Forms Corp. of America

National Labor Relations Board - Board Decisions

Nov 14, 1994

315 N.L.R.B. 589 (N.L.R.B. 1994)

589
315 NLRB No. 75
FORMS CORP. OF AMERICA
1 312 NLRB 269.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
Here the judge based his findings not only on the demeanor of the
witnesses, but also on the weight of the evidence, established or ad-
mitted facts, inherent probabilities, and reasonable inferences drawn
from the record as a whole. In particular, we agree with the judge’s
finding that Steve Shelton did not accumulate the seven points war-
ranting discharge pursuant to the Respondent’s attendance policy
prior to his termination on Wednesday, February 27, 1991. Shelton
had accumulated three points when he called in sick on Monday,
February 18, 1991, and accrued a fourth point as ‘‘absent with no-
tice,’’ on that day. Shelton accrued a fifth point with a similar call
the next day. However, Shelton accrued no further points that week
because the Respondent viewed his absence as a continuing illness
and Plant Manager William Barclay told Shelton on Thursday, Feb-
ruary 21, 1991, that he need not call in until the morning of the day
he would be returning to work. Shelton did this on Wednesday, Feb-
ruary 27, 1991. At this time, Shelton had five points, two points
fewer than the number required for discharge and five points fewer
than the number alleged by the Respondent. The Respondent there-
fore failed to rebut the General Counsel’s prima facie case that
Shelton’s discharge was discriminatory. The judge correctly found
pretextual the Respondent’s assertion that Shelton was discharged
because he accumulated more than seven points pursuant to the Re-
spondent’s attendance policy.
Forms Corporation of America and Local 415-S
Graphic Communications International Union,
AFL–CIO. Cases 33–CA–9369 and 33–CA–9392
November 14, 1994
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On January 21, 1993, Administrative Law Judge El-
bert D. Gadsden issued his decision in this proceeding.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in support
of the judge’s decision.
On September 21, 1993, the Board issued a Deci-
sion and Order Remanding this proceeding to the judge
for the limited purpose of making credibility findings
on two issues: (1) whether employee Steve Shelton
called in sick on February 18, 1991; and (2) whether
Plant Manager William Barclay told Shelton on Feb-
ruary 21, 1991, that he need not call in until the morn-
ing of the day that he would be returning to work.1
On February 14, 1994, Judge Gadsden issued the at-
tached supplemental decision. The Respondent filed
exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order of Judge
Gadsden’s January 21, 1993 decision.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Forms Corporation of
America, Spring Grove, Illinois, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Will Vance, Esq., for the General Counsel.
John S. Schauer, Esq. (Seyfarth, Shaw, Fairweather &
Geraldson), of Chicago, Illinois, for the Respondent.
Susan Brannigan, Esq. (Asher, Gittler, Greenfield, Cohen &
D. Alba, Ltd.), of Chicago, Illinois, for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. This
supplemental decision is issued pursuant to a September 21,
1993 Decision and Order of the National Labor Relations
Board, remanding the proceeding in the case to me, for the
limited purpose of making specific findings of fact and credi-
bility resolutions concerning the testimony of Steve Shelton
and Respondent’s witnesses as to Shelton’s alleged telephone
call on February 18, and his alleged conversation with Plant
Manager Barclay on February 21; and if appropriate, make
revised conclusions of law and recommendations concerning
Shelton’s discharge, allegedly in violation of Section 8(a)(3)
and (1) of the Act.
In compliance with the Board’s Order, I have not only
taken into consideration the evaluative factors outlined under
the topic ‘‘Transfer of Laswell,’’ on page 18 of his decision
of January 21, 1993, but also on the work history of Shelton
and Paul Laswell, including the advent of their union orga-
nizing activities and Respondent’s reactions thereto.
A review of the evidence of record shows that Steve
Shelton was employed by the nonunionized Respondent Jan-
uary 25, 1984, and worked as a pressmen under the super-
vision of James (Jim) DiTusa. As the evidence of record fur-
ther shows, in October 1990, Shelton and Laswell met with
union organizers about organizing a union at the plant.
Thereafter, and during November 1990, both Laswell and
Shelton openly engaged in union organizing activities at the
gate of the plant, as well as inside the plant. Their organizing
activities included posting union labels and literature on their
toolboxes, distributing union authorization cards, soliciting
employees signatures on the card, wearing union badges in
the plant, and other activities as further summarized in detail
on pages 6 and 24 of my January 19, 1993 decision.
The credited evidence shows that management had actual
knowledge of Laswell’s union organizing leadership as early
as the first week in December 1990 and of Shelton’s union
organizing leadership as early as January 3, 1991. Laswell
and Shelton were harassed by members of management on
several occasions prior to the union election held January 24
and 25, 1991. The Union lost the election and Shelton told
certain discouraged employees they would have another op-
portunity to vote for the Union after a period of 1 year and
590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
management knew both union organizers were determined to
unionize Respondent. On February 15, 1991, only 3 weeks
after the union election, Laswell was abruptly, dis-
criminatorily, and unlawfully transferred from the second to
the first shift, even though he had informed Respondent that
he preferred the second shift when he was hired.
