Philadelphia Electric Co.

National Labor Relations Board - Board Decisions

Feb 10, 1984

268 N.L.R.B. 830 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Philadelphia Electric Company and Harold Glas
and Edward John Kelly. Cases 4-CA-11253
and 4-CA-12547
10 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 5 November 1982 Administrative Law Judge
Bruce C. Nasdor issued the attached decision.' The
General Counsel and Charging Party Harold Glass
filed exceptions and supporting briefs, and Re-
spondent filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions2 and briefs and
has decided to affirm the judge's rulings, findings,3
and conclusions4 and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
I The judge issued an errata to his decision on 12 November and 9
December 1982.
i Charging Party Harold Glass has requested oral argument. The re-
quest is denied as the record, exceptions, and briefs adequately present
the issues and the positions of the parties.
s No exceptions have been filed with respect to the judge's dismissal of
the allegation that Respondent violated Sec. 8(aX3) of the Act.
* The judge inadvertently neglected to make a specific finding con-
cerning the labor organization status of the Black Orievance Committee.
We correct the judge's inadvertent omission based on the record evi-
dence and on Respondent's concession, and conclude that the Black
Grievance Committee has been, at all times material herein, a labor orga-
nization within the meaning of Sec. 2(5) of the Act.
We agree with the judge that Respondent did not, prima facie, inter-
fere with the Sec. 7 rights of its employees by not according the Black
Grievance Committee concurrent status with the Independent Group As-
soiciation. We therefore find it unnecessary to pass upon the business jus-
tifications proffered by Respondent as a defense to its position.
In concluding that Respondent did not violate Sec. 8(aXI) of the Act
as alleged, Chairman Dotson and Member Dennis find it unnecessary to
rely on the judge's citation of Bruckner Nursing Home, 262 NLRB 955
(1982), and RCA Del Caribe, 262 NLRB 963 (1982).
DECISION
STATEMENT OF THE CASE
BRUCE C. NASDOR, Administrative Law Judge: This
case was heard at Philadelphia, Pennsylvania, on March
8-11 and April 19-22, 1982. An order consolidating
cases, consolidated amended complaint, and notice of
hearing issued on December 31, 1982, alleging that Phila-
delphia Electric Company (PECO or Respondent), since
the fall of 1978 to the present, met with the Independent
Group Association (IGA) to discuss wages, hours, work-
268 NLRB No. 123
ing conditions, and grievances. It is further alleged that,
during the same period of time, Respondent has refused
to meet with the Black Grievance Committee' (BGC) to
discuss these same topics, thereby engaging in disparate
treatment in violation of Section 8(a)(1) of the National
Labor Relations Act (the Act). The General Counsel re-
quests as a remedy that Respondent be required to grant
recognition to the BGC to the same extent that it grants
recognition to the IGA.
It is also alleged that Respondent suspended and subse-
quently discharged Edward John Kelly because he sup-
ported and assisted the BGC and provided assistance to
the Philadelphia Commission on Human Relations
(PCHR), in violation of Section 8(a)(1) and (3) of the
Act.
Based on the entire record, including my observation
of the demeanor of the witnesses and after due consider-
ation of the briefs," I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is, and has been at all times material
herein, a public utility engaged in the generation, trans-
mission, distribution, and sale of electricity, with a prin-
cipal place of business located at 2301 Market Street,
Philadelphia, Pennsylvania.
During the past year, Respondent, in the course and
conduct of its business operations described above, de-
rived gross revenues in excess of $250,000, and pur-
chased and received goods valued in excess of $50,000
directly from points located outside the Commonwealth
of Pennsylvania.
Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATIONS
IGA has been, at all times material herein, a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
PECO is a public utility with corporate offices located
at 2301 Market Street, Philadelphia, Pennsylvania. It op-
erates in the States of Pennsylvania and Maryland, serv-
ing approximately 3.7 million people, producing electrici-
ty, gas, and steam. PECO employs approximately 10,000
individuals. There are also contingent workers in the
employ of a contractor, Henkels and McCoy, at PECO's
Oregon shop. Tyrone Frazier, who will be discussed
later, is one such individual. He considers himself to be
in the employ of PECO.
' In its answer and at the hearing, Respondent denied that the Black
Grievance Committee was a labor organization within the meaning of the
Act. In its brief it now concedes that the Black Grievance Committee is a
labor organization within the meaning of Sec. 2(5) of the Act.
s The IGA did not file a brief in this matter.
830
PHILADELPHIA ELECTRIC CO.
A. The Independent Group Association
The IGA has between 4200 and 4600 members who
are PECO employees. This does not include certain indi-
viduals at one location, the Chester generating station,
who are represented by the International Brotherhood of
Electrical Workers. The IGA has been in existence and
has been dealing with PECO on issues concerning
wages, hours, and working conditions for over 40 years.
In July 1969 and in April 1977, the IGA made written
requests to PECO for PECO to recognize the IGA as
the exclusive representative of all PECO employees for
purposes of collective bargaining. In September 1969 and
May 1977, PECO declined the IGA's requests. Since
May 1977, the IGA has not made any requests for recog-
nition and it has never been certified by the National
Labor Relations Board as the exclusive representative of
the employees of Respondent. No labor organization is,
or has been, the exclusive representative of all Respond-
ent's employees within the meaning of Section 9(a) of the
Act. The IGA files reports with the U.S. Department of
Labor and the Internal Revenue Service.
Respondent's personnel and industrial relations depart-
ment representatives conduct monthly meetings with the
IGA. Eight of these meetings are with three IGA repre-
sentatives and the remaining four meetings are with
IGA's entire executive committee. There is an annual
luncheon every December.
At these meetings, the IGA presents its views to Re-
spondent's management regarding wages, hours, and
working conditions. As a general practice, changes in
these subjects are held for the August I general wage
and benefit improvement package, which is implemented
every year. IGA and Respondent follow a procedure
whereby IGA presents to management requests for items
to be included in the August 1 package, and other mat-
ters involving working conditions. Respondent's repre-
sentatives discuss these items with the IGA at various
meetings, including two which are held for the sole pur-
pose of discussing the August I package. Essentially,
IGA is merely contributing input because after the meet-
ings Respondent unilaterally implements its policies,
which apply to all employees regardless of their labor
organization affiliation.
From the period September 1978 to the present, 25
areas have been discussed by Respondent with the IGA.
Respondent gives IGA the right to post minutes of
meetings and notices of meetings on its bulletin boards.
IGA officials are permitted to use parking lots when
conducting union business. These lots are normally re-
served for Respondent's management personnel.
Respondent also makes reference to the IGA in its em-
ployee handbook, "You And Your Company," as the
group with which it meets to deal with matters involving
wages, hours, and working conditions.
At IGA's request, beginning January 12, 1981, Re-
spondent agreed to dues deductions for IGA members
who submit written checkoff authorizations to Respond-
ent.
BGC has never requested a dues-checkoff procedure
from Respondent.
