Magnetics International, Inc.

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 520 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Magnetics International, Inc. and Vivian Knutson.
Case 8-CA-12397
January 14, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On January 17, 1980, Administrative Law Judge
David L. Evans issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in answer thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
brief' and has decided to affirm the rulings,2 find-
ings,3 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
In adopting the Administrative Law Judge's con-
clusion that Respondent violated Section 8(a)(3)
and (I) of the Act by issuing Vivian Knutson a
warning note for excessive absenteeism on June 27,
I Respondent has requested oral argument This request is herehy
denied as the record, the exceptions, and the brief adequately present the
issues and the positions of the parties
We find no merit i Respondent's exception to the Administrative Lasw
Judge's questioning of witless I'rank Baka Sec 102.35(k) of the National
Labor Relations Board Rules and Regulations, Series 8, as amended,
gives an adrninistratise law udge authority to "call. examine, and cross-
examine" witnesses We note that Respondent neither objected to) the
questions onl the record nor requested i its brief to the Adminlistratile
Law Judge that the answers be stricken. lFurther, we find that Responl-
dent was not prejudiced by the Regional Director's dentail of Responl-
dent's motionl for a postponement oIf the hearing date. Responldett did
not appeal the Regional Director's rulinlg, seek any continuance from the
Administrative Law Judge during the hearing, or argue prejudice in its
brief to the Administrative l.aw Judge
z Respondent moved to dismiss the cotilplaint onI the ground that Spiel-
berg ManuJacturing Cirmpunpv, 112 NLRB 1)80 (1955), here requires de
ferral to an arbitration award. We herein affirm the Administrative Law
Judge's denial of the motion to dismiss See also Suburban Motor Freight.
Inc., 247 NLRB No 2 (198) Further, as indicated il the instant I)eci-
sion, infra. the current test for unlawful employer motivation in (a)(3)
cases Is taounrit 811 "righi .iLnc, a )ivlronr / of l'riht Line, In , 251 NI RB
I)83 (190).
3 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance iof all of the relevant evidenlce con -
vinces us that the resolutions are incorrect Standard Dry Wall IProducl.
Inc., 91 NLRB 544 (1950), ed 188 F.2d 362 (3d Cir. 1951). We hare
carefully examined the record and find no basis for reversing his findings
We herein correct two inadvertent errors of the Administratice Law
Judge First, Wendell Garman telephoned Vivian Klutsonl on July 12,
not June 12. Secondly, the transcript excerpt quoted by the Adninistra-
tive Law Judge concernilng Franlk aka's description of Ktlsitson's cen-
ployment history should refer. iter alita, to an ncidelt lof Julie 8, iot
July 8.
254 NLRB No. 62
1978,4 by suspending her on July 11, and by dis-
charging her on July 22, we do not rely on his ap-
plication of the "in part" test to find the violations.
Rather, we analyze the case based on our recent
Decision in Wright Line, a Division of Wright Line,
Inc., 251 NLRB at 1100. The test set forth therein
first requires the General Counsel to make a prima
facie showing that Knutson's protected activities
were motivating factors in Respondent's decision
to discipline and then discharge her. If the General
Counsel is successful, the burden of proof is effec-
tively shifted to Respondent to show that the dis-
charge or discipline would have occurred even in
the absence of Knutson's engagement in protected
activities.
As to the disciplinary warning charging Knutson
with "excessive absenteeism," we find that the
General Counsel has made the necessary prima
facie case. Respondent supported its disciplinary
action by listing 8 specified days of absence during
April, May, and June. The Administrative Law
Judge found that 3 days were unexplained by
Knutson, and that she attempted to have Respon-
dent excuse three other absences by submitting her
physician's note attesting to her illness on the days
in question. We agree with the Administrative Law
Judge that the record provides no basis for doubt-
ing Respondent's contention that its plant rules
provided for excused absence due to illness only
when the illness lasted longer than 1 week. The re-
maining 2 days encompassed within Respondent's
case for "excessive" absenteeism were, however,
directly related to activity by Knutson protected
by the Act. On April 6, pursuant to the prosecu-
tion of a Title VII lawsuit filed by Knutson against
Respondent, she was absent to attend the taking of
a deposition by her attorney of Respondent's
former personnel manager. On April 12, Knutson
was absent to enable her to give her own deposi-
tion to Respondent's counsel.
The Administrative Law Judge correctly states
that the Act protects an employee who files a law-
suit to assert a statutory right growing out of the
employment relationship. We find that the General
Counsel has successfully demonstrated that Knut-
son's April 12 absence was a motivating factor, or,
in the Administrative Law Judge's words, "an effi-
cient cause" of Respondent's characterization of
Knutson's absences as "excessive" and thus war-
ranting discipline under its rules. The General
Counsel's successful prima facie case of wrongful
motive thus shifts to Respondent the burden of
showing that Knutson would have been disciplined
' All dales referreld to hereinafter are ill 1)7X8 unless otherise indical-
ed
520
MAGNETICS INTERNATIONAL, INC
even if the two protected absences had been con-
sidered. Respondent presented no evidence as to
either its criteria for determining when absences
became "excessive" or as to how other employees
had been treated under the rule. We therefore con-
clude that Respondent has failed to meet its burden
and affirm the Administrative Law Judge's conclu-
sion that Respondent violated Section 8(a)(1) of the
Act on June 27 by disciplining Knutson.
We further find that the General Counsel has
presented a prima facie case of 8(a)(3) discrimina-
tion with respect to the discharge of Knutson on
July 22. On July 11 an employee asked Shop Ste-
ward Knutson a question about her work assign-
ment. When Knutson took out a copy of the con-
tract in order to look up the pertinent provision,
Foremen Frank Baka gave her a disciplinary cita-
tion for "reading personal material" during work-
time.5 Baka testified that Knutson then angrily re-
sponded to the citation with the threat that "one of
these days" Baka would not "make it home." Upon
learning of this alleged threat, Respondent's per-
sonnel manager, Wendell Garman, suspended
Knutson indefinitely in order to "investigate" the
matter.
Garman conceded that the investigation consist-
ed only of a review of Knutson's complete person-
nel file and did not include interviews with Knut-
son herself or either of the two employees nearest
to Knutson and Baka at the time of the alleged
threatening remark. The suspension was converted
to a discharge on July 22.
We agree with the Administrative Law Judge
that Respondent's version of a threat to Baka's life
is not credible. Garman's investigatory failure to
seek corroboration of the remark alleged to be
such a serious threat is not compatible with a belief
that it actually occurred. Also, the Administrative
Law Judge reasoned that, if the threat had been
made as described by Respondent, then the dis-
charge decision would not have taken as long as 10
days.
Finally, even top management officials differed
on the significance of the alleged threat of June 11.