A. Did Shelton Call in February 18?
Although Respondent has had a policy on employee ab-
sences since 1986, Respondent did not install a telephone in
the center of the plant’s floor until mid-January 1991, ap-
proximately 10 days before the union election, for employees
to call in when they are going to be absent.
Steve Shelton testified he called in on the phone Monday,
February 18, 1991, and fellow press operator Dan Breen an-
swered the phone. Shelton said he told Breen he was sick
and would not be in, and Breen said he would inform the
proper persons.
Supervisor DiTusa acknowledged Shelton told him he had
called in February 18 and informed Breen he was sick, but
said he (DiTusa) did not receive the message from Breen on
that date. DiTusa further stated that when he later asked
Breen had he taken a sick call from Shelton, Breen said
‘‘Yes,’’ but he did not give him a date. It is particularly
noted that DiTusa did not say he asked Breen for the date
of the call or that he tried to establish the date of the call.
It is also noted that DiTusa nevertheless concluded that
Shelton did not call in February 18. Such an arbitrary con-
clusion in the face of the message DiTusa had received from
Breen was certainly not objective, and in all probability was
colored with DiTusa’s union animus he (Respondent) had
previously manifested toward Shelton during the union cam-
paign.
Supervisor DiTusa testified that during Shelton’s exit re-
view, Shelton told Resource Manager Ellie McEwen that he
had called in February 18 and informed Breen he was sick
and would not be in, and McEwen said she did not receive
the message. According to DiTusa, McEwen said she had
previously asked Breen had he received a call from Shelton
and Breen told her he took one but did not state what date.
Again, DiTusa does not say whether he or McEwen asked
Breen for the date. So it is at least clear that DiTusa ac-
knowledged Breen told him Shelton had called in sick during
the week of February 18.
McEwen testified in her own right, that Breen told her
Shelton had called in sick Tuesday, February 19, and that he
gave the message to Supervisor Don Lee. Production Man-
ager Bill Barclay testified that Supervisor Don Lee told him
Shelton had called in February 19. Although employee Dan
Breen and Supervisor Don Lee are still in Respondent’s, em-
ploy, neither Breen nor Lee appeared and testified in this
proceeding. No explanation was offered for their nonappear-
ance. Consequently, the individual, self-serving hearsay testi-
monial accounts of McEwen and Barclay are not corrobo-
rated.
It is particularly noted that Supervisor DiTusa testified that
McEwen said she had previously asked Breen had he re-
ceived a sick call from Shelton and Breen told her he took
one call but did not state the date. However, McEwen, testi-
fying in her own right, said Breen told her Shelton had
called in sick Tuesday, February 19, and she gave the mes-
sage to Supervisor Don Lee. Again, although employee Dan
Breen and Supervisor Don Lee are still in Respondent’s em-
ploy, neither Breen nor Lee appeared and testified in this
proceeding. No explanation was offered for their nonappear-
ance. Consequently, the individual, self-serving hearsay testi-
monial accounts of McEwen and Barclay are not corrobo-
rated.
In other words, it is clear that Managers McEwen and Bar-
clay appeared in this proceeding to support the untruthful po-
sition of Supervisor DiTusa, so that management could strin-
gently apply its absence policy in an effort to make its dis-
criminatory discharge of Shelton appear legitimate and jus-
tifiable. Additionally, Shelton’s timecard for February 18 was
marked ‘‘AWON’’ (absent without notice) in the Monday,
February 18 column, and initialed by Supervisor DiTusa.
However, in the same column appears blue ink marks, show-
ing that something was well scratched out. I considered the
apparent scratched over marks significant and more than co-
incidental, because of the conflict in Shelton’s testimony that
he called in that day, and Respondent’s denial that Shelton
had called in. The scratched marks are even more significant
because Supervisor DiTusa first testified he did not notice
the marks when he initialed Shelton’s card at 4 p.m. Feb-
ruary 18. On further examination however, DiTusa changed
his testimony and said the apparent scratched out marks were
already on the card when he initialed it, that he had no ex-
planation for its presence, and that he alone is responsible for
recording calls related to attendance.
Based on the aforedescribed circumstances, I find that it
may be reasonably inferred from such circumstances that the
apparent scratched out marks on the timecard indicated
Shelton had called in to report he was ill on February 18 and
the card was previously marked AWN (absent with notice);
and that in order to make it appear Shelton had not called,
DiTusa subsequently scratched over AWN and wrote in
AWON and initialed it.
Moreover, I was persuaded by the demeanor of Shelton,
as well as by the abundance of the credited evidence of
record, that he testified truthfully, and that DiTusa, McEwen,
and Barclay did not testify fully, accurately, or truthfully
about the telephone call from Shelton on February 18. Con-
sequently, I credit Shelton’s account and discredit the ac-
counts of DiTusa, McEwen, and Barclay, and find that
Shelton called in February 18 and informed Breen he was ill
and would not be in; and that Breen relayed Shelton’s call-
in message to Supervisor DiTusa as he promised Shelton he
would do. This conclusion is further supported by the appar-
ent scratched out marks in the February 18 column on
Shelton’s timecard, as well as by the overwhelming evidence
of Respondent’s antiunion attitude toward Shelton and
Laswell, the two leading union organizers in the plant, of
which fact Respondent was fully aware.