Charles Fritz, Respondent's vice president of personnel
and industrial relations and chief executive officer re-
sponsible for personnel matters, testified without contra-
diction that the BGC has never requested Respondent to
meet for the purpose of discussing wages or benefits.
Moreover, his unrefuted testimony is that Harold Glass,3
a BGC representative, advised him that the BGC was
not interested in working with Respondent in the area of
wages and benefits.
There is no evidence that BGC has ever requested
mention in the employee handbook or checkoff.
B. Respondent's Grievance Procedure
The testimony adduced at the hearing concentrated
primarily on the disparate manner which Respondent
treats the IGA and the BGC with reference to the proc-
essing of grievances. All employees process their griev-
ances through their immediate supervisors and then
through higher levels of supervision within their own de-
partment. Any employee presenting a grievance may be
accompanied by another employee of the Company to
represent him during this phase of the grievance proce-
dure. It is uncontradicted that Respondent has permitted
members of the BGC, including Harold Glass, to regu-
larly represent employees in the processing of griev-
ances.
After the grievance goes through the immediate super-
visor, an employee may elect to have his grievance pre-
sented to the personnel and industrial relations depart-
ment in two separate ways. Employees represented by
the IGA may choose to have their grievance presented
in writing by IGA representatives at the periodic meet-
ings referred to earlier. When the grievance is presented
to Fritz, the employee is not necessarily present. After a
written and oral presentation at the meeting, the griev-
ance is investigated and Fritz issues a written answer. In
the event that his answer is negative, there is a fourth-
step appeal. A meeting is held between the employee,
the IGA representative, supervisors from the employees'
department, and John J. McGinley, Respondent's manag-
er of personnel and industrial relations, who is responsi-
ble to and reports to Fritz. McGinley mediates the dis-
pute, paying particular attention to anything which may
have been overlooked at the third step. He recommends
a disposition to Fritz, and Fritz then issues an answer if
he has changed his initial decision. Since September 1,
1978, IGA has presented approximately 242 grievances
at the third step and in excess of 30 grievances at the
fourth and final step.
Employees who are not members of the IGA and em-
ployee-members who do not wish to follow the IGA
procedure follow a different route after exhausting their
departmental remedies. They meet directly with various
representatives of the personnel and industrial relations
department, including Fritz. They may be represented by
another employee of their choice, and record testimony
reflects that members of the BGC, including Harold
Glass, have represented employees in grievance meetings
with various personnel department representatives, in-
cluding Fritz. As a general rule Respondent does not re-
' Glass, the Charging Party, has been treasurer and a member of the
executive committee for 10 years.
831
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spond to individual grievances in writing, as the ag-
grieved employee is permitted to present his grievance
personally to Fritz and receive an answer orally follow-
ing investigation of the grievance.
There is a third variation of grievances not alluded to
in PECO's handbook. When a group of employees with
a common grievance do not elect to utilize the IGA, Re-
spondent will meet with the men en masse or with repre-
sentatives of the group for the purpose of resolving the
grievance.
In an individual grievance when Harold Glass repre-
sents an employee, he may or may not hold himself out
as a BGC representative. In either event, Respondent re-
gards him as merely one employee representing another.
It refuses to accord Glass BGC status during a grievance
meeting. Furthermore, Respondent has refused to
employ a process whereby the BGC can attend group
meetings with the personnel department to present indi-
vidual grievances in the same manner and by the same
mode as the IGA. These are the practices which are al-
leged as violations of Section 8(a)(1) of the Act.
Fritz testified that he has told the BGC beginning in
1970 or 1971 that management did not believe it was
proper to break the Company up into ethnic groups. He
did not think it would be a wise thing to break the Com-
pany up into a Black group and then a group that might
essentially become a white group. The employee comple-
ment would then begin to further polarize into other
ethnic backgrounds. Moreover, according to his testimo-
ny, he meets on a periodic basis with a group of Catholic
employees, and he would not want to see them set up a
grievance procedure based on their Catholic back-
grounds. He testified that creating splinter groups would
be impractical both from a time and an economic stand-
point.
On September 12, 1978, representatives of the person-
nel department and the BGC met to discuss individual
grievances. Minutes of this meeting have been received
in evidence as General Counsel's Exhibit 3. In that meet-
ing Fritz again advised representatives of the BGC that
PECO does not recognize it as appropriate to deal with
in resolving individual grievances. He told BGC repre-
sentatives that in the past he had told other groups of
employees such as the foremen's association and the line-
men's association that he believed it was not in the best
interest of the employees to divide the Company along
racial lines. Arnold Hall, a BGC representative, informed
Fritz that he should meet with them as grievance repre-
sentatives, but Fritz continued to maintain that he
thought it was improper to split the Company along
black and white lines. Again on September 26 and Octo-
ber 19, 1978, Fritz refused to process individual griev-
ances at meetings with the BGC. At the meeting held on
October 19, 1978, Fritz reiterated his reasons (he felt)
"that it was wrong and divisive to have black employees
process grievances through one group and white em-
ployees process grievances through another group, and
repeated the fact that he could not formally process
grievances through more than one group. He stated he
was not closing the door on any future meetings with the
BGC, and Mr. Hall indicated that they were not saying
that they would not work through the IGA." 4 In its cur-
rent posture, since September 1978, BGC representatives
such as Glass are permitted to represent and participate
in grievance meetings as concerned employees. When a
BGC representative attends such a meeting, he or she is
told that Respondent refuses to acknowledge the individ-
ual as a BGC representative or as appearing on behalf of
any group or organization. Therefore, Glass has not been
able to bring anyone else with him from the BGC to
handle grievances because Respondent would be then
viewing the BGC as representing the aggrieved employ-
ee. Glass is cognizant of the fact that Fritz is aware that
he is a BGC representative, and therefore he does not in
each and every instance request that he be considered a
BGC representative. Fritz does not articulate that he is
not recognizing Glass as such at each and every meeting.
It is conceded that Fritz will meet with the BGC
about any matter except individual grievances.
C. The Black Grievance Committee
The BGC was formed in 1968 by several employees
because the IGA seemed unresponsive to alleged dis-
criminatory practices on the part of Respondent.
The BGC is composed of Respondent's employees,
former employees, and their families. Harold Glass testi-
fied that its purposes are, inter alia, to assist employees in
transfers and consideration of such matters as upward
mobility for minorities and job testing.
Wendell Storey, BGC chairman, testified that the
BGC does not file reports with the U.S. Department of
Labor, Internal Revenue Service, or any other govern-
ment agency. According to its constitution, which was
not adopted until 1972, the BGC is governed by a main
committee elected every 2 years by the general body.
Voluminous record testimony reflects that the BGC does
not follow this prescription. Rather, members on the
main committee are selected by other members of the
main committee, and the general membership has not
voted on a main committee position since 1968. More-
over, the testimony is conflicting as to whether members
of the main committee reelect themselves and whether
this is done sporadically or with any regularity.
