Livingston Pipe & Tube

National Labor Relations Board - Board Decisions

Jul 24, 1991

303 N.L.R.B. 873 (N.L.R.B. 1991)

873
303 NLRB No. 125
LIVINGSTON PIPE & TUBE
1 The Respondent has requested oral argument. The request is denied as the
record, exceptions, and brief adequately present the issues and the positions
of the parties.
2 The General Counsel’s motion to strike the Respondent’s exceptions is de-
nied.
3 In finding that the Respondent’s decision to discharge or suspend its em-
ployees was motivated by antiunion animus, and thus that the General Counsel
had met its initial burden of making a prima facie showing of discriminatory
discharge, the administrative law judge relied on the facts that: 1) the Re-
spondent had refused to bargain with the Union, and 2) the Respondent had
engaged in extensive conduct in violation of Sec. 8(a)(1) of the Act. The judge
found that this conduct consisted of: the Respondent’s interrogation of known
union adherents, including the alleged discriminatees; the Respondent’s cre-
ation of an impression among employees that their union activities were under
surveillance; the Respondent’s implication to employees that selection of the
Union would be futile; the Respondent’s promise of benefits to employees;
and the Respondent’s solicitation of an employee to get back the previously
signed union authorization cards during the course of the union campaign. The
Respondent presented no evidence to dispute these findings and has excepted
only to the impression of surveillance finding. As to this finding, it offers no
support for its exception.
The above-described 8(a)(1) conduct is alone sufficient to support an infer-
ence of antiunion animus, and we do not rely on the Respondent’s refusal to
bargain as a basis for finding animus.
4 With respect to the Respondent’s violation of Sec. 8(a)(5) and (1) through
its unilateral implementation of a revised absenteeism and tardiness program,
the judge’s remedy and recommended Order is deficient in failing to provide
a make-whole remedy for any employees who were discharged, disciplined,
or otherwise denied work opportunities as a result of the institution of the new
program. The identities of any such employees can be determined in compli-
ance. Boland Marine & Mfg. Co., 280 NLRB 454, 454–455 (1986). We have
also included in the Order a description of the bargaining unit to which the
bargaining obligation applies and changed the language of certain sections to
conform to the violations found.
5 The judge mistakenly indicates, in the discussion section of his decision,
that this comment was made to Sexton after the May 23 accident. Although
Sexton at first so testified, he subsequently corrected that testimony.
Livingston Pipe & Tube, Inc. and Local 483 of the
International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers and
Helpers, AFL–CIO. Case 14–CA–19769
July 24, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On November 7, 1990, Administrative Law Judge
Richard H. Beddow, Jr. issued the attached decision.
The Respondent filed exceptions1 and a supporting
brief. The General Counsel filed a motion to strike the
Respondent’s exceptions2 and the Respondent filed a
response to the General Counsel’s motion.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,3 and con-
clusions and to adopt the recommended Order, as
modified4 and set forth in full below.
The Respondent has excepted, inter alia, to the
judge’s finding that the respondent seized on a minor
incident occurring October 27, 1988 (namely the slight
denting with a forklift of a doorframe to a dilapidated
warehouse) to rid itself on November 2 of employee
Daniel Sexton, a union adherent. The Respondent, al-
though acknowledging the minor nature of the accident
when viewed by itself, asserts that the judge failed to
examine Sexton’s employment as a whole, in consid-
ering the lawfulness of his discharge. Specifically, it
cites certain factors (identified below) which it claims
it relied on in discharging Sexton and which, it asserts,
were not taken into consideration by the judge. As a
result, it contends, the judge committed reversible
error. For the following reasons, we find no merit in
the Respondent’s exceptions and therefore affirm the
judge’s findings and conclusions concerning Sexton’s
discharge.
