Avon Products, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 946 (N.L.R.B. 1980)

946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Avon Products, Inc. and United Steelworkers of
America, AFL-CIO-CLC. Case 9-CA-13505
August 27, 1980
DECISION AND ORDER
BY M: MRIBRS JENKINS, P NE I.O, ANI)
TRU SI)AL.I
On May 23, 1980, Administrative Law Judge
Almira Abbot Stevenson issued the attached Deci-
sion in this proceeding. Thereafter, the Charging
Party filed exceptions and Respondent filed an an-
swering 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 her 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.
' The Charging Party has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board's established policy not
to overrule an administrative law judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Drv Wall Prod-
ucts, Inc. 91 NRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing her
findings.
DECISION
SI ATIMIN 01F THE CASE
ALMIRA ABHOT S EVENSON, Administrative Law
Judge: A hearing was held in this proceeding at Cincin-
nati, Ohio, on October 25 and 26 and December 11, 12,
and 13, 1979. The charge was served on the Respondent
February 14, 1979. The complaint was issued March 30,
1979, and amended at the hearing. The Respondent duly
filed an answer to the complaint.
The issues are whether or not admitted supervisor,
Lloyd Doughty, on November 22, 1978, violated Section
8(a)(1) of the National Labor Relations Act, as amended,
by telling employee Barbara Harvey that her opportuni-
ties for advancement would be enhanced by abandoning
her open support for the Union, threatening to discharge
Harvey if she circulated a petition to obtain employees'
signatures about her job attitude, and interrogating
Harvey about her union activities, and violated Section
251 NLRB No. 131
8(a)(3) of the Act by denying Harvey a promotion be-
cause of her union activities; whether or not admitted su-
pervisor, Steven Fightmaster, on January 31. 1979, vio-
lated Section 8(a)(3) by placing Barbara Harvey on a
regular break schedule because of her union activities;
whether or not admitted supervisor, Chuck Scarletta, on
February 1, 1, 79, violated Section 8(a)(3) by issuing a
written reprimand to Harvey because of her union activi-
ties; whether or not Supervisor Doughty on February 5,
1979, violated Section 8(a)(1) by threatening to discharge
Harvey because of her union activities and whether or
not on February 12, 1979, Supervisor Doughty violated
Section 8(a)(3) by reprimanding Harvey because of her
union activities. For the reasons given below, I conclude
that the allegations are not supported by a preponder-
ance of the credible evidence and recommend that they
all be dismissed.
Based on the entire record including my observation
of the demeanor of the witnesses and after consideration
of the briefs filed by the General Counsel and the Re-
spondent, I make the following:
FINI)INC; S OF FACI AND CONCI USIONS ()I LAW'
1. Al I iED UNFAIR ABOR PRACTrICES
A. Background
The Springdale, Ohio, plant of Avon Products, Inc.,
here involved, employs a complement of 2,200 employ-
ees in the manufacture and distribution of cosmetics and
related products. Its supervisors and agents include Gen-
eral Manager R. A. Gropler and Personnel Operations
Manager Virgil Mac Burton. The material handling de-
partment was supervised by Thomas Jensch (manager
until November 1978) and Chuck Scarletta (manager
until January 1979 and then night operations manager).
Lloyd Doughty was second-shift section manager, and
John Studenka, Steven Flightmaster, Curtis Howell, and
Donald Riley were supervisors.
All the Respondent's employees are salaried. There are
no timeclocks. There is a job-posting system open to all
whose supervisors recommend them, with seniority con-
trolling in almost all instances. There are no posted rules
and, as far as the record shows, no employee rule book.
Rules and instructions are given orally by supervisors at
start-of-shift meetings with their employees. Second shift
employees work a 4-day week and a 10-hour day from
3:30 p.m. until 2 a.m. Monday through Wednesday they
receive a 15-minute afternoon break, a 30-minute lunch
break, and two 10-minute breaks after lunch; on Thurs-
day the after-lunch breaks are 15 minutes.
There is a four-step disciplinary procedure referred to
as a counseling program under which hundreds of em-
ployees have been counseled within the last 2 years.
' No issue% hae been raised with respect o jurisdictioln or labor orga-
tIiatiTon status Itased on the facts alleged i the complaint and admitted
ill the ans cr I find that 11 It Responlldcnt is an employe r ilhin the
Mrieairig of Sec 2(2) oI the Act engagd iln iloInerce and in operatiions
affecillg commi erce 5 ithin the rlrning ii Sec 2(h) and 7) If the Act,
iand hat tlie (harging Part tioin1T, nitcd Selsiork.rs of Acric,
Alt. CI() CI(., is ia lhh r Irgllli(lln iiltl the eanlllg f Sc 2(5)
of the Act
AVON PRODUCTS, INC. 947
However, no employee with less than 10 years' service
can be fired by anyone except his general manager, 2 and
no employee with 10 years or more of service can be
fired by anyone except the president of the Respondent
in New York City. Only about six employees were ter-
minated during the year 1978, most for excessive absen-
teeism.
