Amole, Inc.

National Labor Relations Board - Board Decisions

Oct 11, 1974

214 N.L.R.B. 67 (N.L.R.B. 1974)

AMOLE, INC. 67
Amole, Inc. and General Teamsters Sales , Service &
Industrial Union, Local 654 , affiliated with the In-
ternational Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America . Case 9-
CA-8205
testified, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
October 11, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On June 13, 1974, Administrative Law Judge Max
Rosenberg issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent Amole, Inc., Dayton, Ohio,
its officers, agents, successors, and assigns, shall take
the action set forth in said recommended Order.
DECISION
STATEMENT OF THE CASE
MAx ROSENBERG, Administrative Law Judge: With all
parties represented, this proceeding was tried before me in
Oakwood, Ohio, on. March 13, 1974, on a complaint filed
by the General Counsel of the National Labor Relations
Board and an answer filed thereto by Amole, Inc., herein
called the Respondent.' At issue is whether Respondent
violated Section 8(a)(3) of the National Labor Relations
Act, as amended, by discharging Peggy Kennedy under
circumstances to be chronicled hereinafter. Briefs have
been received from the General Counsel and the Respon-
dent which have been duly considered.
Upon the entire record made in this proceeding, includ-
ing my observation of the demeanor of the witnesses who
' The complaint, which issued on February 7, 1974, is based on a charge
filed on December 21, 1973, and served on January 2, 1974.
Respondent, an Ohio corporation with its office and
principal place of business located in Dayton, Ohio, is en-
gaged in the preparation, packaging, and sale of cosmetics.
During the annual period material to this proceeding, Re-
spondent sold and shipped products valued in excess of
$50,000 from its establishment in Dayton, Ohio, directly to
points located outside the State of Ohio. 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
I find that General Teamsters Sales, Service & Industrial
Union, Local 654, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, herein called the Union, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The General Counsel contends that Respondent violated
Section 8(a)(3) of the Act by discharging Peggy Kennedy
on November 28, 1973, because she had contacted her
union representative regarding her working conditions. Re-
spondent denies the commission of any unfair labor prac-
tices proscribed by the statute.
During the times material herein, Respondent and the
Union were parties to a collective-bargaining agreement.
In pertinent part, article I of that compact provided that all
employees must become members of the Union on or be-
fore the 31st day of their hire. Article III, section 1, provid-
ed that "New Employees shall be regarded as probationary
employees for the first sixty (60) days of employment, after
which time they will be entered on the seniority list and
their seniority date shall be the date of the most recent hire.
Probationary employees who are terminated for any rea-
son shall have no recourse to the grievance procedure of
this contract."
Peggy Kennedy was hired by Respondent on October 2,
1973. Within a week after the commencement of her em-
ployment, she became a member of the Union. It is undis-
puted and I find that, sometime in late October or early
November, Kennedy complained to her forelady, Mary
Smith, that, based on her seniority, Kennedy believed that
she should be permitted to work on a machine where she
could earn more money rather than be relegated to the end
of the production line where she merely boxed and stacked
plastic bottles for shipment and was, paid less. According to
Kennedy's testimony, Smith replied "Peggy, you are good
on the machine, but you are better at the end of the line,
those orders that we had, if you hadn't been there, they
would have been. all messed up and I knew, I need you
2 All dates hereinafter fall in 1973.
214 NLRB No. 15
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there to keep those orders straightened out." As a result of
this colloquy, Kennedy was denied a transfer to a machine
and remained at the boxing and stacking operation.
Bobby Coffey, the Union's steward, testified that, on or
about November 23, he was approached by Kennedy who
inquired about seniority rights at the plant and as to how it
applied to employees. At this juncture, Kennedy related
that she had been taken off her machine and had been
assigned to work on the end of the production line. Coffey
stated that he was unaware of this happenstance and asked
who had caused the transfer. Kennedy replied that Fore-
lady Smith had ordered it and she pleaded with Coffey to
investigate the matter. Coffey assured Kennedy that he
would speak with Plant Manager Fint Parsons about the
subject.
Later that day, Smith beckoned to Coffey and a conver-
sation ensued. Smith asked Coffey "if I was going around
telling [Kennedy] what [Smith] could tell her to do and
things like this and how seniority applied." Coffey re-
sponded in the affirmative, and Smith added that, "well, I
hear you are going to talk to Fint Parsons about Peggy."
