Jones Plastic and Engineering Corp.

National Labor Relations Board - Board Decisions

Nov 30, 1970

186 N.L.R.B. 947 (N.L.R.B. 1970)

JONES PLASTIC AND ENGINEERING CORP. 947
Jones Plastic and Engineering Corp . and Elizabeth J.
Coulter.' Case 9-CA-5195
November 30, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On November 17, 1969, Trial Examiner Jerry B.
Stone issued his Decision in the above-entitled
proceeding, finding that Respondent had not engaged
in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed in
its entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General Coun-
sel filed exceptions to the Trial Examiner's Decision
and a supporting brief. Respondent filed an answer-
ing 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
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 and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner with the following additions and
modifications.
The Trial Examiner found, and we agree, that
Respondent's discharge of Elizabeth J. Coulter was
not in violation of Section 8(a)(3) and (1) of the Act.
In so agreeing, we particularly note that there is no
evidence warranting a finding that prior to her
discharge the Respondent had reason to believe that
she was active on behalf of, or sympathetic to, the
Union.
On March 20, 1969, the day after Coulter's
discharge, there was a scheduled representation case
hearing concerning the Union's petition for determi-
nation of representation rights for the Respondent's
employees. At the time of the scheduled hearing the
parties discussed problems involved and agreed to a
consent election. It appears that at the outset of the
discussions the Respondent had a list of employees
involved, upon which Coulter's name appeared, but it
had been scratched out and the work "Quit" written
beside her name. When the union representative
questioned Coulter's status, the Respondent contend-
ed that she was "discharged for absenteeism," but
finally conceded that Coulter could be considered as
"laid off," and "having a reasonable expectancy of
recall."
Following the above-noted conference and determi-
nation of Coulter's status, the Union notified her of
the situation. Whereupon, on or about March 24,
1969, Coulter telephoned Harry Jones, Respondent's
vice president, and asked him about coming back to
work. Jones advised her that there was "nothing right
now," but to keep in touch.
On or about March 31, 1969, Coulter made a second
telephone call to Jones about coming back to work.
On this occasion, Jones told her that he could not use
her at this time and discussed her problem of
absenteeism. Jones also told Coulter that she should
not push the Union hard; she had a physical
handicap; and the employees would have to take
physicals if a Union got in and the girls would not like
this.
On April 10. 1969, when Mary Phillips, a coworker,
was at her home,2 and she made a third telephone call
to Jones and had Phillips listen to the conversation on
an extension. Coulter asked him about returning to
work and he told her that he could not take her back
at this time. Jones also told Coulter that he might not
have been fair to her; that he might have made a
mistake in that he wished that he had given her
another chance; but that he could not do so now.
Jones then told Coulter that she was complicating
matters by talking to him as there were rumors at the
plant that the Union was going to force the Company
to take her and certain other laid-off employees back;
and that if he put her back to work it would look as if
the Union had made him do so.
We find that the statements by Jones to Coulter that
"she should not push the Union hard" and "that if he
put her back to work it would look as if the Union had
made him do so" interfered with, restrained, and
coerced Coulter in the exercise of her rights guaran-
teed by Section 7 of the Act. Accordingly, we find that
the Respondent, by such statements, engaged in
violations of Section 8(a)(1) of the Act.3
The Trial Examiner also found that the Respondent
did not discriminate against Coulter by refusing to
rehire or recall her. We do not agree.
