Locke Insulators, Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1975

218 N.L.R.B. 653 (N.L.R.B. 1975)

LOCKE INSULATORS, INC. 653
Locke Insulators, Inc.' and Frederick G. Coster and
Donald Samuel Glenn . Cases 5--CA-6848 and 5-
CA-6928
June 18, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
reinstatement to Glenn. We find merit in these
exceptions.
The record shows that, while the "unjustified"
written notice issued to Coster was his third written
notice, the "unjustified" notice issued to Glenn was
his second. Moreover, the record further shows that
Glenn was not terminated at this time, but subse-
quently was discharged for cause for reasons unrelat-
ed to the issuance of any written warning notices.
Accordingly, we shall fashion an appropriate remedy
herein.
On February 24, 1975, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Thereafter, Respondent and the General
Counsel filed combined exceptions, and the General
Counsel also filed a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
brief, and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge.
The Administrative Law Judge found that the
improper work performance charges levied against
Coster and Glenn by Respondent were without merit
and "motivated as a reprisal against [them] for
attempting to secure relief by invoking the grievance
machinery of the contract." He concluded that
Respondent violated Section 8(a)(1) of the Act by
issuing unjustified warning notices to those employ-
ees because they engaged in protected concerted
activities. In the absence' of exceptions, we adopt
these findings pro forma.
The Administrative Law Judge also found that the
aforesaid "unjustified" written warning notices were
the third such notices issued to Coster and Glenn,
that each of them subsequently received a fourth
such notice for reasons unrelated to this proceeding,
and that they would not have received the fourth
notice, and would not have been discharged pursuant
to Respondent's policy of requiring discharge in such
event, "but for the unjustified issuance of the third
notices." Remedially, the Administrative Law Judge
ordered Respondent, inter alia, to reinstate both
employees. General Counsel and Respondent filed
joint exceptions to the Administrative Law Judge's
findings that this was the third warning given Glenn
and that his subsequent discharge was in any way
related to his receiving of this warning, and to the
Administrative Law Judge's recommended Order to
the extent that it orders Respondent to offer
1 The name of this party appears as amended at the hearing.
2 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
218 NLRB No. 114
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Locke Insulators, Inc., Baltimore, Maryland, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Issuing warning notices for engaging in protect-
ed concerted activities.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Offer Frederick G. Coster immediate and full
reinstatement to his former position or, if it no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or his other rights and
privileges. Make him whole for any loss of pay
suffered as a consequence of his discharge, with
interest at the rate of 6 percent per annum, in the
manner prescribed by F. W. Woolworth Company, 90
NLRB 289 (1960), and Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
(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 Order.
(c) Expunge from the personnel records of Freder-
ick G. Coster the third written warning notice issued
to him.
(d) Expunge from the personnel record of Donald
Samuel Glenn the second written warning notice
issued to him.
(e) Post at its Baltimore, Maryland, facility copies
of the attached notice marked "Appendix." 2 Copies
of said notice, on forms provided by the Regional
Director for Region 5, after being duly signed by
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
654 DECISIONS OF"NATIONAL LABOR RELATIONS BOARD
Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT issue warning notices because
employees have engaged in or are engaging in
protected concerted activities.
WE WILL NOT in any like or related manner
'interfere with, restrain, or coerce our employees
in their right to engage in concerted activities
protected by the Act.
WE WILL offer Frederick G. Coster immediate
and full reinstatement to his former job or, if it no
longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or his other
rights and privileges, and WE WILL make him
whole for any loss of pay he suffered because of
his discharge, which shall be paid with interest at
the rate of 6 percent per annum.
WE WILL expunge from Coster's personnel
records the third written warning notice which
was issued to him and from Donald Samuel
Glenn's personnel record the second written
warning notice which was issued to him.
LOCKE INSULATORS, INC.
DECISION
STATEMENT OF THE CASE
BERNARD J . SEFF, Administrative Law Judge: This case
was heard by me at Baltimore, Maryland, on Wednesday,
January 8, 1975, based on a charge dated October 16, 1974,
and a complaint dated November 21, 1974, alleging that
Respondent (also known as the Company) had discrimina-
torily issued a warning notice to the Charging Party
(Donald Glenn) because he was engaged in certain
concerted activities protected by the Act. It is the position
1 432 F.2d 854 (C.A. 2, 1970).
2 Both Coster and Glenn were inspectors who inspect certain lots of
material (involving , in many cases , very large insulators). The work
of Respondent that this matter should be settled by an
arbitrator under the terms of the collective-bargaining
contract of the Company and the Union. Respondent
urges that the National Labor Relations Board defer under
the principles set forth in the Collyer Insulator Wire, A Gulf
and Western Systems Co., 192 NLRB 837 (1971). Respon-
dent calls attention to the fact that it has agreed in writing
to follow the grievances and arbitration procedures set
forth in its contract with the United Electrical, Radio and
Machine Workers of America, Local 120, (hereinafter
referred to as the Union).
