Loose Leaf Metals Co.

National Labor Relations Board - Board Decisions

Feb 18, 1970

181 N.L.R.B. 202 (N.L.R.B. 1970)

202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Loose Leaf Metals Company and Opal Oakley
Loose Leaf Metals Company and Helen D . Schwent.
Cases 14-CA-5150 and 14-CA-5203
February 18, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On November 4, 1969, Trial Examiner Louis
Libbin issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner further found that Respondent had
not engaged in certain other alleged unfair labor
practices and recommended that the complaint be
dismissed with respect to these allegations.
Thereafter, Respondent and the General Counsel
filed exceptions to the Trial Examiner's Decision
and supporting briefs. Opal Oakley also filed
exceptions to the Trial Examiner's Decision.
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, briefs, and the
entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, with the modification set forth
below.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Loose Leaf Metals Company, St. Louis,
Missouri, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Louis LIBBIN, Trial Examiner . Upon charges filed on
June 20, 1969, in Case 14-CA-5150 by Opal Oakley, an
individual , and on July 22, 1969, in Case 14-CA-5203 by
Helen D. Schwent , an individual , the General Counsel of
the National Labor Relations Board , by the Regional
Director for Region 14 (St. Louis , Missouri ), issued
separate complaints , dated August 4 and 18, 1969,
respectively , against Loose Leaf Metals Company , herein
called the Respondent . These cases were consolidated by
an order of the said Regional Director , dated August 18,
1969. With respect to the unfair labor practices, the
complaints allege, and the duly filed answers deny, that
Respondent violated Section 8 (a)(1) and (3) of the Act by
the discharge of employees Opal Oakley and Helen D
Schwent and by other specified statements and conduct of
its supervisors and agents.
A hearing was held before me at St. Louis, Missouri,
on September 18, 1969. All parties appeared and were
given full opportunity to participate in said hearing. On
October 14, 1969, the General Counsel and Respondent
filed briefs , which I have fully considered For the reasons
hereinafter indicated , I find that Respondent violated
Section 8 (a)(1) and (3) of the Act only by its discharge of
Helen D. Schwent and by certain statements and conduct
of its admitted supervisors , but not by the discharge of
Opal Oakley
Upon the entire record in the case ,' and from my
observation of the demeanor of the witnesses while
testifying under oath , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent Loose Leaf Metals Company, a Missouri
corporation, operates a plant in St Louis, Missouri,
where it maintains its principal office and place of
business During the 1968 calendar year, a representative
period, Respondent manufactured, sold, and shipped from
its St. Louis, Missouri, plant directly to points located
outside the State of Missouri products valued in excess of
$50,000.
Upon the above admitted facts, I find, as Respondent's
•answers admit, that Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act
H. THE LABOR ORGANIZATION INVOLVED
'We find merit in the General Counsel 's contention that Respondent also
violated Sec 8 (a)(l) of the Act by Plant Manager Gary Owens' threat to
employee Grace Hampton to find something wrong with her work and fire
her, even though he admitted that she was a good worker The threat came
2 days after employee Opal Oakley had been discharged for fighting with
coworker Esther Matecki over a departmentwide grievance , and about 1
month after Respondent ' s President had unlawfully referred to Hampton
as a "troublemaker" for making a complaint about the same
departmentwide problem Given the context of the threat to Hampton, we
find it an additional threat of economic reprisal against employees for
engaging in protected activities ( viz, filing grievances over working
conditions ), in violation of the Act However , no change in the Trial
Examiner ' s Recommended Order is necessary , as other similar conduct
was found violative of the Act
The complaints allege , the answers admit, the record
shows, and I find , that Local Lodge 1345, International
Association of Machinists and Aerospace Workers,
AFL-CIO, herein called the Union , is a labor
organization within the meaning of Section 2(5) of the
Act.
'Certain inadvertent errors in the transcript have been noted and
corrected
181 NLRB No. 36
LOOSE LEAF METALS COMPANY 203
III THE UNFAIR LABOR PRACTICES
A. Introduction; the Issues
At all times material herein, Respondent was operating
under a collective-bargaining agreement with the Union.
Helen Schwent was employed by Respondent in the press
department from March 1967 to June 1968 when she was
automatically terminated under the terms of the
collective-bargaining agreement for failure to call in after
being absent 3 days She was reemployed in a different
department on April 16, 1969, and was discharged on
May 13, 1969. She had been a member of the Union since
her initial employment and the plant manager became
aware that she had questioned the business agent
concerning the reacquisition of her seniority upon her
reemployment on April 15, 1969. Opal Oakley was
employed by Respondent in several departments for about
7 1/2 years prior to her discharge on June 16, 1969.
During that period she was a member of the Union and
had filed several grievances, the last one being a
departmental grievance prepared by her and signed by her
and a group of employees on June 13, 1969. Upon leaving
the plant premises after work that day, she had a fight or
altercation with an employee who had refused to sign the
group grievance, and was discharged the following
workday.
The principal issues litigated in this proceeding are (1)
whether the discharges of employees Schwent and Oakley
were unlawfully motivated in violation of Section 8(a)(1)
and (3) of the Act, and (2) whether admitted supervisors
of Respondent engaged in acts of interference, restraint,
and coercion violative of Section 8(a)(1) of the Act,
including interrogation and threats of discharge As is
usually the case, credibility issues are also involved.