We have found, supra, that the Respondent, through
Harry Jones, violated Section 8(a)(1) of the Act on
two separate occasions when Coulter telephoned him
' The name in the caption appears as amended in accordance with the independent violations of Sec 8(a)(1) of the Act, we note that they were
record fully litigated at the hearing and that they relate to the subject matter of
2 The Trial Examiner inadvertently stated that Coulter had telephoned the complaint Accordingly . we make these additional findings Granada
from Phillips' home Mills, Inc , 143 NLRB 957, 958
3 While these statements were not alleged in the complaint as
186 NLRB No. 136
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and asked about coming back to work. On this first
occasion, Jones demonstrated his opposition to
Coulter's activities on behalf of, or sympathies with,
the Union, and that this opposition was a motivating
factor for Jones' refusal at that time to rehire or recall
Coulter. Such a discriminatory motivation if not clear
during the earlier conversation was amply demon-
strated on the second occasion, when Jones told
Coulter he had made a mistake and that he would like
to give her another chance but that "if he put her back
to work it would look as if the Union had made him
do so." Accordingly, we find that the Respondent, on
or about March 31, 1969, discriminated in regard to
the hire and tenure of Coulter's employment by its
failure to rehire or recall her, and that such failure
constituted a violation of Section 8(a)(3) and (1) of the
Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. General Drivers, Warehousemen and Helpers
Local Union No. 89, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America is a labor organization
within the meaning of Section 2(5) of the Act.
3. By failing and refusing to rehire or recall
Elizabeth J. Coulter, on or about March 31, 1969, and
April 10, 1969, in order to discourage union activities,
the Respondent has discriminated in regard to hire
and tenure of her employment, in violation of Section
8(a)(3) and (1) of the Act.
4. By interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order that it
cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act.
As we have found that, on or about March 31, 1969,
the Respondent discriminatorily refused to rehire or
recall Elizabeth J. Coulter, we shall order that the
Respondent offer to her full and immediate reinstate-
4 It appears that during the course of the hearing Elizabeth J Coulter
was offered reinstatement with seniority and that she orally accepted the
offer However, as the record does not show that the offer was made to her
former or substantially equivalent position without prejudice to other rights
ment to her former job or, if thatjob no longer exists,
to a substantially equivalent position, without preju-
dice to her seniority or other rights and privileges,4
and make her whole for any loss of earnings suffered
by reason of the discrimination against her by
payment of a sum of money equal to that which she
would normally have earned as wages from on or
about March 31, 1969, to the date of Respondent's
offer of reinstatement, less her net earnings during
said period, in the manner prescribed in P. W.
Woolworth Company, 90 NLRB 289, together with
interest thereon at the rate of 6 percent per annum, as
set forth in Isis Plumbing & Heating Co., 138 NLRB
716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Jones Plastic and Engineering Corp., Jeffersontown,
Kentucky, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Making coercive statements to employees
regarding their activities on behalf of, or membership
in, General Drivers, Warehousemen and Helpers
Local Union No. 89, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America.
(b) Refusing to recall or rehire employees, or
otherwise discriminating against them, because of
their activities on behalf of, or membership in, the
above-named labor organization, or any other labor
organization, which they may select as their exclusive
representative.
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Offer Elizabeth J. Coulter immediate and full
reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or other rights and
privileges, and make her whole for any loss of pay
which she may have suffered as a result of the
discrimination practiced against her, in the manner
set forth in the section of this Decision and Order
entitled "The Remedy."
(b) Notify Elizabeth J. Coulter if presently serving
in the Armed Forces of the United States of her right
to full reinstatement upon application in accordance
and privileges as well as seniority , and as the record fails to show that
Coulter, in fact, was reinstated and returned to work thereafter pursuant to
the apparent agreement at the hearing , we shall provide for our customary
remedial Order and the posting of notice
JONES PLASTIC AND ENGINEERING CORP. 949
with the Selective Service Act and the Universal
Military Training and Service Act, as amended, after
discharge from the Armed Forces.
(c) 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 determine the amount of
backpay due and the rights of reinstatement under the
terms of this Order.
(d) Post at its plant in Jeffersontown, Kentucky,
copies of the attached notice marked "Appendix."5
Copies of said notice, on forms provided by the
Regional Director for Region 9, after being duly
signed by an authorized representative of Respon-
dent, shall be posted by the Respondent 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
to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 9, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
5 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall 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 "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT make coercive statements to our
employees regarding their activities on behalf of,
or membership in, General Drivers, Warehouse-
men and Helpers Local Union No. 89, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica.
WE WILL NOT refuse to rehire or recall employ-
ees, or otherwise discriminate against them,
because of their activities on behalf of, or
membership in, the above-named labor organiza-
tion, or any other labor organization, which they
may select as their exclusive representative.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed them in Section
7 of the Act.