B. The February 21 Telephone Conversation Between
Shelton and Manager Barclay
The testimony of both Shelton and Manager Barclay about
their telephone conversation on Thursday, February 21, is
highly conflicting.
Manager Barclay testified Shelton called him on Thursday,
February 21, and told him he (Shelton) had to have his medi-
cation changed and hoped he would get well over the week-
end; and that he would be out until Monday, February 25.
Barclay said he replied, ‘‘OK, be sure to call me and I will
591FORMS CORP. OF AMERICA
look to see you on Monday, February 25, doctor’s orders.’’
Barclay said he recorded the call in the logbook (R. Exh.
12).
However, Shelton testified he did not call in on February
21 because he visited his doctor that day and was given a
prescription medication. When he returned home and took
the medication, he said he fell asleep. Around 4:30 p.m. he
said he received a telephone call from Manager Barclay who
asked why had he not called in. Shelton said he told Barclay
about the medication, his falling asleep, and that the doctor
told him to stay home until at least February 25. If he was
still sick on that date the doctor told him he would extend
his time off. Shelton said Barclay then told him to call in
every day and he (Shelton) said he reminded Barclay how
he had been out sick for an extended period of time in 1988
and did not call in every day. Barclay did not dispute the lat-
ter statement by Shelton. Shelton said he also told Barclay
he believed you only had to call in once if you are out for
extended illness, and he asked Barclay what did he want him
to do. After a pause, Barclay said, ‘‘OK, on the morning of
the day you are going to return to work, call me so I can
schedule you back to work.’’ Shelton said he told Barclay
he would do that. However, Barclay denies he ever gave
Shelton such instructions. Instead, he said he simply told
Shelton to be sure to call when he was to return to work and
he would look to see him on Monday, February 25.
It is noted that the February 21 telephone conversation be-
tween Shelton and Manager Barclay was not a simple con-
versation about who called whom regarding Shelton not
being at work that day, but that it also involved a discussion
about Respondent’s absence or call-in policy, as well as
when Shelton was going to return to work.
Although Shelton testified he did not call in February 21
and then testified that he did call in February 21, he ex-
plained he called for insurance forms on February 21 but that
Manager Barclay called him late in the afternoon of February
21, when they discussed his return to work. As I observed
Shelton testify, I believed his explanation for the slight con-
fusion about his calling in because I was persuaded it was
an honest mistake of accuracy in trying to recall dates and
times, in a case in which there were several dates and times
of telephone calls which were discussed during the period
February 18 and 26. I also find it difficult to believe Shelton
would have testified he did not call in to report he would
not be in on February 21, if in fact, he had called in, because
his failure to call in was not in his best interest. So he told
the truth, and stated he fell asleep until Manager Barclay
called him around 4 p.m. on February 21. I discredit
Barclay’s testimony that Shelton called him, as well as his
(Barclay’s) denial that he called Shelton on February 21.
I credit Shelton’s testimony that during their telephone
conversation Barclay told him he (Shelton) was to call in
every day, and Shelton reminded him that was not the policy
because he did not call in when he was out an extended time
in 1988; that ‘‘You only had to call in once if you were out
for an extended illness.’’ Barclay did not deny the latter dis-
cussion and I also credit Shelton’s account because I was
persuaded by his demeanor that he was testifying truthfully
in this regard.
Shelton continued to testify that he then asked Barclay
what did he want him (Shelton) to do, and Barclay said,
‘‘OK on the morning of the day you are going to return to
work, call me so I can schedule you back to work.’’ Shelton
said he told Barclay he would do that. Although Barclay de-
nied he ever gave Shelton such instructions, I was persuaded
by the demeanor of each witness (Shelton and Barclay) that
Shelton was telling the truth and Barclay’s denial was not
truthful. I was further persuaded Shelton was telling the truth
because Barclay’s version defies logical practicality. Here,
Shelton was on the telephone with the plant manager dis-
cussing when he was to call in and return to work, and in
spite of the importance of that conversation and Barclay’s
concern about his absence, his calling in, and his return to
work, Shelton would nonetheless not call in February 25, if
he had not been told by Barclay to call him on the morning
he was going to return to work, so that he (Barclay) could
schedule him back to work.
If Shelton had not called in before he was going to return
to work, without Barclay having so advised him to do so, he
(Shelton) would have been asking for a disciplinary response
by Barclay. At no time during the trial did I ever receive
such an impression from Shelton that he would have as-
sumed such a risk. However, throughout the trial I could not
have been more persuaded by the demeanor of a witness, not
to mention the overwhelming credited evidence of an
antiunion motive, that Plant Manager Barclay was not a
truthful witness regarding Shelton. Consequently, I credit
Shelton’s account and discredit Barclay’s account of the Feb-
ruary 21 telephone conversation.
Therefore, based on the foregoing credibility resolutions, I
do not find that any changes are warranted in my decision
of January 21, 1993.