There is an informal grievance-type open door system
whereby employees are encouraged to take their griev-
ances up through four steps but are permitted to ap-
proach any member of management they wish. At mate-
rial times, employee performances were reviewed semi-
annually, and a rating of "below standards" in any one
of six categories of performance resulted in being barred
from bidding on another job for a period of at least 90
days or until a "meets standards" rating was achieved.:'
During the last 2 years out of approximately 5,000 per-
formance reviews, a total of 226 "below standards" rat-
ings were given, of which approximately 20 were below
standards in the category of "relationships and attitude."
Barbara Harvey is an employee in the material-han-
dling department. She has been a permanent employee of
the Springdale plant since 1966. During that period she
has received three promotions, eight temporary promo-
tions, six job changes, and in addition has changed shifts
three times, all apparently through the job-bidding pro-
cedure. In her performance review of January 1977, she
was rated "meets standards" in every category except
quantity (defined as volume of work produced and ad-
herence to standards and schedules) in which she was
rated "below standards;" in March 19774 she was rated
"meets standards" or "exceeds standards" in all catego-
ries; in April 1978 she was rated meets or exceeds stand-
ards in all categories except dependability in which she
was rated below standards because of absenteeism. 5 The
record shows that Harvey was given verbal counseling
(a recorded pre-first-step warning) in January 1978 by
Supervisor J. R. Lindhorst for being out of her work
area and engaged in idle conversations with employees
of another department.
During Harvey's employment there have been unsuc-
cessful organizing campaigns at the Springdale plant, be-
ginning in 1966, by the Oil, Atomic, and Chemical
Workers Union, followed by International Brotherhood
of Teamsters, United Automobile Workers, and United
Association of Machinists. Harvey supported them all,
and management was well aware of it. No unfair labor
practices have been found to have been committed by
the Respondent.
Harvey was also active in a second Teamsters organiz-
ing campaign from November 1977 until December 1978,
handbilling, passing around authorization cards, and talk-
ing union to employees; from January until December 1
I The plant is under the authority of two general managers--one for
the lab, or manufacturing, process, and the other for the branch. or distri-
bution, process
I Subsequently performance reviews were put (on an annual basis
4 The record does not explain why Harvey was given two perform-
ance reviews within 3 months in early 1977
s The record does not explain the gap in performance reviews btueen
March 1977 and April 1978
or 6, 1978,6 she wore a "Vote Teamsters" button every
day, the only employee on the second shift to do so.
Harvey began this period in her permanent job of inven-
tory checker on the second shift; in April 1978 she was
given a temporary assignment as second-shift checker.
receiving and shipping, apparently on a job bid. under
the supervision of Curtis Howell; she returned to her
permanent position on November 6, 1978.
On September 12, 1978, Supervisor Curtis Howell
made out a semiannual performance review on Barbara
Harvey, rating her "meets standards" in all categories
but one. He rated her "below standards" in "relation-
ships and attitudes" (defined as cooperation with other
associates; attitude toward company, job, and supervi-
sion; and acceptance of constructive criticism). With re-
spect to this rating, Howell wrote, "Does not cooperate
with other associates. Often feel the Company is unfair.
Accept constructive criticism with negative attitude."
Howell added:
Barbara has constant problems in working with Co-
Workers. Barbara must improve her overall attitude
by the next review. This matter will be reviewed
with Barbara on a monthly basis to record what
progress is being made or what further action is
necessary to correct the problem.
The rating made Harvey ineligible to bid on any job va-
cancy.
On October 4, 1978, Howell met with Harvey to dis-
cuss the performance review. Harvey charged Howell
with picking on her because of her union activities; he
denied it; she asked for a list of people she allegedly did
not get along with; he refused.7 Harvey appealed the
rating to Section Manager Doughty who met with her
on the next day, October 5, 1978, after discussing the
matter with Howell. Harvey charged that Howell
planned to have her terminated because of her union ac-
tivities and asked Doughty for a list of names of employ-
ees with whom she did not cooperate. Doughty refused
the names as contrary to company policy and pointed
out that Howell would give her a monthly follow up to
let her know if she were improving in attitude and rela-
tionships. Harvey appealed to Department Manager
Jensch, who met with her on October 10, 1978. Harvey
complained that the attitude rating was unfair and made
her ineligible for promotion for 90 days, and that Howell
was prejudiced toward her because of her union activi-
ties. Jensch promised to investigate and get back. After
obtaining the views of Section Manager Doughty and his
superior, Chuck Scarletta, Jensch met with Harvey again
on October 12, 1978. Jensch advised Harvey he had been
informed by management that she misquoted company
procedures to employees, confusing them and requiring
management to straighten things out. He told Harvey to
Harvey seemed uncertain as to the precise date she stopped wearing
a "Vote Teamslers" button
7 The facts with regard to Harvey's counseling sessions resulting from
this performance re'ie¥ with Holell on October 4. ith Section Man-
ager Doughl n October 5, and with epartment Manager Jenwch on
October 1) and October 12 are not in substlanial dispute and are based
on an amalgamation of the testimon Iof the participants
AVON PRODUCTS. NC
94R DECISIONS OF NATIONAL LABOR RELATIONS BOARD
avoid procedural situations and refer such matters to
management, and promised to review her attitude in a
month. In his step-three open door report, Jensch stated,
among other things, that material-handling management
informed him,
. . . they were constantly being confronted with sit-
uations of an employee coming to them questioning
management's direction because "Barbara says" . . .
and required management to take time out to
straighten out an employee's misunderstanding.
