.
He stated that he didn't know the merchandise
that well or the location and that he was doing the
best he could. I told him that he picked up almost
everything with ease and that the only trouble I
could see was that he moved too slowly, he strutted
along when he should walk at a good swift pace
and develop a sense of urgency toward his work. I
told him that all we were after was just a good
day's work.
He said that he didn't want to argue about it that
he might lose himself. I told him, asking if he
wanted to improve himself. I said all it takes is an
1396
ALFRED M. ILEWIS. INC
effort on my part and a little on his to help him im-
prove his performance.
He then waved his hand and proceeded to ignore
me and went back at his slow pace to work. I then
told him to try what I said and he would improve
and I left him in "S" aisle.
On July 13, Numkena again counseled McCown, and
the memo of the counseling shows that McCown made
"No" comments. The employee ignored me. On the
same day Numkens wrote another lengthy memo con-
cerning McCown:
I rode with George McCown for thirty mins.
From 7:30 p.m. to 8:00 p.m. Sunday, July 13, 1975,
with the onlook of developing George into a pro-
ductive order runner. I talk[ed] to him about his
running and pointed out his faults and told him how
he could improve himself. He ignored me and
didn't say anything. I asked him if he understood
me and if he heard what I said to him. I told him
that I was with him to help him better himself, that
my instructing him would be beneficial to him by
developing a sense of urgency in his order runs and
would benefit the company by his inspiration. He
again just moved on ignoring me. I told him that I
needed him to respond so I would know that he un-
derstood me. I said that his ignoring me told me
that he didn't want to improve and that I was wast-
ing my time. I said that he went to the items with
no difficulty but he moved with no intention of
going any faster. I then asked if he wanted to better
himself and increase his production. I said that all
we wanted was a good days work. That by him de-
veloping himself with my help, his fellow union
brothers wouldn't have to carry him everyday. I
asked if he would like to better himself and carry
him everyday. I asked if he would like to better
himself and carry his share of the working load. He
responded saying that, "He didn't need my help." I
then asked if he could do it alone, if he could im-
prove his production and carry his share of the
work and give us a good days work by himself. He
again ignored me and stood [and] started at the case
he placed on the dolly. He then said that I didn't
know his problem and that I couldn't help him. I
told him that I was here to help him and to try and
solve his problems. I said that I would listn to him
and that we could do something about it. He then
said that, I don't know his problem and that I
couldn't help him. I told him that I didn't know his
problem and that I could't help him. I told him that
I was here to help him and to try and solve his
problems. I said that I would listen to him and that
we could do something about it. He then said that,
"I don't need your help, and even if I told you you
wouldn't do anything about it." I said that I was
here to help him and that I would listen to him and
find a solution if I could and if I couldn't that I
would surely find someone who could. He again ig-
nored me and said, "Just leave me alone." I told
him that it was obvious that he needed help and
that his refusing my help only give me the impres-
sion that he doesn't want to improve himself. I
again asked if he wanted to improve himself. He
still ignored me. I then asked him if he could go
faster and increase his pace; because that was his
only major problem. He then answered saying "Just
leave me alone, I don't need your help or any-
bodys." I told him that I'm his supervisor and that
I'm here to help him and guide him, and him saying
he didn't need my help only alerts me to the fact
that he doesn't want to improve.
He then went back to his salisbury [a motorized
vehicle for pulling order carts] and was going to an
other aisle when Jerry Metheny came by with a
fork and started talking to him. I walked up to them
and Mr. Metheny went on. I told Georged that the
last time I wanted to help that I saw him talking as
I was walking toward him and that I've seen him a
number of occasions talking when he should be
working. I said that he should stop talking and con-
centrate on improving himself. He burst out saying
that, "I'll talk any time I want to and nobody can
tell me not to." I then said that the time he uses is
the company's time and that he is stealing company
time and is not concerned with his self improve-
ment. I told him that a minute here and a minute
there adds up in an eight hour day. Also that this
could be used in a more beneficial way. He ignored
me again and finish[ed] his bill. He said that he
knew how' to run orders and that I couldn't show
him how. That he has been here long enough and I
couldn't show him how.
George McCown has a poor attitude toward his
work, and his refusing help and ignoring me and
my suggestion leads me to believe that he doesn't
and isn't willing to meet me or the company in es-
tablishing a solution to his problem.
On the same day, Numkena wrote:
Mr. McGown has refused my help and my sug-
gestions that would prove beneficial to his improve-
ment. He doesn't and isn't willing to improve or
give us a good days work.
I have tried on two occasions to help George and
both have been unsuccessful through his unwilling-
ness.
His attitude is very poor and he is unwilling to
develop himself or his pride as an employee of
Alfred M. Lewis.