WE WILL offer Elizabeth J. Coulter immediate
and full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to her seniority and
other rights and privileges, and make her whole in
the manner provided in the Board's Decision for
any loss of earnings she may have suffered as a
result of the discrimination against her.
WE WILL notify Elizabeth J. Coulter if presently
serving in the Armed Forces of the United States
of her right to full reinstatement upon application
in accordance with the Selective Service Act and
the Universal Military Training and Service Act,
as amended, after discharge from the Armed
Forces.
All our employees are free to become, remain, or to
refrain from becoming or remaining members of the
above-named or any other labor organization.
JONES PLASTIC AND
ENGINEERING CORP.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Federal Building, Room 2407, 550 Main
Street, Cincinnati, Ohio 45202, Telephone
513-684-3686.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Trial Examiner: This proceeding, under
Section 10(b) of the National Labor Relations Act, as
amended , was tried pursuant to due notice on September
16, 1969, at Louisville, Kentucky.
The charge was filed on May 27, 1969. The complaint in
this matter was issued on July 16, 1969.
The issues concern whether the Respondent has discrimi-
nated in the hire and tenure of Elizabeth Coulter by
terminating or suspending her on March 19, 1969, and by
failing to rehire or recall her to work on March 24, 1969,
and thereafter . Thus the question is whether the Respon-
dent has violated Section 8(a)(1) and (3) by such conduct.
All parties were afforded full opportunity to participate
in the proceeding . Briefs filed by the General Counsel and
the Respondent have been considered.
Upon the entire record in the case and from my
observation of witnesses I hereby make the following:
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Based upon the pleadings, it is found that Jones Plastic
and Engineering Corp., the Respondent, is a Kentucky
corporation engaged in the production and sale of plastic
products at Jeffersontown, Kentucky. During the 12
months preceding July 16, 1969, a representative period,
Respondent had a direct outflow, in interstate commerce,
of goods and products valued in excess of $50,000 which it
sold and caused to be shipped from its Jeffersontown,
Kentucky, plant directly to points outside the State of
Kentucky.
Based upon the foregoing, and as conceded by the
Respondent, it is concluded and found that the Respondent
is, and has been, an "employer" as defined in Section 2(2)
of the Act, engaged in "commerce" and in operations
"affecting commerce" as defined in Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Based upon the pleadings, it is concluded and found that
at all times material herein General Drivers, Warehouse-
men and Helpers Local Union No. 89, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein sometimes
referred to as the Union, is and has been a labor
organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary Issues
Based upon the pleadings, it is concluded and found that
at all times material herein Harry Jones is and has been
general manager and an agent of Respondent, acting on its
behalf and a supervisor as defined in Section 2(11) of the
Act.
Another preliminary issue not directed to the merits of
the case but directed to potential "backpay" liability was
disposed of at the hearing. Thus on September 16, 1969, the
Respondent, in effect, offered Elizabeth Coulter uncondi-
tional reinstatement to her former position and Mrs.
Coulter accepted the same. It was agreed by the parties that
this tolled the question of "backpay" as of that date.' At the
trial the Respondent had made contention to the effect that
"reinstatement" offers to the Union and to representatives
of the NLRB in connection with attempts to settle the case
constituted an act that tolled the backpay question. The
facts in the record thereto and Counsel's statements reveal
such offers to be made in attempt to compromise the issues
as to remedy of "backpay" and "reinstatement" Offers of
reinstatement of such a nature are not unconditional offers
of reinstatement but are conditional upon the relinquish-
ment of contended rights otherwise and do not constitute
evidence of acts tolling backpay in cases which are litigated
I In view of the agreement by the parties at the hearing, and the
apparent equities of Respondent's recalling of former striking employees at
the same time , I find no need to question the appropriateness of this
reinstatement offer
2 The facts are based upon a composite of the credited aspects of the
upon the merits of the issues. Respondent's counsel appears
to have recognized this in his final statements concerning
the "tolling" of backpay as of September 16, 1969. In any
event, upon all of the facts and the equities thereto and the
agreement of the parties in open hearing, I find that any
question of "backpay" is tolled as of September 16, 1969.