According to the constitution, all dues collected by
the BGC "shall be utilized for legal services, operating
expenses and educational benefits for minority employees
of the Philadelphia Electric Company." Harold Glass,
the Charging Party, testified that in actuality the BGC's
dues are used to pay lawyers.
Based on Glass' testimony, dues are collected sporadi-
cally rather than on an annual basis. Moreover, there has
been no election of union officers since the BGC came
into existence.
From its beginning in 1968 until 1980, the BGC was
constituted of and for minority employees, and its pur-
pose was to resolve problems of minority employees
only. Glass testified that, as he understood it, minorities
included all persons except white males. Specifically, mi-
norities, according to Glass' testimony, means white fe-
This quote appears in the stipulation received in evidence as It. Exh.
1, par. 6(d). The IGA did not join in this stipulation.
832
PHILADELPHIA ELECTRIC CO.
males, Hispanics, male and female, and blacks, male and
female.
The executive committee, which handles grievances, is
an all-black committee.
In January 1980, Edward Kelly, the Charging Party in
Case 4-CA-12547, became a member of the Black
Grievance Committee. Thereafter, BGC's policy
changed, when, in the spring of 1980, Harold Glass com-
menced to process Kelly's grievance. Kelly is a white
male. This was the first time a grievance was processed
on behalf of a white employee. Glass was unable to testi-
fy whether or not any white employees had been admit-
ted to membership to the BGC prior to January 1980.
At the present time the BGC does not restrict admis-
sion to black members. Moreover, based on the testimo-
ny of two white males, the BGC has admitted them to
membership and assisted them with problems.
Glass testified that at the present time there are be-
tween two and three hundred individuals who are mem-
bers of the BGC. The record does not reflect how many
of these members are current employees, former employ-
ees, or family members. Nor does the record reflect how
many of the members work for other contractors.
D. The Discharge of Edward John Kelly
Kelly, the Charging Party, had been employed by Re-
spondent from 1963 to October 1981, when he was ter-
minated. For the last several years prior to his discharge,
he was employed as an electrician in the bushing repair
shop within the electrical maintenance division. Kelly
joined the IGA in 1964 and remained a member until his
discharge. In 1973, he became a shop steward at the
Oregon shop and remained so until his discharge. He
became disenchanted with the IGA and in January 1980
he joined the BGC.
Kelly testified that on the morning of April 10, 1978,
he and a coworker, John Hornung, engaged in a physical
altercation prior to the commencement of the shift and
off of company property.
According to Kelly, Hornung made an ethnic slur to
him: "He offered me outside. I thought it would be just a
verbal match. We went out about a block and a half
from the company." Kelly's testimony and written
memorandum (G.C. Exh. 6) of the incident reflect that
"I found myself following him [Hornung] out of the gate
and west on Oregon Avenue.... I looked for a safe
place to lay my glasses." When Kelly turned his back,
Hornung hit him on the back of the head with a piece of
lumber, perhaps a two-by-four or a four-by-four. As a
result of the injury, Kelly left work and did not return
until August 1978. Kelly prevailed in criminal and civil
actions, but if he is to be believed Hornung continued to
agitate him.
On August 29 and 30, 1978, Kelly embarked on a mis-
sion, a veritable crusade, to have the chronology of what
will be characterized throughout this decision as "the
Hornung incident"5 placed in his personnel file. He by-
6 Since the incident occurred prior to the start of the shift and off of
company property, neither employee was disciplined, although the inci-
dent was investigated. Both employees were interviewed and their state-
ments placed in their personnel files.
passed his immediate supervisors, Crouthamel, a subfore-
man, and Raudenbash, the foreman, complaining to
Onley, supervisor of electrical maintenance, that Hor-
nung was harassing him by parading around carrying
mock weapons. In response to this complaint, manage-
ment, including Onley and his supervisor, Whitfield, gen-
eral superintendent of maintenance, met with Kelly and
Hornung on September 1, 1978. At this meeting, al-
though management was not convinced that Hornung
was harassing Kelly, they instructed him to avoid Kelly.
Thereafter, similar complaints by Kelly to manage-
ment ensued. On September 20, 1978, Kelly complained
to Onley that Hornung would walk past his work area
carrying an axe. Onley investigated and found that Hor-
nung, a carpenter, was directed by his supervisor to pro-
cure the axe. Kelly also complained about the way Hor-
nung looked at him. Onley investigated each of Kelly's
allegations regarding Hornung. He concluded that they
were unfounded.
In October 1978, Kelly went to see Whitfield, com-
plaining again about harassment, and requesting a written
statement be made part of his personnel file. Whitfield
refused to document the alleged friction between Kelly
and Hornung. Shortly thereafter, Kelly was on disability
from on or about October 18, 1978, to May 15, 1979 (ap-
proximately 30 weeks), as a result of an injury sustained
in his back from falling off a chair.
In November 1978, while still on disability, Kelly met
with O'Connell, president of the IGA, Downs, of Re-
spondent's personnel department, and Dr. Hushion, di-
rector of Respondent's medical department. Kelly com-
plained about harassment from Hornung and requested
that it be documented in writing and put into his person-
nel file. According to Kelly, Downs responded there
was nothing Respondent could do for him because it was
not responsible for the fight with Hornung.
On May 23, 1979, when Kelly returned to work after
his period of disability, he and his wife met with Dr. Hu-
shion to discuss his return to work. Hushion suggested
that Kelly might be able to arrange a transfer to a differ-
ent department, but added that the transfer would cost
him a 10-percent cut in pay. Under these circumstances
Kelly was not interested in a transfer.
During the first week of June 1979, Hornung reported
to management that Kelly spit on his shoes while in the
storeroom area. Kelly was called to a meeting with
Onley, where he was accused of this conduct. He
became very upset, and on June 5 went on disability
again for anxiety and depression. Kelly did not return to
work until December 19, 1979, that is, 27 weeks and I
day.
Kelly testified that President O'Connell of the IGA ar-
ranged a meeting with Whitfield, Kelly, Hushion, and
Kelly's immediate supervisors in September 1979. He tes-
tified further that the meeting was held to minimize the
contact between Hornung and himself. His memorandum
(G.C. Exh. 6) reflects that the purpose of the meeting
was "to try to resolve the matter so life could go on."
Kelly testified that on October 4, 1979, he called Joseph
Gallagher, manager of the electrical production depart-
ment and Whitfield's supervisor, to discuss the conditions
833
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under which Kelly could return to work without anxie-
ty. At the meeting Kelly requested of Gallagher that
Kembring, a coworker, be allowed to work with Kelly
exclusively in order to teach Kelly the job. Kelly again
requested that the Hornung incident and later incidents
be included in his personnel file and contended that the
problems were Hornung's fault. He requested also that
he be moved into the bushing shop. Gallagher agreed
that he could place Kelly in the bushing shop, with the
qualification that Kelly would have to work in other
areas as well if maintenance management directed him to
do so. Further, Respondent could not allow Kelly to
work exclusively with Kembring, or agree to place a
memorandum in Hornung's file. The meeting lasted ap-
proximately 2 hours and Gallagher memorialized it in a
memorandum which was received into evidence as Re-
spondent's Exhibit 10.
