PPG Industries, Inc.

National Labor Relations Board - Administrative Judge Opinions

Feb 13, 2003

10-CA-032813 (N.L.R.B. Feb. 13, 2003)

JD(ATL)—16—03

Huntsville, AL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE

PPG INDUSTRIES, INC.

and CASE 10–CA–32813

RANDALL MARTIN, An Individual

John D. Doyle, Jr., Esq.,
for the General Counsel.
Cameron S. Pierce, Esq.,
for the Company.
Randall Martin, Pro Se

SUPPLEMENTAL DECISION

WILLIAM N. CATES, Administrative Law Judge: On December 31, 2001, I
issued my Bench Decision in this case finding PPG Industries, Inc., (Company) did not
violate Section 8(a)(1), (3) and (4) of the National Labor Relations Act, as amended,
(Act) by on June 12, 2000, suspending and on June 16, 2000, discharging its employee
Randall Martin (Martin). Although in my Bench Decision I found Counsel for General
Counsel (Government Counsel) established a prima facie case by showing Martin
engaged in activities on behalf of United Steelworkers of America and Teamsters Local
Union 402 (Unions), which activities were well known to the Company and that the
Company had, in the past, exhibited animus toward its employees’ union activities; I
concluded it nonetheless demonstrated it would have discharged Martin even in the
absence of any union or charge filing activities on his part. I found the Company’s
discharge of Martin was in keeping with its guidelines, policies and practices regarding
absenteeism and call-in procedures. The Company demonstrated it consistently enforced
its applicable attendance policies and did not treat Martin differently than other
employees.

On November 20, 2002, the National Labor Relations Board (Board), with
Member Cowen dissenting, remanded the case to me (338 NLRB No. 68). In its remand
order the Board concluded I failed to resolve certain evidentiary issues. The Board
stated:

In this regard, the Judge failed to act on the [Company’s] petition to
revoke [Government] Counsel’s subpoena for documents concerning the

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administration of the [Company’s] attendance policy. Nor did the Judge
rule on the [Government] Counsel’s request that an adverse inference be
drawn from the [Company’s] failure to produce two classes of documents
in response to the subpoena. Therefore, we will remand this case to the
Judge to consider: (1) whether to grant the [Company’s] petition to
revoke; and (2) if the petition to revoke is denied in whole or in part and
the [Company] fails to produce the relevant documents, whether an
adverse inference should be drawn.

On December 6, 2002, I issued an Order Inviting Parties to File Briefs prior to my
preparation of this supplemental decision. Briefs were filled on January 21, 2003, by
counsel for the Government and Company.

On November 23, 2001, at the request of Government Counsel, a five page single
space subpoena duces tecum (B-300644) was issued directing the Company’s custodian
of records to appear at trial and produce various documents detailed in the subpoena.1
The Board noted in its remand order that its focus was on two classes of documents the
Company failed to produce in response to the subpoena. Those two classes of
documents, it appears, are covered by paragraphs 5 and 11 of the subpoena. Paragraphs 5
and 11 read as follows:

5) Such records of discussion, disciplines, suspensions, warnings,
recommendations for issuance of discipline, termination notices,
handwritten notes, internal memoranda, and other documents as reflected
or indicate the occasions on which non-supervisory employees employed
at Respondent’s Huntsville, Alabama facility received disciplines,
suspensions, warnings, discharges, or other corrective action, for the time
period January 1, 1999 through June 1, 2001, for attendance or failure to
call in problems or deficiencies, including without limitation, such
documents as reflect the identity of the person subject to the corrective
action, the identity of the person issuing the corrective action, the identity
of any person or persons who recommended such corrective action, and
the reasons for the corrective action.

11) Such applications for leave, pay records, time cards, schedules,
handwritten notes, attendance records, printouts of electronic records,
computer files, and other documents as indicate, for the time period
January 1, 1999 through June 1, 2001, the times non-supervisory
employees at the Respondent’s Huntsville, Alabama facility, were absent
from work during a time when they would ordinarily have been scheduled,
including with limitation, such documents as indicate or reflect, for each
such absence, the identity of the employee, the date of such absence, tardy,
or early out, the time(s) of such absence, tardy, or early out, whether the
1 The pertinent documents sought by Government Counsel relate to the Company’s attendance
policy.

