Grand Foundries, Inc.

National Labor Relations Board - Board Decisions

Nov 25, 1968

173 N.L.R.B. 967 (N.L.R.B. 1968)

GRAND FOUNDRIES, INC 967
Grand Foundries , Inc and Carl Maples Case
17-CA- 3481
November 25, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On August 26, 1968, Trial Examiner Maurice S
Bush issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
The Board has reviewed the rulings of the Trial
Exanuner made at the hearing and finds that no
prejudicial error was committed The rulings are
hereby affirmed The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions
and brief, and the entire record in this case, and
hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner only to the
extent consistent herewith
The Trial Examiner found that the Respondent
discriminatorily discharged employee Carl Maples, in
violation of Section 8(a)(3) and (1) of the Act We do
not agree
The facts show that Maples had been employed by
the Respondent or one of its related companies for
approximately 13 years prior to his discharge, and
that during his employment, he developed a record of
being chronically tardy or "late" in reporting for
work in the morning Thus, as the Trial Examiner
found, in the 3 year period preceding Maples'
discharge, employment records indicate that he
reported to work "late" approximately 10 times in
1965, 56 times in 1966, and over 40 times between
January 1, 1967, and December 5, 1967 1
In addition, the record shows that on December 5,
Maples was formally reprimanded by the Respondent
for his tardiness, along with Bailey and another
employee who were reprimanded for absences and
tardiness On that day, Maples personally received a
"Memorandum" from the Respondent, informing him
that because of "excessive tardiness" he had violated
"Paragraph 2-Item J of the Shop Manual", and
warning him that any "future violation of this nature
may warrant your discharge, or other disciplinary
action "I Following the December 5 reprimand, and
up until December 20, Maples reported in to work
"late" on three more occasions On December 20, the
Respondent terminated Maples' employment because
of "excessive tardiness "
The General Counsel conceded during the hearing
in this proceeding that Maples was "maybe a
compulsive latecomer and he wouldn't be able to
come to work in the future on time "
Nevertheless, the General Counsel contended, and the
Trial Examiner agreed, that the Respondent, knowing
about Maples' union activities, realized "that if it
took a week or a month or two months or three
months, sooner or later he would start showing up
with this pattern of tardiness and lateness again and
they would have set him up [by a preliminary
warning notice] to discharge him [T] his is a
company that knew if they were going to fire
anybody for union activity, they would have to make
up a pretext or subterfuge, and in the case of Mr
Maples it was tailor-made because of his tardiness "
The Trial Examiner concluded that the Respondent's
"real motive for the discharge was the desire to
remove from its plant an active and avowed union
supporter "
An analysis of the entire record in the case,
however, indicates the General Counsel presented no
evidence of conduct by the Respondent which
demonstrated animus or hostility toward union
activities Moreover, it should be pointed out that
Maples himself failed to testify at the hearing as to his
engagement in any extensive union activities The
only evidence submitted in this regard was the
testimony of two of the Respondent's officials to the
effect that the Respondent know Maples was active in
unions' attempts to organize the company and that he
had served as a union observer for two different
elections, conducted in November 1966, and on
December 1, 1967 Contrary to the Trial Examiner,
we cannot find on these bare facts alone, that Maples
"actively participated in the campaigns of two
different unions ," that he was "actively and
militantly" engaged in union activities, or that the
Respondent was motivated to discharge Maples
because he constituted a "contagious and dangerous
source for continuous future agitation for the
I Inasmuch as the Trial Examiner found that the Respondents
policy has been to not penalize employees wagewise for clocking in
tardy up to 6 minutes the number of late' days noted above reflect
only unexcused tardiness of more than 6 minutes on each particular
work day
2 The Trial Examiner found that on June 1 1967 the Respondent
published and distributed a set of "General Shop Rules and that inter
alia employees were informed in Paragraph J not to engage in
"Frequent tardiness or absence from work without permission
173 NLRB No 141
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization" of the Respondent's plant. We note the
fact that the Respondent knew of Maples' union
sympathies for 4 years or more and took no
disciplinary action against him, although it is clear
that Maples' reputation for tardiness was also well
known to the Respondent during this period.