One factor that the Respondent claims the judge did
not consider in reviewing Sexton’s employment record
involves a forklift accident that occurred either in late
1986 or early 1987. According to Sexton’s undisputed
testimony, this accident, for which he was responsible
and which cost the Respondent $2000, did not result
in his being reprimanded. Indeed, at the time of its oc-
currence the operations manager merely commented,
‘‘it looks like Yard 2 is bad luck to you [sic] . . . be
more careful.’’5 Of more significance, however, is that
the 1986 or 1987 accident was not mentioned in either
the May 24, 1988 warning notice issued to Sexton for
his damaging a forklift in an accident on May 23,
thereby closing Yard 2 for 90 minutes, or the Novem-
ber 2 discharge letter. Yet both of those documents
were specific as to other incidents involving Sexton’s
purported negligent operation of a forklift. We there-
fore find that the Respondent’s reliance on this acci-
dent as a reason for Sexton’s discharge is an after-
thought and thus does not establish that it would have
discharged Sexton even absent his union activities.
Another factor the Respondent claims the judge ig-
nored is the admonition to Sexton, contained in the
May 24 warning notice, that any further acts of care-
lessness or recklessness on his part would result in
‘‘significant discipline up to and including termi-
nation.’’ We note, however, that the Respondent has
left out the qualifying language after ‘‘termination’’
that ends the quoted statement, to wit, ‘‘depending on
the seriousness of the incident.’’ Sexton’s undisputed
testimony establishes that the accident occurred be-
cause the brakes on the forklift failed, a fact Sexton
made known to his supervisor on November 2 when
he was questioned about the incident. Given the ‘‘seri-
ousness’’ qualification in the warning notice, the Re-
spondent has failed to establish that an accidental dent-
ing of a doorframe in a warehouse in need of substan-
tial repair caused by a mechanical failure outside Sex-
ton’s control, would have resulted in Sexton’s termi-
nation, had he not been a union adherent.
Similarly, we find no merit to the Respondent’s con-
tention that the judge failed to give proper weight to
874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the fact that, insofar as the October 27 accident is con-
cerned, Sexton’s discharge was as much based on his
failure to report the accident as it was on the accident
itself. Sexton’s undisputed testimony, as noted by the
judge, shows that, at the time of the accident, he did
not report it because his supervisor was not around and
he reasonably did not view it as consequential. When
later questioned about it he readily admitted his re-
sponsibility.
Finally, we do not agree with the Respondent that
the judge’s failure to mention the 90-minute shutdown
in Yard 2 following Sexton’s accident with the forklift
on May 23, warrants reversal of the judge’s finding
that the Respondent’s asserted reasons for Sexton’s
discharge were pretextual. Both the accident and the
shutdown were addressed, as previously noted, in the
May 24 warning notice. The judge did discuss the no-
tice and underlying accident, which he deemed to be
minor owing to the small cost to the Respondent to re-
pair the forklift. What is most significant, however, is
that the Respondent itself judged the entire incident,
and Sexton’s record up to that point, as warranting
only a warning notice that stated in effect that Sexton
could be discharged in the future if he were involved
in an act of serious carelessness or recklessness. As
noted above, the Respondent failed to show cir-
cumstances that could plausibly bring the October 27
doorframe incident within the category of conduct for
which the notice threatened discharge.
Accordingly, having found no merit to the Respond-
ent’s exceptions, we adopt the judge’s finding that the
Respondent seized on the October 27 incident as a pre-
text for discharging Sexton.
ORDER
The National Labor Relations Board orders that the
Respondent, Livingston Pipe & Tube, Inc., Staunton,
Illinois, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Interrogating employees about union activities,
implying to employees that selection of a union would
be futile, creating the impression that union activities
are under surveillance, promising benefits during the
course of a union campaign, and soliciting employees
to get back union authorization cards.
(b) Suspending, discharging, or otherwise discrimi-
nating against employees for engaging in union activ-
ity.
(c) Refusing to bargain in good faith with Local 483
of the International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers and Helpers,
AFL–CIO, as the certified collective-bargaining rep-
resentative of the employees at its Staunton, Illinois fa-
cilities.
(d) Unilaterally implementing an absenteeism and
tardiness program without providing the Union with
notice and an opportunity to bargain about the pro-
gram.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Mike Jarman, Daniel Sexton, and Alberic
Vancauwelaert immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and make them, as well as Jeffrey
Hausman, whole for any loss of earnings and other
benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy
section of the decision.
(b) Remove from its files any reference to the un-
lawful discharges and suspension and notify the em-
ployees in writing that this has been done and that the
discharges and suspension will not be used against
them in any way.
(c) Rescind the unilaterally implemented absentee-
ism and tardiness program.