Coffey replied that he planned to do so later in the day.
Smith retorted that Coffey, "had no right to tell people
what they could do . . . what jobs they should be on
.... Smith ended the discussion by inviting Coffey to
contact Parsons.
A short while thereafter, Coffey entered Parsons' office
and inquired as to why Kennedy had been transferred
from machine work to the end of the production line. Par-
sons answered that Smith had told him that Kennedy's
production was not up to par. Coffey suggested that it
might have been more politic for Smith to have explained
the reason for the move rather than simply ordering the
switch. Parsons thereupon promised that he would "look
into it."
Dissatisfied over her unsuccessful attempt to obtain the
more desirous and lucrative machine work to which she
deemed herself entitled, Kennedy telephoned Dick Loy,
the Union 's business representative, on November 26. Dur-
ing their conversation, Kennedy apprised Loy of her dis-
cussion with Smith and informed him of her wish to trans-
fer to machine duties due to the fact that she possessed.
greater seniority than the woman then employed on the
machine. Loy informed Kennedy that he had a previously.
scheduled meeting with Plant Manager Parsons set for No-
vember 28, and he assured her that he would bring up the
topic at the meeting.
It is undisputed and I find that, on the afternoon of
November 28, Loy called upon Parsons.. Loy stated that he
had received a telephone call from Kennedy in which she
complained that she had been denied the right to exercise
her seniority in the selection of the duties which she per-
formed. Parsons reminded Loy that, pursuant to their la-
bor contract, probationary employees such as Kennedy
could be utilized anywhere in the plant at management's
discretion to enhance their training . Loy readily agreed
and the conversation terminated.
Kennedy further testified that, at approximately 3 p.m.
on November 28, she was instructed by Forelady Smith to
proceed to Parsons' office. When she arrived, Parsons an=
nounced that, "Peggy, I'm going to have to let.you go "
Kennedy inquired into the reason for this personnel action,
and Parsons responded, "You have gotten in contact with
the union, you have caused Mary [Smith] trouble." In her
testimony, Kennedy emphatically denied that, during this
terminal interview, Parsons assigned any other reason for
her termination. Whereupon, Kennedy was discharged on
the afternoon of November 28, approximately 2 days be-
fore she would have finished her probationary period and
become a permanent employee of Respondent.S
Plant Manager Parsons testified that he initially decided
to discharge Kennedy on November 23 after discussing the
subject with Forelady Smith, who was his sole fount of
information concerning Kennedy's work performance. Ac-
cording to Parsons, he had received several adverse reports
from Smith in late October and early November concern-
ing Kennedy's low productivity on the screening machine,
and Smith had recommended Kennedy's discharge as early
as the end of October. However, Kennedy was transferred
from the machine to the boxing and stacking operation on
the production line. In Parsons' words, his decision to ter-
minate Kennedy was reached on November 23 when Smith
informed him that "Peggy Kennedy was going around the
screening department, talking to people, causing trouble
and was going to become a troublemaker." When ques-
tioned as to why he did not discharge Kennedy on Novem-
ber 23, Parsons replied that "I had 'what I thought was
more important business to take care of . . . I was involved
with several meetings with executives of the company, in
the early part of the week, on some inventory problems."
Parsons denied that, on this date, he had any knowledge
that Kennedy had gone "to the Union for anything."
Parsons further averred that the first he learned that
Kennedy had enlisted the support of the Union in her
quest for machine work was on November 28 when he met
with Union Business Representative Loy about a grievance
and Loy brought up Kennedy's complaint that she be-
lieved she was being discriminated against because she was
not allowed to operate the screening machine. Despite the.
fact that, according to Parsons, he had already decided to
terminate Kennedy on November 23, and,` indeed, was
about to sever her employment a few hours after his discus-
sion with Loy, Parsons failed to disclose this intelligence to
Loy but, instead, reminded the latter that Kennedy was
still a probationary employee whose work assignments
were within the exclusive discretion of management. Loy
agreed with Parsons' observations and the meeting ended.
A few hours later, Parsons summoned Kennedy to his
office. It is his testimony that "I told her we were going to
have to let her go, that her ability to get production was not
what we required from an employee, that she had walked
throughout the screening department, harassing people and
spreading stories and was in general, a troublemaker."