On that evening, after work, Baka's car was run off
the road by an unidentified vehicle. Moskin testi-
fied, in effect, that he attributed the highway inci-
dent to Knutson and gave it great weight in the
discharge decision. Garman, on the other hand, as-
serted that the incident played no role in manage-
ment deliberations.
The evidence submitted by the General Counsel
effectively shifted the burden to Respondent to
I No exception :as taken to the Administratzve I.aw Judge's disnlisaill
of the allegation that the issuance of this citation Nl'olated Sec 8(a)(3) of
the Act
show that the discharge would have occurred even
in the absence of Knutson's engagement as shop
steward in clearly protected activities. Respondent
alleged that Knutson was discharged for her absen-
teeism during the spring of 1979, poor production
on three separate occasions, insubordination and a
threat against Baka on June 8, and the threat
against Baka on July 11. Knutson's personnel file
contains disciplinary citations for all these events.
Garman also testified that Knutson, as the shop ste-
ward, should have been an example to other em-
ployees rather than one who "willingly" violated
shop rules as reflected in her filed citations.
The two instances of Knutson's conduct alleged
by Respondent to have been insubordinate took
place during her representational efforts on behalf
of other employees. Baka testified that on those
two occasions, as well as on others when she filed
and processed grievances on her own behalf, Knut-
son engaged in "argumentative discussions" and
caused "commotion" and "disruption" in the shop.
However, we agree with the Administrative
Law Judge, for the reasons stated by him and recit-
ed above with respect to the July 11 incident, that
threats by Knutson against Baka did not occur as
alleged by Respondent. That otherwise heated con-
frontation over employee grievance handling took
place between Knutson and management officials is
undisputed. As found by the Administrative Law
Judge, Respondent has offered no credible evi-
dence beyond its own conclusionary characteriza-
tions that Knutson's conduct of her protected
union activities was so flagrant, serious, or exten-
sive as to render her unfit for further employment.
Thus, eliminating Knutson's protected grievance
handling activity from consideration, Respondent's
case for the discharge is reduced to the absenteeism
citation, found herein to be violative of Section
8(a)(1) of the Act and the three citations for poor
production. The dates of those citations were in
January 1975 and February and April 1978. Re-
spondent offers no evidence as to whether employ-
ees with similar production records have also been
discharged. We note that in this instance one of the
poor production days was 3-1/2 years before the
discharge and the most recent one was 3 months
before that severe discipline was imposed. We con-
clude, therefore, that Respondent has failed to
demonstrate that it would have discharged Knut-
son for her production deficiencies even in the ab-
sence of her protected activity and its own opposi-
tion to it. We affirm the Administrative Law
Judge's finding that Respondent violated Section
8(a)(3) of the Act by its discharge of Knutson on
July 22.
521
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Magnetics International, Inc., Maple Heights, Ohio,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
Substitute the following for paragraph 2(c):
"(c) Offer Vivian Knutson immediate and full re-
instatement to her former position or, if that posi-
tion no longer exists, to substantially equivalent
employment, without prejudice to her seniority or
any other rights and privileges previously enjoyed,
and make her whole for any loss of earnings she
may have suffered as a result of her suspension and
discharge in the manner set forth in the section of
this Decision entitled 'The Remedy."'
MEMBER PENELLO, dissenting in part:
I would defer the complaint allegation that
Vivian Knutson was unlawfully discharged to the
arbitration award herein. It is undisputed that all
parties participated in the arbitration, that evidence
was adduced as to Knutson's protected activities,
and that the hearing was fair and regular. Never-
theless, the majority agrees with the Administrative
Law Judge that it would be inappropriate to defer
to the award because the "arbitrator considered
only the contractual contraints upon the Respon-
dent, not the statutory." However, in a case such
as this, "the key is the evidence presented." Gener-
al Warehouse Corp., 247 NLRB No. 142 (1980) (dis-
senting opinion).6 Here, the arbitrator specifically
stated that he considered "all the evidence, its
nature and type, the demeanor of the witnesses,
their opportunities for observation of grievant's
work conduct, their self-serving interest or other-
wise, and the work record of grievant." On the
basis of the foregoing, the arbitrator made a finding
that the discharge was for just cause because the
grievant was guilty of insubordination. In my opin-
ion, the award is, therefore, not clearly repugnant
to the purposes and policies of the Act and fully
meets the Spielberg standards7 for deferral. Accord-
ingly, I would dismiss the allegation of the com-
plaint relating to Knutson's discharge."
6 My colleagues rely on Suburban Motor Freight, Inc., 247 NLRB No.
2 (1980). As I stated in my dissent therein, I adhere to Electronic Repro-
duction Service Corporation 213 NLRB 758 (1974). which requires only
that an arbitration proceeding provide the opportunity to present unfair
labor practice issues. In this case, the grievant and the Union not only
had the opportunity to present the unfair labor practice issue, but did so.
Spielberg Manufacturing Company, 112 NLRB 1080 (1955).
g With regard to another matter, I agree with my colleagues that
Knutson's prosecution of a sex discrimination suit against Respondent
constituted protected concerted activity, but, in so finding, I specifically
rely on thc fact that the collective-bargaining agreement provided that
Respondent shall not discriminate against employees on account of sex.
See King Soopers. Inc., 222 NLRB 1011, 1018 (1976).
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge: This
case was heard at Cleveland, Ohio, on May 24, 1979 on
a complaint issued by the General Counsel upon charges
filed by Vivian Knutson, an individual, on November 13,
1978.' In essence, the complaint alleges that Respondent
took the following actions against Knutson because of
her activities as steward (or committeeman for Interna-
tional Association of Machinists and Aerospace Workers,
Local Lodge 233, AFL-CIO (herein called the Union):
suspended her for 3 weeks on June 8; issued written
warning notices to her on June 27 and July 11; indefi-
nitely suspended her on July 12; and discharged her on
July 22, all in violation of Section 8(a)(1) and (3) of the
Act. In an answer duly filed, Respondent admitted the
discipline and discharge of Knutson but denied the com-
mission of any unfair labor practices. Additionally, Re-
spondent contends that the substance of the complaint
has been disposed of by Knutson's invocation of the
grievance procedure and binding arbitration provisions
of the contract between it and the Union and that the
Board has no jurisdiction of this matter. The General
Counsel replies that the arbitration decision which
denied Knutson's grievance in issue should not be given
deference as it is repugnant to the Act.
At the end of the hearing the parties waived oral argu-
ment. Thereafter counsel for the General Counsel and
for Respondent filed briefs which have been carefully
considered. Upon the entire record in this case, including
the briefs of the parties, and upon my observation of the
witnesses who testified, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, an Ohio corporation, is engaged at its fa-
cility at Maple Heights, Ohio, in the manufacture of elec-
tric motors and lifting magnets. Annually, Respondent
ships products valued in excess of $50,000 from its facili-
ty directly to points outside Ohio.