B. Discrimination with Respect to Hire and Tenure
of Employment'
1 Helen D. Schwent
(a) Sequence of events
Helen Schwent was employed by Respondent from
March 1967 until June 1968 when she was automatically
terminated for failure to call in after being absent for 3
days, as provided in the collective-bargaining agreement.
She had been employed in the press department at the
time of her termination. A member of the Union since her
initial employment, she maintained her union membership
and continued to pay her union dues after her termination.
In July 1968 she telephoned Personnel Manager Kersten
to inquire about being rehired and received the impression
that there was a possibility she would be reemployed
because he told her that the plant foremen with whom she
worked had stated at a supervisor's meeting that she was
one of the best and fastest workers. On two different
occasions in the fall of 1968 she contacted Gary Owens, a
plant foreman at that time, and was told by him that she
would be called and rehired when there would be an
opening On January 1, 1969, Owens became plant
manager In April 1969, his secretary telephoned Schwent,
who at that time was working at another company
engaged in the same type of metal work, and asked if she
'Unless otherwise indicated , the factual findings are based on testimony
and evidence which is either admitted or undemed
would like to come back to work for Respondent Because
of the better fringe benefits and the piecework method of
payment at Respondent, she agreed and was rehired,
resuming work on April 16 in a different department (ring
metals) on the second shift which began at 4.30 p m. She
did not have to fill out a new application. The foreman in
this department was Jack Long.
On May 5, 1969, she telephoned her business agent,
McCall, to inquire about the meaning of a seniority
provision in the contract relating to a break in service for
12 consecutive months. She asked if there was any way
under the terms of that provision that she could utilize the
seniority which she had acquired during the first period of
her employment with Respondent inasmuch as her break
in service was less than 12 consecutive months. McCall
replied that he did not know the exact meaning of that
clause and that he would have "to check it out "
Two days later, on May 7, Plant Manager Owens
called Schwent into his office, told her that McCall had
spoken to him about her telephone call and about her
trying to get back her seniority, and commented that this
might cause trouble between employees already in the
plant. Owens then announced that he wanted her to
understand that she could not get back her former
seniority and that she did "not have any union rights."
Schwent insisted that "I do have union rights " Owens
answered, "to a certain extent, but they are very limited,
and you are on a 30-day trial basis right now," referring
to the probationary period.
About 12:45 a.m on May 13, Schwent received a cut
on her ankle from a piece of metal which had rolled off
the table. Foreman Long took her to the first aid room
where he proceeded to clean and bandage the ankle. While
they were alone in the first aid room, Long told her that
she was discharged and that she should clock out and not
come back In response to her inquiry as to the reason for
her termination, Long stated that Ruppert, Respondent's
then executive vice president, and Owens "had discussed it
and they feel that because of the phone call that you
already made to the Union that they are contemplating
future problems if they keep you and they can't afford to
have something like this." When Schwent asked if it had
anything to do with her work, Long replied, "No, not
really "'
The next day, May 14, Schwent telephoned Plant
Manager Owens, informed him about the injury to her
ankle, and then related what Long had told her as the
reason for her discharge. Owens replied that "it wasn't
Mr. Ruppert who made the decision," that "Mr. Ruppert
doesn't even know you," that "It was Jack [Long]-and I
who made the decision," that "because of your attitude
we were afraid that after 30 days [probationary period]
were up that you would be a troublemaker, and we've got
troublemakers out there already that we would like to get
rid of." Schwent asked if it had anything to do with her
work. Owens replied that it did not, adding that he gets
"a list on how the new girls are doing" and that
Schwent's "name was very seldom on it" He mentioned
her complaint about jobs. She pleaded that she doesn't
always complain about her jobs, pointed out that both he
'Long testified that he told her the reason for her discharge was because
of "poor work " Long did not impress me as a credible witness by his
demeanor while testifying under oath Moreover, Owens did not deny
Schwent 's testimony that he told her the following day that her work was
not the reason for her termination Schwent impressed me as a frank and
forthright witness entitled to full credence I do not credit Long's
testimony to the extent that it conflicts with that of Schwent, as set forth
in the text
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Long knew that she would rather be in a different
department as she had previously told them and explained
that she had asked Long to be transferred to the
automatic riveter job at the time when it was open but
that he had refused to give it to her and without any
explanation had given it to a girl who had been hired after
Schwent Owens then said, "Well we can't say that
you would be a troublemaker but in our opinion we
feel that you might be and we've got enough
troublemakers out there already "
In June Schwent, with Chief Steward Alberta LaBerta,
went into Owens' office to file a grievance over Schwent's
discharge After reading the grievance Owens for the first
time mentioned something about the poor quality of
Schwent's work and asked if she had not been
reprimanded about this before Schwent admitted that
during her last period of employment the quality control
man had orally spoken to her about having made an error
on a certain number of shields out of a total order of
5,000 Owens thereupon acknowledged that `this is true of
all our girls out there," that "when they are on production
work all girls will try for quantity and make poor quality
at times," that Schwent was not "any different from the
other girls" and that "they all do it " He also admitted, in
response to Schwent's reminder, that he had been told by
all the foremen for whom Schwent had worked during
that first period that she was "one of the best and fastest
workers that he [Owens] ever had " When Schwent
reminded Owens of their telephone conversation on May
