Howell Automatic Machine Co.

National Labor Relations Board - Board DecisionsJun 29, 1970

183 N.L.R.B. 1312 (N.L.R.B. 1970)

1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Howell Automatic Machine Company and District 54, International Association of Machinists and Aerospace Workers , AFL-CIO. Case 8-CA-5573 June 29, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND BROWN On February 18, 1970, Trial Examiner Eugene F. Frey issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor prac- tices 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 Na- tional 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 Examiner 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 exceptions, the brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that Respondent, Howell Automatic Machine Company, Strongsville, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. ' The Respondent's exceptions, in large part, are directed to the Trial Ex- aminer 's credibility findings. It is the Board's established policy not to over- rule a Trial Examiner 's credibility findings unless a clear preponderance of all the relevant evidence convinces us that they are incorect Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3) On the en- tire record, such a conclusion is not warranted here. However, in ac- cordance with certain other exceptions of the Respondent , we correct the Trial Examiner 's inadvertent statement that the Union won the second election conducted on July 10, 1969, and the Trial Examiner 's further er- roneous finding that Marlene Fenske was employed in the shipping depart- ment , rather than the machine shop , on the date of her discharge Moreover , in adopting the Trial Examiner 's findings that the Respondent had knowledge of Fenske's union activities and discharged her because of these activities , we do not rely on his finding that Alberta Coates was a su- pervisor , since Coates ' supervisory status was neither alleged nor proved. TRIAL EXAMINER 'S DECISION STATEMENT OF THE CASE EUGENE F. FREY, Trial Examiner: This case, which was tried before me at Cleveland, Ohio, on November 25, 1969, with all parties represented by counsel or other representative, involves the issue whether Respondent Howell Automatic Machine Company discharged and has failed to reinstate Marlene Fenske for cause, or because of activity on behalf of District 54, International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, in violation of Section 8(a)(3) and (1) of the National Labor Relations Act, 29 U.S.C. Sec. 151, et seq. (herein called the Act). The issue arises on a complaint issued Oc- tober 16, 1969, by the Board's Regional Director for Region 8,' and answer of Respondent admitting jurisdiction but denying the commission of any un- fair labor practices. At close of the testimony the Trial Examiner reserved ruling on a motion of Respondent to dismiss the complaint on the merits; the motion is denied on the basis of the findings and conclusions in this Decision. All parties waived oral argument at close of the testimony, but written briefs filed by General Counsel and Respondent have been duly considered in preparation of this Decision.' Upon the entire record in the case, including my observation of the witnesses on the stand, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS AND THE STATUS OF THE UNION Respondent is an Ohio corporation engaged in the manufacture and sale of screw machine parts at its principal office and place of business in Strongs- ville, Ohio, from which it has an annual direct out- flow of products valued in excess of $50,000. Respondent admits, and I find, that it is and has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Late in 1968 the Union began an organizing cam- paign among workers at Respondent's plant. On December 19, 1968, the Union lost a Board-con- ducted election held in Case 8-RC-7312 by a vote ' The complaint issued after Board investigation of a charge filed by the Union on August 29, 1969 t After the hearing closed , the parties submitted a joint stipulation for correction of the official transcript in certain respects . The transcript is hereby corrected in accordance with said stipulation, which is also added to the record herein as Joint Exh. I 183 NLRB No. 134 HOWELL ATUOMATIC MACHINE COMPANY of 64 to 26. That election was set aside and a second election was held on July 10, 1969, which the Union won by a vote of 18 to 17. Marlene Fenske was hired by Respondent in June 1967, worked a few months on a machine, and then was transferred to the shipping department where she was working at the time of her discharge on August 8, 1969. Fenske assisted the Union in Au- gust and September 1968 in its first organizing campaign by attending meetings of workers, openly soliciting employees in the plant for the Union by passing out and soliciting signatures of union authorization cards, and distributing union buttons containing a large "M" with "Vote Yes" superim- posed on it. She wore that button on her clothing while at work for a week before the 1968 election, and once Robert H. Pennock, president and owner of Respondent, noticed it while walking past her and commented "Yes, M is for management," and both laughed. During the campaign union or- ganizers openly distributed leaflets outside the plant, which was noticed by company supervisors and officials. One employee, Harriet Bert, who was then strongly antiunion, told Pennock in November 1968 that Fenske was distributing union cards in the plant, and, after she attended a union meeting shortly before the first election, she reported to her supervisor, Alberta Coates, on the events at the meeting including Fenske's active part in it. In that campaign Respondent openly indicated to em- ployees that it was against unionization of the plant, and passed out antiunion literature in support of its position 3 On June 28, 1969, Fenske went