Gallagher testified that after this meeting he had a
number of telephone conversations with Fritz about re-
turning Kelly to work. Gallagher told Fritz he did not
think Kelly was ready to come back to work and recom-
mended that he not be returned. According to Galla-
gher's testimony Fritz was attempting to find a way to
effect Kelly's return and make him a useful employee.
Gallagher testified further that he thought Fritz was
most reluctant to terminate Kelly at that time.
Whitfield testified that towards the end of 1979 it
came to his attention that a poll was being run among
the employees in the shop. For $1, an employee could
pick a time which would be the closest to when Kelly
returned to work off of sick leave benefits. An employee
or employees had asked Whitfield if he wanted to "get in
it for a buck." In the words of Whitfield, "[I]t was a big
joke." Whitfield decided to conduct a survey s of Kelly's
absences. He testified, "[S]o I ran a survey which indi-
cated to me that Ed [Kelly] was taking off just about as
much time as he was entitled to, and he was getting mi-
raculously well when his benefits ran out. And, this
made me feel that Ed was making a mockery of the
Company benefits and taking advantage. I therefore rec-
ommended to Joe Gallagher that he not bring him back.
He [Kelly] was out at the time, and I said 'don't bring
him back."' Whitfield testified further that this was not
the only reason he made such a recommendation to Gal-
lagher. Other factors were the problems Kelly was
having with other people, the reports Whitfield was get-
ting in his office about Kelly walking off the job, spend-
ing too much time on the telephone, low productivity,
and all these things in combination with his absences.
Fritz testified that during the same period of time:
Dr. Hushion called me and stated that there was a
man by the name of Kelly in the maintenance divi-
sion who had been off sick for some period of time,
and that Dr. Hushion felt that there was a chance
that this person could be turned around and be
made a productive employee.
Subsequent to these recommendations, Fritz and Hu-
shion met with Kelly and his wife in December 1979.
Fritz advised Kelly of his poor absenteeism record and
6 Received in evidence as R. Exh. 7.
that Respondent could not continue for an indefinite
period of time with an employee with such a poor serv-
ice record. After this meeting, Fritz determined to give
Kelly another chance, and did not terminate him.
On December 6, 1979, Fritz called for a meeting be-
tween Kelly and himself. Fritz, according to Kelly's own
testimony, wanted to talk with him about the conditions
under which Kelly felt he might be able to go back to
work comfortably at the Oregon shop. At this meeting,
Fritz agreed to let Kelly work exclusively in the bushing
area.
Based on Kelly's testimony, shortly after his meeting
with Fritz, he was authorized to return to work. Instead,
he decided to take a 2-week vacation, and did not return
until January 7, 1980.
In January 1980, he joined the BGC to pursue his mis-
sion to memorialize his Hornung snydrome in writing to
be placed in his personnel file.
About the time Kelly returned to work in January
1980, Crouthamel began to document 7 his work habits
and performance. Crouthamel testified that the documen-
tation reflected Kelly's lateness and absenteeism record,
early quits, and general work performance. According to
Crouthamel's uncontradicted testimony, higher manage-
ment advised him that his problems with Kelly would
have to be documented to be given any credence.
On February 20, 1980, Kelly called Harold Glass and
told him that he desired to document Hornung's behav-
ior in his, Kelly's, personnel file. Glass advised him to
draft a chronology, which he did on February 24, 1980.
On March 6, 1980, Kelly called Fritz with his request.
Fritz told Kelly to make his request to Whitfield first,
i.e., go through the chain of supervision. Whitfield was
unavailable, so Kelly contacted Whitfield's superior, Gal-
lagher, who again refused to place the document in
Kelly's personnel file. Undaunted, Kelly called Fritz
again, refusing to follow channels to Whitfield. Fritz,
after some conversation, became angry, lost his temper,
and hung up. Then, on the same day, Kelly called Re-
spondent's president, J. Lee Everett. Everett told Kelly
to go through Whitfield and then assured him he would
be allowed to see Fritz.
Finally on March 12, 1980, Kelly met with Whitfield.
He was accompanied by Glass, whom, according to his
testimony, he introduced as a representative of the
BGC.8
Whitfield testified that during the course of his meet-
ing with Kelly and Glass it became obvious to him that
Kelly was so concerned about documenting the Hornung
incident in his personnel file that he, Whitfield, thought
it was a situation the medical department should be in-
volved in. Whitfield interpreted Kelly's behavior, in his
words, "obsession," as not being normal and not within
the sphere of his experience. Therefore, he believed he
needed help from the medical department. He again re-
fused to put Kelly's document into his personnel file and
sent him to Dr. Hushion.
Prior to Kelly's appointment with Hushion, Hushion
called Mrs. Kelly to discuss his problems in the Oregon
I In evidence as R. Exhs. 8 and 9.
s Glass and Whitfield testified that the BGC was not mentioned.
834
PHILADELPHIA ELECTRIC CO.
shop, particularly his "obsession" which had been con-
tinuing for nearly 2 years. According to Hushion, he told
Mrs. Kelly he was concerned that if her husband persist-
ed in his demands the department might take some disci-
plinary action against him or Respondent might be
forced to put him on a medical disability, if the medical
department determined that his conduct and absenteeism
were due to anxiety and depression. When Kelly and
Glass met with the doctor, Hushion related to them his
conversation with Mrs. Kelly. After being informed that
Hushion had called his wife, Kelly flew into a rage and
stated, "I'm liable to go home and find my wife's head in
the oven." Hushion assured Kelly that the conversation
with his wife was calm and benign. He then called Mrs.
Kelly back, in Kelly's presence, to explain why he had
called her initially. There is a conflict in the testimony as
to whether Hushion told Mrs. Kelly that her husband
might be fired. Although in the final analysis I do not
consider it critical, I will resolve the conflict later in my
conclusions.
Subsequent to the meeting with Whitfield and Hu-
shion, Kelly telephoned Fritz for another meeting. Kelly
and Glass met with Fritz and Dr. Cincotta on March 19,
1980. During this meeting Fritz agreed to place the
memorandum in Kelly's personnel file. Fritz also agreed
to Kelly's request that he be allowed to work in the
bushing department, apparently for the second time, al-
though Glass does not remember this.
Kelly continued to visit Dr. Cincotta about his prob-
lems. Cincotta had been instructed by Hushion to see
Kelly when he visited the medical department, which
normally would be when he was out on disability. Kelly
saw Cincotta twice within 10 days after the meeting in
Fritz' office. During these visits on March 24 and 27,
1980, Kelly continued to complain about the "conspira-
cy" against him and harassment from his supervisors.
Kelly was accompanied by Glass on the March 27 visit.