The formal reprimands issued to employees in
December 1967, indicate the Respondent had decided
to enforce the shop rules enacted earlier in that year.
The fact that Maples' reprimand followed by only 5
days an election in which he had served as an
observer, does not convince us that the mere sequence
of events manifests that the alleged reason for the
discharge, as well as the reprimand, was pretextual.3
At least two other employees, including Bailey, who
apparently were not engaged in any union activities,
received similar reprimands for violating "shop rules"
on the same day as Maples, and the record shows that
Bailey and a co-worker were subsequently discharged
because of "excessive absences" and "tardiness."
Finally, we note that the Trial Examiner
discredited Plant Manager King's testimony regarding
the initial complaints received which led to Maples
discharge, and rejected the Respondent's asserted
reason for discharge, by relying primarily on the
affidavit of Rogers,' the immediate supervisor of
Maples, and upon inferences drawn from this
affidavit. We believe, contrary to the Trial Examiner,
that such reliance on the affidavit was misplaced,
since it is clear from a close reading of the document
that Rogers contradicts himself therein, by first
stating that he "never talked to Maples about his
tardiness except maybe to make a passing remark"
and then admitting that he [Rogers] in fact did talk
to Maples about his tardiness "on several occasions"
at the request of Plant Manager King.
In view of the above considerations, and
particularly the excessive tardiness of Maples during
his employment by the Respondent, we do not
believe that the General Counsel has sustained his
burden of proof that Maples' discharge was
discriminatory and motivated by his known union
activities. Accordingly, we find that the Respondent
did not violate Section 8(a)(3) of the Act by
discharging Maples on December 20, 1967, and we
shall, therefore, dismiss the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
3 Aircraft Engineering Corporation and Western Inc., d /b/a Selb
Ma q facutunng Company, 172 NLRB No. 218
Rogers did not testify at the hearing in this proceeding because he
was serving as a juror in a pending criminal case , but his affidavit in lieu
of his testimony was offered and received in evidence without
objection.
TRIAL EXAMINER'S DECISION
MAURICE S BUSH, Trial Examiner The single issue in this
proceeding is whether the Respondent company Grand
Foundries, Inc , discharged Carl Maples, a maintenance
employee, because of his union activities in violation of Section
8(a)(3) and (1) of the National Labor Relations Act.
Respondent's defense at the trial and in its brief is that Maples
was discharged solely "because of his poor tardiness record and
his failure to respond to the written warning" thereon.
The complaint was issued on March 15, 1968, pursuant to a
charge filed and served upon Respondent on February 8, 1968.
The case was heard at Springfield, Missouri, on May 7, 1968 A
brief filed by Respondent has been carefully reviewed and
considered.
Upon the entire record and from his observation of the
witnesses, the Trial Examiner makes the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent, Grand Foundries, Inc., a corporation with its
principal place of business at Springfield, Missouri, is engaged in
the manufacture of steel castings Respondent annually sells
goods and furnishes services valued in excess of $50,000 to a
nonretail manufacturing enterprise with headquarters in the
State of Missouri, which enterprise, in turn, annually ships goods
or furnishes services valued in excess of $50,000 directly to
customers outside the State of Missouri. The Respondent is an
employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
General Drivers, Salesdrivers, Warehousemen and Helpers,
Local Union No. 245, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
Carl Maples has had employment with Respondent or one of
its related companies for many years. He was fired by
Respondent on December 20, 1967, for the asserted reason of
"excessive tardiness " Counsel for General Counsel concedes
that Maples has a record of being chronically late in reporting for
work, but contends that he was discharged, not because of his
chronic tardiness, but because of his union activities.