On the next day, July 14, McCown left work during
the middle of the shift. The memo of this incident is as
follows:
At about 12:30 a.m. Monday, July 14, George
McCowen brought his time card into the office &
stated "I'm going home. Because Fred Numkena
counselled me, I can't work." He then left the
warehouse. He did not claim illness or injury. He
did not claim any pressing business that would force
him to leave before the end of the shift.
1397
DECISIONS OF NATIONAL LABOR RELAFIONS BOARD
As a result, McCown was "terminated for cause," ef-
fective July 16. Respondent's "Termination Statement"
shows that McCown was terminated because of "atti-
tude, production, attendance," and that his character and
ability were "poor."
Thereafter, the Union contended that McCown's dis-
charge was improper, and as a result of a meeting and
interview between Respondent, McCown, and the
Union, McCown was again reinstated on July 28. A
memo, dated August 11, from Leonard Taylor, assistant
business agent of the Union, shows that as a result of the
interview "it was agreed that Mr. McCown would im-
prove his attitude and apply himself to his employment."
A memo dated July 28 shows that McCown was again
counseled for low production by Numkena immediately
upon his return to work. Similar memos are dated July
29 and 30 and August 4, 5, and 6. A second memo by
Numkena dated August 6 states as follows:
I rode with George to watch him work and to
see why he hasn't improved in his production. He
has been below the crew average on pallets and
dollyloads for the past two weeks and on a daily
basis.
I observed him picking orders snd placing them
on the dollies, and he still hasn't changed his speed.
I told him then that he was still not developing
his self or his order picking speed, that he hasn't im-
proved at all. I told him that he needs to work and
concentrate on his picking speed and show a desire
for development.
He then told me that he has improved, that he
ran the crew average and why should he do more,
that that was all we were concerned with and that
he ran a 98, that's the crew average, and that's all
he's after, so why bother.
I told him that if he worked toward developing
his speed that he would soon develop to his full po-
tential.
He stated again that he ran the crew average and,
"that's all I'm after." He told me that he wasn't
counseled so why bother.
I then asked if he wanted to develop to his full
potential and be more productive.
He then shrugged his shoulders and ran the rest
of his order.
I then caught him at the end of "S" aisle and
proceeded to counsel him for Monday night's pro-
duction, because he did not make the crew average.
He stated that he wasn't going to discuss it any
further and that he would bring the "union man
down" and see about it.
The final memo, written by J. Thrasher, dated August
II, states as follows:
I called George McCown in and told him that his
production for the past two weeks was not satisfac-
tory. He continued to run more than 5% below the
crew average, and resisted attempts by Fred Num-
kena to help him improve.
I stated that he had been allowed to return to
work two weeks ago, after being terminated, on the
conditions that he change his attitude and improve
his production. He has not done so.
I told McCown he was being terminated effec-
tive immediately.
McCown's termination statement, dated August
12, states that he was terminated for "attitude and
low production," and that his character was
"poor;" and his ability was characterized as "no
desire."
This final termination of McCown was arbitrated on
October 17 and 18, and the ultimate issue to be deter-
mined was whether McCown was discharged for "just
cause." At the arbitration proceeding, Respondent con-
tended that McCown was discharged for the dual rea-
sons of "bad attitude and low production," and intro-
duced the various memos which appear and are dis-
cussed above, and which have been made part of the
record herein. A careful reading of the briefs submitted
and the decision of the arbitration panel shows that the
panel considered McCown's attitudinal problems and Re-
spondent's rights under the contract to impose a produc-
tion quota and disciplinary system, and concluded that
McCown was indeed dismissed for just cause.
3. McCown's search for employment
McCown testified that, following his discharge in
August 1975, he diligently looked for work and applied
for and received unemployment benefits from the Arizo-
na Department of Employment Security. However, he
obtained only sporadic part-time employment, and de-
clined at least one offer of employment because the $2.35
wage rate for the particular job was far below the $6.40
per hour he had earned while working for Respondent.
During the period of his unemployment, from the date
of his discharge until about March 1977, he had no bank
account, filed no income tax returns, kept no records of
the small sums he periodically earned, and subsisted on
the unemployment checks he received. About March
1977 he commenced to work full time, and thereafter to
the present date has enjoyed full-time employment at
various jobs.
H. Analysis and Conclusions
1. McCown's discharge
In accepting the court's language as the law of the
case, rather than seeking a modification of the court's
judgment, counsel for the General Counsel has undertak-
en an exceedingly difficult task, for it is beyond perad-
venture of a doubt that at least one reason consistently
given for McCown's discharge, regardless of how subor-
dinate to the primary reason of McCown's failure to
meet production standards, has been his poor attitude
toward his supervisor's encouragement, instructions, and
offers of assistance. To be sure, Supervisor Numkena was
attempting to meticulously follow instructions by coun-
seling McCown each day that he failed to meet the pro-
duction standard, and the counseling memoranda indicate
that perhaps Numkena was excessively verbose and re-
petitive. While a reasonable reaction to counseling of this
139x
AL.FRED M. L:WIS, INC
nature would be one of frustration on the part of
McCown, it also appears that McCown's attitude toward
the work became apparent to Numkena as a result of the
counseling, and that McCown's obvious lack of desire
caused Numkena to prolong the discussions. Moreover, it
is reasonable to conclude that McCown's apparent inat-
tentive and uncooperative mannerism during the counsel-
ing sessions caused Numkena to thereafter observe
McCown's work to a greater degree than would have
otherwise been the case.