Upon the entire record in this case, including my
observation of the witnesses, and upon consideration of the
briefs filed by the parties, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
A. Jurisdiction
During the past 12 months Respondent sold and
shipped, in interstate commerce, products valued in excess
of $50,000 to purchasers located outside the State of
Maryland. I find that the Respondent is engaged in
interstate commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
Preliminary Considerations
An additional alleged discriminatee, Frederick Coster,
an individual, filed a charge based on the same facts as
they relate to Donald Glenn. The Regional Office issued
an order of consolidation on November 21, 1974.
The Respondent filed a document entitled
"Interrogatories," requesting the Regional Director to
answer in writing certain interrogatories. This matter was
decided by Administrative Law Judge Fannie M. Boyls on
December 24, 1974, who ordered the said "Interrogatories"
be denied since she held the Respondent's motion for this
information was in the nature of pretrial discovery that
would require the Regional Director to supply evidence in
advance of the trial. The denial of this motion was issued
for the reasons stated in NLRB. v. Interboro Contractors,
Inc., t and other cases cited therein.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Charging Parties were both employed on the second
shift. The foreman of the- second shift, Pemell Johnson,
was informed that his two operators, Coster and' Glenn
told him that they felt there was, "banking" 2 taking place
on the first shift. They charged that employees John Bohns
performed in inspection is paid for on a piecework basis. Payment for this
work involves turning in tickets and the men are paid on the basis of the
number of tickets they turn in.
LOCKE INSULATORS, INC. 655
and Charles Schultz, both first shift operators, were
banking and , as a result, the complainants were unable to
earn pay on a piece-rate basis which seriously cut down
their earnings. The complaint of banking being done by
Bohns and Schultz was reported to Pernelil Johnson who in
turn called this to the attention of Foreman Chester
Bolesta and Edward Rickels, shop operations manager.
Incidentally, Schultz is the- shop steward on the first shift.
Before making complaint to supervision, Coster testified
that " ... I didn't like turning in a union brother for
violation of company policy, so I tried to talk Donald
Glenn into not turning it in and we'd see if we could work
it out with the union. I couldn't do this. I tried to talk to
Charles Schultz about this, and he told me to mind my own
business."
During the latter part of June and early in July 1974,
Bolesta made an investigation of the complaint. As a result
of his inquiry, Bolesta testified, "I found out in deed and
truth that the first shift was banking." In the course of this
investigation Bolesta found that not only were Bohns and
Schultz banking but he also allegedly found that Coster
and Glenn were not following the written instructions
given them as- to what pieces they should inspect each
night. As the end result of Respondent's investigation all
four men were told they would be given warning notices at
the same time.
These matters, the banking and failing to follow
instructions, were discussed in a meeting, held in Rickels'
office on July 19. This took place on the day before the
annual plant vacation shutdown. Present at the meeting
were Rickets, the two first and second shift stewards, the
chief steward from the daylight shift, Hamilton and
Williams, the chief steward from the second shift. Also
present were Glenn, Coster, Schultz, Bohns, and Bolesta.
Kenny Hamilton asked-the Company representatives to
leave the room so the Union could talk privately. After the
supervisors left, Hamilton bawled out Glenn and Coster
for turning in Bohns and Schultz. Hamilton said that
banking goes on throughout the whole plant. Coster replied
that the only alternative left to him and Glenn was to turn
them in. Hamilton said that we too should bank. Coster
stated they could not bank because there was not enough
work for Coster and Glenn to even make piecework to
begin with.
When the supervisors returned to the conference Bolesta
informed the first shift inspectors that they would be
getting warning notices for banking, and thus falsifying
company records. At the same time Johnson told Coster
and Glenn they would receive warning notices for not
following instructions.
After the vacation period was over, Glenn and Coster
were given warning notices for not following written
instructions . Coster told, Johnson at this time that warning
notices were given to them, not for failing to follow
instructions but because they had raised a flap about
banking. As described by Respondent the banking matter
represented a serious infraction of company policy.
Ed Rickels, manager of shop operations explained the
evils of banking by saying:
In essence, banking is a manipulation of vouchers so as
to control your earnings, and because this can go on, it
is extremely difficult to try to keep a continuity of flow
of material through the shop, regardless of the
operation. This, then could result in missed promises to
customers, missed production schedules, and actually a
lack of work to other employees.
The receipt of warning notices is a matter of great
concern to the employees because it is established
company policy that an employee who receives four
warning notices is subject to immediate discharge.
Coster testified that:
So after I was out I went to the union . I had my
grievance in. I pressed the union for an answer. I was
constantly calling up Mr. Jim Johnson, who was
president of the union, to try to get an answer, and he
told me these things take time.