Government counsel's theory is that Maples is a helpless victim
of his own inescapable propensity for being tardy in reporting
for work and that Respondent, being fully aware of this, set hum
up for a discharge on the pretextual ground of tardiness, by
issuing to hum a reprimand on December 5, 1967, for tardiness
combined with a warning that any such future conduct would
lead to his discharge, "knowing that the man is maybe a
compulsive latecomer and he wouldn't be able to come to work
in the future on time . ., [and] that if it took a week or a month
or two months or three months, sooner or later he would start
GRAND FOUNDRIES, INC.
showing up with this pattern of tardiness and lateness again and
they would have set him up to discharge him." In the 11 working
days following the warning, Maples came in late three times and
was discharged for the stated reason of tardiness after prior
warning that continued tardiness could cause his discharge.
Respondent is one of three functionally related companies
owned and controlled by the Hutchens family The other two
companies are the Hutchens and Sons Metal Products Company
and Marshfield Steel All are engaged in one phase or another of
the manufacture, sale and distribution of suspension tandems for
tractor-trailer units. Respondent's function is to produce the
castings for the tandems which it sells to Marshfield Steel.
Marshfield Steel performs the fabrication of the castings at a
plant located at Marshfield, Missouri, which it in turn sells to
Hutchens and Sons Hutchens and Sons functions as the sales
organization for the finished products Respondent and
Hutchens and Sons occupy the same premises at Springfield.
Carl Maples has worked for one or the other of these three
related companies' for some 13 years prior to his discharge by
Respondent on December 20,1967 From May 21,1962, to July
26,1965, he was employed by Respondent as a welder. From the
latter date to the date of his discharge, he held the position of
senior maintenance man in Respondent's four-man maintenance
department His principal function there was welding.
Respondent has at all times recognized Maples as a top notch
welder and the only employee in its maintenance department
with the necessary skill for work as a welder. He was not
discharged because of any fault or dissatisfaction with his work.2
The Union (Teamsters) commenced a campaign in 1967 to
organize Respondent's plant. In the summer of 1967 or earlier, it
came to the attention of Plant Manager "through the grapevine,
through supervisors" that Maples "was active in the teamsters
organization in trying to organize the plant." At a
Board-conducted election held at the plant on December 1,
1967, Respondent's agents saw Maples serving as an observer for
the Union. Maples had likewise been seen functioning as a Union
observer at an earlier election held on November 1, 1966,
initiated by a Local of the Sheetmetal Workers International
Association. The two Unions were unsuccessful in their
respective elections Respondent first became aware of Maples'
interest in organizing the plant some 4 years prior to his
discharge from his reported remarks to various employees at the
plant.
As heretofore indicated, Maples during his many years of
employment with Respondent and related companies was
known for the frequency of his tardiness in reporting for work at
the commencement of the work day. Maples' reputation for
being late in reporting for work and Respondent's apparent
acquiescence in that human weakness is perhaps best reflected in
the following testimony of Plant Supervisor Nolan Jones under
examination by counsel in support of the complaint:
i The three companies are so related that Maples for a period of time
was engaged in helping in the construction of Respondent 's present plant
at Springfield while remaining on the payroll of Marshfield.
2 Although some evidence was developed that showed dissatisfaction
by Respondent with Maples' work attitude , described as "lousy," for
some months prior to his discharge , chiefly because in reporting to work
he would "amble around preparing himself for work," Respondent both
at the trial and in brief states that it discharged Maples solely because of his
chronic tardiness in reporting for work. Accordingly there is no issue
herein as to whether Maples' discharge was in any part due to a wrong
worJ3c attitude.
This figure and subsequent figures for later years are substantially
but not precisely correct, as it appears that the transcript of the record on
969
Q. How long has Maples been coming in tardy?
A. Ever since I have known him.
Q. How long has that been?
A. For [the] five years I have been working with the
company.
The parties are agreed that Maples' time cards for the 3-year
period prior to his discharge would be fairly representative of his
tardy record in his employment by Respondent and related
companies. In this period the reporting time for the work day
varied from time to time, from 6.00 a.m. to 7.30 a.m.
Respondent generally has from 90 to 100 employees at its plant
but at the time of the trial herein the number of employees had
temporarily declined to about 50 The plant has only one time
clock. It is admitted that it would be a physical impossibility for
all of Respondent's employees to clock in at the precise moment
of the official opening of the work day. The Company makes no
wage deductions for lateness in reporting for work up to and
including 6 minutes after the official starting time.