14 and repeated the reasons he at that time gave her for
her discharge, as set forth above, he admitted having told
her that, adding "yes, this and other things
A grievance meeting regarding Schwent's discharge was
held later that month At this meeting Owens told the
union representatives present that she was a probationary
employee, that she had made and, he was afraid, would
continue to make a `lot of trouble" both for Respondent
and for the Union, and that by terminating her at that
time there would be no further "trouble ' Among the
reasons stated by Owens for her discharge was that she
had wanted different work and had caused "trouble" by
calling the union representative
At the third step grievance meeting in July Ruppert,
who by then had become president of Respondent, again
brought up the matter of 125 bad shields out of a total
order of 5,000 during her first period of employment when
she had worked in the press department Steward Biggs
replied that she thought that was a very small amount of
bad metals out of an order of 5,000 and that it happened
quite often without anyone ever having been disciplined
for it Ruppert also stated that he was afraid there might
be future "trouble" with Schwent because she had
complained about not being transferred back to the press
department Ruppert then stated that he would no longer
rehire employees who had quit the Company, and
announced that this was going to be a `new policy "'
J
(b) Respondent s defenses
Respondent ' s defenses for Schwent ' s discharge are
replete with contradictions , inconsistencies and refutations,
and do not stand up under scrutiny The only persons who
testified as witnesses for Respondent on this matter were
Foreman Long and President Ruppert
'Although Ruppert testified as Respondents chief witness concerning
Schwent s discharge he did not deny having made any of the statements
set forth in the text at this grievance meeting
Long testified that he was in Owens' office on the
Friday preceding the day of Schwent's discharge when
Owens told him that 'we are thinking of getting rid of
Helen Schwent" and that he was going to leave it up to
Long to "make the decision tonight and do it one way or
the other " Long further testified that he implied the term
"we" meant "management in general," that he made no
response to Owens, and that he did not make the decision
that night He further testified that on Monday afternoon
Owens told him to `fire her tonight" because Ruppert
` didn't want old employees rehired in the factory " When
Respondent's counsel asked if Owens gave Long any other
reason, Long testified, "No ' However, a few minutes
later Respondent's counsel again asked if Owens gave
Long any reason or explanation for his instructions on
Monday afternoon to "get rid of her tonight " This time
Long testified that Owens stated it was "because of poor
work and bad attitude " As I have previously found in
another instance Long did not impress me as a credible
witness
President Ruppert was Respondent's chief witness on
Schwent's discharge He testified on direct examination
that on the Wednesday before her discharge (May 7) he
instructed Owens to discharge her, that when Owens asked
for the reason he told him not to ask questions, that on
the following Monday (May 12) he found that she had
still punched her timecard the preceding Friday and that
he thereupon told Owens that she should be discharged
that evening or Owens would be discharged On
cross-examination, he testified that he was in Florida at
his father's bedside and funeral for "three weeks prior to
May 28 " If his testimony in this respect is correct, he
obviously could not have been in St Louis on Monday,
May 12, as he testified on direct examination
Ruppert further testified on direct examination as to
the reason for Schwent's discharge that during her prior
employment her name had "on occasions ' been
mentioned "as having done work which was questionable"
and that she ' left under circumstances, which by the
terms of our contract, designate a self-quit or a voluntary
termination " At a later point, in response to the Trial
Examiner's question as to his reasons for ordering her
discharge, he testified that "she was an undesirable type
employee" because "she left under circumstances which
were questionable She never notified the Company she
was leaving She had several discussions with our
personnel agent as to her performance, her attitude and
everything else It is a matter of record at our company
that she came back several times seeking employment and
she was turned down, and this was upon my instructions "
He further testified that "those were the sole reasons ' On
cross-examination, he testified that in 1968 he had
instituted a company policy not to rehire any employee
who had been discharged or had voluntarily quit and that
he had so instructed all those with authority to hire
As previously found, there is no dispute of Schwent's
credited testimony that in her telephone conversation with
Owens on May 14, Owens stated that "it wasn't Mr
Ruppert who made the decision" to discharge her, that
"Mr Ruppert doesn't even know you," that "it was Jack
[Long] and I who made the decision " Under these
circumstances, Respondent's unexplained failure to call
Owens as a witness to refute Schwent's testimony and to
corroborate Ruppert's assumes great significance "The
absence of such a witness or the failure to explain such
absence weighs heavily in favor of the General Counsel's
case " J C Penny Co Inc 172 NLRB No 134 Indeed,
under these circumstances, the inference is warranted that
LOOSE LEAF METALS COMPANY 205
his testimony would have been adverse to Respondent
case 5
The resurrection of the error that she had made in her
work during her first period of employment is
symptomatic of the pretextious nature of Respondent's
defenses Indeed, Owens admitted at the meeting in June
when Schwent filed her grievance that all girls will make
poor quality at times when they are on production and
that Schwent was not "any different from the other girls"
in that respect He also admitted at that meeting that he
had been told by all foremen for whom Schwent had
worked during that first period of her employment that
she was one of the best and fastest workers that he
(Owens) ever had " In addition, Bethel Biggs, who worked
in the press department for 26 years and was still
employed there at the time of the instant hearing, credibly
testified without contradiction that she and other
employees had run 125 bad shields out of an order of
5,000, that it "happens quite often " that it is not
regarded a large error and that no employee was ever
disciplined for running that many bad shields Nor is there