Kennedy protested that "I'm a good worker, you are doing
this because I .went to the Union." Parsons inquired wheth-
er Kennedy was in need of gainful employment, and when
she responded affirmatively, Parsons referred her to anoth-
er establishment and assured her that "if there was a
3 Although the complaint alleges that Kennedy was discharged on No-
vember 29 , it seems clear on this record and I find that she was severed from
Respondent's employment rolls on November 28.
AMOLE, INC.
chance of her getting employment there, that I would not
do anything to hinder her getting another job." Parsons
concluded his testimony by proclaiming that Kennedy's
discharge had no relationship to her enlistment of the
Union's support in order to obtain reassignment in her du-
ties at the plant.
When summoned as a witness, Forelady Mary Smith tes-
timonially related that, immediately following Kennedy's
employment on October 2, Smith put Kennedy to work on
a variety of machines. At some indeterminate date, Pro-
duction Scheduler Guinevere Wilkin informed Smith that
Kennedy was not fulfilling production requirements and
suggested that Smith reassign Kennedy. Whereupon, Smith
directed Kennedy to work at the end of the production line
where she boxed and stacked plastic bottles in preparation
for shipment, a task for which, by Smith's own admission,
she deserved a rating of "very good." Following her reas-
signment, Smith received no other complaints regarding
Kennedy's work performance, but contended that
Kennedy's fellow employees commenced to complain
about her body odor, messiness, and bossiness, and that
these became ingredients in her reports to Parsons recom-
mending Kennedy's discharge. In the course of the presen-
tation of its defense, Respondent introduced a parade of
witnesses to substantiate Smith's testimony. This effort
proved abortive. Regarding the complaint about
Kennedy's body odor, Parsons candidly conceded in his
testimony that Kennedy's alleged "body odor" played no
role in her termination. Moreover, in his terminal interview
with Kennedy, Parsons made no mention of "messiness"
or "bossiness" as being motivating factors in causing her
separation from employment with Respondent.
Rounding out Smith's testimony, she denied that she had
ever told Parsons that she was concerned because Kennedy
had complained to the Union over the latter's failure to
obtain machine work or that she was worried about her
future as a result of any such complaint. Smith also denied
that she had ever mentioned to any union steward that she
was unhappy over Kennedy's complaints to the Union.
However, Smith did bring herself to admit that "Bobby
Coffey, the Union Steward, had told me something about
Peggy mentioning something to him and I said `well, you
shouldn't go around starting trouble, Bobby'... .
I credit the testimony of Kennedy, who impressed me as
a sincere and forthright witness, and find either in late Oc-
tober or early November she was transferred from her
work on a screening machine to the task of boxing and
stacking plastic bottles in preparation for shipping. I find
that Kennedy objected to the transfer and complained to
Smith that the former believed she was entitled to machine
work by virtue of her accrued seniority. When Smith failed
to reassign Kennedy, the employee sought out Union Stew-
ard Bobby Coffey on November 23, informed him of her
gripe, and questioned him concerning the subject of senior-
ity rights. Coffey assured Kennedy that he would present
" In fact , Smith admitted on the stand that no employee had ever com-
plained to her that Kennedy had failed to clean up her work area, and that
Smith herself never observed any deficiencies regarding this aspect of
Kennedy's work.
69
the matter for Parsons' consideration later in the day. I
credit Coffey's testimony, not only because it possessed the
qualities of candor, but also because it was partially cor-
roborated by Smith, and find that, on the afternoon of
November 23, Coffey engaged in a conversation with
Smith during which the forelady asked if Coffey had been
advising Kennedy about her employment rights and if he
intended to speak to Plant Manager Parsons about
Kennedy's complaint. When Coffey indicated that he had
so advised Kennedy and that he had planned to communi-
cate with Parsons about Kennedy's job assignment, I find
that Smith stated that Coffey "had no right to tell people
what they could do . . . what jobs they should be on
I further find, based on Coffey's credited and essentially
undenied testimony, that he spoke with Parsons late in the
day on November 23 and questioned Parsons regarding
Kennedy's transfer away from the screening machine. Par-
sons promised that he would look into the matter. I find
that, on the same afternoon, Parsons met with Smith and a
discussion of Kennedy's retention of employment ensued. I
deem it not only plausible but reasonable to infer from the
record that Parsons and Smith discussed the circumstance
that Kennedy, although a probationary employee, had
sought Coffey's support in her efforts to regain machine
work.