In 1965, Maples was tardy in reporting for work some 26
time s.3 However, in 16 of these 26 tardinesses, his latenesses
were 6 minutes or less and in much of these he was only a minute
or two late. His longest tardiness was one of 30 minutes, most of
his remaining tardinesses were from 10 to 15 minutes.
In 1966, Maples was tardy a total of 83 times. Of these 83
tardinesses, 27 were for tardinesses 6 minutes or less, 13 were for
tardinesses of 7 to 10 minutes, 8 were for tardinesses of 11 to 15
minutes; 1 was for 1 hour and 11 minutes and another for 1 hour
and 45 minutes tardiness; the remaining were for tardinesses of
16 minutes to approximately 35 nunutes
For the period January 1 to the date of his warning notice of
December 5, 1967, Maples was tardy a total of 84 times. Of these
84 tardmesses, 40 were for tardinesses of 6 minutes or less and
many of these were for tardinesses of only a minute or two; 20
were for tardinesses of 7 to 15 minutes and many of these were
for tardinesses of less than 15 minutes, 12 were for tardinesses of
from 16 to 25 minutes; and the remainder were for tardinesses of
less than 1 hour, except for 1 which was an unexplained tardiness
of nearly 3' hours.4
Respondent on June 1, 1967, published a set of "General
Shop Rules," copies of which were distributed to all employees,
including Maples. The preamble to these Rules read in pertinent
part as follows- "Each employee is expected to conduct himself
in a manner which shall at all times contribute to the general
harmony and efficiency of our organization. Violation of rights
of others may subject an employee to disciplinary action or
discharge for misconduct." The Rules then go on to state a
"number of examples of things we do not expect you to do are
listed below." One of these examples, as set forth in Paragraph J,
reads "Frequent tardiness or absence from work without
permission ... "
There is a conflict of evidence as to when and from whom
Maples' day-to-day tardiness is not completely accurate . For example, the
transcript shows only five tardinesses for the month of July, but the
transcript also shows that counsel for the parties agreed to the Examiner's
tally of six tardinesses for that month . For purposes of computing
Maples' total number of tardinesses for each year noted, only
tardinesses which appear by date are taken into consideration . It is not
believed that discrepancies between actual count and the examiner's
summarized total as reflected in the transcript would materially change
the picture of Maples' total tardinesses for the years 1965, 1966, and
1967.
4 This 3'h hour tardiness is unexplained on Maples' timecard, but
because of the extraordinary length of the tardiness there may have been
some excusable reason for it. The record does not show any reprimand or
warning to Maples because of this tardiness.
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaints were first received by Respondent's top management
about Maples' tardinesses prior to his discharge. Plant Manager
King testified that he and Nolan McDonald, vice president and
work manager of Respondent, were in conference sometime in
June of 1967 when Merl Rogers, the working foreman of the
Maintenance Department and Maples' immediate superior,5
came to them with complaints about Maples' habitual tardiness,
and that McDonald requested King that he do something about
correcting that situation, but that he did nothing about it just
then. King further testified that, however, upon his return from a
vacation in late August, he found from a discussion with Plant
Supervisor Nolan Jones and Rogers that Maples was still tardy in
reporting for work much of the time and stated to them "that we
had better make some effort to correct this thing because we had
discussed it previously and this was Mr. McDonald's feeling and
that Mr. Rogers was to remind Maples of the situation and that
he should correct it." King also testified that he later again took
up the matter of Maples' tardiness "a couple of times" with
Jones and Rogers, but had no recollection as to when these
conversations took place.