B. Background2
The Respondent operates a plant and employs an average
complement of 80 employees. There is a high rate of
turnover among employees as evidenced by the fact that
some 320 employees were employed by the Respondent
during the last year. It is also clear that the Respondent has
been concerned about the problem of absenteeism as
evidenced by various notices to employees, posted in 1968
for the employees, and by the use of a program in giving
additional vacation days to employees with good attend-
ance records. The Respondent's notice concerning absen-
teeism, attendance, and incentive vacation days clearly
reveals Respondent's demonstrated concern to its employ-
ees over the question of absenteeism and attendance.
Respondent had further demonstrated its concern over
absenteeism by indicating to its employees that an
employee with more than three absences in a 6-month
period might be discharged.
Elizabeth J. Coulter commenced working for the
Respondent on August 26, 1968, and worked thereafter
until March 19, 1969. At this time the Respondent informed
Coulter that she was no longer needed and should not
return to work. During the period of time preceding March
13, 1969, Coulter had been absent from work a total of
seven times. From March 13, 1969, to March 19, 1969,
Coulter was absent from work. Coulter in effect during this
time stayed away from work because of doctor's orders,
advised the Respondent of her absence daily, and furnished
a doctor's statement to the Respondent about the need for
her absenteeism.3
At some points of time prior to March 19, 1969, on four
occasions, Jones, for the Respondent, had spoken to
Coulter about her problem of absenteeism. Coulter had also
heard Supervisor Neverly speak to a group to the effect that
"3 day[s]" absenteeism in 6 months might lead to discharge.
The union organizing campaign among Respondent's
employees commenced in the latter part of February 1969.
Coulter engaged in union activity around that time and
later talked to fellow employees, distributed union cards,
and succeeded in getting some 15 employees to sign union
cards. At some point of time prior to March 13, 1969,
Coulter heard Supervisor Neverly say that she did not like
the Union.
It appears that at some point of time after the latter part
of February 1969 and prior to March 19, 1969, the Union
filed a petition for determination concerning representation
of the Respondent's employees.
In sum, however, there is no evidence to reveal that prior
to the events after March 19, 1969, the Respondent had
testimony of Jones, Coulter, Phillips, and Judd
9 The record reveals that Mrs Coulter had suffered from polio and
perhaps has some physical handicap It is not clear whether the polio
condition or handicap is related to her absenteeism between March 13 and
March 19, 1969
JONES PLASTIC AND ENGINEERING CORP.
reason to believe that Coulter was engaged in union or
protected activities or had interests in or sympathies for the
Union.
C. The Events of March 19, 19694
On March 19, 1969, at 4 p.m., Respondent's secretary,
Carolyn Fredericks, told Coulter that she was no longer
needed and that she should not return to work.
D. Events of March 20, 1969
On March 20, 1969, there was a scheduled representation
case hearing concerning the Union's petition for determina-
tion of representation rights for Respondent's employees.
At the time of the scheduled hearing the parties discussed
problems involved and agreed to consent election agree-
ment.
In the discussions leading to a consent election agree-
ment, there were issues as to voting eligibility of Coulter,
and as to the voting eligibility of three other persons. The
issues as to Coulter appeared to be her employee status and
as to the three others whether they were supervisors or not.
It appears that at the outset of the discussions the
Respondent had a list of employees involved, upon which
Coulter's name appeared but was scratched out. The
Respondent had initially prepared this list prior to the
events of March 19, 1969. On this list, beside Coulter's
name was written the word "Quit."
The parties on March 20, 1969, discussed and argued
concerning the status of Coulter.5 The Respondent's
representative spoke in terms, at places in the discussion, of
Coulter's "quitting" and of her being discharged. The
Union's contentions thereto as expressed are not revealed.
At some point, apparently in an attempt to present
stipulations and agreements satisfactory to the NLRB
agent, the Respondent's representative spoke in terms of
Coulter's having a possibility of recall or being rehired.