The complaint alleges, the answer admits, and I find
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
' All dates herein are in 1978 unless otherwise specified.
522
MAGNETICS INTERNATIONAL, INC.
It. 'IHE MOTION TO DISMISS
Respondent, in effect, has moved that the complaint be
dismissed because the matters therein alleged to be viola-
tions of the Act have been disposed of by an arbitration
award (issued on November 13) which is final and bind-
ing and which comports with the standards established
by the Board in Spielberg Manufacturing Company, 112
NLRB 1080 (1955), and its progeny. I reject this conten-
tion. It is true that the arbitration provision of the con-
tract recites that it is binding and the Union and Knutson
voluntarily invoked the proceeding and there is no con-
tention that the proceeding before the arbitrator was
other than fair and regular. However, it appears from the
decision that while the Union and Knutson advanced the
theory that her discipline and discharge were motivated
by unlawful considerations, it further affirmatively ap-
pears that these contentions were not considered by the
arbitrator.
The arbitration decision is cryptic. It merely recites
the contention of the parties and announces a result. Re-
spondent contended that Knutson had been insubordinate
and threatened Foreman Frank Baka, and the Union and
Knutson denied any wrongdoing on her part and con-
tended that Respondent's actions against her were caused
by her grievance-filing activity. While these contentions
are noted by the arbitration decision, there is no discus-
sion of the evidence and critical conclusions based there-
upon are not made. The only analysis of the issues is:
DISCUSSION
This case, being a disciplinary matter, the Com-
pany had the burden of proving that the grievant's
conduct was just cause for discharge. The contract
provided therefore in Article 4 as to violation of
Company rules.
It was the sole duty of Arbitrator to determine
from the evidence submitted whether the company
had borne its burden of proof. The Arbitrator con-
cludes from all the evidence, its nature and type,
the demeanor of the witnesses, their opportunities
for observation of grievant's work conduct, their
self serving interest or otherwise, and the work
record of grievant.
The Arbitrator concludes therefore that the
Company has sustained its burden of proof and that
the grievant was guilty of insubordination (Shop
Rule #16) and that the Company had just contrac-
tual cause for discharge. [Emphasis supplied.)
It is thus clear that the arbitrator only considered the
contract's article 4 (which gives management the right to
establish reasonable rules of conduct) and Respondent's
shop rule number 16 (which prohibits insubordination or
refusal to carry out orders of foremen or other supervi-
sors). The arbitrator did not decide if Respondent's moti-
vation was mixed to any extent with unlawful consider-
ations. It is, of course, the law that even if an employer
possesses a just cause for discharge, if he is motivated in
any part by unlawful considerations as well, the dis-
charge is unlawful.2 This rationale is precisely what
2 . B and S. Chernmal Company, 224 NIRBt I (1976)
tive to the denial of wrongdoing). Rather than consider
the statutory issues involved, the arbitrator ended his in-
quiry upon the determination of whether "the Company
had just contractual cause for discharge." Therefore, it
affirmatively appears that the arbitrator did not take into
consideration whether the discipline and discharge of
Knutson was motivated in whole or in part upon activi-
ties which were protected by the Act. The arbitrator
considered only the contractual constraints upon Respon-
dent, not the statutory, and it would be inappropriate for
the Board to defer to the arbitration decision.3
Accordingly, Respondent's motion to defer to the arbi-
tration decision is denied.
IV. THE AILEGI D UNFAIR L.ABOR PRACTICES
The Union has represented Respondent's approximate-
ly 185 production and maintenance employees for several
years. There has been a series of successive collective-
bargaining agreements covering those employees, the
most recent of which has effective dates of June 7, 1977,
through June 6, 1980. Vivian Knutson was employed in
1972 as an armature connector and was covered by this
contract until her discharge on July 22. Her foreman, at
all times material herein, was Frank Baka who also su-
pervised some 75 other employees. Baka reported to
Steve Moskin, plant superintendent, who, in turn, report-
ed to James Patz, vice president and general manager.
Respondent's personnel manager from about January I
to the date of the hearing was Wendell Garman. Respon-
dent admits that each of these individuals is a supervisor
within the meaning of Section 2(11) of the Act.
Knutson's employment was relatively uneventful until
January when she was elected steward (or "committee-
man") of her department. As one of eight committeemen
she was charged with the responsibility of investigating
and/or settling grievances in the first and second stages
of the four-step grievance procedure of the contract.
Knutson credibly testified that in December 1977,
before she was nominated to be committeeman, she was
in the office area where Moskin told her that she should
not "get involved" in the Union. Knutson replied that
she did not know if she would accept if nominated. Con-
currently with the events of this case Knutson has pros-
ecuted in Federal district court a sex discrimination suit
under the 1964 Civil Rights Act, the exact nature of
which was not disclosed in this record. Knutson testified,
without contradiction, that on December 13, 1977, she
was called to Moskin's office where she was confronted
by Frank Novey (Garman's predecessor in office as per-
sonnel manager), Moskin Baka, Elsie Nagy (secretary of
the Union), and Florence Gallicky (chief shop steward).
According to Knutson, Novey "accused" her of circulat-
ing a petition which sought to oust the Union as the rep-
resentative of the employees. Knutson denied knowledge
I Raytheon Compan, 140 NL.RH 83 (Iq63), and most recently, riple
.4 Machlne Shop. Inc.. 245 NLRB 136 (1979), which reaffirms this princi-
pie and further discusses the inappropriateness of deferring to arbilration
decisilons in which an arbitrator merely recites contentions or refers tor
"an alleged incident," declines to make necessary credihiliy resolutions.
and simply announces a result
523
l) CISIONS OF NATIONAL LABOR RELATIONS BOARD
of any such petition to Novey. 4 Knutson further testi-
fied, again without contradiction, that in the same meet-
ing Novey told her that he had been under the impres-
sion that she had dropped her sex discrimination suit,
otherwise she would not have been recalled from layoff.
(Just when Knutson was laid off and recalled is not dis-
closed by the record.) Finally, Knutson testified that
Novey said he felt she was making too many telephone
calls to the union hall.
In addition to written grievances over discipline
against her, once elected, Knutson filed other written
grievances over work assignments and assignments of
overtime, each claiming that she was the aggrieved em-
ployee. The only exception to this was a written griev-
ance filed February 10 which generally claimed Baka
was harassing other union members, as well as herself
and "[c]ausing tension in the department . . .
[d]isrupt[ing. . . production . . . [d]enying union rights
and human rights . . . [c]ausing slowdown on produc-
tion. Failure to notify stewart [sic] of problems in the de-
partment and changing of job schedule .... " Addition-
ally, she filed with Baka several oral grievances which,
as the testimony quoted below indicates, played a part in
her ultimate termination.