(d) Offer all unit employees discharged, suspended,
or otherwise denied work opportunities as a result of
the unilaterally implemented absenteeism and tardiness
program immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed.
(e) Make whole all unit employees for any losses
they may have suffered as a result of the unlawful im-
plementation of the absenteeism and tardiness program,
with interest computed in the manner set forth in the
remedy section of the decision. In addition, remove
from its files any reference to any discipline imposed
under the program, and notify the affected employees
that this has been done and that the discipline will not
be used against them in any way.
(f) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
approprite unit on terms and conditions of employment
and, if an understanding is reached, embody that un-
derstanding in a signed agreement:
All production and maintenance employees em-
ployed by the Employer at its Staunton, Illinois
facilities, excluding office clericals and profes-
sional employees, guards, and supervisors as de-
fined in the Act.
(g) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, its agents for examination and copy-
875LIVINGSTON PIPE & TUBE
6 If this 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
ing, all payroll records, social security payments
records, timecards, personnal records reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(h) Post at its Staunton, Illinois facility copies of the
attached notice marked ‘‘Appendix.’’6 Copies of the
notice, on forms provided by the Regional Director for
Region 14, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent had taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interrogate employees about union ac-
tivities or imply to employees that selection of a union
would be futile and WE WILL NOT create the impres-
sion that union activities are under surveillance.
WE WILL NOT promise benefits during the course of
a union campaign and WE WILL NOT solicit employees
to get back union authorization cards.
WE WILL NOT suspend, discharge, or otherwise dis-
criminate against employees for engaging in union ac-
tivity.
WE WILL NOT refuse to bargain in good faith with
Local 483 of the International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths, Forgers and
Helper, AFL–CIO, as the certified collective-bar-
gaining representative of our employees at our Staun-
ton, Illinois facilities.
WE WILL NOT unilaterally implement an absenteeism
and tardiness program without providing the Union
with notice and an opportunity to bargain about the
program.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed them by Section 7 of the Act.
WE WILL offer Mike Jarman, Daniel Sexton, and
Alberic Vancauwelaert immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed, and make them whole for the
losses they incurred as a result of the discrimination
against them, with interest.
WE WILL make Jeffrey Hausman whole for any loss
of earnings he may have suffered because of the dis-
crimination practiced against him, with interest.
WE WILL remove from our files any reference to
Mike Jarman, Daniel Sexton, and Alberic
Vancauwelaert’s discharges and Jeffrey Hausman’s un-
lawful warning and suspension and notify them in
writing that this has been done and that evidence of
the unlawful discharges, warning, and suspension will
not be used as a basis for future personnel actions
against them.
WE WILL rescind the unilaterally implemented ab-
senteeism and tardiness program.
WE WILL offer all unit employees discharged, sus-
pended, or otherwise denied work opportunities as a
result of the unilaterally implemented absenteeism and
tardiness program immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed.
WE WILL make whole all unit employees for any
losses they may have suffered as a result of the unlaw-
ful implementation of the absenteeism and tardiness
program, with interest. WE WILL also remove from our
files any reference to any discipline imposed under this
program, and notify the affected employees that this
has been done and that the discipline will not be used
against them in any way.
WE WILL recognize and, on request, bargain with the
Union as the exclusive collective-bargaining represent-
ative of the employees in the following appropriate
unit and if an agreement is reached, embody that
agreement in an executed written contract:
All production and maintenance employees em-
ployed by the Employer at is Staunton, Illinois fa-
cilities, excluding office clericals and professional
876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All following dates will be in 1988 unless otherwise indicated.
2 An additional charge alleging Respondent’s failure to supply information
to the Union was settled prior to the hearing and withdrawn.
employees, guards, and supervisors as defined in
the Act.
LIVINGSTON PIPE & TUBE, INC.
Michael T. Jamison, Esq., for the General Counsel.
Rick Verticchio, Esq., of Gillespie, Illinois, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW, JR., Administrative Law Judge.