any probative evidence to support Ruppert's testimony
that Schwent ` had several discussions with our personnel
agent as to her performance " On the contrary, Schwent
credibly testified without contradiction, that no
dissatisfaction had been expressed about her work since
her reemployment In addition, Willard G White, the
leadman in Schwent s department who was still in
Respondent's employ at the time of the instant hearing,
credibly testified under subpena, in the presence of
President Ruppert, that he checked the work of every
employee in his department every night, that he would
describe the quality of Schwent's work as "average' and
that she did not make any more mistakes than any other
employee Finally, there is no dispute of Schwent's
credited testimony that Owens admitted in the May 14
telephone conversation with Schwent that her discharge
had nothing to do with her work
Nor is there any evidence to support Ruppert s
statement that when she sought reemployment after her
voluntary termination she was turned down at his
instructions Here also, the contrary is the case For there
is no dispute of Schwent's credited testimony that Owens
told her on two occasions that she would be called and
rehired when there would be an opening And the fact
remains that she was rehired by Plant Manager Owens
when an opening arose
The undisputed facts also refute Ruppert's testimony of
a policy which he allegedly had established since 1968 not
to rehire an employee who had voluntarily quit According
to Ruppert, Plant Manager Owens was the only one in
1969 with authority to hire Thus, either the plant
manager deliberately ignored Ruppert's policy, or no such
alleged policy was then in effect The undisputed
testimony shows the latter to be the case Thus, Ruppert
did not deny Steward LaBerta's credited testimony that at
the third step grievance meeting in July Ruppert
announced that he would no longer rehire employees who
had quit the Company and that this was going to be a
new policy (emphasis supplied) Also representing
Respondent at this meeting were Plant Manager Owens
and Walter Schroer, vice president in charge of
engineering Respondent's unexplained failure to call
either one as a witness to refute LaBerta s testimony, is
'Interstate Circuit Inc v U S 306 U S 208, 226 Staub Cleanere
Inc 148 NLRB 278 284 enfd 357 F 2d l (C A 2) and Benevento Sand
and Gravel Co 131 NLRB 358 364 enfd 316 F 2d 224 (C A 1)
again damaging to its case I find that no such alleged
policy was in effect at the time of Schwent's discharge
Presumably recognizing the pretextious and
afterthought nature of the foregoing asserted defenses,
counsel for Respondent has abandoned them in his brief
The sole defense now urged by Respondent in its brief is
that Ruppert "believed" that Mrs Schwent's absence in
June 1968 for 3 consecutive days without notice, which
under the contract automatically resulted in her first
employment termination, "was caused by her leaving her
husband and living with another man," that he "felt that
her moral conduct was reprehepsible," and that "he
believed she would not be the kind of employee he wanted
working" for Respondent This defense is based on
Ruppert's testimony that after her first termination an
FBI agent came to him and interrogated him about her
employment and her "whereabouts," stating that she was
reported missing and had run off with another man, and
that he (Ruppert) first learned of her reemployment on
the Wednesday prior to her discharge when he gave
instructions for her discharge
Ruppert did not impress me as a credible witness, and
he has already been discredited by undisputed testimony,
as previously noted Upon being asked when it was that
the FBI agent had visited him, lie testified that it "was
shortly after her departure from the company, which was
at least, I would say the period of three or four weeks
prior to her being rehired " However, the time span
between her departure and rehire was over 9 mont)'.,
Upon being further questioned by the Trial Examiner,
Ruppert was unable to name the FBI agent who had
identified himself to him, and admitted that he had not
notified the FBI about Schwent's "whereabouts" when he
learned of her reemployment although he was aware that
the FBI and the Department of Justice had offices in St
Louis Even much more significant is the fact that this
alleged reason for her discharge was never mentioned to
Schwent or at any of the grievance meetings
(c) Concluding findings
Upon consideration of all the foregoing, I am unable to
accept the contentions or credit the testimony that
Respondent was truly motivated by the above-related
asserted reasons for its discharge of Helen Schwent I am
convinced and find that these asserted reasons were
advanced as pretexts and afterthoughts to cloak the true
motivating reason, one which is readily apparent from a
mere perusal of the following conduct and statements
(1) Plant Manager Owens' conduct on May 7 in calling
Schwent into his office to inform her that he knew of her
telephone call to Business Agent McCall concerning her
desire to reacquire her former seniority, in stating that he
wanted her, to know that she could not get back her
former seniority, and in announcing that she did not have
"any union rights " When she insisted that she did have
"union rights," he reminded her that they were very
limited because she was on a 30-day probationary period
(2) Foreman Long's statement at the time he
discharged her on May 13 that Ruppert and Owens "had
discussed it and they feel that because of the phone call
that you already made to the Union that they are
contemplating future problems if they keep you and they
can't afford to have something like this "
(3) Owens' statement to Schwent in their telephone
conversation the following day that "because of your
attitude we were afraid that after 30 days [the
probationary period] were up that you would be a
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
troublemaker , and we've got troublemakers out there
already that we would like to get rid of "
(4) Owens' statements at the June grievance meeting
that one of the reasons for Schwent' s discharge was that
she had caused "trouble" by calling the union
representative , that he was afraid she would continue to
make a "lot of trouble" both for the Respondent and for
the Union, and that by terminating her while she was still
a probationary employee they would avoid further
"trouble "
(5) President Ruppert ' s statement at the third step
grievance meeting in July that he was afraid that there
might be future "trouble" with Schwent because she had
complained about not being transferred back to the press
department.