Jensch also wrote that it was possible that Harvey's
statements had been accurate but employees had misun-
derstood them.
As stated above, Harvey went back to her permanent
job as inventory checker, second shift, on November 6,
1978. About this time, Harvey bid for a posted job of
common stock clerk on the first shift at no change in pay
except that Harvey would have lost her second-shift pre-
mium; Section Manager Doughty and Department Man-
ager Scarletta forwarded her bid with approval.H The
bid was rejected by the personnel department because
Harvey was ineligible due to her below standards per-
formance review.
On November 8, Harvey circulated among material-
handling employees a petition headed "The following
employees feel that Barbara Harvey's attitude and rela-
tionships toward other employees should be at least
'meets standards."' She obtained the signatures of 31
second-shift employees; however, all but one or two of
the signatories did not work directly with Harvey in her
temporary job under Curtis Howell and therefore were
not the employees with whom she was charged with
being uncooperative.
Section Manager Doughty met with Harvey on No-
vember 9 and informed her of the rejection of her bid by
personnel, and told her management felt her attitude was
improving with her meetings with Jensch but not enough
to justify taking her off the below-standards rating.1 o On
November 9, 1978, Jensch also met with Harvey in con-
nection with her below-standards counseling. He in-
formed her that a review with management had revealed
neither positives nor ngatives worthy of note and this
was a good reflection on her performance. Harvey com-
plained about being rejected for the first-shift job and
Jensch promised to look into it. Harvey showed him her
petition with the 31 signatures. He gave it only a brief
" Doughty testified he approved the bid because Jensch was conduct-
ing monthly meetings with Harvey at the time and, being unable to reach
Jensch on the day of Harvey's bid, Doughty went ahead and signed it. I
credit this testimony over Harvey's that Doughty refused to approve the
bid until at her urging Jensch instructed him to do so, as Doughty's ac-
coililt seems the more reasonable in all the circumstances.
9 Mary Lou Childers, ho did work with Harvey, testified that
Harvey tricked her into signing the petition which she did only so
Harvey could transfer to the day shift, although Childers admitted she
believed Harvey met standards. Grover (Doby) Wallace, an active union
advocate, testified he would have rated Harvey below standards but
signed the petition so she would be transferred to the day shift and re-
lieve the second-shift employees of the necessity of working with her.
'° Based on Doughty's credited testimony. Harvey made no reference
to a meeting with Doughty on November 9. but such a meeting fits the
chronology and explains where Harvey received the information that her
bid was rejected about which she complained to Jensch.
glance and said he would meet with her again in 30
days.' t
According to Jensch, he discovered upon contacting
the personnel department after this meeting that the first-
shift common stock clerk vacancy which Harvey had bid
for was canceled and he relayed the information to
Harvey on November 16 when he saw her on the
dock. 12
B. ,November 22, 1978
The complaint alleges and the answer denies that Sec-
tion Manager Doughty violated Section 8(a)(1) of the
Act by telling Barbara Harvey on November 22 that her
opportunities for advancement would be enhanced by
abandoning her open support for the Union, threatening
to discharge her if she circulated the petition to obtain
the employees' signatures about her job attitude, and in-
terrogated her about her union activities; and that the
Respondent violated Section 8(a)(3) on November 22 by
denying Harvey a promotion because of her activities on
behalf of the Union.
Harvey testified in support of these allegations that she
encountered Doughty in the plant that day and he told
her Jensch had mentioned her petition to him but he was
unimpressed, and invited Harvey to his office later that
evening. When she arrived, the following occurred, ac-
cording to Harvey:
He says, "I called you in to inform you that you
are the most senior candidate for a job that we put
you in for, but Tom Jensch and I decided that since
it only lasted four weeks that we would turn it
down for you."
I said, "That's not fair. That's not normal proce-
dure."
He said, "You should never have put in for it in
the first place because of your attitude with work."
I said, "I've already proved by getting the peti-
tion signed that that evaluation was unwarranted."
. . I said, "Would my attitude improve if I would
take this Union pin off?"
At that time he had a pencil in his hand and he
took it and threw it up in the air, swiveled around
in his chair, caught the pencil and smiled, and he
says, "Yes, that would help a whole hell of a
lot. . ." he said, "What do you think these supervi-
sors think when they see you running around out
on the dock with that Union pin on?" He says, "It
sticks out like a sore thumb."
He also said, "You know that Avon is a very
anti-Union Company and you continue to organize
Unions," and he mentioned that if he could have
caught me passing that petition around, that he
would have nailed me on the spot.
I said, "What do you mean by that?"
"i Where their accounts differ. I credit Jensch's because it meshes with
the chronology and with Doughty's testimony referred to above.
"2 Jensch's testimony to this effect was supported by documentary ei-
dence which I have no reason to doubt. Harvey could nriot recall that
Jensch or anyone else ever told her that the job was canceled
AV/ON P'RODUCTS, NC' 949
He said, "I would have fired you right then and
there."
I told him I had passed the petition around at
lunch. He said, "Well, I don't think you would he
dumb enough to do it in a work area during work
time."
I said, "I wasn't."
He also said, "I don't think we could ever fire
you for coming back on break late or from lunch
late or coming in drunk."