A. Suspension of June 8
At some point during June 8 it was reported to Knut-
son by employees Jeannie Moss and Rita Mechalski 5 that
employee Pat Stevens was performing three job func-
tions at one time. To Knutson this was a seeming viola-
tion of the contract. (Baka admitted on cross-examination
that stewards have complained about such assignments
before.) Knutson went to Stevens' work station and ac-
cording to Knutson:
I asked if she had orders from the working super-
visor, Mr. Eddy Biala, to perform all three jobs.
She didn't give an answer and I says, "You are a
new girl and you are not allowed to run three jobs
in one and another classifications. The girls are
complaining."
Further, according to Knutson, she thereupon returned
to her work station from which she was summoned by
Baka. According to Knutson, Baka called her a few feet
away from her work station and started to talk about a
topic which arose the previous day, discipline of another
employee, John Kaminski. Knutson testified that she told
Baka she considered the Kaminski matter "closed" as
Kaminski had been disciplined without union representa-
tion and, thereupon, turned heel and walked away from
Baka to her work station. Further, according to Knut-
son, Baka followed her "screaming at me" and:
He told me to hit the damn bricks, and I looked at
him and I said, "No" and then he says, "We're
going to Moskin's office," and I said, "Not without
Union representation," because Mr. Baka was very
angry.
'There was no further testimony about any such petition
S Moss did unot testify; Mechalskt testified but not on this topic
Then, further according to Knutson, she went to punch
her timecard and others appeared and gathered around
her and Baka including Moskin, Eddy Biala (the assistant
foreman, who apparently had given Stevens the triple as-
signment), and chief steward Gallicky. 6 After a "com-
motion" among them, Moskin ordered her to leave the
plant, which she did.
Employee Vivian Furr testified that when Knutson
was at her normal place of work, she heard an exchange
between Knutson and Baka. According to Furr, Knutson
refused to go to the office "without union representa-
tion": Knutson asked for Gallicky, and Brian Barner, an-
other steward, and that Baka refused stating "No, you
are fired, you punch out and you go home, you hit the
bricks)."
Baka testified that he saw Knutson causing a "commo-
tion" by instructing Stevens not to perform the job. Baka
further testified that he told Knutson to go back to her
job and that Knutson became "very belligerent." When
pressed for what he meant by use of that word, Baka tes-
tified that Knutson said, "I'll get you." Baka testified that
then:
I asked her to come onto the side and we would
discuss the problem or go into the superintendent's
office to discuss the problem in order to get the
commotion away from the department.
Knutson refused stating that she wanted to clear the
matter up on the floor. Baka called Personnel Manager
Garman and informed him of the problem. Garman ap-
peared and Baka told him what the problem was, away
from Knutson, and "suggested to him that it was insub-
ordination and she should be suspended for this." Ac-
cording to Baka, Garman replied that he would check
into the matter. Garman talked to Knutson, returned to
Baka, and agreed that Knutson should be suspended.
Then Moskin appeared, "and we had informed him what
happened on the floor. We went through with the sus-
pension, indefinite suspension." By this point, further ac-
cording to Baka, Knutson had returned to her work sta-
tion. Then Baka went to the office to write out the in-
definite suspension, returned with it to Knutson who was
at her work station and told her to leave the plant. Baka
did not deny that when he went to Knutson's work sta-
tion, Knutson asked for union representation. Baka did
deny ever telling Knutson that she was fired or to "hit
the bricks." The disciplinary notice signed by Baka had
circled the following of 23 different violations listed on
the forms:
7. Interfering with, talking with, or otherwise dis-
turbing employees either within or outside of own
department.
8. Willful disregard for the rights of other em-
ployees.
16. Insubordination or refusal to carry out orders
of Foreman or other Supervision.
22. Organizing, promoting and/or participating in
an unauthorized work stoppage or slow down.
; Neither iala nor Gallicky testified.
524
MAGNETICS INTERNATIONAL, INC.
It concluded "indefinite suspension." In answer to a
grievance filed by Knutson over the indefinite suspension
on June 8, Baka replied "grievant was clearly insubordi-
nate to the department foreman." At some point, obvi-
ously within the 3 following days, the suspension was re-
duced to only 3 days' duration.
Garman testified that Baka, in his presence, ordered
Knutson to return to her department and she refused.
According to Garman:
THE WITNESS: In my presence Mr. Baka ordered
or told Ms. Knutson to go to the superintendent's
office to discuss this. She actually refused to do so.
Mr. Baka said to Ms. Knutson, "You have been
clearly insubordinate in front of other employees."
He thought she should be suspended, and I was
standing right there and said, "Frank, you are the
foreman, suspend her," which he did.
As noted, Baka had testified that Knutson and Garman
spoke out of his hearing and the decision to suspend was
after he, Garman, and Moskin conferred jointly. While
Baka had said that Garman and Knutson had left his
presence to discuss the matter, Garman makes no men-
tion of a separate conversation with her (and Knutson
testified that she did not remember seeing Garman at
all). Finally, in regard to discrepancies between Baka and
Garman, Baka testified to no (second) order to Knutson
by himself in Garman's presence.
Moskin testified that when he arrived at the depart-
ment employees were standing around and:
THE WITNESS: The department was disorganized.
There were people standing around. The foreman
was trying to get Ms. Knutson off to the one side
and I didn't hear any exact words at that time until
I checked with the foreman and he told me what
was going on. She refused to comply with his
orders and I suggested that he suspend her indefi-
nitely at that [point].
Moskin testified that he did not hear any request for a
union representative. Moskin testified that Garman was
there, but he heard nothing that Garman said. Moskin
testified that Knutson was suspended by Baka pursuant
to his instructions because she would not leave the area
where the imbroglio was occurring. However, Baka tes-
tified that Knutson was not in Stevens' area when
Moskin arrived; he thought Knutson had returned to her
machine by that point.
The issues devolving from this multiplicity of accounts
are whether Knutson interfered with the work of other
employees and what was the nature of the conduct
which Respondent considered insubordinate. (What is
not an issue is whether Knutson requested union repre-
sentation and the effect thereof, because the General
Counsel does not contend Knutson was disciplined for
refusal to submit without union representation to an in-
terview at which she could reasonably have expected
discipline. However, for possible purposes of review. I
note that I believe Knutson's and Furr's testimony in this
regard.)