It thus appears that Respondent was unhappy with
Schwent because as a probationary employee she had
already displayed a "bad attitude" by seeking the Union's
aid to assert rights which she believed were granted to her
under the union contract , by asking to be assigned to an
automatic riveter job which had become open but which
instead was assigned to a new employee and by inquiring
about the possibility of a transfer to the press department
where she had originally worked, conduct which
Respondent characterized as "complaints " and being a
"troublemaker." It is a reasonable inference , which I
herein make , that , based upon this conduct of hers as a
probationary employee, Respondent made a prognosis of
her future conduct as a full status employee , concluded
that she would or might be a "troublemaker," and
decided that her discharge while still occupying the status
of a probationary employee would be a desirable solution.
Of course the fact that she was a probationary employee
does not in any way diminish the protection afforded her
by the Act.6 I am convinced and find that in discharging
Schwent just a few days before the expiration of her
probationary period, Respondent was primarily, if not
solely, motivated by a belief or fear that as a full status
employee she would or might be quick to call the Union
and to resort to the contract grievance machinery in
connection with possibly frequent complaints about her
work assignments and other employment conditions
concerning which she may feel aggrieved , conduct which
Respondent regarded as disclosing a "bad attitude" and as
making her a "troublemaker " However , such conduct
constitutes protected union and concerted activity within
the meaning , of Section 7 of the Act. I therefore find that
by discharging Helen Schwent on May 13, 1969,
Respondent discriminated with respect to her hire and
tenure of employment , thereby discouraging membership
in the Union in violation of Section 8(a)(3) of the Act,
and also interfered with, restrained , and coerced her in the
exercise of rights guaranteed by Section 7 of the Act in
violation of Section 8(a)(1).
2. Opal Oakley
(a) Sequence of events
(1) Oakley's employment
Opal- Oakley had been employed by Respondent about
7-1/2 years at the time of her discharge on June 16, 1969.
At that time, she worked in the Ring Metal Department.
She had filed a grievance in 1968 when she was
transferred from one department to another , and another
grievance in early 1969 about being transferred to
different departments . She discussed the latter grievance
with Owens.'
(2) Departmental grievance over rotation on
automatic riveting machines
As the union contract provides for rotation, a majority
of the riveter employees in the Ring Metal Department
wanted rotation on the two new automatic riveting
machines , and a departmental grievance was filed in
March 1969 in regard to rotation Ruppert, who at that
time was Respondent 's executive vice president , told Chief
Steward LaBerta that there would be no rotation on the
automatic riveting machines at this time because Willie,
the mechanic , was not yet satisfied with the performance
of the machines However , in Ruppert ' s absence in May,
Owens permitted the riveter employees to go on rotation
on these automatic riveting machines . Upon his return
about a week later , Ruppert revoked Owens ' authorization
for rotation In response to Union Steward Blasdel's
request for an explanation , Ruppert replied that Willie,
the mechanic , had stated that the machines were not yet
ready to go on rotation and was threatening to quit, that
he had three girls back there who were "troublemakers"
and "raising all kinds of heck in that department,"
naming Grace Hampton , Lee Hardy , and Opal Oakley,
and that he could afford to lose the three of them before
he could lose Willie because he is the one who makes the
machines
During the week of June 9, 1969, a majority of the
riveter employees in the Ring Metal Department voted to
file a grievance over the lack of rotation on the automatic
riveting machines . They selected Oakley to write up the
grievance for the department . Oakley informed
Department Foreman Jesse that she had been chosen by
the girls in the department to write up the grievance, and
he granted her request for time off to do so After the
grievance had been written up, Chief Steward LaBerta
took it around to all the affected employees for them to
sign . Employees Esther Matecki and Teresa Turner, the
two employees whom Respondent had assigned to operate
the automatic riveting machines on a permanent basis,
were the only ones who refused to sign the grievance
although they had previously agreed to its filing . All other
affected employees , seven in number including Oakley,
signed in a semi-round robin fashion . The written
grievance was filed with Respondent on Friday, June 13.
(3) Oakley-Matecki incident
After work on Friday, June 13, Oakley waited for
Matecki on Jamison street where her car was parked
nearby the plant. When Matecki , who was walking
towards her, came close to Oakley's car, Oakley accosted
her, started cursing her, called her a "dirty Polander,"
stated that she had "a few things to tell" her, and told her
to "get off my back " As Matecki stepped back on the
embankment of a lawn and raised her arm in self
protection, the lunch bag in her hand was swinging and
struck Oakley as she got closer to Matecki Oakley
admitted that as Matecki then started to walk away, "I
went after her." A scuffle ensued with both of them
rolling on the ground and with Oakley admittedly ending
up on top of Matecki Oakley further admitted that she
"doubled up" her "fist" and hit Matecki ` on the
'Lapeer Metal Products Co, 134 NLRB 1518, 1520 'The record does not show the disposition of this and the 1968 grievance
LOOSE LEAF METALS COMPANY 207
cheekbone."'