This matter was heard in St. Louis, Missouri, on April 30,
1990. Subsequently, briefs were filed by Respondent and the
General Counsel. The proceeding is based on a charge filed
October 14, 1988,1 as amended, by Local 483 of the Inter-
national Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, AFL–CIO. The Regional
Director’s complaint dated March 2, 1990, alleges that Re-
spondent, Livingston Pipe & Tube, Inc., of Staunton, Illinois,
violated Section 8(a)(1), (3), and (5) of the National Labor
Relations Act by interrogating employees and otherwise
interfering with employee’s rights during a union campaign;
discharging and suspending employees in retaliation for their
union activities; and failing and refusing to recognize and
bargain with the Union and by unilaterally implementing an
absenteeism and tardiness program.
On a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in the distribution and sale of pipe
at two facilities near Staunton, Illinois. It annually purchases
and receives goods and materials valued in excess of $50,000
directly from points outside Illinois and it admits that at all
times material it has been an employer engaged in operations
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act. It also admits that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
After a campaign that began in March 1988, an election
on May 20, and the Regional Director’s June 15 report on
objection and recommendation that the Union be certified,
the Union was certified as the collective-bargaining rep-
resentative of all the approximately 14 to 18 production and
maintenance employees at Respondent’s two Staunton yards
on February 23, 1990.
Employees Mike Jarman, Daniel Sexton, and Alberic
Vancauwelaert, as well as Jeffrey Hausman, who subse-
quently were discharged and suspended, respectively, all
signed authorization cards, attended union meetings, and dis-
played union buttons or stickers. Respondent does not con-
tradict the testimony by each of these witnesses that during
the union campaign, various representatives of the Employer,
including Foreman Stanley Pirok, Plant Manager Bill
Dittmar, Supervisor Gary Buske, and President Mike Favre
engaged in discussions with the employees inquiring as to
whether they supported the Union and why they supported
the Union as well as promising them benefits and tickets to
a baseball game, indicating that they knew an employee had
parked his car near a union meeting, soliciting an employee
to get other employees to get back their signed authorization
cards, and implying that selection of a union would be futile.
The election was held on May 20 and the Union’s selection
was upheld by the Regional Director on June 15, and, as
noted, upheld by the Board in February 1990.
Respondent agrees that it did not accept the decision of the
Regional Director pertaining to certification of the May 20,
1988 election and did not recognize and bargain with the
Union, however, its actions after the decision of the Board
was rendered, indicated some recognition of its duty to rec-
ognize and bargain with the Union.2
On June 20, Operations Manager Dittmar handed em-
ployee Jarman a letter dated June 20 which said that he had
been reprimanded previously for excessive absenteeism and
tardiness, been given 2 days off during the last 12 months
for excessive absenteeism, and that he was hereby terminated
for cause. Jarman recalled that he had failed to work vol-
untary overtime on a Saturday sometime in 1987, and that
on returning to work that Monday, was given 2 days off by
Foreman Pirok. Otherwise, Jarman testified that he had never
received any verbal or other written warnings for absentee-
ism or tardiness and knew of no absenteeism or tardiness
program in effect by Respondent. The latter testimony was
confirmed by other employees who likewise had not been in-
formed of any program.
Foreman Pirok testified that the procedure used by the
Company for employees not reporting to work included ad-
vance notification to the supervisor or the operational man-
ager of an employee’s unavailability for work, or in the alter-
native, that the employee contact the employer in the early
morning of each day prior to the commencement of the 7
a.m. workday if an employee was required to be absent.
He also testified that the longstanding policy of the Com-
pany provided that supervisory personnel, on receiving re-
ports of employees’ absenteeism, were to maintain informa-
tion in the employees’ personnel file and that when super-
visory personnel determined that an employee has engaged in
excessive absenteeism, a verbal warning would then have to
be given to the employee that any further absenteeism would
result in a suspension or would result in disciplinary action
including suspension or termination.
He also said, however, that they didn’t have any certain
number of days that could be taken off before a warning or
discipline and said he just would ‘‘keep it in my head’’ to
know when someone had an excessive amount of absentee-
ism. He would give verbal warnings but go to President
Favre for ‘‘the last call’’ on suspensions or terminations.
Pirok said he participated in hiring Vancauwelaert and ad-
mitted that: ‘‘probably the only thing I told him was that if
he was going to be absent, to let me know as much a head
of time as he possible could.’’ He admitted that he didn’t
give any such instructions to Jarman or Sexton but said he
877LIVINGSTON PIPE & TUBE
spoke to Jarman about being late (if someone is more than
5 minutes late it would be reflected by the timeclock and his
pay would be adjusted accordingly).