Rogers, although under subpoena by General Counsel, was
unable to appear as a witness in this matter because he was
serving as a juror in a then pending criminal case. However his
pretrial affidavit was received in evidence without objection in
lieu of testimony, as General Counsel's Exhibit 3. As will be
shown in more detail below, Maples was given a formal warning
notice on December 5, 1967, for "excessive tardiness." Contrary
to King's testimony that Rogers had initiated the complaints
about Maples' tardiness and that he had been asked to speak to
Maples about it as early as August, Rogers in his affidavit flatly
states that Plant Supervisor Jones, his immediate supervisor,
"never told me to talk to Maples about his tardiness .. . I never
talked to Maples about his tardiness except maybe to make a
passing remark. I used to kid him about getting in on time like
telling him to have his wife kick him out of the house." The
Examiner credits Rogers' affidavit and inferences therefrom that
he had at no time here pertinent initiated complaints to anyone
in management concerning Maples' tendency to be tardy and was
not asked by McDonald or King or Jones at any time here
pertinent to speak to Maples about correcting his tardiness, and
discredits King's testimony that Maples' discharge initially
originated from Rogers' complaints about Maples' tardiness On
the contrary, Rogers' affidavit shows that he goodnaturedly
recognized and tolerated Maples' human failure with respect to
tardiness.
As heretofore shown, Maples was given a warning notice
about his "Excessive Tardiness" on December 5, 1967. This was
decided at a meeting between Plant Manager King and Plant
Superintendent Jones on or about November 27, 1967 The
notice stated that, "any further violation of this nature may
warrant your discharge." Maples was called into an office shared
by King and Jones to receive the reprimand. Two other
employees, Richard Oatman and Hershel Baily, also received
reprimands at the same time, but theirs was for a combination of
excessive tardiness and excessive absences King spoke to Maples
and the other two employees as to why they were being called
5 Although Respondent in its pleadings placed in issue the status of
Merl Rogers as statutory supervisor, the testimony of Respondent's own
witnesses openly admit and establish his supervisory status , which in any
event has no direct bearing on the issue herein of whether Maples'
discharge was discriminatory.
6 Rogers' affidavit and the testimony of Plant Manager King show
into his office and each was asked to read their reprimands and to
acknowledge receipt thereof.
Maples was discharged 15 days later on December 20, 1967,
for the stated reason of "excessive tardiness." In that 15-day
period, there were 11 working days. Maples' time cards for these
11 days show that he clocked in ahead of time on 7 of these
days, that on another of these days he clocked in precisely on the
moment of the starting time, and that on the remaining 3 days he
was tardy. The first of these tardinesses occurred on December 8
when he was 9 minutes late; the second on December 12 when he
was 12 minutes late; and the third on December 14 when he was
11 minutes late. On December 20 when he was discharged he
had clocked in 4 minutes ahead of starting time. At the time of
his discharge, Maples offered no excuses for his tardiness6 but
simply said to Jones, "If that's the way they want it after 12
years with them, O.K." King was not present when Maples was
discharged, but the record makes it quite clear that the decision
to fire him was made by King and carried out by Jones. Although
Jones has the authority to hire or fire, he never exercises this
authority without checking with King except when King is on
vacation. Similarly although Jones has the authority to
reprimand he has never done this on his own authority.
Respondent' s long-range construction program at its
Springfield plant covering a period of several years was
completed in late August 1967 During this construction period,
Respondent prized Maples' ability as a welder because it "had a
difficult time getting personnel that were good, qualified
welders." Although Maples propensity for being tardy in that
period was well known to the Company, Respondent Plant
Manager King's testimony shows that the Company "didn't
consider [Maples' chronic tardiness] serious at that time because
this construction had priority."
King, after reiterating that Maples' tardiness "wasn't a big
concern" to management "prior to" the completion of its
construction program, testified that the Company decided "to
crack down" on Maples' chronic tardiness after the construction
program had been completed. He further testified that the
Company decided on this crack-down on Maples although its
Maintenance Department was "dependent upon him as a single
individual for his certain skills," namely, his welding skills, as he
was the only full-time employee in the Maintenance Department
with such skill.
The record shows, however, that since the completion of the
construction program in late August 1967, there has been
comparatively little call for Maples' special skills as a welder.