After Oakley and Matecki had gotten up and gone
their way, employee Lee Hardy, who was riding with
another employee in a car which just came out of an alley
near the plant, inquired of two employees who had
observed part of this incident, "Did she get her, did she
get her?" One of the employees asked, "Is that what you
wanted"" Hardy thereupon replied, "Yes."
(4) Owens' telephone conversation with Matecki
On Sunday night, Matecki received a telephone call
from Plant Manager Owens who inquired if she was able
to come to work on Monday. She replied that she was not
certain and would wait until Monday morning to see how
she felt, adding that "if I am not too sore I will be in to
work " She then asked why he was inquiring about her.
Owens answered that he saw what happened to her Friday
evening as she left work and was walking home. In
response to her query as to where he was at the time, he
explained that he saw it happen when he was driving down
Jamison street in Mrs. James' car which he was taking to
her home because she was hurt
(5) Meeting over Oakley-Matecki incident
About 8 a.m on Monday, President Ruppert called
Chief Steward LaBerta and Steward Blasdel into his
office. Also present was Plant Manager Owens. Ruppert
told LaBerta and Blasdel about the "fight." He stated
that he was not going "to put up with this type of thing"
in his plant and "have people afraid to come in there to
work," that he was "not going to have troublemakers"
like Oakley, that Oakley "had been warned" and
"reprimanded before," and that he was going to discharge
her. He then left the office and told Owens to carry on
with the proceedings LaBerta and Blasdel also remained
and took part in the questioning which followed. Oakley,
Matecki, and about three other employees were then
called into the office, one at a time but not necessarily in
the order herein set forth, and were individually
questioned about what had occurred.
When Oakley was called in, she was asked "how it
happened " She stated that she and Matecki "had gotten
into an argument" outside Blasdel asked her "well, how
come?" There is no contradiction of Blasdel's testimony
that Oakley replied, "she didn't want to sign the grievance
and we was all going to sign and she didn't want to sign
it." Blasdel also asked, "did you hit her first?" Oakley
replied, according to Blasdel's uncontradicted testimony,
"No, I didn't hit her first I don't remember hitting her
first." Oakley stated that she had wanted to talk to
Matecki, that Matecki "must have taken it wrong
somehow," that they got into a "hassel," that she did not
mean to knock Matecki down but that their feet got
tangled somehow and they "tripped" and that she fell on
top of Matecki.' At the conclusion of her interview,
Oakley was sent into an adjoining room while other
employees were individually called into Ruppert's office.
Matecki was called in and gave her version of the
"fight." She related that as she was walking down the
The findings in this paragraph are based on a composite of the mutually
consistent testimony of Oakley and Matecki These findings are also
consistent with the testimony of other witnesses who observed part of this
incident
'The conversation did not necessarily occur in the order set forth in the
text
street, Oakley came up to her, called her "a dirty
Polander," and stated, "you're going to get it." She
further related that at that point she "got scared," tried to
defend herself by putting her arms up and that in so doing
the purse on her arm may have hit Oakley She also said
that Oakley swung at her and that they fell There is no
contradiction of LaBerta's testimony that Matecki also
stated that after the fight Oakley threatened her if she
reported the incident
About three other employees who were believed to have
witnessed the incident were called into the office and
questioned. They each related the part which they had
observed Thus, Jerry Haas stated that he saw Oakley go
away from her car and push Matecki but did not hear
what was said
Oakley was then called back into the office. Owens told
her that her action was deliberate, that it was preplanned
and that the Company was therefore discharging her for
it He also stated that she had until 10 o'clock to write up
a grievance, if she so desired, and then to leave the plant 's
(6) Grievance meeting over Oakley's discharge
Oakley did file a grievance that day, and a grievance
meeting was held about June 18 At this meeting Blasdel
asked Matecki if she had been hurt. She replied in the
negative, adding that her glasses were knocked off and
that she "got bruises" on her arms which she showed to
the committee. Owens stated that the Company would not
take Oakley back
(7) LaBerta's conversation with Foreman Jesse
Sometime after Oakley had filed her unfair labor
practice charge in the instant case, Charles Jesse, the
foreman of the Ring Metal Department in which Oakley
had worked, came up to Chief Steward LaBerta while she
was working on her machine, and asked if she thought
Oakley would be coming back to work When LaBerta
replied that she did not know, Jesse stated, "Well, she was
a troublemaker ""
(b) Contentions and concluding findings
The General Counsel contends in his brief that
Respondent seized upon the Oakley-Matecki incident of
June 13 as a pretext to discharge Oakley because she had
been "a key symbol in Respondent's eyes as a union
activist even prior to the incident with Matecki " In
support of this position, the General Counsel relies
primarily on the fact that (I) prior to the filing of the
departmental grievance, Ruppert had characterized certain
employees who wanted rotation on the automatic riveting
machines as "troublemakers," naming Oakley and two
other employees in this category; (2) Respondent
discharged Oakley, who wrote up the departmental
grievance on the day the incident with Matecki occurred,
and left undisciplined Matecki, one of only two riveters
who refused to sign the departmental grievance, and (3)
on two prior occasions when fights had occurred between
"The findings in this section are based on a composite of the mutually
consistent testimony of Chief Steward Alberta LaBerta and Steward Bill
Blasdel Oakley did not testify with respect to this meeting
"The findings in this paragraph are based on the credited testimony of
LaBerta Jesse testified he might have used the word "troublemakers" in a
conversation with LaBerta about Oakley's discharge but does not
remember saying it or engaging in the conversation set forth in the text
He further testified that all he said was "How's their case going9"
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, none of the participants were disciplined by
Respondent.