There is no evidence that Knutson interfered with the
work of other employees. At most she informed Stevens
that she was performing too many job junctions and
should not be doing such, but she did not physically in-
terfere with Stevens, and there is no credible evidence
that she told Stevens to stop working in any terms which
would tend to make Stevens do so without supervisory
permission. Moreover, there is no evidence that Stevens
did, in fact, stop working. Presumably, if Stevens had
been verbally abused by Knutson, explicitly instructed to
stop working, or physically interfered with, she would
have been presented by Respondent; I draw a negative
inference from Respondent's failure to present Stevens or
explain its failure for not doing so. International Unior.
United Automobile, Aerospace and Agricultural Implement
Workers of America (UA W) [Gyrodyne Company of 4mer-
ica] v. .. L.R.B., 459 F.2d 1329 (D.C. Cir. 1972); Fabri-
cut, Inc., 238 NLRB 768 (1978).
When testifying that "belligerence" toward himself
was a reason for the suspension of Knutson for insubor-
dination, the only factor cited by Baka was Knutson's
purported threat "I'll get you." When so testifying, Baka
first attempted generalization giving the distinct impres-
sion of grasping at straws for a justification for his con-
clusionary testimony that Knutson had been belligerent.
Then he advanced the "I'll get you" alleged threat, but
only after being pressed, rendering himself incredible on
the point. Moreover, I find it plainiy incredible that Baka
would have responded only that the commotion should
be moved to the office if he had actually been threatened
or thought he had been threatened. Had Knutson threat-
ened Baka at that point, he would have instantly sus-
pended or otherwise disciplined her and not waited for
orders and/or Baka would have mentioned it in his
notice of suspension, and/or mentioned it in the second
step reply to Knutson's grievance. According to the doc-
umentary and testimentary evidence, Baka did none of
these. I find that Knutson did not make the threat to
"get" Baka on June 8. However, all versions of Respon-
dent's account demonstrate that it was aware that Knut-
son's actions on June 8 were taken in the course of gen-
erally protected activity. Since I have found there is no
credible evidence that Knutson engaged in the miscon-
duct attributed to her in the course of that conduct, it
must be held that the suspension of Knutson therefore
violated Section 8(a)(1) and (3) of the Act. Star Eopan-
sion Industries Corporation, 164 NLRB 563 (1967), and
cases cited therein.
B. The June 27 Written Warning Votice
On June 27, Knutson received a written warning
notice of "excessive absenteeism." (Although written, the
notice is designated "oral" which is the first step of a
three-step progressive disciplinary procedure for listed
infractions such as those listed above in the discussion of
the June incident as well as "excessive absenteeism." The
other steps are "written citation" and "disciplinary
action" which is specified, such as suspension or dis-
charge.) The notice lists April 6, 12, and 25, iMa2 22, 23,
25, and 30; and June 26 absences which are the basis for
the citation.
525
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Knutson testified without contradiction that on April
6, she was absent because she was assisting her attorney
in taking the deposition of Frank Novey, the previous
personnel director, for the sex discrimination suit men-
tioned above. On April 12, she was at Respondent's at-
torney's office where her deposition was being taken.7
On May 22, 23, and 25, Knutson was ill. Knutson
brought a doctor's excuse to the plant which Baka re-
fused to accept. The General Counsel offered no expla-
nation of her absences of April 25, May 30, and June 26
at the hearing.
Knutson testified that to her knowledge Respondent
accepted doctors' excuses and did not charge employees
with absences when they were presented. There is no
testimonial or documentary corroboration of Knutson on
this point. On the contrary, Personnel Manager Garman
testified that absences are chargeable except as specified
in the contract where it is stated that employees who are
ill for more than a week may be granted a leave of ab-
sence. The record does not support Knutson's bare testi-
mony in this regard and there is no reason to believe that
Garman's testimony about Respondent's general absence
policy is untrue.
However, in the series of absences which, on June 26,
became "excessive" to Respondent, Respondent counts
two absences which constituted activity protected by the
Act. The prosecution of a suit to assert a statutorily pro-
tected right growing out of the employment relationship
is protected activity. Krispy Creme Doughnut Corp., 245
NLRB 1053 (1979); Self Cycle & Marine Distributor Co.
Inc., 237 NLRB 75 (1978). Specifically, this is true of
suits under the 1964 Civil Rights Act. King Soopers, Inc.,
222 NLRB 1011 (1976). To hold that the giving or
taking of depositions in such a suit is not activity protect-
ed by the Act would stultify the exercise of the right to
file and prosecute such suits. However, I really need not
decide whether all participation in all such discovery
proceedings is protected. Respondent included in its enu-
meration of absences one which is compelled (April 12),
and it is beyond question that a statutory right to file and
prosecute such suits would be destroyed if an employer
could compel an absence and then penalize an employee
for complying. Since the April 12 absence is an efficient
cause of the June 27 notice, its issuance violated Section
8(a)(l) of the Act and I so find and conclude.
However, I decline to find that the issuance of the
June 27 notice independently violated Section 8(a)(3) of
the Act. While, as found, Respondent's agents expressed
displeasure at Knutson's becoming a steward, it is purely
conjectural that her becoming a steward or her action as
such, played any part in Respondent's decision to issue
the notice.
C. The July 11 Warning Notice and Suspension and
Subsequent Discharge
I. Facts
Knutson testified that on July 11 she received another
verbal complaint, or grievance, from employee Jeannie
If either of these depositions took less than a full day, there was no
evidence thereof.
Moss. According to Knutson, Moss questioned whether
the employer had the right to make a temporary transfer.
According to Knutson:
. . I explained to Jeannie that under the contract
rules, the Company had a right to place an employ-
ee for 16 hours. She kindly disputed that, so I told
her I would look it up and she could read it from
the contract book.
Then, Mr. Baka and Mr. Moskin came alongside
of me, by my machine, when I was looking up the
part about transferring for 16 hours. They left and
the next thing I knew Mr. Baka brought me a cita-
tion saying, "Reading personal material."
Knutson testified that she read the citation and said
nothing. She was absent the next day, ill at home, when
Garman called and said she had been suspended for
threatening Frank Baka.
Baka testified that he gave the "oral," or first step,
notice to Knutson because he saw her sitting at her ma-
chine reading the current collective-bargaining agree-
ment rather than working. The notice states as a reason
therefore: "loafing ... reading personal Mat'l. at ma-
chine on productive time." Baka testified that when he
gave the notice to Knutson, Knutson replied:
A. "You can't do this to me," something like
that. She became very loud and boisterous.
Q. What did she say in a loud boisterous remark?
A. She had gotton up from her chair and we
walked over to the side of the aisle which is close
to where she works. She works on one side and we
walked to the other side, and she looked up at me
and she said, "One of these days big boy8 you're
not going to make it home." I said, "What?" And
she walked back to her work station, and I says,
"Vivian, this is a personal threat to me. What did
you say?" She said, "Your word against mine," and
I went back-and then just then the quitting bell
had rung, or the 3:20 whistle had blown and I was
trying to have her repeat what she had told me. As
soon as the bell rang, she left.