Upon completion of the building program, Maples' principal
function as a member of the Maintenance Department, as was
true of all other employees in that department, was to keep the
plant's machinery in repair. The plant has only one operation
which might require the services of a welder. Maintenance
Foreman Rogers and at least one other maintenance employee
are always promptly present at the opening of the work day to
take care of any machinery breakdowns which may occur at that
time. Under established procedure, Plant Supervisor Jones
generally checks a broken down piece of equipment first before
calling upon the Maintenance Department to make the necessary
that "Maples never made any excuses about his tardiness " Rogers'
affidavit further shows that when Maples was late in reporting for work, it
was "usually " for a tardiness of "5 to 15 minutes "
The record by stipulation more precisely shows that Maples had 13
years of continuous employment with Respondent and related companies
prior to his discharge.
GRAND FOUNDRIES , INC. 971
repair. Mr. King's own testimony shows that Maples' relatively
short tardinesses have never adversely affected the operations of
the plant.
Prior to Maples' discharge for tardiness, the Respondent had
never in the memory of its witnesses discharged an employee
solely because of tardiness in reporting for work.
Neither Maples as the Charging Party nor Noland McDonald,
vice president and work manager of Respondent, who started the
action which led to Maples' discharge, appeared as witnesses in
the case. Counsel for General Counsel stated that he would not
call Maples as a witness because the knowledge as to the motive
for Maples' discharge was "in the hands of the company and
everything Mr. Maples knows the company also knows." The
Examiner finds that the testimony of Maples was not necessary
for the determination of the issue in the case as to the real reason
for his discharge.
Conclusions and Discussion
The Examiner finds from the record as a whole that
Respondent's stated reason of "excessive tardiness" for Maples'
discharge is pretextual and that its real motive for the discharge
was the desire to remove from its plant an active and avowed
union supporter Respondent acknowledges that it had
knowledge of Maples' expressions of interest in organizing the
plant for some 4 years prior to his termination. The record
shows, however, that Respondent became more acutely aware of
Maples' growing interest and increasing activity in getting the
plant organized in the last 2 years of his employment with the
Company. In that period he actively participated in the
campaigns of two different unions to organize the plant. The
first campaign by a local of the Sheetmetal Workers Inter-
national Association culminated in an election held on Novem-
ber 20, 1966. Maples was seen serving as a Union observer at
the election. Not deterred by the failure of that union to win
the election, Maples vigorously enteied into the campaign of
the Teamsters Union in 1967 to organize the plant. The record
further shows that Maples made no bones about his open
espousal and support of the Teamsters Union and that notice of
this came to the attention of the Respondent quickly through
the "grapevine" of its supervisors as early as the early part of the
summer of 1967. The Teamsters campaign ended in an election
held on December 1, 1967. The Teamsters also lost its election
but Maples was once again seen serving as a union observer at that
election
On December 5, five days after the Teamsters lost the
election, Respondent gave Maples a written warning for
"Excessive Tardiness," with notice that his failure to "Correct
the situation" could result in his discharge.
On December 15, Maples was discharged for being late on 3 of
the 11 intervening workdays since his warning. In that period the
starting time for the workday was 7:00 a in If the time for the
tolling of tardy time is deemed to start at 7.00 a.m., then Maples
was tardy a total of 32 minutes in the 3 days he was late in
reporting for work out of the 11 days here under consideration.
If on the other hand, the starting time for purposes of
determining unexcused tardiness is deemed to be 7 06 a in., as
Respondent does not penalize employees wagewise for clocking
in tardy up to 6 minutes, then Maples was tardy only a total of 16
minutes in the 11 working days between his warning notice and
his discharge.
But whether Maples' total tardy time is deemed to be 16 or 32
minutes for the period between December 5 and 20, 1967, his
discharge as a disciplinary measure for such tardiness appears on
its face to be so harsh as to suggest that the discharge was not for
"excessive tardiness" as claimed by Respondent, but rather for
Maples' well known union activities, particularly in the last two
years of his employment with Respondent. This is amply
substantiated by the record as a whole. Maples worked a total of
13 years for Respondent and related companies prior to his
discharge. In the last 5 years of this period of employment he
worked at Respondent's plant where his services as a skilled
welder were not only highly regarded but were deemed
indispensable during the long period of plant construction
ending in August 1967 because of a shortage of qualified welders
in the area. In this period of construction spanning all but about
4 months of Maples' 5 years of employment with Respondent,
the Company not only accepted Maples' tendency for frequent
tardiness, but was perfectly contented to go along with his
human frailty for tardiness.