Respondent's position regarding the discharge of
Oakley is set forth in its brief as follows:
The Company's position simply stated is that Opal
Oakley waited outside the plant for Esther Matecki
That she was very angry with Esther because Esther
refused to sign the group grievance That Opal Oakley'
accosted Esther and was the aggressor in precipitating
the fight Opal threatened Esther after the fight telling
her not to report it
In support of its position that the discharge was not
discriminatorily motivated, counsel for Respondent relies
on the testimony as to what was reported at the Monday
meeting and particularly on Steward Blasdel's testimony
that Oakley admitted at that meeting that the foregoing
was in fact her reason for getting involved in the fight,
that this demonstrates that Oakley's confrontation with
Matecki "was not merely a personal dispute," that the
grievance which Oakley wrote up that day was not a
personal one but a departmental grievance, and that "the
record indicates that this is not the first time that Opal
Oakley had problems with other employees" but that on
"two other occasions Opal Oakley had disputes with
fellow employees under circumstances indicating that she
was the aggressor."
Upon consideration of all the foregoing, I am
convinced and find that Oakley's confrontation with
Matecki was deliberate, preplanned, in retaliation for
Matecki's refusal to sign the departmental grievance, and
therefore had its genesis in the dispute in the plant
concerning conditions of employment Moreover,
regardless of who struck the first blow, Oakley admittedly
was the instigator or initiator of this confrontation, which
then deteriorated into blows being struck, with Oakley
admitting that she "went after" Matecki and hit her "on
the cheekbone" with her "doubled up" fist. I am also
convinced and find that Plant Manager Owens could
reasonably have reached these same conclusions on the
basis of the accounts of the incident given by the
employees who were called into the office on the Monday
morning after the "fight." Indeed, that such was the case
is indicated by Chief Steward LaBerta who testified that
"I do believe this is what he thought, because he's
mentioned it to me." In addition, Owens was also
informed at that Monday meeting that after the fight
Oakley threatened Matecki if she reported the incident, as
LaBerta further testified without contradiction Matecki
had a protected right under the Act to refuse to sign the
departmental grievance without being subject to threats or
reprisals Oakley admitted that there were prior occasions
involving disputes about her working conditions when she
was "warned by the company for having any contact with
another employee." The record does not support the
General Counsel's contention that Oakley was regarded as
"a key symbol . as a union activist " In her 7-1/2 years
of employment she had filed only two personal grievances.
Oakley admitted that "I wouldn't say that I filed this
grievance," referring to the departmental grievance, that
"it was the girls in the ring metal department with me
involved that filed this grievance, but I was chosen [by
them] to write the grievance up." Seven employees signed
this grievance, with Oakley's name not being any more
prominently displayed. Nor is the General Counsel's
reliance on the two previous fights apposite because,
unlike the instant case, they did not have their genesis in a
dispute in the plant concerning conditions of employment.
While the matter may not be entirely free from doubt, I
am not persuaded that on the basis of the record before
me the General Counsel has sustained his burden of
proving by a preponderance of the evidence that
Respondent was unlawfully motivated in discharging Opal
Oakley I will accordingly recommend that the complaint
be dismissed in this respect.
C. Interference. Restraint , and Coercion
I find that Respondent has interfered with, restrained,
and coerced its employees in the exercise of rights'
guaranteed by Section 7 of the Act and thereby has
independently violated Section 8(a)(1) by the previously
found conduct of its admitted supervisors in the following
respects,
1. Foreman Long's statement to employee Schwent at
the time when he notified her of her discharge on May 13
that, because of the telephone call she had "already made
to the Union" [inquiring about reacquiring her former
seniority], Respondent was contemplating future problems
if she were retained. This was clearly coercive because it
disclosed an economic reprisal for engaging in a protected
union activity.
2. Plant Manager Owens' statements, on May 14 in his
telephone conversation with Schwent and in June when
she filed her grievance in the presence of employee
LaBerta, that one of the reasons for Schwent's discharge
was a belief or fear that she was a potential
"troublemaker" because of her "attitude " Considered in
its context and setting, I find that at least one of the
reasons why Owens was characterizing her as a
"troublemaker" and as having a bad "attitude," was the
aforestated telephone call to the Union Business Agent.
Hence the statements were equally coercive in nature
3. Owens' statements to the union representatives at the
June grievance committee meeting over Schwent's
discharge that Schwent had caused "trouble" by calling
the union representative, that he was afraid she would
continue to make a "lot of trouble" for both Respondent
and the Union, and that by discharging her at that time
there would be no further "trouble." As previously noted,
such statements clearly disclosed an economic reprisal for
having engaged in protected union activity and hence were
coercive.