She says "Your word against mine."
I turned right after the bell and went back to see
Moskin. I told him about it and informed Mr.
Garman about it.
Baka repeated on cross and redirect examination that
the threat was loud. On the back of the warning notice
issued that day Baka wrote:
3:04 P.M.
At issuance of this citation V. Knutson said, "one
of these days, big boy, you [sic] not going to make
it home.
No witness is present.
(signed) F. Baka
HBaka Is, ) feet, 2 inchec tall, Knutson is 5 fct, I inch all
526
MAGNETICS INTERNATIONAL, INC.
However, at the hearing, Baka acknowledged that there
were two employees in the immediate (5 or 6 feet) area,
Vivian Furr and Teresa DeFranco. He asked DeFranco
(at some unspecified time later) if she heard the threat
and DeFranco said to him that she had not. Baka did not
ask Furr. Furr and Mechalski, who also worked in the
area at the time, testified on behalf of the General Coun-
sel and denied seeing or hearing any part of the incident.
Baka testified that he immediately informed Moskin
and Garman and "Their reaction was that we should sus-
pend her and investigate the matter." aka, as well as
Moskin and Garman, testified that by the time the deci-
sion to suspend Knutson was made, it was after the 3:30
p.m. quitting time, and Knutson had already left the
plant.
Baka testified that on his way home that evening his
automobile was run off the highway by another auto-
mobile, an event he reported to three different police au-
thorities in the area. He reported the incident to Moskin
and Garman the first thing the next morning, and
Garman and Moskin told him they would investigate the
matter.
On July 12 Knutson did not report to work because,
as she testified, she was ill. Garman testified that he
called Knutson at home some time during the morning of
June 12, but he did not know what hour; Knutson testi-
fied that no call was received until 2 p.m. Garman also
testified that he told Knutson that she was suspended for
threatening Frank Baka.
Garman testified that Knutson was suspended, rather
than immediately terminated, because:
It took some time to review her whole personnel
file case to get information which he thought was
particularly needed before the decision was made,
but not to make a hasty, snappy decision, just took
our time, gathered information, had conferences and
finally came to the conclusion in reviewing her
whole personnel file.
Garman testified that as well as reviewing the personnel
file he, or some other unnamed representative of Respon-
dent, attempted to find witnesses, but did not talk to any
employees who would have been in hearing distance of
the alleged threat. Specifically, Garman knew of no man-
agement representative who had discussed the matter
with Furr or Mechalski whom he conceded worked 8 to
10 feet from Knutson's work station. Garman further
conceded that discussions with Knutson were not a part
of Respondent's investigation.
Baka, Moskin, and Garman agreed that the purpose of
the suspension had been to investigate the propriety of a
discharge. Garman testified that in deliberating the dis-
charge the incident Baka had reported to have happened
on his way home played no part in Respondent's deci-
sion. However, Moskin testified:
Well, the final conclusion came when the fore-
man reported the next day that somebody tried to
run him off the road. We thought, we're not dealing
with somebody who is making idle threats anymore,
somebody is really taking steps against the foreman.
Therefore, Moskin and Garman squarely conflicted on
whether the incident Baka had on the way home had
anything to do with the discharge of Knutson, Moskin
being very clear that it was the precipitating cause and
Garman denying that it had anything to do with the dis-
charge. A logical inconsistency in Respondent's account
is that no one attempted to call Knutson at home either
on the night of the alleged threat to Baka or at the start
of the shifts the next morning when she failed to appear.
Logically, had a supervisor been threatened as Baka
claimed to have been she would have been notified of
discipline immediately, not some time in the morning of
the following day which Garman could not specify. An-
other detracting factor from Respondent's account is the
fact that although Baka testified that the threat was made
by Knutson's loud voice, and there were other employ-
ees working nearby, none (except possibly DeFranco)
was contacted at any time during Respondent's "investi-
gation." Furthermore, Baka's memorandum of the al-
leged threat reflects that it was made at 3:04 p.m., or 26
minutes before quitting time. Baka, according to his own
testimony, immediately reported the incident to Moskin
and Garman, any of the three could have, and presum-
ably would have, immediately attempted to secure cor-
roboration of the threat if they really believed it had
been made, especially if, as Baka testified, it was made in
a loud voice, and especially if, as Baka related. Kiulson
had said its "your word against mine."
Finally, had there actually been a threat, or Respon-
dent's agents believed there had been a threat, there
would have been no purpose served in the suspension;
she would have been discharged immediately not 10 days
later.
In summary, I find that Respondent's account of a
threat by Knutson to Baka to be incredible.9
However, assuming that Knutson threatened Baka in
any manner, the testimony of Garman makes it clear that
Knutson's activity as a job steward was at least a part of
the reason for her discharge.
Garman characterized the seven or eight grievances
which Knutson had filed as a job steward as "her per-
sonal grievances" by which he meant "she didn't like the
way the foreman ran the department. She was slowing
down production and he didn't consult with her when he
changed the schedules. It had nothing to do with other
employees or representatives of the Union. She didn't
like the way he ran the department." Hle further testified
that he considered the grievances only "personal" be-
cause most of them were in response to disciplinary ac-
tions which had been taken against Knutson herself.
After stating that most of the grievances were consid-
ered nonmeritorious by management, Garman was asked
if Knutson's filing of these unmeritorious grievances
came into play in determining to discharge her, to which
T9 his is not to say that I believe Knutron's teslimon I hal when she
received he July 11 warning notice she said nothing Knutson made an
unfavorable impression She appeared to he affecting a demneanor too
meek to helieve Furthermore, I do riot believe Baka fabricated the entllre
account to manufacture a pretext for securing the discharge ,of Kilutso ,ll
believe that Knutson aid something, but i Respondenl believed she had
made the threall alleged, or anything like it, i ,ould not have ,xaitcd 10
di1\ s hile re eles ing her personnel tile herfre dli.charging her
527
) DCISI()NS OF NA FIONAL LABOR RELATIONS BOARD
Garman replied "not heavily." Garman testified that
Knutson was discharged, in part, for "disrupting work
and workers in her department" by which he meant:
Several occasions she tried to insist that other
employees filled grievances out when they didn't
want to file grievances. And, with regard to some
of the grievances she had filed following disciplin-
ary action to one incident, one violation of shop
rules, she became very loud and belligerent and
profane and broadcasting it so that everybody could
hear her. She was telling the Company off.
Garman was asked by his own counsel:
Q. Was that fact that she was a shop committee
person, I take it as of January, 1978, did that fact
enter into the discussions or deliberations that led
up to her discharge?
A. Yes
Q. In what sense, Mr. Garman?
A. To the extent that we felt that being a depart-
ment steward she should have known not to violate
some of the shop rules that she willingly violated.