In July 1980 while visiting Washington, D.C., Kelly
fell down the Capitol steps and injured his neck. He
began treatment with Dr. Nahas, an osteopath. Nahas
testified he saw Kelly about five times during this period.
On August 15, 1980, Kelly visited Dr. Cincotta. Hushion
testified that, when an employee is absent for any period
of time, he is required to visit the medical deaprtment
periodically in order to confirm that he is legitimately
disabled. Kelly was out with his neck injury from July
23 to December 15, 1980. Cincotta testified that Kelly
overreacted in his responses during the examination,
making it difficult for Cincotta to examine him. Cincotta
testified that he felt it was inappropriate for the type of
examination he was giving Kelly. Cincotta also testified
that Kelly had been out approximately 4 weeks with a
neck injury, and that he presented a note from his physi-
cian indicating he would be out an additional month.
Cincotta stated that he suggested to Kelly he felt that
was an inordinate amount of time to be off with this type
of a problem. Cincotta explained to Kelly that the medi-
cal department was reviewing cases of employees who
had exhibited absenteeism problems due to medical rea-
sons. He explained that due to the so-called guidelines
for employees, a closer look would be taken at his type
of absenteeism record. Moreover, hopefully these em-
ployees would show some improvement when their
records were reviewed. Cincotta explained further to
Kelly that the medical department intended to review
each case individually and that, if the employees did not
show significant improvement, they might be subject to
disciplinary action.
Cincotta called Nahas9 after Kelly left his office. Cin-
cotta's testimony and notes (in evidence as R. Exh. 12)
reveal that Nahas felt that to a degree Kelly was malin-
gering, and he needed psychiatric counseling.
Nahas testified that, although he was unable to remem-
ber much of the telephone conversation, he remembered
Cincotta saying that Kelly was a troublemaker going to
the Black Grievance Committee. Kelly requested Nahas
to prepare a "to whom it may concern" document which
is dated September 29, 1980,10 and is in evidence as Re-
spondent's Exhibit 4. Nahas states in the document, "He
[Ed] had tried to cause problems by bringing complaints
to the Black Grievance Committee."
Cincotta's notes reflect that during one of the tele-
phone calls he was advised by Nahas' secretary that
Nahas suggested to Kelly that there was an emotional
problem aggravating his condition and he should seek
appropriate consultation.
In blaming management for his illness, Kelly testified
that the fall down the Capitol steps "wasn't just a pull in
the back, it was anxiety produced."
Kelly continued to see Cincotta during the fall of
1980. He had a note from his personal physician releas-
ing him for work. Cincotta felt that, because of Kelly's
medication, a combination of pain reliever and muscle re-
laxer which can cause drowsiness and sedation, it would
not be in the best interest of safety to allow Kelly to
return to work. Cincotta advised him to take another
week off. Kelly testified that he accused Cincotta,
"[Y]ou are not trying to run me out of sick time, are
you?"
Kelly testified that during January 1981 Supervisor
Crouthamel had been paying unusually close attention to
his work. Crouthamel testified that on February 19, 1980,
he asked Kelly how the bushing was coming, which en-
raged Kelly to the point where he began berating
Crouthamel and heaping abusive language on him. When
Crouthamel attempted to calm him down by stating,
"[W]hoa Ed calm down we're adults, we can talk like
adults," Kelly responded, inter alia, "Ernie Crouthamel
you are going to get shoved up your ass," and, "[Y]ou
are a royal pain in my fucking ass."
Later that morning Kelly was instructed to meet with
Onley and Crouthamel. He brought along as his repre-
sentative Kembring of the IGA. Kelly refused to make
any response to the allegations of the earlier incident and
testified that during the meeting he became so sick that
he threatened to throw up on the rug unless he was per-
mitted to go to the medical department. Kelly was then
released to go to the medical department to see Cincotta,
9 Cincotta placed two calls on August 15, 1980. During one call he
reached the secretary, as Nahas was out of the office.
to Nahas testified that he prepared the document within a week or two
after the call from Cincotta. In reality the document was prepared 6
weeks after the call.
835
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who suggested that he see his psychiatrist, Dr. Rushton.
This little episode led to a 7-month disability for anxiety,
which ended when Kelly reported for duty on Septem-
ber 22, 1981.
It came to the attention of Whitfield that Kelly had
contacted the medical department for the purpose of re-
turning to work. On September 10, 1981, Whitfield sent
a memorandum" to Fritz recommending that Kelly be
discharged for the following reasons: "(I) a totally unac-
ceptable attendance, (2) Kelly, when he did report to
work, insisted that he be worked only in one area of the
shop, limiting his flexibility and making it difficult for su-
pervision to plan assignments. This also causes employee
morale problems, as other employees feel that he is given
preferential treatment by allowing him to pick his jobs,
(3) Kelly's problems getting along with other employees
as well as first-level supervision. Kelly repeatedly accus-
ing other employees as well as supervision of harassment,
which on investigation the accusations were found to be
groundless." The document concludes with Whitfield
stating that during the past 5 years Kelly had given no
indication of improvement in any of the above areas and
recommending that his employment be terminated.
Kelly was suspended for an indefinite duration, during
which time he and his wife met with Fritz and Hushion.
During this time Fritz' office reviewed Kelly's case with
Daltroff, the vice president of electrical production, and
with the medical department. Kelly was finally terminat-
ed permanently on October 16, 1981.
E. Kelly's Involvement with the Philadelphia
Commission on Human Relations Complaints
(PCHR)
Tyrone Frazier, an employee of the independent con-
tractor, Henkels and McCoy, filed a complaint against
Respondent with the Equal Employment Opportunity
Commission (EEOC) alleging that Crouthamel racially
slurred him. Kelly allegedly overheard the remark. The
complaint was deferred to PCHR for investigation. On
September 19, 1980, Kelly spoke to a PCHR representa-
tive for the first time.
In June, Kelly was called to Whitfield's office. This
meeting was for the purpose of investigating the alleged
racial slur. Although there is no evidence that Kelly was
the subject of any disciplinary action, or anything more
than a possible witness to the remark, Kelly would not
answer any questions without a representative being
present.
On October 2, 1980, Kelly gave a deposition in a case
the BGC had filed against Respondent. Therefore, ac-
cording to the calendar, during Kelly's meetings with
Whitfield, Fritz, and Hushion in March 1980, Kelly was
not involved in any complaints against Respondent in-
volving discrimination. Nor was he involved in such
when he saw Cincotta in April and August 1980. After
going on a 7-month disability for anxiety' 2 in February
1' A document, in evidence as R. Exh. 19, which was approved by
Joseph Oallagher, manager of the electrical production department.
" The incident involving abusive language to Crouthamel.
1981, Kelly filed his own charge with the PCHR charg-
ing his supervisor with harassment.
On September 24, 1981, Kelly filed another complaint
with PCHR alleging discrimination by Respondent for
suspending him. This complaint was filed after Whit-
field's recommendation and after the machinery leading
to the discharge was set in motion.