He then informed me . . . sometime the first part of
November that the company was wanting this thing to
go to step 3 in New York. He said he had to go to New
York; him and the chief shop steward on the second
shift, John Williams, were going to New York.
... he (Pennell Johnson) told me that - he shook
the warning notice and says, "You know why you're
getting this, don't you?" I says, "Yeah, we know why."
He said "Because you raised so much hell about the
banking," He says, "As-far as I'm concerned, I'd like to
tear the damn thing up. I don't think you deserve it."
Concerning Failure to Follow Instructions
Coster testified the practice he and Glenn followed when
they received instructions as follows:
Well, I'm going to say . . . we would get a list and we
wouldn't follow it exactly. Like, we'd skip the first thing
on the list and do the second, then go back to the first,
because the way the plant was set up, the thing you
wanted to inspect first was in back of the thing that was
on the list second, so naturally you would inspect the
thing that come first and then on down, and that was
deviating from the list, you might say, but it was our
only way that we could make money and work.
Q. In essence, you're saying the way some of the
merchandise was stacked, it was the only way you
could inspect it, in fact.
A. Right.
It is significant that on some occasions Coster and Glenn
received oral instructions as to the order in which they
were expected to make their inspections. When, for the first
Banking consists of doing a great many lots became they are easy lots to
do or because an operator feels like working hard on a particular day, not
turning in all of the tickets and then turning them in on a later day when
either a man does not feel like doing so much work or it is difficult to
accomplish much work because the flow of materials to inspect has
diminished.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time failing to follow written instructions came up in the
testimony, both men asked to see the list they were accused
of not following. Pernell Johnson said he could not fmd the
list. He said he thought he left it in his car or at home.
Thereafter a list was unearthed by Rickets but there is no
clear evidence that the list which was shown to Coster was
the one about which the complaint arose. It seems that
sometimes the material to be inspected did not arrive at
their work stations in the order set forth on their
instructions. The men testified they did their work in the
best way they could. Also on some occasions they
performed tasks which were not on the list at all. In any
event the burden of the testimony is to the effect that they
tried to follow the list step by step. When this was not
possible they did the best they could. The Company was
aware of the fact that it was not always possible to adhere
to the exact order in which the instructions were received.
Credibility of the Witnesses
Respondent's brief describes the demeanor of employee
Glenn as untrustworthy because he looked at the ceiling
and did not look at his questioner during his testimony. His
general demeanor " . . . could lead to no other conclusion
than that Glenn was not testifying in a straightforward
manner and that his testimony should be .given no weight."
Based on my observation of Glenn, while he was on the
stand on both direct and cross-examination I found him to
be direct, forthright, and candid in his testimony. His
demeanor impressed me favorably. While there were some
deviations between what he testified to at the hearing, and
some conflicting statements which appeared in his pretrial
affidavit, the differences were minor and might best be
described as evidencing the human failings of an unsophis-
ticated witness. If what he testified to had been identical in
every respect with what appeared in his affidavit I might
well have concluded that he had been rehearsed before the
trial. I credit Glenn's testimony.
Similarly, I found Coster's testimony to be credible and
trustworthy. I credit Coster as an honest witness.
It is certainly clear that whatever minor inconsistencies
developed between the- testimony of Glenn and Coster
their joint testimony that Schultz and Bohns were banking
was fully substantiated by the Company's own careful
examination . There is no doubt that the two first shift
employees were banking and neither of them denied this
charge.
Coster testified on direct examination that Pernell
Johnson stated in his office concerning the warning notices
received,by Coster and Glenn that:
First thing in the office he told me that - he shook the
warning notice and says, "You know why you're
getting this, don't you?" I says, "Yeah, we know why."
He said, "Because you raised so much hell about the
banking." He says, "As far as I'm concerned, I'd like to
tear the damn thing up. I don't think you deserve it."
In this connection Respondent's brief makes the point that
Johnson did not affirm the statements of the General
Counsel's witnesses . Much more significant to me is the
fact that Johnson did not deny having made this statement.
Where a witness gives testimony as to what was said by his
supervisor and the supervisor (Johnson) does not deny
having made the statement it stands on the record as an
undisputed fact. In answering the point made by the
Respondent that Johnson did not affirm the remark
attributed to him, quoted supra, it is much more reasonable
to expect a witness for the Company to deny he made the
statement than to expect he would affirm it. In the main I
found Pernell Johnson to be a credible witness and I credit
much of his testimony.
Concluding Findings and Analysis
The record contains references to the fact that banking is
widespread throughout the plant. The Company admitted
that the practice is prevalent in the plant.