I told him that I was not going to quit wearing
my union pin. At that point he got very angry and
he started talking to me through his teeth, and he
says, "No matter what management wants, you
want just the opposite," and he said, "I don't care if
you come in with a UAW hat on tomorrow .... "
Oh, I recall about the union card, he asked me if
I had passed out a union card on the dock earlier
that evening. I said, "No, I did not . . . ." He said,
"Didn't you know everything that you say on break
is repeated to me?" I said, "No, I didn't."
Lloyd Doughty testified his only encounter with
Harvey on this date was on dock when he asked her
why she was out of her usual work area and, as she satis-
factorily explained her presence, he passed on by. He
denied having any other meeting with her on November
22, and denied all the remarks attributed to him, insisting
that his chair will not swivel all the way around because
his office is too small; that he did not know about Har-
vey's petition; that he would not have fired her for cir-
culating it if he had known; and that he does not have
authority to fire anyone.
As the General Counsel indicates in his brief, I am re-
quired to make a "sheer credibility resolution" in a one-
on-one situation between Harvey's testimony and
Doughty's denials. After much consideration I have con-
cluded that I cannot credit Harvey over Doughty. First,
her demeanor was not so superior to that of Doughty as
to justify belief in her word against his without any cor-
roboration by either circumstances or testimony, and in
view of my overall findings there is neither.'3 On the
contrary, these factors favor Doughty. Thus, the only
job vacancy in issue was the first-shift common stock
clerk vacancy for which Harvey submitted a bid. As the
credited evidence establishes that Doughty and his supe-
rior, Scarletta, both endorsed Harvey's bid and that it
was rejected by personnel because of her below-stand-
ards performance review, it is clear that Doughty and
Jensch did not have a hand in the decision. Moreover, I
have found that Doughty had already informed Harvey
of the ineligibility ruling by personnel. In these circum-
stances, I cannot believe that Doughty would tell
Harvey a gratuitous lie to his and the Respondent's dis-
advantage, or scold her for having submitted the job bid
l1 I similarly cannot credit Harvey's testimony that she reported
Doughty's alleged November 22 remarks to Personnel Operations Man-
ager Burton at her December 6. 1978, counseling session with him over
Burton's testimony that she asked him, in one of his February 1979 meet-
ings with her, whether Doughty had the right to ask her to remove her
union button or to penalize her because of union activity and that Burton
told her absolutely not He testified he subsequently questioned Doughty
about this and Doughty denied making any such remarks.
in the first place. Secondly, as Doughty had no authority
to fire Harvey or anyone else and by Harvey's own ver-
sion of the conversation Doughty confessed his inability
to fire her no matter what she did, it seems nearly impos-
sible that he would have threatened to fire her over the
petition. A further inherent inconsistency in Harvey's ac-
count is that Doughty on the one hand allegedly said
that her below-standards attitude rating would he im-
proved if she ceased wearing a union button and practi-
cally simultaneously declared he did not care what kind
of union insignia she wore.
Accordingly, I conclude that the allegations that Sec-
tion Manager Lloyd Doughty violated Section 8(a)(1) on
November 22, 1978, are not supported by a preponder-
ance of the credible evidence, and I recommend that
these allegations be dismissed.
It is also alleged that, on November 22. the Respond-
ent denied Harvey a promotion because of her activities
on behalf of Steelworkers Union. The General Counsel
takes the position in his brief that this allegation is sup-
ported by evidence that on November 8 or ), 1978,
Harvey was ruled ineligible for the job she wanted on
the first shift by Supervisor Howell's below-standards
performance review of September 12, 1978, because of
her activities on behalf of the Teamsters Union. This
contention cannot stand.
Aside from the fact that it is at considerable variance
from the complaint, the credible evidence fails to sub-
stantiate the contention that the rating was discriminator-
ily motivated. Even though Harvey was not shown to be
the leading union advocate in the plan as the General
Counsel contends (thus, there is no evidence she attend-
ed any union meetings or was a member of the employee
organizing committee as Grover Wallace was), it is true,
and I find, that management had knowledge of her en-
thusiastic support of the Teamsters, and she was the only
employee on the second shift who wore a "Vote Team-
sters" button every day. There is, however, no credible
evidence of union animus. Moreover, the Respondent has
not committed any unfair labor practices in the past and
I have concluded above, and below, that the evidence
fails to substantiate the allegations that the Respondent
violated Section 8(a)(1) during the period covered by
this complaint. 14
The General Counsel contends that the record shows
a lack of basis for the below-standards rating. This is not
shown, however, by Harvey's petition of November 8 in-
asmuch as few signatures were obtained from the em-
ployees Harvey was working with at the time. More-
over, although the fact that various members of manage-
ment who dealt with Harvey in the counseling program
emphasized different shortcomings on Harvey's part, and
Department Manager Jensch expressed some doubt about
one aspect of the rating, might have weakened the Re-
spondent's case against Harvey in an arbitrative sense, I
cannot say, in light of the weight of the evidence sup-
' Supervisor Donald Riley's remark to Harey. iI November 1978.
that he liked the Teamsters pin she va. .earing ad Wondered if she
"had helped rip off the pension fund rsith the Teamsters" and thought
her union advocacy ridiculous, sas neither a iolation of Sec (a)(l nior
evidence of discriminatory motive
A V O N P R O D U C T S , I N C q 4 9~ ~ ~ ~ ~
950 IDECISIONS OF NATIONAL LABOR RELATIONS OARD
porting the performance review, that it was proved to be
unjustified.