F. The Implementation of Respondent's Absenteeism
Policy and Disciplinary Guidelines-Disabilitant
Payroll
Respondent's policies are set forth in the employee
handbook "You and Your Company" and a memo enti-
tled "Absence-Lateness Control Guidelines." Respond-
ent's policies were supplemented in 1980.'3
Fritz testified in essence that the guidelines allow flex-
bility and are applied on a case-by-case basis. Moreover,
the disciplinary guidelines are not applied to individuals
with long-term or chronic problems, e.g., multiple scle-
rosis. Absentee control guidelines are not intended to
apply to long-term disability employees. Other manage-
ment officials corroborated Fritz.
The record reflects by way of testimony and docu-
mentation'4 that other employees with emotional, psy-
chiatric, and alcohol-related problems received treatment
analogous to Kelly's, i.e., lengthy tolerance of absences,
finally culminating in discharge.
Absenteeism had reached problem proportions, so in
1980 Respondent researched and identified those employ-
ees with long-term absenteeism records. The names of 20
employees, including Kelly, were placed on a list and
given to Fritz' department with a directive to monitor
those employees. Fritz made the medical department re-
sponsible for meeting periodically with each employee.
Hushion instructed Cincotta to monitor their attendance
and warn them that continued absences could result in
their discharge. Cincotta carried out this edict and
warned Kelly two or three times. After a year, a summa-
ry and recommendation were sent to Fritz. Thus, these
20 employees were in effect removed from Respondent's
progressive discipline policies and placed within the
sphere of the medical department.
Respondent readily admits that Kelly was not warned
by his immediate supervisors. Whitfield testified in
answer to why he never warned Kelly in writing about
his attendance:
No Mr. Kelly's problem was extended illness, not
normal one or two day outages like most attendance
problems. Mr. Kelly's problem was a medical de-
partment problem. That's why Mr. Kelly did not
get any reprimands or warnings through the normal
disciplinary guidelines. His attendance was poor be-
cause he would take off extended periods of time,
not single days which normally fall under the disci-
plinary guidelines.
Onley also testified that he did not warn Kelly because
as far as he was concerned Kelly was absent because of
Is See G.C. Exhs. 25, 26, and 27.
14 See G.C. Exh. 31.
836
PHILADELPHIA ELECTRIC CO.
medically related problems. The record does reflect that
Kelly received a warning from Fritz during their meet-
ing in December 1979 following the recommendation to
terminate him by supervisors of his department.
Three out of the 20 employees were terminated for
failure to report to the medical department as scheduled.
Employees Spirito and Summeril were placed on the dis-
abilitant payroll. Spirito met the criteria for the disabili-
tant payroll and was to be placed on it when his other
benefits expired. Respondent became aware that Spirito,
on the days when he was well enough, would work at
his brother's business occasionally helping out with cus-
tomers. Testimony by Hushion was that there was little
chance that Spirito could ever return to work in Re-
spondent's employ.
Several employees showed improvement and others
were placed in a "wait and watch" category. Campbell
was placed on "attendance restrictions." This required
very close supervision, doctors' certificates, and ineligi-
bility for promotions or merit increases.
Of the 12 individuals dismissed for absenteeism since
March 1980, 5 were previously suspended. Others re-
ceived no warnings, some received one warning, and
some received as many as three warnings. There is no
real pattern.
The disabilitant payroll is payroll coverage for em-
ployees who for medical reasons are permanently dis-
abled. Benefits are received after the expiration of the
employees' sick leave time and other benefits. An em-
ployee may be placed on the disabilitant payroll if he has
15 years of service and his personal physician in conjunc-
tion with the medical department determine that the em-
ployee is permanently unable to work for Respondent.
The evidence reflects that Respondent considered Kelly
for the disabilitant payroll before terminating him. Fritz
requested an analysis of the benefits that would be avail-
able to Kelly and asked Hushion to discuss with Rush-
ton, Kelly's psychiatrist, whether Kelly was able to
work. Rushton confirmed what he had stated on the cer-
tificate when Kelly was released for work on September
23, 1982. Rushton concluded that Kelly was able to
work. Accordingly, Kelly was not eligible for the disabi-
litant payroll in view of the fact that his own psychiatrist
declared him fit for work.
G. Conclusion and Analysis
i. The 8(a)(1) allegation
Although the litigation was structured in terms of
8(a)(2) and (5) violations, Section 8(a)(l) of the Act is the
only section alleged to have been violated.
Essentially, counsel for the General Counsel argues
that the BGC should be accorded the same status and
given the same advantages as the IGA.
Approximately 40 years ago, Respondent entered into
a relationship, noncontractual, with the IGA. There are
two features to this relationship. First, the IGA repre-
sents individual employees in presenting grievances to
management. Second, before Respondent grants its
annual wage and benefit package, it meets with IGA rep-
resentatives to learn the desires of IGA members. Re-
spondent then unilaterally implements its terms and poli-
cies. Thus, Respondent accords "members only" recogni-
tion to IGA, a status held to be perfectly valid and
lawful. See Retail Clerks Locals 128 and 633, 369 U.S. 17
(1962).
The fact that Respondent has voluntarily granted cer-
tain privileges to IGA, in my opinion, does not place an
obligation on Respondent to grant equal privileges to the
BGC. Neither the IGA nor the BGC is an exclusive rep-
resentative of Respondent's employees within the mean-
ing of Section 9(a) of the Act. Neither organization had
demonstrated majority status. It is likely that Respond-
ent's treatment of IGA and BGC affords a certain
amount of leverage to the IGA and may very well inhib-
it organizational activities by the BGC. It must also be
recognized that Respondent has not interfered with the
rights of any of its employees to join or support the
BGC nor has it impeded the BGC in any of its activities,
organizational or otherwise.
In my view, favoritism or partiality to the IGA cannot
violate the rights of the BGC and its adherents where
neither organization seeks 9(a) status.
Because this case presents somewhat of a novel issue,
the parties have cited telephone directories of cases in
their efforts to analogize. We probably all would agree
that the Supreme Court in NLRB v. A. J. Tower Co., 329
U.S. 324 (1946), arrived at the conclusion that it is an
unfair labor practice, a violation of Section 8(a)(5), for an
employer to refuse to bargain only if the Union repre-
sents a majority of the employer's employees. The Board
expresses itself clearly and succinctly in Don Mendenhall,
Inc., 194 NLRB 1109, 1110 (1972). In that case there was
a members-only contract and the Board found that there
was no violation of Section 8(a)(5). It concluded that:
. . .the Respondent's actions cannot be held viola-
tive of Section 8(a)(5). That section, by reference to
Section 9(a), requires as a predicate for any finding
of a violation that the employee representative has
been designated or selected as the exclusive repre-
sentative of the employees. It has been settled since
the early days of the Act that members-only recog-
nition does not satisfy statutory norms.