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employee was charged under the attendance system, whether such
absence, tardy, or early out was paid or unpaid, whether the absence,
tardy, or early out was excused, whether the absence, tardy, or early out
was approved, the date and time of any request or application to be absent,
tardy, or to early out, the date of the approval, the identity of the person or
persons who considered such application or request, the decision on the
request or application (granting or denying), and the reasons for decision.

The two classes of documents the Company did not produce, for employees other
than Martin, are 1) Employee/Discipline History and 2) Absence with Notes.

On December 3, 2001, the Company filed a Petition to Revoke Subpoena Duces
Tecum (B-300644). On December 5, 2001, Government Counsel served on the
Company its Opposition to the Petition to Revoke Subpoena Duces Tecum (B-300644).

The tenor of the parties’ positions are as follows. First, the Government contends
it needs the two classes of documents in question to test the Company’s contention it did
not treat Martin differently than other employees when it suspended and thereafter
discharged him for attendance and reporting off infractions. Second, the Company
contends it did not, and needs not, provide the two classes of documents in question
because it has already provided the Government with documents containing hundreds of
pages which set forth each employees’ history of unexcused absences and whether the
employees received discipline for those absences. The Company also contends it
provided the Government with relevant disciplinary records for employees disciplined for
the same infractions as Martin. The Company contends further document production
would be unnecessary, unreasonably cumulative, duplicative, and unduly burdensome.

A brief overview of certain facts and findings from my Bench Decision is helpful.
I concluded the Government established an initial showing that Martin’s suspension and
discharge was discriminatorily motivated; however, I also concluded the Company
demonstrated it would have suspended and terminated Martin even in the absence of any
protected conduct on his part. As noted in my Bench Decision Martin was given a
Record of Discussion on December 8, 1999, reviewing with him what was expected of
him regarding regular attendance. The Record of Discussion which Martin signed reads
in part:

This is to review with you the expectation of regularly attendance. As of
12/6/99, you are at 4.0 Occurrences in Absence Program. Absenteeism
above four Occurrences will trigger a Disciplinary action.

Therefore, you will need to remain at four Occurrences until twelve
months. This is to advise you to monitor your absences and maintain
regular attendance, as required of Works 22 Employees

I found no showing that any of the absences that brought about the December 8,
1999, Record of Discussion and the warning of the impact future absences would have on

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his employment were unlawfully motivated. It is undisputed that Martin did not work on
June 9, 2000, nor did he call–off, as required, prior to the start of his work shift on that
date. I found Martin’s absence on June 9, 2000, violated two of the Company’s
disciplinary policies. Martin’s failure to report-off on June 9, 2000, advanced him one
step in the disciplinary procedure. Martin’s absence on June 9, 2000, was, as just noted,
at a time when he had previously been alerted to monitor his attendance, and his
unexcused absence on that date advanced him one step in the progressive discipline
system elevating him to that step which resulted in his termination. Martin had at the
time of his unexcused absence on June 9, 2000, already acquired 4 unexcused absences in
a 12-month period. The Company did and I concluded would have discharged Martin
even in the absence of any protected conduct on his part for violating its attendance and
reporting off policies. I found the Company consistently enforced its attendance and
reporting policies and did not treat Martin differently than other employees.

Section 102.31(b) of the Board’s Rules and Regulations provides that the trial
judge shall revoke a subpoena if in his opinion the evidence whose production is required
does not relate to any matter under investigation or in question in the proceedings or the
subpoena does not describe with sufficient particularity the evidence whose production is
required, or if for any other reason sufficient in law the subpoena is otherwise
invalid. Section 102.31(b) further directs that the trial judge make a simple statement
of procedural or other grounds for the ruling on the petition to revoke (emphasis
added).