I1 appears that the Respondent favored the inclusion of
the three employees, for whom a supervisor issue appeared,
on the voting eligibility list, and opposed the inclusion of
Coulter on said eligibility list. It further appears that the
Respondent, as a practical matter, was willing to agree to
Coulter's inclusion on the list, if the other three questioned
employees were also included. The NLRB representative
indicated a refusal to allow a consent election agreement on
such basis, if in fact there were not sufficient basis to
consider Coulter an employee within the meaning of the
Act. The Respondent then indicated that employees had
been discharged in the past for absenteeism and that some
had later been reemployed, that it could be considered in
the nature of a layoff, and that on such a basis there was a
reasonable expectancy of future employment of Coulter.
9 The facts are based upon Coulter's credited and undisputed testimony
5 All of the testimony concerning the March 20, 1969, events was
fragmentary, conclusionary, and questionable in context The facts are
based upon the credited aspects of Judd's and Jones' testimony and a fair
inference from all facts and logical consistency of the evidence
6 The facts are based upon Coulter's credited testimony
7 The testimony of all witnesses to the events of March 31, 1969, was
fragmentary and conclusionary and presents a question as to total context
The facts are based upon a composite of the credited aspects of the
testimony of Judd, Coulter, and Jones, a fair inference from all of the facts,
951
Following this, a consent election agreement was concluded
with Coulter's inclusion on the list of employees eligible to
vote. Other agreements were concluded making final and
binding the parties' agreements as to eligibility with respect
to the representation case.
E. Events of March 24, 19696
Following the March 20, 1969, consent election agree-
ment, the Union notified Coulter of the situation.
Thereafter, as indicated later in this Decision, Coulter, on
or about March 24, 1969, telephoned Jones, vice president
of Respondent. Coulter asked Jones about coming back to
work. Jones told Coulter that there was "nothing right
now," but to keep in touch.
F. Events of March 31, 19697
Later, apparently around March 31, 1969, Coulter was in
the Union's office with Union Representative Judd.
Coulter again telephoned Jones and asked about coming
back to work. Jones told Coulter that he could not use her
at this time, that she should look for a job elsewhere and
demonstrate her ability to work without absenteeism. Jones
told Coulter in effect that he had had to let her go because
of her absenteeism, that regardless of her reasons for
absenteeism he had to do so, that this might appear "hard"
to her but that he had to do so regardless of her problems.
Jones told Coulter that she (Coulter) should not push the
Union hard, and that she had a physical handicap, that if a
union got in that the Company would have to have
employees take physicals and the girls (employees) would
not like this.
G. Events of April 3, 19698
On April 3, 1969, Coulter voted without challenge in the
NLRB representation election . The Union won the
aforesaid election.
H. Events of April 10, 19699
On April 9, 1969, Coulter was at the plant and saw a
notice on the bulletin board pertaining to the need for
experienced operators on the second and third shifts.10
On April 10, 1969, Coulter was at Mary Phillips' home.
Coulter telephoned Jones and had Phillips to listen in on an
extension telephone.
Coulter again spoke to Jones about returning to work.
Jones told Coulter that he could not take her back at the
time. Jones told Coulter that he might not have been fair to
her, that he might have made a mistake in that he wished in
effect that he had given her another chance, but that he
could not do so now. Jones told Coulter in effect that she
and a logical consistency of all of the evidence
N The facts are undisputed and based upon Coulter's credited testimony
v The facts are based upon the credited aspects of the testimony of
Coulter, Phillips, and Jones, a fair inference from all of the facts, and the
logical consistency of the facts The testimony of all witnesses was
conclusionary and fragmentary Considering the total record, I am
convinced that Phillips' testimony that Jones said he could not "correct"
the mistake was conclusionary as to the facts set out herein
10 Jones credibly testified that the notice was for the purpose of getting
girls to transfer from the first shift to the second or third shift
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was complicating matters by talking, that there were
rumors at the plant that the Union was going to force the
Company to take Coulter and certain other laid-off
employees back to work. Jones told Coulter that if he took
her back, it would look as if the Union had made him put
her back to work.