She should have been an example for the employ-
ees.
Q. During the first half of 1978, was that type of
employee, in your opinion as the personnel manager
of the Company, was Ms. Knutson's average?
A. Not outstanding or brilliant. Her work was
satisfactory, but she continued violation of shop
rules over and over. A continuous process, until we
got to a point where we felt that she was not going
to try to work under supervision.
Q. And you had input from Mr. Baka, your fore-
man, in arriving at that conclusion, did you not?
A. Yes.
Garman testified that all of the "continued violation(s) of
shop rules" were reflected by the warning notices in evi-
dence. These violations were poor production on Janu-
ary 4, 1975, and February 20 and April 20, 1978, as well
as the incident of insubordination on June 8, the eight ab-
sences and the alleged threats to Baka on July II which
are discussed above.
Baka described Knutson's employment history accord-
ingly:
Q. Separate and apart from the incidents of July
8th and July 11th, tell us in your words what kind
of worker Ms. Knutson was in the first six months
of '78.
A. The first six months of 1978, I'm trying to
recall the date that she reported-shortly after she
came to the department she ran for committee girl
and seems that after this election, she was elected,
her attitude and her performance were very distrub-
ing to the department.
Q. You noticed a change in her attitude and per-
formance after the time she was elected to commit-
tee person?
A. Yes.
Q. Would you describe that for us?
A. She caused a lot of problems, unnecessary
Union connected or worker union connected com-
motions within the department.
Q. What type of commotion, what would be a
typical example of commotion?
A. Argumentative discussions.
Q. Would that have been argumentative discus-
sions with you or with other employees, or what?
A. Both.
Q. With what frequency was this type of action
taking place?
A. Oh, I'd say almost daily.
Q Would you issue a citation, an oral warning to
her each and every time you observed this type of
activity?
A. No.
Q. Why not?
A. Some of it was very incidental. I don't know
whether it was her motive to promote a disruptive
department. Things were working fine and she was
finding so many things, in her opinion, that I was
doing wrong.
Q. Were many of Ms. Knutson's activities during
the first six months-have an impact on the efficien-
cy and productivity?
A. Yes.
Q. In what manner, sir?
A. Well, the commotion that she had caused, hol-
lering, causing a lot of-
MR. SIMONEI-II: Objection, unless he can give
specific answers and lay a foundation. All these are
conclusionary statements.
JUD(;E EVANS: They are conclusionary. If he
doesn't lay the proper foundation, I assume he can't.
Let's get on.
A. She had caused a lot of disruption in the de-
partment in her actions, either between the employ-
ees and myself.
Q. Can you recall any specific incidents where
there was disruptive activities other than July 8th
and July I 1th incidents?
A. Yes. There was another occasion where an-
other employee had been-one employee noticed
another employee doing a job, and Vivian Knutson
tried to get the other one employee to file a griev-
ance because of someone else doing that particular
person's job. What I was doing, I was training an-
other person. And the employee, not the committee
girl, was not-she did not want to follow her Ms.
Knutson sort of instigated, tried to tell her to file
the grievance and that she should not-
Q. Approximately when did that occur, Mr.
Baka?
A. Sometime in March, I think it was March 9.
Q. Of 1978?
A. 1978, yes.
Q. Any other specific incidents that you can
recall concerning Ms. Knutson and her activities in
the motor department?
528
MAGNETICS INTERNATIONAL. INC.
A. Yes. She oftentimes complained about why
she was not asked to work overtime when other
people were. She stated that she should be given
the opportunity to work.
She hadn't been experienced at the work that was
supposed to have been done, and she again made a
lot of commotion because of it.
Q. Did you report any of those incidents to
either Mr. Garman or your superior, Mr. Moskin?
A. Yes, I did.
Q. Did you normally and regularly have discus-
sions with them concerning activities in your de-
partment?
A. Yes.
Q. Did you make them aware of what was going
on with Ms. Knutson?
A. Yes, I did.
Since, as Baka testified, he kept Garman apprised of all
these problems with Knutson, and since, as Garman testi-
fied, he consulted with Baka in the process of determin-
ing whether the suspension of Knutson should be con-
verted to discharge, it is obvious that at one point or an-
other these observations of Baka became a part of the
decisional process pursuant to which Knutson was termi-
nated.
In summary, the suspension was to review Knutson's
employment history; that history included Knutson's
grievance-handling activity; and that activity was at least
a part of Respondent's basis for discharging Knutson.
Just how great this part is was impossible to determine
with precision, but it was clearly substantial because the
only nongrievance-handling activity relied upon by Re-
spondent is the citation for absenteeism (which I have
found to be violative) and poor production on three oc-
casions, one some 3-1/2 years before the events of this
case.
2. Conclusions
The action which precipitated the issuance of a writ-
ten warning notice on July 11 was Knutson's sitting at
her work station reading the contract rather than work-
ing. The General Counsel contends that this activity was
protected. I disagree. According to her own testimony,
Knutson was perusing the contract only because an em-
ployee had disagreed with her interpretation on a point
regarding temporary transfers. While stewards, in ab-
sence of express contractual prohibition, may be pre-
sumed to be allowed a reasonable amount of time to in-
vestigate grievances, any such presumption would seem-
ingly apply only where there is a necessity for such ac-
tivity during working time.'0 Here, Knutson was not in-
specting the situs of a dispute or conferring with an em-
ployee who was involved in a situation which required
her immediate attention. In short, Knutson could have
waited until some time later to satisfy the grieving em-
ployee that Respondent was correct. or incorrect, in han-
dling the temporary transfer complained of. According-
ly, I find that Respondent did not violate Section 8(a)(1)
'° See, for example, & Painting (i,. 174 NtRB 411 (1h). ('i-
sumerv Power (Coirtpanv, 245 NIRB 183 ( 17U
)
and (3) by issuing the warning notice to Knutson on July
II.
As noted, I have discredited the testimony that on
July 11, when Knutson received the lawfully issued
warning notice, she threatened Baka with violence on
the way home some day, and there is no other evidence
of unprotected activity on her part. Conversely, the ex-
tensively quoted testimony of Baka and Garman clearly
demonstrates that protected activity, as a steward, was a
substantial reason for her discharge.
Therefore, the most that can be claimed by Respon-
dent is that Knutson's attempts to enforce the contract
caused momentary disruptions of the departmental rou-
tine. However, "It is obvious that concerted activities
which are protected by the Act often create a distur-
bance in the sense that they create dissatisfaction vwith
the status quo. Such a fact without more can hardly jus-
tify discharge." Salt River Valley Water Ucrs' .4sociation
v. N.L.R.B., 206 F.2d 325, 329 (9th Cir. 1953).