Jarman called in on June 20 and said he would be absent.
Pirok did not take the call but later learned that Jarman was
absent. Pirok said he knew of the 2 days’ suspension in 1987
and a verbal warning so he went directly to Favre and, after
reviewing the matter, decided to let Jarman go.
On September 16, Respondent discharged Alberic
Vancauwelaert after Vancauwelaert called in about 6:45
(prior to his 7 a.m. starting time) and advised Supervisor
Buske that his wife was sick and needed to be looked at and
couldn’t be left by herself, Buske said he would tell Pirok.
When Vancauwelaert later went to work about 4 p.m. that
same day to pick up his paycheck, he was told to see Fore-
man Pirok who then gave him a letter dated September 19
that stated Vancauwelaert had been previously reprimanded
for excessive absenteeism, had been given two disciplinary
days off without pay within the last 12 months for excessive
absenteeism and that he was terminated for cause.
Vancauwelaert testified he had never been advised of any ab-
senteeism or tardiness policy. Vancauwelaert testified that in
the past when he had been late or tardy he would call in and
advise Pirok that he would not be in that day or he would
be late and he had not been reprimanded or told the time off
would be held against him until July 18 when he was given
a letter which said he had been absent a total of 15-1/2
working days in the past 12-month period, was assessed a 2-
day suspension without pay and warned that the next unex-
cused absence or pattern of absences excused or unexcused
would result in termination. Vancauwelaert explained that 2
of those days were excused for his father-in-law’s death and
the other days off were the result of protracted court pro-
ceedings against him by his ex-wife and that he notified
Pirok both a week and a day before each occasion and each
time was told it was okay and not otherwise told it would
be charged against him.
On September 29, Respondent suspended Jeff Hausman
for 30 days. Hausman was scheduled to start work at 7 a.m.
but did not arrive until 7:45 (because his young daughter had
tampered with his alarm clock). After arriving Hausman was
told to go about his regular work, however, at 3:30 p.m.
Pirok and Buske handed him a letter which stated that he
was suspended for 30 days without pay for being late and
tardy. The letter said that he previously had been suspended
for 2 days in September 1987 for attendance infractions and
told he would be subjected to added discipline for further in-
fractions, that he had been absent from work 5-1/2 days dur-
ing 1988 and tardy twice. Hausman explained that the 5-1/2
days mentioned included days on which Hausman was under-
going hospital tests and had been in the hospital for 3 days.
Hausman testified that otherwise he was orally reprimanded
for being late in 1987 by Pirok. He also explained that the
2-day suspension was for failing to appear as volunteer on
a Saturday after he had not volunteered when asked the pre-
vious day but had told Dittmar he would be there if he
could, if he didn’t have something else to do, and received
no other comment from Dittmar.
On November 2, Respondent terminated Daniel Sexton for
repeated irresponsible behavior because he caused damage to
a building on October 27 that he failed to report and that
previously, on May 24, he had received a warning for care-
lessness with equipment and added that he was not subject
to rehire. Sexton acknowledged that he had received a dis-
ciplinary letter from Operations Manager Bill Dittmar on the
May 24th incident, which involved Sexton’s accidental
bumping of his forklift against a scrap tub that knocked off
a couple of steel nipples. He recalled that the forklift was re-
paired that same day at a small cost to the Company.
Sexton testified that the incident on Thursday, October 27,
occurred when his brakes failed as he was exiting the build-
ing in Yard 2 via a slight incline and he hit the side of the
doorframe, bending it back a little. Testimony about and pho-
tographs of the building show that the structure is in a state
of substantial disrepair, with holes in the roof, broken win-
dows, doors hanging off hinges, and holes in the walls. Sex-
ton did not think the slight bend to the doorframe was of any
consequence and as Foreman Pirok was on vacation at the
time, and Supervisor Buske was not around, Sexton did not
think it necessary to report the incident. Nothing else hap-
pened or was said until the following Wednesday, November
2, when Buske asked Sexton if he had hit the doorframe and
Sexton admitted that he had when the brakes on the forklift
failed. Buske asked why Sexton had not reported the incident
to him and Sexton replied that Buske was nowhere to be
found. At about 3 that afternoon, Pirok handed Sexton the
already prepared discharge letter which said he was termi-
nated for irresponsible behavior. Sexton explained what had
happened but Pirok shook his head and said that was the way
it was going to be.