to a local hospital for an emergency operation and was absent from work for 6 weeks through August 8, 1969, as a result. On August 6 she telephoned Newton Pen- nock, secretary-treasurer of Respondent, to ask if she could take her vacation immediately following her sick leave, and also get her vacation pay at once because to that date she had not received any insurance payments or other sick leave compensa- tion. He said that would be all right provided she returned on August 18, the end of her vacation period. She agreed. On Thursday, August 7, she received from Respondent's insurance agent a letter requesting her hospital bill as proof of her ill- ness so that the insurance carrier could pay her the proper compensation. She took the bill to the office that day and, when giving it to the payroll clerk, Marge Hopkins, asked if she could have her vaca- tion pay a day early, since she made the trip to the office. Hopkins went into the inner office, then came out and said it was not ready as Newton Pen- nock had not signed it yet. Fenske retorted, "Don't tell me that, because they get paid on Thursday at the shop for the night shift," and added with a laugh that "they were afraid to part with their ' The above facts are found from credited testimony of Fenske, Jacqueline M Thomas, and Harriet Bert, and admission of Pennock and Supervisor Lawrence Wilt. 1313 money." Hopkins said she could not help Fenske any further and went back into the inner office. Fenske came to the plant Friday, August 8, where she saw Production Superintendent Lawrence Wilt, her immediate supervisor, talking to Robert H. Pennock. When they were through, she asked Wilt for her vacation check. After talking to Pennock, he told her Pennock would send the check out in a few minutes. When the payroll clerk brought it to her shortly, Fenske noticed it had a $15.48 deduction, so she asked Wilt what it was for, if it was an insurance deduction. He said he did not know, but asked if her entire family was covered by the insurance. She replied that it only covered her. He said he did not understand the deduction, but gave her a telephone number to call about it. Fenske did so, and asked some lady (not identified) about it. The latter said that since Fenske was out 6 weeks, the Company paid premi- ums only for the first 4 weeks, not 6. Fenske said she thought $15.48 was steep for only 2 weeks, that she had not received any money from the insurance company, and thought it was a "stupid operation." The lady said she could not help Fenske and hung up. As Fenske hung up the telephone, Robert Pen- nock came out of an office nearby and told her he had "let the statement go by from the day before" but he would not let the statement she just made go by, he did not need her "kind of people" in the shop, and she could "just get out and stay out." Fenske said the $15.48 deduction was a complete shock to her, she had been counting on this money, and that both she and her husband had been ill. Pennock said he could not help it if her husband was sick, but "that was the way they did it." Fenske has never been rehired or offered reinstatement by Respondent.' General Counsel contends Fenske was discharged because of her open and active support of the Union, and that it was palpably timed to exert coercion on employees shortly after the Union had won the second election by only one vote. Respondent claims the discharge was caused solely by Fenske's "insubordinate and derogatory" remarks on August 7 and 8. In support of the claim of discrimination, the facts found above clearly show that Respondent, and President Pennock in particular, was well aware of Fenske's activity for the Union before the first election, and that it ac- tively campaigned against the Union in that elec- tion and before the second. Further, uncon- tradicted testimony of Bert makes it clear that Robert H. Pennock encouraged her before the first election to attend union meetings and report thereon to him or her supervisor, which denotes the type of singular interest in employee protected ac- tivity which the Board has often found to be the forerunner of discrimination and other violations of ' The above events are found from stipulated facts, credited testimony of Fenske , and admissions of Robert H Pennock 1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act . Finally, I must find from uncontradicted testimony of Bert that , on the day the results of the first election were announced , she congratulated President Pennock personally on the outcome, and suggested he should get rid of Fenske . He replied that he had tried to do so the year before , after she had been bitten by a watchdog after she disre- garded a plant rule warning against contact with the dogs, but her supervisor had failed to get rid of her. Bert commented that Fenske was a "trouble- maker ," and Pennock agreed , telling Bert he could not get rid of Fenske at that time "because the Board would back her up ," but that "one way or another I will get rid of her ."' These circum- stances present a strong prima facie case of dis- crimination , as against which Respondent 's defense of discharge for insubordination and supporting contentions are not impressive. In the first place, Fenske's remarks on their face do not appear to be the type of derogatory and defiant remarks which tend to indicate actual disloyalty or rebellion against the Employer and his orders, either in fact or apparent intent . At most, her remarks on the 7th appear no more than short but intemperate and perhaps sarcastic expressions of opinion about payroll practices of the Company, and her complaint on the 8th dealt only with what she considered an unusually large deduction from her paycheck , with only a single , general disparage- ment of that "operation ." While Respondent presented some general and vague testimony of Su- pervisor Wilt and Robert H. Pennock which tends to