While these and other cases cited, involving Section
8(a)(2) of the Act, teach basics with reference to the
Board's concept of minority representatives, they do not
focus on the central issue involved herein. Are employ-
ees being deprived of Section 7 rights?
It seems to me that counsel for the General-Counsel is
attempting to utilize Section 7 as a vehicle for demand-
ing bargaining rights which do not exist based on Board
and court law. The record is manifestly clear that Re-
spondent grants to all of its employees the right to a rep-
resentative in a grievance situation.
These rights are derived from Sections 7 and 9(a) of
the Act. Respondent herein has a very detailed grievance
machinery which is available to all of its employees. This
is not a situation like that presented in United Aircraft
Corp., 179 NLRB 935 (1969), where there was serious
doubt of the union's continued majority status and an ab-
sence of evidence that the union enjoyed such status. In
that case the employer refused to allow its employees to
837
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be represented by lodge stewards. The Board concluded:
179 NLRB at 938:
As the Respondent's obligation to honor employ-
ee requests for union stewards was dependent upon
the majority status of the Union, and as the majori-
ty status of Lodge 1746 was not established during
the relevant period, we find that the Respondent
did not violate Section 8(a)(5) by denying such re-
quests.
In my opinion Respondent has not frustrated the rights
of its employees, including BGC members, to engage in
protected concerted activity. It meets with groups of em-
ployees with common problems or grievances and inter-
acts with their spokesman, thereby providing an access
for airing either group or individual grievances. The
same is equally applicable to those employees who desire
to engage in union activity.
Recently, the Board reevaluated its formula for impos-
ing strict employer neutrality1 5 during the pendency of a
question concerning representation (QCR). Although in
the instant case there is no QCR, the case Bruckner
Nursing Home, 262 NLRB 955 (1982), and the compan-
ion case RCA Del Caribe, 262 NLRB 963 (1982), prob-
ably illuminate the Board's current views in this area of
the law. For my part, I ask myself, if the Board no
longer requires neutrality on the facts and circumstances
of those cases, how can favoritism or assistance16 be a
violation in this case? In my opinion it is not. Here, we
have no incumbent union, no petition, no QCR, and no
competition for exclusive representation. I do not believe
that Respondent herein is responsible for organizing its
employees, nor is it obligated to organize its employees
whether they by IGA members, BGC members, or mem-
bers of any other organization. Moreover, I conclude
that, if it chooses to render aid to the IGA, it is not a
violation of Section 8(a)(1) to refuse to render concomi-
tant aid to the BGC.
The overwhelming weight of probative evidence re-
flects that Respondent is not discriminating against its
employees. By placing the name of IGA in its handbook
and setting up IGA grievance procedures, it may be
minimally encouraging membership in the IGA and dis-
couraging membership in the BGC. In my view, these
factors, absent discrimination, are not violations of Sec-
tion 8(a)(1) of the Act, and in no manner restrain or re-
strict employees from joining, forming, or assisting a
labor organziation or organizations with a view towards
obtaining Section 9(a) status. While Charging Party
Glass may complain that he does not have the same le-
verage as a BGC member that he would possess as an
IGA member, he has the right to engage in union or
concerted activities to improve his plight and the plight
of his organization, including the right to seek exclusive
recognition. When all of the facts in this case are mar-
shalled, I reach the legal conclusion that Respondent is
not intefering with or abridging protected employee
rights.
"I Which has come to be known as the Midwest Piping doctrine, Mid-
west Piping Ca, 63 NLRB 1060 (1945).
16 Not in the context of Sec. 8(aX2).
Respondent avers that it has legitimate business justifi-
cations for not giving the BGC the same benefits and
privileges as it gives the IGA. In this regard it does not
want to polarize its employees into racially segregated
groups, thereby dealing with racially segregated labor
organizations. It argues that it would be leaving itself
vulnerable to title VII violations by fragmenting its em-
ployees into splinter groups based on race. 17
Respondent accords status to the IGA. It advances
that this is justified by the IGA's large membership, sta-
bility, and many years of existence. Conversely, it con-
tends that the size of the BGC alone provides justifica-
tion for refusing to accord it the same status. Respondent
also maintains that the name of the BGC, in and of itself,
gives the Respondent cause for concern that its formal
recognition would lead to racial polarization.
The BGC's primary focus of consideration is the elimi-
nation of employment discrimination. Based on Fritz' un-
controverted testimony, in certain matters' 8 the BGC
has not even requested equal status or shown even a
glimmer of interest for equal privileges. The undisputed
evidence is that Respondent meets with the BGC on re-
quest, and discusses wages, hours, and working condi-
tions. There is no evidence that Respondent has refused
to meet with the BGC as a group or that it has refused
to accept input from the BGC on matters involving
wages, hours, or working conditions.
It is not within my province to speculate as to Re-
spondent's wisdom, or to substitute my judgment for Re-
spondent's judgment in arriving at its business decisions.
I do conclude on the basis of this entire record and the
above-cited facts that Respondent has legitimate business
reasons for refusing to accord the BGC concurrent status
with the IGA, and that by doing so employees are not
being denied their Section 7 rights. Accordingly, I will
recommend that the allegation that Respondent has vio-
lated Section 8(a)(1) of the Act be dismissed. With re-
spect to Respondent's defense that it refuses to accord
status to BGC based on its admission of supervisors to
membership, I find this to be without merit. The Board
has long held that supervisory membership in a labor or-
ganization is not a basis for refusing to bargain with such
a labor organization. In certain industries, for example,
the newspaper industry, it is common for supervisory
personnel to be members of labor organizations although
they are precluded by law from directing the affairs of
or holding office in said labor organizations.
Addressing myself to Respondent's 10(b) defense, I
find this to be without merit. Marie Wilson testified that
on April 24, 1980, a petition was given to a supervisor
authorizing the BGC to bring a grievance to manage-
ment's attention. She testified that no response was given
to the petition by Respondent. In my opinion that inci-
dent constitutes a revival of BGC's request to represent
17 I recognize that the BGC, at the present time, does process griev-
ances of nonminorities.
"1 For example: checkoff, parking spaces, and mention by name in the
employee handbook. There was testimony by Gail Jones that a low-rank-
ing supervisor was requested to provide bulletin board space and refused.
The record is silent as to whether this supervisor had the authority to
grant or refuse the space. At any rate this was not communicated to
Fritz.
838
PHILADELPHIA ELECTRIC CO.
employees and a further revival of the refusal to do so
by Respondent. Furthermore, there is undisputed testi-
mony by Edward Kelly that on March 19, 1980, at a
meeting with Fritz he introduced Glass as his BGC rep-
resentative and Fritz responded that they could not pro-
ceed with the meeting with Harold Glass present as a
BGC representative. The meeting could only continue if
Glass acted as an employee representating another em-
ployee. Therefore, there is another incident where there
was a request and a refusal within the 10(b) period.