I find that, on November 26, Kennedy contacted Union
Business Representative Loy, informed him of her belief
that, based on seniority, she was entitled to operate the
screening machine, and received assurances from Loy that
he would press the issue with Parsons at a forthcoming
grievance session . I also find that, on November 28, Loy
discussed the topic with Parsons. I credit the testimony of
Kennedy and find that, following Parsons' colloquy with
Loy on November 28, the plant manager summoned her to
his office and announced that she had been discharged
because "you have gotten in contact with the Union, you
have caused Mary [Smith] trouble."
To be sure, Respondent would have been legally privi-
leged to terminate Kennedy at any time, apart from con-
tractual considerations, for reasons of "body odor,"
"messiness ," or "bossiness," or for no reason at all. Howev-
er, I am not convinced that Respondent's personnel action
with respect to Kennedy on November 28 was predicated
on these grounds. Kennedy, who was a member of the
Union, decided to utilize the Union's collective power in
her attempt to correct what she believed to be an employ-
ment inequity. After complaining to Coffey and Loy, both
of these union representatives brought Kennedy's griev-
ance to the attention of Smith and/or Parsons for consider-
ation . Perhaps, unwittingly, Parsons divulged the basic mo-
tivation for separating Kennedy. from Respondent's em-
ploy when he testified that she was "causing trouble and
was going to become a troublemaker."
In sum, I am convinced and find that Respondent select-
ed Kennedy for discharge on November 28, not because of
any deficiencies in her work performance or of any unde-
sirable personal traits, but because she had contacted her
union representatives to press grievances which she har-
bored concerning her working conditions. I therefore con-
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clude that, by discharging Kennedy on that date, Respon-
dent violated the provisions of Section 8(a)(3) of the Act.'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities set forth in section III, above, occurring in
connection with Respondent's operations described in sec-
tion 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 discharged Peggy Kenne-
dy on November 28, 1973, for reasons which offended the
provisions of Section 8(a)(3) of the Act. I shall therefore
recommend that Respondent make her whole for any loss
of pay which she may have suffered as a result of the dis-
crimination practiced against her. 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 (1950), with interest thereon at the rate of 6
percent per annum computed in the manner prescribed in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact and con-
clusions, 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 discharging Peggy Kennedy, thereby discriminat-
ing in regard to her hire and tenure of employment, in
order to discourage her membership in the Union, Respon-
dent has engaged in and is engaging in unfair labor practic-
es within the meaning of Section 8(a)(3) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act. .
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the National Labor Relations Act, as amended, I hereby
issue the following recommended:
5 See Loose Leaf Metals Company, 181 NLRB 202 , 206 (1970 ): Lapeer
Metal Products Co., 134 NLRB 1518, 1520 ( 1961).
ORDER6
Respondent Amole, Inc., Dayton, Ohio, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees, thereby discriminating in re-
gard to their hire and tenure of employment, in order to
discourage their membership in the Union.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which I find is
necessary to effectuate the policies of the Act:
(a) Offer to Peggy Kennedy immediate and full rein-
statement to her former job or, if it no longer exists, to
substantially equivalent employment, and make her whole
for any loss of pay which she may have suffered as a 'result
of the discrimination practiced against her, in the manner
set forth in the section of this Decision entitled "The Rem-
edy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security records and reports, and all
other records necessary to analyze the amount of backpay
due herein.
(c) Post at its plant in Dayton, Ohio, copies of the at-
tached notice marked "Appendix." ' Copies of said notice,
on forms provided by the Regional Director for Region 9,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by it immediately upon receipt
thereof and maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken to insure that said notices are not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director, for Region 9, in writ-
.ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102
.48 of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order , and all objections thereto shall be deemed
waived for all purposes.
7 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge our employees from work,
thereby discriminating in regard to their hire and ten-
ure of employment, in order to discourage their mem-
bership in General Teamsters Sales, Service and In-
AMOLE, INC.
dustrial Union Local 654, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights guaranteed in Section 7 of the National
Labor Relations Act, as amended.
71
WE WILL make Peggy Kennedy whole for any loss of
pay she may have suffered as a result of our discrimi-
nation practiced against her, and we will reinstate her.
All our employees are free to become, remain, or refrain
from becoming and remaining members of any labor orga-
nization.
AMOLE, INC.
I