In the summer of 1967 two things happened to change
Respondent's former acquiescence in Maples' propensity for
tardiness. One was Maples' open and conspicuous activity in
behalf of the Teamsters Union to organize the plant. The other
was the fact that by late August 1967 the Company had lost its
urgent need for Maples' services as a highly skilled welder in its
construction program as the program had been completed. It was
only then that Respondent began to make an issue of Maples'
heretofore long accepted tendency to be tardy as a ground for
warning and discharge. This was in face of the fact that the
Company still had a need for Maples as the only qualified welder
in the plant and in the face of the further fact that his
tardiness-generally of durations of less than 15 minutes-had no
demonstratively adverse affects on Respondent's operations.
Moreover the record shows that approximately half of Maples'
tardinesses in the year of his discharge may be considered, and
are found to be, excused tardinesses as they were of no more
than 6 minutes' duration, in view of Respondent's practice of
not penalizing employees who clock in up to 6 minutes late on
the only time clock for the 90 to 100 employees in the plant.
Notwithstanding the generally harmless nature of Maples'
tardiness, heretofore accepted by Respondent as a human foible,
and the Company's standing need for Maples' services as the only
qualified welder in the plant, Respondent nevertheless fired
Maples on December 20, 1967, on the alleged ground of
"excessive tardiness." Under these circumstances the real motive
for the discharge must be found in the fact that Maples in the two
years preceding his discharge had been actively and militantly
engaged in efforts to organize the plant in behalf of two separate
unions and must have constituted in the eyes of Respondent's
officers a contagious and dangerous source for continuous
future agitation for the organization of its plant The record as
developed at the trial amply supports the contention of counsel
for General Counsel, "that the company knew of Mr. Maples'
tardiness for a long time. During that time, they did nothing
about it They paid him at the highest rate for a maintenance
employee. But, after his union activities, they grabbed onto the
tardiness record of Mr. Maples, knowing that the man is maybe a
compulsive latecomer and he wouldn't be able to come to work
in the future on time, and that if it took a week or a month or
two months or three months, sooner or later he would start
showing up with this pattern of tardiness and lateness again and
they would have set him up [by a preliminary warning notice] to
discharge him. * * * this is a company that has been involved
with unions before, that knew that if they were going to fire
somebody for union activity, they would have to make up a
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pretext or subterfuge, and in the case of Mr. Maples it was
tailor-made because of his tardiness."
Accordingly it is found that Respondent discriminately
discharged Maples in violation of Section 8(a)(3) and (1) of the
Act
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set forth in section III,
above, occurring in connection with the operation of
Respondent described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(3) and (1) of the Act, it will
be recommended that Respondent cease and desist therefrom
and take certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent discriminately discharged
employee Carl Maples, it will be recommended that Respondent
offer the said employee immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to
seniority and other rights and privileges and make him whole for
any loss of earnings he may have suffered by reason of the
discrimination against him by payment to him of a sum of
money equal to that which he would have earned as wages from
the date of the discrimination against him to the date of offer of
reinstatement less interim earnings, and in a manner consistent
with Board policy as set out in F. W. Woolworth Company, 90
NLRB 289. Interest on backpay shall be computed in the
manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and upon the
entire record of the case, the undersigned makes the following.
CONCLUSIONS OF LAW
1 The Respondent is engaged in commerce and the Union is
a labor organization, all within the meaning of the Act.
2. By discriminating in regard to the hire and tenure of
employment of employee Carl Maples, thereby discouraging
membership in the above Union, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section 2(6)
and (7) of the Act
[Recommended Order omitted from publication.]