Discussion
On brief, the Respondent admits that it did not recognize
and bargain with the Union following the election and Re-
gional Director’s June 15, 1988 recommendation that the
Union be certified until after the Board’s ultimate Certifi-
cation of Representation on February 23, 1990, and that it of-
fered no evidence to dispute the testimony regarding its al-
leged interrogation of the employees and related 8(a)(1) vio-
lations and states that it would agree that an appropriate find-
ing should be made and an order entered by the Board di-
recting Respondent to defer from any future improper ques-
tioning or discussion with the employees concerning their
union affiliation and that it would further agree to post nec-
essary notices within its place of business that acknowledge
the employees’ rights for union affiliation. It also states that
it would agree to a recommendation and order directing Re-
spondent to continue to recognize and bargain with the
Union.
The record contains sufficient and suitable evidence to
support the allegations in the above matters and, accordingly,
I find that Respondent is shown to have interrogated employ-
ees about union activities, implied to employees that selec-
tion of a union would be futile, created the impression that
union activities were under surveillance, promised benefits,
and solicited employees to get back union authorization cards
during the course of a union campaign, all in violation of
Section 8(a)(1) of the Act as alleged.
The principal remaining issue is the matter of the dis-
charge and suspension of several employees and, in a case
of this nature, applicable law requires that the General Coun-
sel meet an initial burden of presenting sufficient evidence
to support an inference that the employees’ union or other
protected, concerted activities were a motivating factor in the
878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 In the last 2 years, Respondent disciplined or terminated 11 employees and
7 of the 11 disciplinary actions were against the alleged discriminatees; 1 other
suspension and discharge was for threatening another employee; 1 was of a
probationary employee; and 1 was for dangerous horseplay on a forklift; there
were no written reprimands issued in 1987; and the reprimands issued in 1988
to Jarman, Vancauwelaert, Sexton, and Hausman all occurred after the May
20 vote in support of union representation.
4 Although the Respondent had ‘‘some’’ attendance related reasons, I find
that each disciplined employee had provided timely notice for his absence and
had no reasonable notice from management that prior excused absences would
count against him. Jarman’s prior warning appears to have been of question-
able merit, for not working a ‘‘voluntary’’ Saturday; Vancauwelaert’s warning
occurred shortly after the election for excused absences regarding mostly re-
quired court appearances and stated that an unexcused absence or pattern of
excused or unexcused absences would result in termination. Hausman past
record showed a 2-day suspension for not working a ‘‘voluntary’’ Saturday
he had not volunteered for, that 3 of 5 days of excused absences was for a
hospitalization, that he had not been verbally warned for any of his several
past tardiness and nothing was said when he was 45 minutes late until the
end of the day when he then was suspended for 30 days. Also, there was no
showing that the work done or the Respondent’s production needs were such
that the absence of any of these employees caused the Employer any particular
inconvenience or problem.
employer’s decision to terminate or suspend the employees.
Here, the record shows that the Respondent engaged in ille-
gal interrogations regarding the Union with each of the al-
leged discriminatees, who each had engaged in overt union
activities, and it admittedly did not recognize and bargain
with the Union when it was requested to do so after the elec-
tion and the Regional Director’s recommendation of June 15
that the Union be certified.
Under these circumstances, the record contains sufficient
and suitable evidence to persuasively support an inference of
antiunion animus and I find that the General Counsel has met
his initial burden and made a prima facie showing that the
employees’ union activities were a motivating factor in Re-
spondent’s subsequent decision to terminate or suspend the
alleged discriminatees. Accordingly, the testimony will be
discussed and the record evaluated in keeping with the cri-
teria set forth in Wright Line, 251 NLRB 1083 (1980); see
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983), to consider Respondent’s defense and, in the light
thereof, whether the General Counsel has carried his overall
burden.
Respondent’s defense is based on its contention that its
termination or suspension of the alleged discriminatees was
justified based on its right to maintain discipline and in ac-
cordance with its absenteeism and tardiness program.