2. The discharge of Edward Kelly
Throughout 8 days of the hearing, I observed Kelly
on the witness stand and seated in the hearing room ap-
pearing to be taking copious notes. I am prompted at the
outset to make some observations. Kelly impressed me as
being so totally enveloped in paranoia, so obsessed with
the impression that there was a conspiracy' 9 by cowork-
ers and management to get or harass him, that he has
rendered himself wholly nonfunctional as a productive
employee. Perusal of the documentary evidence and a
reading of the transcript patently reveal an individual so
100 percent caught up in compulsive behavior that he
could not have had time to perform the requisite job
duties. As a witness he had a tendency to distort and
falsely color. Furthermore, he had no regard for the
truth. Where there exist conflicts in the testimony, I re-
solve same in favor of Respondent's witnesses and
against Kelly. One can only wonder why the city of
Philadelphia has not been blacked out for the last 4
years.
By way of contrast, Respondent's management and
medical personnel did everything humanly possible to al-
leviate Kelly's imagined and real discomforts, in an effort
to rehabilitate him, including tolerating his excessive ab-
senteeism for an inordinately long period of time. In my
experience, I cannot recollect ever seeing an employer
exhibit the degree of patience with an employee as this
Respondent exhibited with Kelly.
The record is devoid of any direct evidence of animus.
The only suggestion of animus2 0 is Cincotta's alleged
reference to Kelly and the BGC to Nahas on August 15,
1980, during a telephone conversation. Cincotta was ex-
acting and unerring in his testimony. By way of contrast,
Nahas was indefinite, evasive, and nebulous. When I pro-
pounded several questions to Nahas, he stated that he
could not remember whether or not Cincotta used the
words "troublemaker." He also admitted that he was
drawing inferences rather than quoting the remark in
issue. I conclude that the testimony of Nahas was unreli-
able and I specifically discredit him. I credit the testimo-
ny of Cincotta in every regard.
In 1978 Kelly completed his 15th year in the employ
of Respondent. It was in that year that his paid sick
leave benefits increased to 30 weeks. At the time of the
Hornung fight he was receiving 20 weeks of paid sick
19 See, inter alia, G.C. Exh. 6, p. 4.
20 Hushion's remarks to Mrs. Kelly, regardless of what version is ac-
cepted, do not rise to the level of animus. Based on Hushion's testimony
and Mrs. Kelly's letter in evidence as G.C. Exh. 8, I credit Hushion and
conclude that he told Mrs. Kelly that Kelly could be disciplined or
placed on a medical disability.
leave. He stayed out as a result of that injury for 19 of
the 20 weeks. From October 1978 until May 1979, he
used 30 of 30 weeks when he was out because of falling
from a chair. From June until December 1979 he was
out for 27 weeks and I day out of 30 weeks because of
anxiety/depression after he had been accused of spitting
on Hornung's shoes. From July to December 1980, Kelly
was out 19 weeks and 3 days out of 30 weeks because of
a neck injury and anxiety/depression. From January until
September 1981, he was out 29 weeks and 2 days out of
30 weeks because of anxiety/depression after the cursing
incident. It stretches the bounds of credulity to think that
this pattern was legitimate. Even Kelly's coworkers
became aware of his deception when they began a pool
as to when Kelly would return to work. It is no wonder
that Whitfield considered Kelly's use of sick leave as a
"mockery" of Respondent's sick leave policy. His record
serves as a justifiable and permissible basis for termina-
tion assuming, arguendo, legitimacy.
The record is replete with efforts on the part of man-
agement to improve Kelly's outlook and prevent his
long-term absences. They coddled and indulged him.
They made their medical department facilities and per-
sonnel available at his slightest whim. They warned and
cajoled him, all to no avail. He received personalized, in-
dividual attention. A year before his discharge, he was
placed on a list with 19 other employees with poor ab-
senteeism records in an effort to rehabilitate him. This
was but another act of futility. Respondent even in-
volved his wife in an effort to improve his plight. They
wanted to fire him in 1979, which preceded any of his
protected activity, but upper management decided to
work with him longer. Respondent even went so far as
to try and arrange to place him on the disabilitant pay-
roll, but his own psychiatrist found him able to work.
Although counsel for the General Counsel does not
allege that Kelly was fired for IGA activities, Kelly's
own perception may differ. When I asked him why he
thought management had this attitude (lack of caring) to-
wards him, he responded, "[T]owards me? Because I was
very effective as an IGA representative. And at these
meetings you do make enemies. Not wilfully, but you
do."
Kelly's discharge occurred approximately a year after
his involvement in the Frazier case, 8 months after he
filed his own charge, and approximately 19 months after
he went to Harold Glass and the BGC for assistance.
During the period 1979 to 1981, his absenteeism, con-
duct, and attitude continued to deteriorate. In my opin-
ion, Respondent does not have to live with Kelly's deli-
cate psyche ad infinitum. Respondent no doubt was
always waiting for the other shoe to drop. When would
some trivial incident send Kelly back to the couch and
remove him from production for another 29-but never
30-weeks?
I find that the absentee control guidelines were not ap-
plied disparately to Kelly. The credited testimony is that
they were not meant to apply to special cases of employ-
ees with chronic medical problems. In the case of Tele-
dyne, Inc., 246 NLRB 766 (1979), an employee was fired
after being given a warning, while others were given
839
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
written disciplinary notices or disciplined for the same
reason. The employee had an obsessive insistence to be
transferred to another department and made frequent
complaints to all those who would listen. He made inser-
tions in an operational logbook about his complaints and
sent letters to management. His attitude towards his
work was poor. Although his work evaluations were ex-
cellent they were inconsistent with his extremely poor
attitude, his failure to observe work rules or safety meas-
ures, and his preoccupation with a transfer. He had a
tendency to make mistakes resulting in a loss of produc-
tion and possible damage to equipment. He was not as
active as other employees in union and concerted activi-
ty. The record reflected that no employee had the same
antagonism towards the respondent or this employee's
poor attitude. The Board concluded that the employee
was discharged for cause, and he was in that case re-
ferred to as a "special case." In my opinion this record
amply demonstrates that Kelly was indeed a special case.
I find and conclude that Kelly's protected activity was
not "a motivating factor" 2' in Respondent's decision to
discharge him. There is, in my opinion, no nexus be-
tween his termination and his activities involving the
BGC, the PCHR, or any other union or concerted activ-
ity he may have been involved in. The record establishes
irrefutably that Respondent discharged Kelly for cause,
and I so find. Accordingly, I will recommend that the
" See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (Ist
Cir. 1981).
8(a)(3) allegations and the 8(a)(l) derivative allegation be
dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The BGC is, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The IGA is, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
4. The allegations in the consolidated amended com-
plaint that Respondent has engaged in conduct violative
of Section 8(aXl) and (3) of the Act have not been sup-
ported by substantial evidence.
On these findings of fact and conclusions of law and
on the entire record, I issue the following
ORDER2 2
It is recommended that the consolidated amended
complaint herein be, and it hereby is, dismissed in its en-
tirety.
" If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
840