indicate that Fenske had been a "marginal" em- ployee from the start of her employment 2 years before , and that Respondent had found it necessary to move her frequently between departments to find a place where she could do satisfactory work, there is nothing to show that she had ever been a disobedient , disloyal , or rebellious employee in the past, so that her disparaging remarks of August 7 and 8 were the first of this type which Respondent had ever experienced . While the explanation of the payroll clerk for the deduction from her check is credible, because it is based on a company policy established by uncontradicted proof , Fenske's ir- ritable outburst about it on the 8th is understanda- ble, because it is clear from her testimony and ad- missions of Pennock that employees had never been advised of the recently established company policy of making employees pay premiums for their group insurance for any period of illness beyond the first 4 months ; since Pennock knew this, it is strange that when he learned of her gripe about this he did not at once make the effort to explain the policy to her personally , since he admittedly talked with most employees in the plant almost daily. His silence raises a strong suspicion that he was ' Pennock recalled certain other discussions with Bert before the first election , but does not specifically deny the one found above ' Respondent argues that payroll clerk Hopkins was "visibly upset" by Fenske 's remarks and attitude on the 7th, but there is no credible testimony deliberately waiting to build a case against her on which to take terminal action . The suspicion becomes an inference , in light of his failure to reason with her on the 7th about her rather petty gripe about Respondent 's payroll practice and his precipitate seizure on her description on the 8th of the insurance premium deduction as a "stupid operation ," as ground for discharge , although she clearly explained why she was upset by the seemingly large deduction . He admits that Respon- dent often gets complaints from workers about the size of their paychecks and deductions from their pay, so that Fenske's complaint of the 8th was clearly no more than a normal employee gripe; I cannot view it , as Pennock does in his testimony, as a disturbing " insubordination " on his theory that no employee had previously expressed "displea- sure" on this score , or called the plant a "lousy place to work" for that reason . Fenske admitted she often "kidded" the payroll clerk in the past about paychecks coming out late on a Friday, so it is clear that her remarks on both days did not rise above the normal employee griping about the payroll system and deductions from pay, which Respondent frequently received and on which it had never before taken disciplinary action, much less discharge of employees , so far as the record here shows . This makes Pennock 's subjective testimony that her remark of the 7th , as well as those of the 8th , made him "extremely excited," all the more incredible .6 Even if I accept Pennock's story that he reasonably believed Hopkins' report on Fenske 's remarks, his claim that they were so bad as to upset him greatly and make him believe they were derogatory to the point of insubordina- tion is not persuasive , considering their mildness as found above, and particularly in view of his earli- er remarks to Bert that he would get rid of Fenske "one way or another ," a palpable indication that he would fire her on any pretext . Hence his sudden and arbitrary discharge of a known active union ad- herent for two instances of normal griping about company practices , without any attempt to satisfy the gripes of a senior employee who had survived large layoffs, and where her remarks did not occur in circumstances tending to disrupt morale of em- ployees or company operations in any way indica- tive of real insubordination or clear disloyalty, raises a strong inference that the reasons assigned for discharge were a pretext. This inference becomes stronger in light of Respondent 's reliance at the trial and in argument on the claim that Fenske had always been a "mar- ginal" worker , notwithstanding which Respondent had generously retained her at work despite sub- stantial economic layoffs of workers in the first half of 1969 ; from this Respondent would have the Trial to support this, for Pennock 's testimony on this is vague , and Hopkins, the crucial witness who heard the remarks, was not called by Respondent to testify , so it is inferable that her testimony would not support this claim. HOWELL AUTOMATIC MACHINE COMPANY Examiner and the Board draw the inference that Pennock had a right to view her remarks on August 7 and 8 as a form of "disloyalty," after Respondent had gone to the length of retaining her at work despite one serious violation of plant rules and general bad work. This is a very weak argument, for while her remarks on 2 successive days may have been some indication of callous indifference to Respondent's past generosity, the fact that Respon- dent had retained her at work as a senior employee during large economic layoffs is some indication that her past "marginal" work was not as bad as now depicted. In addition, Pennock admits that he never mentioned bad work or any other aspects of her past conduct when discharging her, and there is no record that she had ever been reprimanded orally or in writing for unsatisfactory work or misconduct.' I am satisfied and find that her alleged poor work was an afterthought defense at the trial, and that her long-suffered marginal performance was not the true motive for discharge. This tactic has long been considered by the Board as evidence of a desire to conceal a true discriminatory motive.8 After due consideration of all the pertinent facts and circumstances pro and con, and arguments of the parties, I am constrained to conclude that Respondent has not sustained the burden of adduc- ing cogent proof of discharge for cause which is adequate to rebut the prima facie case of dis- criminatory discharge made by General Counsel, and that General Counsel has sustained the ulti- mate burden of proof by substantial evidence in the whole record that Respondent discharged Fenske because of her activity on behalf of the Union, in violation of Section 8(a)(3) and (1) of the Act.' Ill. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with the opera- tions described in section I, above, have a close, in- timate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices , I recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. T Wilt admits that , at most , he had several times given her suggestions about improving her performance and efficiency and had shifted her from department to department, but he never recommended layoff or discharge 8 Crane and Breed Casket Company, 176 NLRB 348 1315 Having found that Respondent unlawfully discharged Marlene Fenske, I recommend that Respondent offer her immediate and full reinstate- ment to her former or substantially equivalent posi- tion, without prejudice to seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered as a result of the discrimination against her, by payment to her of a sum of money equal to the amount she would have earned from the date of discriminatory discharge to the date of a proper offer of reinstatement, less net earnings during said period, the backpay to be com- puted in the manner established in F. W. Woolworth Company, 90 NLRB 289, and to include interest at the rate of 6 percent per annum, as required by Isis Plumbing & Heating Co., 138 NLRB 716. The il- legal discharge also warrants a broad cease-and-de- sist order and notice. CONCLUSIONS OF LAW 1. The Union is a labor organization, and Respondent is engaged in commerce, within the meaning of the Act. 2. By unlawfully discharging Marlene Fenske as found above, the Respondent engaged in unfair labor practices affecting commerce within the meaning of Sections 2(6) and (7) and 8(a)(3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of their rights guaran- teed them by Section 7 of the Act, by said discharge, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sections 2(6) and (7) and 8(a)(1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case , it is recommended that Respondent, Howell Automatic Machine Company , its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in District 54, International Association of Machinists and Aero- space Workers, AFL-CIO, or in any other labor organization of its employees, by discharging any of its employees or discriminating in any other manner in respect to their hire or tenure of employ- ment , or any term or condition of employment, ex- cept to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , in con- 9 See Drexel Enterprises , Inc , 180 NLRB 272 In reaching this conclu- sion I have carefully considered Board and court decisions cited by Respondent but conclude that the longstanding principles set forth therein cannot control the issue here, on the facts and circumstances found above 1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD formity with the proviso to Section 8(a)(3) of the Act. (b) In any other manner interfering with, restraining , or coercing its employees in the exer- cise of rights guaranteed to them by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, in conformity with the proviso to Section 8(a)(3) of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer Marlene Fenske immediate and full reinstatement to her former or substantially equivalent position, without prejudice to seniority or other rights and privileges, and make her whole for any loss of pay suffered by reason of Respon- dent's discrimination against her, in the manner set forth in the section hereof entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at its plant in Strongsville, Ohio, copies of the attached notice marked "Appendix."10 Co- pies of said notice, on forms provided by the Re- gional Director for Region 8, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 8, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. I i APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Dis- trict 54, International Association of Machin- ists and Aerospace Workers, AFL-CIO, or any other labor organization of our employees, by discharging any of our employees or dis- criminating in any other manner in respect to their hire or tenure of employment or any term or condition of employment, except as such right may be affected by an agreement requir- ing membership in a labor organization as a condition of employment, in conformity with the proviso to Section 8(a)(3) of the Act. WE WILL offer to Marlene Fenske immediate and full reinstatement to her former or sub- stantially equivalent position, without preju- dice to her seniority or other rights and privileges, and make her whole for any loss of earnings suffered as a result of our discrimina- tion against her. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed to them by Sec- tion 7 of the Act, except as such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, in conformity with the proviso to Section 8(a)(3) of the Act. HOWELL AUTOMATIC MACHINE COMPANY (Employer) Dated By (Representative ) (Title) 10 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations, and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions , and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall be changed to read " Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 11 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing , within 10 days from the date of this Order , what steps Respondent has taken to comply herewith " This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 1695 Federal Office Building, 1240 East Ninth Street, Cleveland, Ohio 44199, Telephone 216-522-3715.