On brief Respondent admits that its discipline policies ar-
guably could be viewed as not uniform and its absenteeism
and tardiness program as nonspecific and not uniform in its
application. In fact, the evidence clearly supports such a view
and clearly shows that Respondent had no written policies,
had only communicated to employees a generalized verbal
policy that they give advanced notice (unencumbered by any
standards for consideration of excessive absences), and that
it had no objective criteria or past application of objective
standards or discipline.3
Otherwise, the Respondent mistakenly asserts that it is the
General Counsel’s burden to show that the discipline was
discriminatory and in retaliation against union activities. As
noted above, the General Counsel met its initial burden of
showing that union activities were a motivating factor and
the burden thereafter shifted to the Respondent under the
Wright Line criteria, supra.
Here, I find that Respondent’s extreme reaction to Sex-
ton’s extremely minor bumping of the warehouse doorframe
and its characterization as ‘‘repeated irresponsible behavior’’
is illustrative of the pretextual nature of Respondent’s as-
serted reasons. First, although Sexton also had received a
written warning 4 days after the election for carelessness
which caused some minor damage to a forklift, this other-
wise was treated as a minor incident with a comment from
Manager Dittmar that it was bad luck and to just be more
careful. The alleged damage on October 27, however, was
nothing more than a scrap or small dent in the side frame
of the open entrance to a decrepitated building, with no ap-
parent damage to the forklift. This building otherwise was in
a complete state of disrepair with well worn paint, glassless
windows, an open, wall-less corner, two sections of missing
roof, and displaced window frames and trim. After Foreman
Pirok belatedly learned that Sexton was involved, he imme-
diately prepared a written discharge and without investigation
elevated this occurrence (or even the failure to report it) to
a dischargeable offense described as ‘‘repeated irresponsible
behavior,’’ and he further embellish the discharge with an
admonition that Sexton was ‘‘not subject to rehire.’’ Pirok
thereafter refused to listen to Sexton’s attempted explanation
and the totality of his conduct clearly support an inferences
that Respondent’s asserted reasons for Sexton’s discharge are
pretextual.
I am persuaded that Respondent seized on this minor inci-
dent as an opportunity to rid itself of a union supporter at
a time when it had pursued similar opportunities with
Jarman, and Vancauwelaert, and was contemporaneously re-
fusing to acknowledge the Union’s victory in the election.
The terminations of Jarman and Vancauwelaert, as well as
the suspension of Hausman, within a few month of the elec-
tion and after they each were subjected to illegal interroga-
tion, likewise are unsupported by objective reasons4 that
could be consistent with any existing or discernible attend-
ance or disciplinary policies or standards. I find in each in-
stance, that the stated reasons are pretextual and, accordingly,
I conclude that the Respondent has failed to show that these
employees would have been subjected to such extreme dis-
cipline absent their recent protected union activities and the
success of the Union in wining the election.
Accordingly, I find that the General Counsel otherwise has
met his overall burden of proof and I further conclude that
by terminating employees Jarman, Vancauwelaert, and Sex-
ton on June 20, September 16, and November 2, respectively,
and by suspending employee Hausman on September 29, Re-
spondent is shown to have violated Section 8(a)(1) and (3)
of the Act, as alleged.
Turning to the alleged violations of Section 8(a)(5) of the
Act, Respondent now expresses its willingness to recognize
and bargain with the Union, however, it argues that it had
no obligation to recognize and bargain with the Union until
the Board ruled on Respondent’s exceptions to the Regional
Director’s Report on Objections and that it therefore was not
obligated in 1988 to bargain about alleged changes in its
absenteeism/tardiness program, a program that it asserts has
always been in effect.
As noted by the General Counsel, the Board consistently
has held that an employer acts at its own peril by refusing
to recognize and bargain with the union and by making uni-
879LIVINGSTON PIPE & TUBE
5 Under New Horizons, interest is computed at the ‘‘short-term Federal rate’’
for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C.
§ 6621.
lateral changes during the period between the election and
the Board’s certification. When the Board certifies the union,
the bargaining obligation goes back to the date of the elec-
tion and therefore the employer acts at its peril in making
changes in mandatory terms and conditions of employment
without notice to and without bargaining with the union; see,
for example, Valley Oil Co., 210 NLRB 370, 379 (1974);
and Fleming Mfg. Co., 119 NLRB 452 (1957).