Contrary to the General Counsel, the fact that only 20
other employees, or less than one-half of 1 percent of
those reviewed, have been rated below standards in rela-
tionships and attitude within the last 2 years does not es-
tablish disparate treatment of Harvey in the absence of
evidence that the Respondent treated other employees
more leniently in similar circumstances.
The General Counsel relies heavily on the element of
timing. Here also, however, the record favors the Re-
spondent. The Respondent has been aware of Harvey's
activity on behalf of many unions over a period of 12
years without interfering with or discriminating against
her because of it. With regard to the second Teamsters
campaign, which began in November 1977, Harvey was
given a below-standards rating in January 1977 before
that campaign began, and another in April 1978 after the
campaign was well under way, neither of those ratings
being discriminatorily motivated as far as we know.
Moreover, although the General Counsel attributes the
lifting of the September 12 restriction in December 1978
to the fact that the Teamsters campaign was ended and
Harvey ceased wearing a "Vote Teamsters" button
shortly before that, as recited below, the fact that the 90-
day period ended about December 12 could just as well
have accounted for the timing of the lifting of the re-
striction.
Accordingly, I conclude that this allegation of 8(a)(3)
discrimination is not supported by a preponderance of
the credible evidence and recommend that it be dis-
missed.
C. Intervening Events
In early December 1978 the Teamsters Union with-
drew its campaign to organize the Springfield plant. Bar-
bara Harvey testified that she stopped wearing a Team-
sters button on either December I or 6, 1978. Thomas
Jensch was transferred to New York and at his request
Personnel Operations Manager V. M. Burton took over
the open door counseling of Harvey.
Burton's first counseling session took place December
6, when he agreed to check with material-handling man-
agement to see whether Harvey's relationships and atti-
tude problems had improved enough to remove the re-
strictions on her and to check into the merchandise con-
trol job vacancy. Burton then had a final session with
Harvey on December 20 and advised her that her prob-
lems seemed to be resolved and he would take her off
restriction so she could bid for jobs after the first of the
year. Burton also advised Harvey that the job vacancy in
merchandise control had been canceled. The memo was
drafted January 10 or 11, 1979, and put in Harvey's per-
sonnel file.' 5
D. January 31, 1979
The complaint alleges, and the answer denies, that on
this date the Respondent violated Section 8(a)(3) by insti-
tuting a requirement that Barbara Harvey take her work
l Shortly thereafter Harvey bid for two first-shift vacancies, which
Doughty approved She failed to get either on seniority grounds.
breaks on a set schedule, thereby rescinding its prior
policy of allowing her to take breaks at her convenience.
In support of this allegation Harvey testified that she
and Mary Grubbs, a coworker in her permanent position
of inventory checker, had been permitted to take their
breaks "anytime we pleased" or "whenever I felt like
taking a break," and that Steven Fightmaster told her
toward the end of January 1979 when he became their
supervisor, "We were all adults . . . and he trusted us to
take the proper amount of time for breaks .... " A few
days later, however, on January 31, 1979, Fightmaster
instructed her and Grubbs to schedule their breaktime
and to submit to him information on when they would
be taking breaks, because he wanted to know where his
employees were at all times. Harvey protested that they
had never had scheduled breaks before but Fightmaster
merely responded that it would be all right to change
their schedule if they notified him.
Fightmaster testified it was not the policy to permit
impromptu breaks, and that all employees under his su-
pervision, including Harvey, were on scheduled breaks at
5:30 p.m., 10:30, and 12:30, and lunch at 8 o'clock. He
said that after the "Gary Hill situation" (discussed
below) arose, someone told him that Harvey had claimed
to be on break at 5 p.m., and in order to clear up possi-
ble confusion, he spoke to Harvey and Grubbs "the very
first part of February" he believed, to make sure they
understood what the break policy was. He told them
breaks were at the times named above but that he would
meet with them again in a few days to see whether those
times caused an operational problem for them. He said
that Harvey made no comment that he remembered. He
met them again 2 or 3 days later and Grubbs told him
she had no problems with the break schedule, and
Harvey said only that she would like her last break at I
a.m. instead of 12:30 so she could do her perpetual in-
ventory while the rest of the department was on 12:30
break, and he granted permission.
The disparity in the precise dates given here is some-
what out of the ordinary in that the date given by
Harvey for the change in her break schedule was Janu-
ary 31, before the Steelworkers campaign began, where-
as the date given by Fightmaster was early February,
after the campaign began. Be that as it may, the General
Counsel contends that Fightmaster's assertion that his
conduct was a result of the "Gary Hill situation" proves
that the motivation was the same-discriminatory. I find
below, however, that the evidence fails to show that the
discipline of Harvey over the Gary Hill incident was dis-
criminatorily motivated; by Harvey's own testimony,
Fightmaster changed her break schedule during the
hiatus in organizing campaigns at the plant; and Mary
Grubbs fell under the same interdict although she was
not shown to be a union advocate. Moreover, even
though Fightmaster may have previously communicated
his trust that Harvey and Grubbs would not take more
than the alloted 15 minutes for their breaks, he does not
seem to have been aware, as the new supervisor, of the
practice of these two particular employees, in contrast
with other employees of material handling, of timing
their breaks for their own convenience, and his remarks
--- --
AVO(N PODIUC`IS, INC 9}51
appear to have been designed only to enforce the plant
rule as he understood it. Even if it had been otherwise,
however, he was entitled to change the practice where.
as here, no discriminatory motive has been shown.