Assuming that Knutson's conduct may have been "in-
subordinate" at different times, it still was taken in the
course of a generally protected activity, grievance-han-
dling. Respondent's supervisors characterized Knutson's
grievance as "personal." While those relating directly to
discipline imposed upon Knutson may in a sense have
been also personal, they were no less a demand that the
contract be followed, and, therefore within the activity
protected by Section 7 of the Act. " The Board has held
that an employee may be deprived of the protection of
the Act, even in the course of such Section 7 activity as
grievance handling, but only in "flagrant cases in which
the misconduct is so violent or of such serious nature as
to render the employee unfit for further service." 7l1
Bettcher .ManuJtcturing Corporation, 76 NLRB 525
(1948); Socony Mobile Oil Company, 153 NRB 1244
(1965).
There is no credible evidence of such conduct on the
part of Knutson.
In summary, I find that (despite the general denials by
Baka and Moskin) Knutson was discharged at least in
part because of her history of vigorous prosecution or
enforcement of the collective bargaining agreement
which began with her election to the position of commit-
teeman in January 1978. I further find that there is no
evidence that any of this conduct was so outrageous as
to render Knutson unfit for further employment. Ac-
cordingly, I find that by suspending Knutson on July 11
and discharging her on July 22, Respondent violated
Section 8(a)( ) and (3) of the Act.
Upon the basis of the foregoing findings of fact anti
the entire record, I make the following:
CONCI USIONS Ot LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
i I(, accept a CorltentliOl that prosecuton .pf pctron;l gricarlc ' Il
ste tard, Is uiprteclced sould riedll In the .lriloiilIisi hlclfdlll, that In ti-
.salrd are Ililprtc .idl hecnl Filirng gril aiics t h lCl m.i f l Inmcn
diatltl) ,11 t, IlewI , [I bc'tict
529
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By issuing a disciplinary warning notice to employ-
ee Vivian Knutson on June 27, 1978, because she filed or
pursued a complaint under the 1964 Civil Rights Act,
Respondent violated Section 8(a)(1) of the Act.
4. By suspending the employment of employee Vivian
Knutson on June 8, 1978, for a period of 3 days; by in-
definitely suspending Knutson on July 11, 1978; and by
discharging Knutson on July 22, 1978, because of her ac-
tivities as union steward in administering the grievance
provisions of the collective-bargaining agreement, Re-
spondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed them
in Section 7 of the Act, and thereby committed unfair
labor practices within the meaning of Section 8(a)(1) of
the Act. By the same conduct Respondent has discrimi-
nated against employee Vivian Knutson with respect to
terms and conditions of employment for her conduct in
engaging in protected concerted activities, thereby dis-
couraging membership in the Union, in violation of Sec-
tion 8(a)(3) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent has not otherwise violated the Act.
REMEDY
Having found that Respondent engaged in certain
unfair labor practices I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to remove the effects of the unfair labor practices
and to effectuate the policies of the Act.
Having found that Respondent unlawfully suspended
employee Vivian Knutson on June 8 and July 11 and dis-
charged her on July 22, 1978, I recommend that Respon-
dent be ordered to reinstate her and make her whole for
any loss of earnings she may have suffered as a result of
the discrimination against her. The amount of backpay
shall be computed in the manner set forth in F. W. Wool-
worth Company, 90 NLRB 289 (1950), with interest
thereon to be computed in the manner prescribed in Flor-
ida Steel Corporation, 231 NLRB 651 (1977).12
Upon the foregoing findings of fact and the entire
record in this proceeding, I make the following recom-
mended:
ORDER' 3
The Respondent, Magnetics International Inc., Maple
Heights, Ohio, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Suspending employees, issuing them disciplinary
warning notices or discharging them because they have
engaged in protected concerted activities including the
'2 See, generally. Is Plumbing & learing Co.. 1311 NLRB 716 (19)2)
" In the event no exceptions are filed as provided by Sec 1(12 46 of
the Rules and Regulations of the National L.abor Relations oard. the
findings, conclusions, 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, colnclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
filing and processing of grievances under the contract
and complaints under the 1964 Civil Rights Act.
(b) 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, or dis-
couraging membership in a union by discriminating
against them for engaging in protected concerted activ-
ity.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Rescind and expunge from the personnel file of
Vivian Knutson all disciplinary notices and other records
relating to her suspensions of June 8 and July 11 and dis-
charge of July 22, 1978.
(b) Rescind the written warning notice issued to
Vivian Knutson on June 27, 1978 and expunge from her
personnel file any and all evidence of such warning.
(c) Offer to Vivian Knutson immediate reinstatement
to her former position or, if such position no longer
exists, to substantially equivalent employment, without
prejudice to seniority or other rights and privileges pre-
viously enjoyed, and make her whole for any loss of
earnings she may have suffered as a result of her suspen-
sion and discharge in the manner set forth in the remedy
section of this Decision.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Post at its place of business and office at Maple
Heights, Ohio, copies of the attached notice marked
"Appendix." '4 Copies of said notice on forms provided
by the Regional Director for Region 8, after being duly
signed by Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
" In the event that this Order s enfiorced by a Judgment of the
United States Court of Appeals. the words i the notice readinlg "Posted
by Order of the National l.abor Relations lBoard" shall read "losted Pur-
suant to a Judgment of the United States Curt of Appeals Enforcing an
Order of the National l.abor Relations Ioard."
APPENDIX
NOTICE TO EMPI OYFIS
POSTEl) BY ORDER O THE
NATIONA. LABOR RI ATIONS BOARD
An Agency of the United States Government
After a hearing in which both sides had the opportunity
to present their evidence, the National Labor Relations
530
MAGNETICS INTERNATIONAL, INC.
Board has found that we violated the law and has or-
dered us to post this notice.
WE WILL NOT suspend employees, issue them dis-
ciplinary warning notices or discharge them because
they have engaged in activities protected by the
National Labor Relations Act including the filing
and processing of grievances under our contract
with International Association of Machinists and
Areospace Workers, Local Lodge 233, AFL-CIO,
and the filing and processing of complaints under
the 1964 Civil Rights Act.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act, or discourage membership in or
activities on behalf of the Union by discriminating
against them for engaging in protected concerted
activities.
WE WILL rescind and expunge from the person-
nel file of Vivian Knutson all disciplinary notices
and other records relating to her suspensions of
June 8 and July 11 and discharge of July 22, 1978.
WI wit i rescind the written warning notice
issued to Vivian Knutson and expunge from her
personnel file any and all evidence of such warning.
WE WILL offer Vivian Knutson immediate and
full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or other
rights and privileges.
WE Wll. make Vivian Knutson whole, with in-
terest, for any loss of ay she may have suffered as a
result of our discrimination against her.
MAGNETICS INTERNATIONA, INC.
531