Here, the testimony of the employee witnesses persua-
sively demonstrated that they had not been informed of any
objective absenteeism/tardiness policy prior to the Employ-
er’s de facto and unilateral implementation of such a pro-
gram beginning shortly after the Union won the election on
May 20, through means of the termination notice given to
Jarman on June 20. The record otherwise shows that Re-
spondent did not discipline or terminate anyone prior to the
election on May 20, 1988, solely for absenteeism, except for
two separate occasions where employees were given a short
suspension for allegedly failing to work so-called ‘‘vol-
untary’’ Saturday overtime and that its only real standard for
absenteeism was a request that the employee give prior noti-
fication. No standard existed for the ‘‘quality’’ of the pur-
pose of an absence (i.e., hospitalization, court subpoenas,
family illnesses), and no standard existed for the number of
permissible absences, excused or unexcused.
Respondent admittedly failed to recognize and bargain
with the Union after receiving the Union’s letter of June 21,
1988, which requested bargaining and it never bargained
with the Union or notified the Union regarding its unilateral
implementation of its significantly more strict
absenteeism/tardiness program (a program which otherwise
was used as a pretext to give a 30-day suspension to one
union supporter and to terminate two other union activists).
I concluded that Respondent’s actions in this regard show an
improper and unilateral implementation of new terms and
conditions of employment, as well as a failure to recognize
and bargain with the Union in any respect during the period
of time between the election of May 20, 1988, and the subse-
quent decision and certification by the Board, and I therefore
find that this conduct is shown to be a violation of Section
8(a)(5) of the Act, as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interrogating employees concerning their union sym-
pathies and activities and those of other employees, by cre-
ating the impression that union activities are under surveil-
lance, by offering baseball tickets and other implied benefits
during the course of a union campaign, by implying that se-
lection of a union would be futile, and by soliciting an em-
ployee to get other employees to get back their signed union
authorization cards, Respondent has interfered with, re-
strained, and coerced its employees in the exercise of their
rights guaranteed in Section 7 of the Act and thereby has en-
gaged in unfair labor practices in violation of Section 8(a)(1)
of the Act.
4. By discharging employees Mike Jarman, Daniel Sexton,
and Alberic Vancauwelaert on June 20, November 2, and
September 16, 1988, respectively, and by suspending em-
ployee Jeffrey Hausman on September 29, 1988, Respondent
engaged in unfair labor practices in violation of Section
8(a)(1) and (3) of the Act.
5. By failing and refusing to bargain in good faith with
the Union and by unilaterally implementing a change in
terms and conditions of employment without notice to or
without bargaining with the Union, Respondent has violated
Section 8(a)(5) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, it is recommended that it be ordered to cease and
desist therefrom and to take the affirmative action described
below which is designed to effectuate the policies of the Act.
With respect to the necessary affirmative action, it is rec-
ommended that Respondent be ordered to bargain with the
Union and to reinstate Mike Jarman, Daniel Sexton, and
Alberic Vancauwelaert to their former jobs or a substantially
equivalent position, without prejudice to their seniority or
other rights and privileges previously enjoyed, and make
them whole for any loss of earnings they may have suffered
because of the discrimination practiced against them by pay-
ment to them a sum of money equal to that which they nor-
mally would have earned from the date of the discrimination
to the date of reinstatement, in accordance with the method
set forth in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987),5 and that Respondent expunge from
its files any reference to their discharge and notify them in
writing that this has been done and that evidence of the un-
lawful discharge will not be used as a basis for future per-
sonnel action against them.
It also is recommended that Respondent be ordered to
make Jeffrey Hausman whole for any loss of earnings he
may have suffered because of the discrimination practiced
against him by payment to him a sum of money equal to that
which he normally would have earned on the days he was
suspended in accordance with the method set forth above and
that Respondent expunge from its files any reference to
Hausman’s unlawful warning and suspension and notify him
in writing that this has been done and that evidence of this
unlawful discipline will not be retained in its files or dis-
seminated in any manner.
Otherwise, it is not considered to be necessary that a broad
order be issued.
[Recommended Order omitted from publication.]