4. President Ruppert's characterization, in late May or
early June, of certain employees as, "troublemakers"
because of their complaints on rotation. Considered in the
context and circumstances disclosed by the record, I find
that this had reference to the employees' concerted action
in seeking to have Respondent rotate employees on the
automatic riveting machines. I find that branding,
employees as "troublemakers" for exercising their
statutory rights to engage in concerted activity for their
mutual aid and protection, is coercive in nature."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section 111,
above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
"I deem it unnecessary to determine whether references to employees as
"troublemakers" on other occasions are also violative of the Act, as such
findings would merely be cumulative and not affect the Order herein
recommended
LOOSE LEAF METALS COMPANY 209
the several States and tend to' lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
CONCLUSIONS OF LAW
1. By discharging Helen D. Schwent on May 13, 1969,
for the reasons detailed in section III, B, I, (c), supra,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
2. By the foregoing and by the conduct of President
Ruppert, Plant Manager Owens and Foreman Long,
detailed in section III, C, supra, Respondent has
interfered with, restrained, and coerced its employees in
the exercise of their rights guaranteed by Section 7 of the
Act and thereby has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
4. Respondent has not engaged in unfair labor practices
violative of the Act by the discharge of Opal Oakley on
June 16, 1969.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I will recommend that it cease and
desist therefrom and take certain affirmative action which
will effectuate the policies of the Act.
I have found that Respondent discharged Helen D.
Schwent on May 13, 1969, in violation of Section 8(a)(1)
and (3) of the Act. Had she not been unlawfully
discharged, she would have become a full status employee
a few days later. I will therefore recommend that
Respondent offer her immediate and full reinstatement as
a full status employee to her former or substantially
equivalent position, without prejudice to her seniority or
other rights and privileges, and make her whole for any
loss of earnings she may have suffered as a result thereof,
by payment of a sum of money equal to that which she
normally would have earned as wages from the date of
discharge to the date of Respondent's offer of
reinstatement, less net earnings during such period, with
backpay and interest thereon to be computed in the
manner described by the Board in F W Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating
Co, 138 NLRB 716.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following:
other manner with respect to their hire and tenure of
employment or any term or condition of employment.
(b) Engaging in, or threatening economic reprisals
against employees for engaging in protected union and
concerted activities
(c) Branding employees as "troublemakers" or as
having a "bad attitude" for engaging in protected union
and concerted activities
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Helen D Schwent immediate and full
reinstatement as a full status employee to her former or
substantially equivalent position, without prejudice to the
seniority or other rights and privileges previously enjoyed,
and make her whole for any loss of pay suffered by reason
of her discharge, in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Notify Helen D Schwent if presently serving in the
Armed Forces of the United States of her reemployment
rights 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
(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, as well as all
other records necessary to analyze and compute the
amount of backpay due under the terms of this
Recommended Order.
(d) Post at its place of business in St. Louis, Missouri,
copies of the attached notice marked "Appendix""
Copies of said notice, on forms to be provided by the
Regional Director for Region 14, shall, after being duly
signed by an authorized representative of Respondent, be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material
(e) Notify the Regional Director for Region 14, in
writing, within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply
therewith .11 4
RECOMMENDED ORDER
Respondent , Loose Leaf Metals Company , St. Louis,
Missouri , its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in Local Lodge 1345,
International Association of Machinists and Aerospace
Workers, AFL-CIO, or any other labor organization, by
discriminatorily discharging any employees for resorting
to, or because of a belief or fear that they will resort to,
the Union and the established grievance machinery in
connection with frequent complaints about job assignment
and other employment conditions concerning which the
employees may feel aggrieved , or by discriminating in any
"in the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted
by the Board and become its findings, conclusions, and order , and all
objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a judgment of a United States Court
of Appeals , the words in the notice reading "Posted by Order of the
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 "
"In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read "Notify said Regional Director in
writing within 10 days from the date of this Order what steps the
Respondent has taken to comply herewith "
210 DECISIONS OF 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 discourage membership in Local
Lodge 1345, International Association of Machinists
and Aerospace Workers, AFL-CIO, or any other
union , by discriminatorily discharging any employees
for resorting to, or because of a belief or fear that they
will resort to, the Union and the established grievance
machinery in connection with frequent complaints
about job assignments and other employment
conditions concerning which they feel aggrieved, or by
discriminating in any other manner with respect to their
hire and tenure of employment or any term or
condition of employment.
WE WILL NOT engage in or threaten economic
reprisals against employees for engaging in protected
union and concerted activities.
WE WILL NOT brand employees as "troublemakers"
or as having a "bad attitude" for engaging in protected
union and concerted activities
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise
of their rights guaranteed by Section 7 of the Act
WE WILL offer Helen D . Schwent full and immediate
reinstatement as a full status employee to her former or
substantially equivalent position , without loss of any
seniority or other rights , and WE WILL make up to her
the pay that she lost , with 6 percent interest.
LOOSE LEAF METALS
COMPANY
(Employer)
Dated By
(Representative ) (Title)
Note: We will notify the above -named employee if
presently serving in the Armed Forces of the United
States of her reemployment rights 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
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,
1040 Boatmen ' s Bank Building, 314 North Broadway, St.
Louis, Missouri 63102 , Telephone 314-622-4167.