Conclusions
I Considering all of the foregoing, I conclude and find
that the Respondent discharged Coulter on March 19, 1969,
for cause---absenteeism. The evidence relating to the
Respondent's agreements on March 20, 1969, as to
Coulter's status as regards voting eligibility are not a final
and binding determination for cases other than the
representation case involved or the ultimate representation
rights so determined by the representation procedures.
Considering all of the facts, including those relating to the
company position on absenteeism, Coulter's work record,
the events leading up to March 19, 1969, and the absence of
evidence of company knowledge as to her union activities,
the statements to Coulter on March 19, 1969, that she was
no longer needed and that she should not return to work, it
is clear that the facts reveal that Coulter was discharged on
March 19, 1969, for cause---absenteeism. i i
2. Considering all of the facts, I am convinced that the
facts preponderate for a finding that the Respondent has
not discriminated in refusing to rehire or recall Coulter to
work on March 24, 1969, or thereafter. Thus, as indicated,
the facts clearly reveal Coulter's discharge on March 19,
1969, for cause---absenteeism. In my opinion the facts
reveal that the Respondent continued to be motivated
against the recall or rehiring of Coulter because of said
absenteeism.
Under all the circumstances, I am convinced that Jones
considered that the statements at the consent election
agreement conference amounted to the use of the proper
words for the solution of the issues at such conference. I am
convinced that he did not change in his basic belief or
position that Coulter was a former employee discharged for
absenteeism. In my opinion the facts reveal that Jones
continued with such an attitude toward the reemployment
of Coulter. However, because of the actions at the consent
election agreement conference Jones felt compelled to talk
to Coulter when she called about employment. It is clear
that he told her in effect that he did not have ajob for her
11 1 found Jones to appear to be a credible witness and credit his
testimony to the effect that Coulter was discharged for absenteeism I have
considered the apparent inconsistency between Respondent 's notation of
"Quit" on the March 20, 1969, list of employees by Coulter's name and the
fact of discharge This inconsistency considered with the total weight of the
overall facts is insufficient to reveal that the discharge was discriminatory
If Respondent had known of Coulter's union activity and had been
discriminatorily motivated against her , it does not appear that usage of the
and for her to try elsewhere. In my opinion Jones was
attempting to eliminate the necessity of having to continue
to talk to Coulter about work. The events at the consent
election agreement conference revealed Coulter as a person
eligible to vote in the upcoming NLRB representation
election. I am convinced therefore that Jones attempted to
persuade her to be against the Union in his conversations
with her on March 24, 1969. After the election was over on
April 3, 1969, and with Coulter again asking about work on
April 10, 1969, I am convinced that Jones still did not want
to employ her because of the absenteeism problem and
spoke of rumors about the Union's attempt to force certain
rehiring as a pretextuous excuse to explain why he couldn't
rehire her.12 In sum the evidence preponderates for a
finding that the Respondent was motivated against the
employment, recall, or rehiring of Coulter because of her
absenteeism problem. Accordingly, I conclude and find
that the facts do not support a finding of conduct violative
of Section 8(a)(1) and (3) with respect to the discharge of,
on March 19, 1969, and the refusal to recall or rehire
Coulter, on March 24, 1969, or thereafter. Accordingly, it
will be recommended that the complaint in this matter be
dismissed.
CONCLUSIONS OF LAW
1. Jones Plastic and Engineering Corp., the Respon-
dent , is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. General Drivers, Warehousemen and Helpers Local
Union No. 89, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of the
Act.
3. The facts do not reveal that the Respondent has
engaged in unfair labor practices, as alleged, within the
meaning of Section 8 (a)(1) and (3) and within the meaning
of Section 2(6) and (7) 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 the complaint in this matter be
dismissed in its entirety
word "Quit" would have bolstered its position in defense Rather, it would
seem that it would be inviting a problem of dispute Considering all of the
facts, I am convinced that the word "Quit" was used as an inaccurate
description, alluding in effect that Coulter 's own action in absenteeism was
tantamount to her having quit
12 The total facts do not reveal that the Respondent was considering
Coulter for recall or rehire but in fact considered that she had been
discharged for cause Cf Shawnee Industries, Inc, 140 NLRB 1451