The record is clear, despite denials by Rickels, that but
for the complaint concerning banking made by Coster and
Glenn no investigation would have taken place regarding
the alleged failure by these men to follow instructions. This
was admitted by Coster's supervisor, Pernell Johnson. It
was Johnson who told Coster that the complaints for
failure to follow instructions, were unjustified and would
not have been made except for the flap caused by Coster
and Glenn when they complained about banking. It was in
the course of the investigation of the complaint about
banking that Respondent dug up its conclusion that Coster
and Glenn had failed to follow instructions. Later the fact
of three previous warning notices led to the discharge of
both Coster and Glenn. Their discharges were for incidents
that had no relation to the case at bar.
It certainly is strange that the complaint which was
substantiated by the Company, should find Coster and
Glenn in the anomalous position of being proven correct
and then being fired because they received,oneof the three
warning notices as a by-product of a justified complaint
they made about banking.
Coster testified without refutation that he tried to correct
the problem concerning banking by taking the matter up
with union representatives and not bringing it to manage-
ment. Schultz' reaction to working out a compromise was
to tell Coster that he and Glenn should also "bank" and
that, in any event, the first shift men would continue to
engage in banking. Finding it impossible to settle the
matter with Schultz the complainants carried the case
further through the grievance machinery set forth in the
collective-bargaining agreement between the Company
and the Union. The two first shift men based their refusal
to halt the practice on the ground that union men should
never raise objections to what brother union men did.
Apparently Schultz and Bohns regarded such action as
disloyalty to fellow union members. The allegations about
not following instructions appears to have been motivated
as a reprisal against the complainants for attempting to
secure relief by invoking the grievance machinery of the
contract. I so find.
At one point in Respondent's brief it characterized the
receipt of warning notices as' "this relatively mild form of
discipline." On an earlier page the brief states:
The Company's policy, to the contrary, was to uncover
any violation of its rules or interference with efficient
LOCKE INSULATORS, INC.
operation, and to punish the same with a written
warning, which could result in termination after the
compilation of four such warnings.
The receipt by an employee of four warning notices
results in discharge. Instead of being a "mild form of
discipline" four warning notices were in fact the condition
precedent to discharge.
I have found that Coster and Glenn received unjustified
third warning notices for engaging in protected concerted
activities. Under these circumstances the third warning
notices should not have been issued against them. It is
clear that but for the unjustified issuance of the third
notices, upon the activities for which they received fourth
notices , this should have been notice number three and
they would not have been discharged. Respondent is
responsible for all the consequences flowing from the
erroneous issuance of the third notice. This being so, under
the Company's established rule that discharge follows the
receipt of a fourth warning notice, neither Coster nor
Glenn should have been discharged.
Deferral of This Case to Arbitration
Respondent strongly urges that the NLRB defer the
instant case to arbitration and points to its having given
written notice to the effect that it would agree to have the
case go to arbitration and waive any time limitations on
invoking arbitration.
It is clear from the record that the Union is hostile to
Coster and Glenn because inherent in their grievance is a
request that Respondent penalize brother union members
which the Union regards as a form of disloyalty to the said
Union. In these circumstances, the Board should not
withhold its process and relegate Coster and Glenn to a
proceeding in which those who allegedly wronged them
and are arrayed against them would be the principal
parties who would appear in the arbitration case.
In reaching this conclusion, I have relied on Kansas Meat
Packers, a Division of Aristo Foods, Inc., 198 NLRB 543
(1972), and have decided the case at bar on its merits.
CONCLUSIONS OF LAW
657
A. By its conduct as set forth and found in "III" supra,
consisting of issuing notices of warning to Coster and
Glenn under the circumstances described Respondent has
engaged and is continuing to engage in unfair labor
practices in violation of Section 8(a)(1) of the National
Labor Relations Act.
B. Said unfair labor practices have affected , affect and
unless permanently restrained and enjoined will continue
to affect commerce within the meaning of Section 2(6) and
(7) of the Act.
REMEDY
By issuing warning notices the two employees found
themselves with a record of three such notices standing
against them. Thereafter both employees received a fourth
notice thus resulting in their discharge in accordance with
the Company's policy that discharge is meted out to any
employee who has received four such notices. The notices
which constitute the basis for the instant complaint are
grounded in the fact that the employees were within the
protection of the Act when their offense stemmed from
their insistence on processing their grievances through the
machinery established in the Union's contract with
Respondent. For, this reason Respondent should be
ordered to cease and ' desist therefrom and to offer them
reinstatement to their former jobs (or if no longer
available, in that case to an equivalent job), together with
backpay as appropriate, less applicable interim earnings if
any, plus interest, computed as delineated in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), making
necessary records available for computation purposes.
Respondent should be required to expunge from the
personnel records of Coster and Glenn the third notice
they received for ostensibly failing to follow instructions.
Respondent should further be required to post the usual
notice to employees to the effect 'that it will repair such
violation, and desist from further violation and interfer-
ence with its employees' rights under the Act.
[Recommended Order omitted from publication.]