General Counsel argues that the attitude which
McCown exhibited resulted directly from the frequent
and persistent counseling, bordering on harassment, to
which he was subjected. While this contention is not en-
tirely unpersuasive, it appears more probable that
McCown's lackadaisical and sometimes impudent attitude
is attributable to other factors.
Thus it is significant that McCown's work record,
over a not insubstantial period of some 4-1/2 years, was
apparently highly satisfactory until his reinstatement on
or about June 8, following the marijuana incident, imme-
diately after which time he expressed to management an
intention to get paid "one way or the other" for being
terminated. Moreover, upon his return to work and
before he was even required to meet the production
quota, two supervisors other than Numkena noted his
poor attitude.s Further, McCown admittedly had a nega-
tive attitude toward Numkena who, according to
McCown's testimony, lacked the experience and knowl-
edge which McCown possessed as McCown had been
"running orders" for 6 or 7 years. In this latter regard,
McCown candidly testified that his attitude toward
Numkena reflected his opinion that "the man [Numkena]
hadn't been in the business long enough, I think, really to
know how to tell me how to do my work." The memo-
randa of the counseling sessions, during which McCown
would give responsive or ambiguous answers to Num-
kena, who persistently attempted to encourage McCown
to perform at satisfactory level, also graphically reflect
McCown's attitude of disrespect for Numkena. While
McCown's testimony suggests that at certain times his
work performance may have been adversely affected by
a hang-glider injury which he sustained prior to July 10,
such a consideration does not explain or provide an
excuse for McCown's demeanor.
The above considerations, when combined, indicate
that McCown's poor attitude, which is virtually admitted
and which commenced so abruptly upon his reinstate-
ment on June 8 and continued until his final discharge
some 2 months later, was motivated by factors other
than the imposed production standard. Moreover, it is of
great significance that, as Respondent emphasizes, the
s McCown testified that he "was pretty discouraged, and hurt" that he
was falsely accused of the marijuana incident, and went to an attorney
Ibr the purpose of instituting a lawsuit against Burns Security Service,
which had been hired to maintain the security of Respondent's parking
lot Apparently the lawsuit never materialized.
unlawful discharges or suspensions of the other employ-
ees involved herein Xere not even in part attitude relat-
ed, but rather such discharges were based solely aind un-
equivocally upon the employees' failure to meet produc-
tion quotas. The General Counsel has offered no con-
trary evidence in this regard
As a result of the foregoing. I am constrained to con-
clude that McCown's attitude was not inextricably inter-
woven with or totally derivative from his failure to meet
the unlawful production standards. Rather, on the basis
of the record before me, it appears reasonable to con-
clude that McCown's attitudinal problem did not solely
reflect a mere impertinence with the work standards
being imposed upon him, but that other considerations,
discussed above, provided a separate rationale, however
secondary in importance, for effectuating his discharge.
Therefore I am unable to conclude, as urged by General
Counsel, that McCown's discharge resulted solely from
his failure to meet the unlawful quota system standards.
2. McCown's search for employment
Respondent has not discredited McCown's testimony,
summarized above, regarding his search for employment,
or his reasons for refusing offers of employment, 4 nor
has Respondent shown that the amount of backpay set
forth in the backpay specification is incorrect except for
the sum of $400 which I find, in agreement with the
General Counsel, constitutes additional interim earnings.
I therefore find the amount of backpay to which
McCown would be entitled, but for the conclusion
reached herein that McCown was not solely discharged
as a result of the unlawful production quota and disci-
plinary system, to be $49,334 as of June 5, 1979. 1 further
find that the remainder of the backpay specification, to
which Respondent has raised no objection, accurately
sets forth the amounts and continuing amounts to which
McCown and the appropriate funds would otherwise be
entitled.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. McCown was not discharged solely as a result of
Respondent's implementation of the unlawful production
quota and disciplinary system, but rather was also dis-
charged for an independent reason; namely, his attitude
toward work and toward supervision.
2. McCown made the requisite diligent search for em-
ployment following his discharge, and the backpay
amounts and periods are accurately set forth in the back-
pay specification except to the limited extent modified
herein.
[Recommended Order omitted from publication.]
' See Fire Alert Company. 223 NLRB 129 (1976). enfd. 566 F2d t96
(10th Cir. 1977): .McLoughlin Manufacturing Corporatrion. et atl. 219
NLRB 920 (1975) Waukegan - Nvorth Chicago Transit Co., 235 NLRB 802
(1978).
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