I conclude that the Act was not violated by the
change in Harvey's break schedule, and recommend that
this allegation be dismissed
D. February 1. 1979
The complaint alleges and the answer denies that the
Respondent issued a written reprimand to Harvey on
February 1, 1979, because of her union activities.
The record shows that February 1 was the first day of
the Steelworkers campaign and the first day they hand-
billed the Springfield plant; that Harvey accepted bills
and an authorization card which she signed and mailed
at the plant mailbox, and distributed the bills among em-
ployees in the employee "Hasty Tasty" plant lounge
before the start of her shift. Personnel Operations Man-
ager Burton admitted he was aware of the handbilling
and could have guessed, from her prior union activity,
that Harvey was involved in the Steelworkers campaign.
According to Harvey, Material Handling Manager
Chuck Scarletta called her into the office about 7 p.m.
on February I and, in the presence of John Studenka
who was scheduled to take over that position in the near
future, asked her if she remembered being out of her
work area on January 25, and accused her of talking to
employee Gary Hill while she was "on an unscheduled
break" and holding Hill up from his job for 15 minutes.
Scarletta informed her he was putting her on a second-
step situation report, skipping the first step of the disci-
plinary procedure; and that she again would not be al-
lowed to bid for a promotion for 90 days and "This
report will not be changed."
With respect to the incident under discussion, Harvey
testified that, on January 25, she was not on scheduled
break periods and was allowed to take a break whenever
she wanted to, not to exceed 15 minutes; at or about 5
p.m., on her way to data processing to pick up her per-
petual inventory printout, she encountered Hill, a main-
tenance utility helper. in the main aisle of the warehouse
getting ready to pedal off on his tricycle, and engaged
him in conversation for about 5 minutes on impromptu
break . . . to which she was entitled"; she assumed Hill
was also on break because maintenance department em-
ployees had also been accustomed to taking breaks
"whenever they felt like it." Later, Harvey testified,
Gary Hill told her "it could have been considered" that
he was also on break.
Hill, who was known by management not to be a
union advocate, testified he encountered Harvey at 5
p.m. on January 25 and chatted with her "at the most 5
minutes," and he told Manager Gropler later that he was
not on break but he did not have scheduled breaks and
since he had not had a break that night yet, "you could
consider that my break." Hill asserted that he had
spoken with other employees in similar circumstances
without being disciplined.
Donald Riley, who described himself as Hill's supervi-
sor's supervisor, testified that he observed Hill and
Harvey in conversation at 5 p.m. and again later at 5:17
p.m. on January 25, and that he reported his ohscrsations
to Section Manager Doughty.
Scarletta and Studenka testified that their meeting with
Harvey on this matter occurred on January 31. and not
February I, and Scarletta testified that Doughlii (who
said that no one had an excused break before 5:30) had
brought the incident to his attention. reporting that he
had received the information from Maintenance Supersi-
sor Donald Rilev who observed the Harsc ,-Hill coin er-
sation. Scarletta recorded in his counseling memno that
"more severe counseling" was required in this instance
because of Harvey's past record of being out of her
work area and disrupting other employees that she w\as
being placed on "second counseling" and "The next i-
stance of Barbara's absence from her designaled work
area will result in Final Counseling. Attached \ as the
record of a "verbal" counseling in earl 5 1978 (refe.rred to
above) for being out of her work area anld col\r ersi ig
,with employees on several occasiols inl late 177. Scar-
letta testified he called Harvey into his office again the
next day, February 1, because lie heard se charl;led
management with harassing her he denied lihc ch;i-ge
and assured her she would not be harassed bectluse of
her union activities as long as she contirined thelnl I
before work and at breaktime.
In subsequent counseling inters jews ith l Personel
Operations Manager Burton and (icncral N1aniagIc
Gropler on February 12 and April 5. respectiel 5 , til!
told Harvey that their investigations indicated that sorme
material-handling employees take breaks at times o ther
than 5:30 and as she may have therefore beenl oni break (a
Scarletta-revised memo in the files states that Harrec
probably was on break) this charge would be dropped,
but the charge of disturbing Hill would riot be dropped
because Hill was not on break. Harvey was taken off re-
striction on May 1, 1979. 6 Hill was not discipliled.
Burton testified this was Donald Riley's decision aid lihe
did not discuss the matter with Riley. Riley testificd that,
although Hill had had other performance problems in the
past, he had not been one to abuse the break period or
disturb other employees.