To the extent not previously satisfied I grant the Company’s Petition to Revoke
Subpoena Duces Tecum B-300644 in all respects.2 I am fully persuaded the Company
has provided Government Counsel with sufficient documents from which he is able “to
adduce comparable incidents of absenteeism that either were or were not the subject of
discipline.” Stated differently the Company provided Government Counsel, at trial, with
appropriate and sufficient documents relevant to the disparate treatment issue such that
and any further production would be unnecessarily cumulative.

As noted elsewhere the Company did not provide Employee Action/Discipline
History records. The Employee Action/Discipline History records cover an employee’s
entire history of discipline (and it appears commendations as well). The Employee
Action/Discipline History records reflect the date, action/level, reason, department of
employee, supervisor of employee, comment and clear date (where appropriate) for any
employee offenses. The records may, where appropriate, include discipline for violations
of infractions that do not relate to absenteeism or failing to report off which were the
offenses for which the Company discharged Martin. The Company provided
Government Counsel with disciplinary records for employees who had been disciplined
for absenteeism as well as for failing to report off, which were, as just noted, the
infractions for which the Company discharged Martin. In agreement with the Company I
2 To the extent the Board’s Remand Order could be read to require consideration of a failure by the
Company to produce documents beyond the two classes of documents referred to in the remand
this revocation is intended to cover such.

JD(ATL)—16—03

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am fully persuaded Government Counsel has not demonstrated that the Employee
Action/Discipline History records contain any relevant information, regarding
absenteeism and failing to report off, that is not already contained in the disciplinary
records provided by the Company to Government Counsel at trial.3

In that regard the Company provided Government Counsel with documents
including several hundred pages of Employee Absenteeism Report forms for all
production and maintenance employees at the facility for an applicable 21-month period.
The Employee Absenteeism Report forms provided Government Counsel with the
complete attendance history of non-supervisory employees at the facility and whether
employees were disciplined for any absence related offences. These Company provided
records demonstrate whether an employee automatically received step discipline when
the employee attained the specified number of unexcused absences during the specified
time period. Government Counsel had the necessary records to probe whether the
Company applied its absenteeism policy in a disparate manner.4 Any further production
of documents by the Company would simply have been and would continue to be
unnecessarily cumulative.

The second class of documents at focus herein that the Company did not provide
are the Absence with Notes forms. The Absence with Notes forms are unofficial
software created records maintained in electronic form by Company Human Resources
Supervisor Joyce Spiller. All information entered on the Absence with Notes software
records is at the discretion of Spiller. Spiller may enter comments on her Absence with
Notes electronic forms that she may have received in reference to any specific absence to
assist her in keeping tract of occurrences; however, the records do not address mitigating
circumstances. I am fully persuaded these incomplete discretionary electronic Absence
with Notes forms would not have provided any additional information not already
provided to Government Counsel in greater detail in the records supplied at trial by the
Company to Government Counsel. Nothing in the Absence with Notes would assist
Government Counsel to adduce comparable incidents of absenteeism beyond what the
documents already produced showed. Requiring the production of the Absence with
Notes forms would constitute an unnecessary production of cumulative and duplicative
documents and as such would be unduly burdensome to the Company.

In summary, and for the reasons set forth above, I grant the Company’s Petition to
Revoke Subpoena Duces Tecum B-300644, issued at the request of Government Counsel,
to the extent the Company has not already satisfied the production requirements outlined
therein.

3 The time frame for disciplinary records provided by the Company was limited by the Company to
an appropriate time frame. Any greater time frame would have been unnecessary and
burdensome.
4 The fact such necessary records were provided by the Company to Government Counsel may
explain Government Counsel’s failure to raise on the record any subpoena concerns before he
rested, without reservation, his case-in-chief.

JD(ATL)—16—03

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In light of the above ruling, I need not, and do not, address the conditional second
part of the Board’s remand order pertaining to the drawing of an adverse inference.
I reaffirm my prior Bench Decision.

Dated at Washington DC

_______________________
William N. Cates
Associate Chief Judge