In my opinion, the General Counsel has more going
for him in connection with this incident than with the
others at issue in this proceeding. Here, the record mlti-
cates that the Respondent administered serious discipline
against Harvey with little or no justification. Thus it is
clear that management eventually concluded that the
charge of abusing a break period would not stick to
Harvey because she had at that time had unscheduled
breaks. Also, there is no evidence to refute lar,.ev's tes-
timony that she was not in fact outside her work area in-
asmuch as she was on her way to pick up her pcrpetual
inventory printout from data processing Moreover, man-
agement had no basis for the only remaining charge
against Harvey-disrupting the work of another employ-
ee-as Personnel Operations Manager Burton and De-
partment Manager Scarletta both conceded it was ncci
determined which of the two emploees initiated the
Thal tIarct, rcccixct illOther he.lox-lllM,Idr, r.itl. i ,.il w
,hirp, id ;utlt' oI April 1979 hecau tf I, i iid til did 11 pi \
the ifting oi Ihe ohb-orpporuniN r'st¢,ltricion ti N I .1 1'17
A'.'ON t'ROt)ti(iIS, INC '15 I
)s52 I)FCISI()NS ()F NATI()NAL. I.ABOR REI.A I()NS B()ARI)
conversation (although Harvey admitted on the witness
stand that it was she w\ho did so). In view of the fact
management was of the firm opinion, and rightly so, that
Hill was not on break, one would think that as it was he,
not Harvey, ho wasted company time, that manage-
menit would discipline him and not her. It was, of course,
the other way round, and the Respondent was well
aware that Hill was against, and Harvey for, unionization
of the plant.
Against these facts, however, is the fact that Harvey
had a record of discipline for a similar infraction in the
past while Hill did not. Also, although the Respondent
offered no explanation for the lapse of time between the
incident and the discipline, I find, based on the testimony
of Scarletta and Studenka supported by documentary
evidence, that, in any event, the discipline occurred on
January 31, 1979, the day before the onset of the Steel-
workers campaign and therefore could not have been
triggered by it.
Accordingly, although this incident is suspicious, in
the above circumstances and in the absence of any unfair
labor practices or other evidence of discriminatory moti-
vation, I conclude that a preponderance of the credible
evidence fails to establish that Harvey was disciplined to
discoura ge inion activity, and recommend that this alle-
gation also be dismiissed.
F. February 5, 1979
The complaint alleges, in effect, and the answer denies
that Section Manager Doughty threatened to discharge
Harvey on this date because of her union activity, in vio-
lation of Section 8(a)(1).
Barbara Harvey testified that, on February 5, she wore
Steelworkers buttons to work for the first time, and has
continued to wear them ever since.
Jackie Burton, second-shift nurse, testified in support
of this allegation that she spent the lunch break on Feb-
ruary 5 at a table in the plant employee lounge with Su-
pervisors Doughty and Fightmaster, material-handling
department secretary Charlene Schuster, and several
other supervisors; that Barbara Harvey passed by on her
way to the exit and Supervisor Fightmaster said, "There
goes Harvey out. Do you think she'll be back at 8:30?"
And bets were made. Doughty commented that "she'd
better be back on time. If not, her ass is gone this time."
At 8:29, Fightmaster went to a telephone and called the
plant floor to see whether Harvey had returned, and he
reported that she was back, and "that's when the money
was paid on the bets," although "I don't think anybody
in particular won," and the group began to play poker
with the money that "had come out on the table for who
won or lost." Only after having her memory refreshed
by her pretrial affidavit did Jackie Burton add that
Doughty also said that "Harvey had better be back by
that time or else her ass was gone and we can get rid of
her and the Union both."
Doughty and Schuster flatly denied that Doughty
made the remark about getting rid of Harvey and the
Union. They and Fightmaster testified in substantial
accord that there was a discussion at the table about
problems with employees' taking excessive breaks when
Harvey passed by and Doughty commented, "... there
goes one employee that never takes more than 15 min-
utes for a break or more than 30 minutes for lunch," and
Fightmaster or someone else said, "Oh, I'll bet that she
won't be back in 30 minutes"; but that no money was bet
until later when some of the group played their usual
game of "liar's poker" for who was to pay for coffee.
Doughty and Fightmaster added (but Schuster could not
recall) that Fightmaster received a phone call and when
he returned to the table he told the group that Harvey
had not returned from lunch break.
As Jackie Burton's testimony waivered somewhat, in
view of her initial lapse of memory of the most damag-
ing statement Doughty is alleged to have made, and as
she was contradicted by three mutually corroborative
witnesses, I cannot credit Burton that Doughty said
"... we can get rid of her and the Union both." As the
credited version of the conversation was not union relat-
ed, I recommend that this allegation be dismissed.
G. February 12. 1979
The complaint alleges and the answer denies that the
Respondent issued another reprimand to Harvey on this
date because of her union activities.
Barbara Harvey testified, and Doughty denied, that
Doughty told her, during an interview held on January
II for the purpose of informing her that the restrictions
for below-standards relationships and attitude were being
removed, "If you feel it's necessary to work overtime,
just contact me before the end of the shift and you'll be
allowed to work overtime and I'll be sure to pay you for
it .... " Her testimony continued that, on the morning
of February 12, she was "running a few minutes late"
with her work, and she passed Doughty on her way to
the xerox machine about the 2 a.m. quitting time, and he
asked if she needed his key to the machine; she told him
she did not. About 2:15 a.m. Doughty came into the
xerox room with Fightmaster and said, "Don't tell me
you're that overworked that you can't get out of here in
an eight to ten-hour shift": she responded that the work
was not done until the paperwork was done and added,
"Don't worry, Lloyd. I won't stay late any more";
Doughty asked, "Did Fightmaster warn you before?";
and she replied, "Well, Lloyd, don't worry, I won't stay
late any more whether the work is done or not"; she
handed Fightmaster his copy of the report and left be-
tween 2:10 and 2:15. On February 15, Doughty called
her to the office and read "three memorandums to you
concerning your not getting out of here at the end of the
shift." He told her he had witnessed her staying over
each time, and Harvey responded that he owed her some
overtime pay in that case. Doughty said he would not
pay, and Harvey reminded him of his assurance on Janu-
ary 11 that she could work overtime any time she felt it
was necessary and he would pay. Doughty asked if she
was saying that he was "telling your supervisor one
thing and you another thing," and she said yes.
Harvey testified that before 1979 she and Mary
Grubbs stayed late whenever they felt their work needed
to be completed, once a month at least: that she observed
other employees, including one Billie Waller, Charlene
AVON PRODUCTS. INC '0)S
Schuster, and "different people in maintenance," work-
ing late, and that they were never criticized for it.
Doughty testified that employees are expected to leave
the plant at the end of their shift unless they are instruct-
ed by management to stay overtime, and that Harvey is
the only employee he has ever had trouble with on this
issue. He said he explained this to Harvey on February
14, at which time he informed her of three memos re-
ceived from Supervisor Fightmaster to the effect that he
told her on January 30 after observing her staying late
on several occasions that she should leave at the end of
her shift but she thereafter stayed on until 2:30 a.m. ol
February 5 and 6. In his counseling memo, Doughty
wrote that this would not change the 90-day restriction
she was already on for the Gary Hill incident.
Fightmaster testified that after observing that Harvey
stayed late on January 22, 23, and 24, he explained to her
on January 25 that she should leave the plant within a
reasonable time after the end of her shift unless he re-
quested or gave permission for her to work overtime,
and she responded that was what she would do in the
future if that was the way he wanted it. However, that
same shift, on the morning of January 26, he observed
Harvey still at her work station at 2:30. He repeated his
instruction and she replied, "Well, from now on she
would just leave at two a.m. whether the work was done
or not." The following Tuesday, January 31, he told
Harvey he had been disappointed in her behavior on
Thursday in ignoring his reasonable request and expected
her to comply in the future; she said she would. Again,
however, at the end of the following Monday shift, on
the morning of February 6, he saw Harvey coming out
of the women's lounge at 2:30; when he confronted her
with this on the following day she said she was late fin-
ishing her paperwork and would try to leave within a
reasonable time in the future. On February II1, he and
Doughty saw her in the office at 2:30 and asked her to
leave. Thereafter, he wrote three memos to Doughty
outlining the oral instruction he gave her on this subject
on January 30, 1979; and that he subsequently observed
her in the plant at 2:30 a.m. on February 6 and at 2:25
a.m. on February 12, and asking for more severe disci-
pline.
Harvey could not recall whether Fightmaster spoke to
her on this subject on January 25. She conceded that
Fightmaster did speak to her "in a casual conversation"
about staying late around the first of Februar. and that
she stayed past 2 o'clock on February 2 anrd,l although
Fightmaster and Doughty told her then she should not
do so, Charlene Schuster was also staying late: and that
she stayed after 2 a.m. again on Februar 3 5 or 6, o Feb-
ruary 7. and on Februar 5 II or 12. 2
Schuster testified she stased 20 or 30 minutes late on
two occasions on Doughty's request. anld sa\ 1t larrxc ais
she was leaving the plant with Doughty and Fightmas-
ter.
I do not credit Harvey that Section Manager Dought
ever invited her to stay late any time she felt it necessary
and she would receive overtime pay; but I note that even
by her own testimony Doughty added that she must con-
tact him before the end of the shift to obtain permission
and she did not claim that she did so. Moreover. the e i-
dence is undisputed that both Doughty and FightmastLr
thereafter instructed Harvey on several occasions, begin-
ning on January 25, 1979. that she was to leave the plant
at the end of her shift and she persistently ignored their
instructions. Clearly, therefore, there w;as reasonable
cause for the reprimand she received. No disparity is
shown in view of Schuster's explanation that she worked
late upon supervisory request, and the evidence fails to
show that any other employee whom Harvey (or Jackie
Burton) may have observed in the plant after 2 o'clock
in the morning did not have supervisory permission to be
there. I conclude that this allegation is wholly ithout
merit, and recommend its dismissal.
Accordingly, upon the foregoing findings of fact, con-
clusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the folloAs ing
recommended:
ORDER ' 8
The complaint is dismissed in its entirety.
T7 hat the ighlt sifl began on one dae al toied on thc le dtb
less acciunllllts fr sonme ol the differences il Ihe l late gi cll ill this t1i-
' In the eenllt no excepliollns are filed as prorilded h Sc 1i0 4 of
the Rules and Regulalilos of the Natlinal ahior Relallonl lieord. the
Findings. conclusions, and recommended Order hereiln shall. a, prlonidld
in Sec 102.48 o)f the Rules and Regulations, he adopted hb Ilic oard iIdl
become it, Findings conclusions, and Order. and all ohblwIitois h.literl
shall he deemncd sai ed for all purposes
.