Quick Pak, Inc.

National Labor Relations Board - Board Decisions

Apr 27, 1976

223 N.L.R.B. 1080 (N.L.R.B. 1976)

1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Quick Pak, Inc . and Carrie White and Janice Weaver.
Cases 9-CA-9417- 1 and 9-CA-9417-2
April 27, 1976
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On February 10, 1976, Administrative Law Judge
Wellington A. Gillis issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
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, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
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 and hereby
orders that the Respondent, Quick Pak, Inc., Cincin-
nati , Ohio, its officers, agents , successors, and as-
signs , shall take the action set forth in the Adminis-
trative Law Judge's recommended Order.
t The decision of the Administrative Law Judge is corrected to reflect that
Carrie White was absent from work a total of 12 days and late a total of 3
days in March-May 1975 before her layoff on May 29. Similarly . Charles
Brown 's work record for March-May 1975 is corrected to read, 5 days
absent and 13 days late before his May 29 layoff.
All parties were represented by counsel, and were af-
forded full opportunity to examine and cross-examine wit-
nesses, to introduce evidence pertinent to the issues, and to
engage in oral argument. Subsequent to the close of the
hearing, timely briefs were submitted by the General
Counsel and for the Respondent.
Upon the entire record in this case,' and from my obser-
vation of the witnesses and their demeanor on the witness
stand, and upon substantial, reliable evidence, "considered
along with the consistency and inherent probability of tes-
timony" (Universal Camera Corporation v. N.L.R.B., 340
U.S. 474, 496), I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Quick Pak, Inc., is an Ohio corporation engaged in the
packaging of goods at its Cincinnati, Ohio, plant. During
the 12-month period immediately preceding the issuance of
complaint, the Respondent had an indirect outflow of
goods in interstate commerce valued in excess of $50,000,
which were sold and shipped to Proctor & Gamble, a non-
retail enterprise located within the State of Ohio. Proctor &
Gamble, in turn, had an annual direct outflow of goods in
interstate commerce valued in excess of $50,000, which it
sold and caused to be shipped directly to points outside the
State of Ohio.
The parties admit, and I find, that the Respondent is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The parties admit , and I find , that International Associa-
tion of Machinists and Aerospace Workers, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, Administrative Law Judge: This
case was heard before me on September 19, 1975, at Cin-
cinnati , Ohio , and is based upon charges filed on June 10
and July 23, 1975, by Carrie White and Janice Weaver,
individuals, upon a consolidated complaint issued on July
30, 1975, by the General Counsel for the National Labor
Relations Board , hereinafter referred to as the Board,
against Quick Pak , Inc,, hereinafter referred to as the Re-
spondent or the Company, alleging violations of Section
8(axl) and (3) and Section 2(6) and (7) of the National
Labor Relations Act, as amended , and upon an answer
timely filed by the Respondent denying the commission of
any unfair labor practices.
The sole issue presented by the pleadings is whether, in
laying off the following 10 employees on May 29, 1975, the
Respondent did so because of their union activities, in vio-
lation of Section 8(a)(3) of the Act: Janice Weaver, Pat
North, Charles Brown, Linda Brown, Wanda Evans, Jen-
niffer Jones, Marlene Bolton , Cornelia Beamon , Gloria
Beecher, and Carrie White.
B. The Facts
The Respondent, a service organization since its incor-
poration in January 1974, is engaged in the packaging and
assembling of products on a job-contract basis for major
companies such as Proctor & Gamble, Avon Products, and
Kenner Products. On May 27, 1975,2 Janice Weaver, a ma-
1 The date, "May 27." appearing on p. 20, 1 . 18, of the transcript is hereby
corrected to properly read, "May 29.-
2 All dates hereinafter set forth refer to the year 1975.
223 NLRB No. 171
QUICK PAK, INC. 1081
chine operator, and 1 of approximately 40 employees then
employed, having discussed with a number of the plant
employees the possibility of forming a union , called the
Union and spoke with Pete MacCagno, Grand Lodge rep-
resentative. MacCagno arranged with Weaver to meet with
her and the other employees the following Thursday, May
29, at 12 noon in an open park area directly across the
street from the plant.
At the appointed time , which was their lunch hour, Mac-
Cagno met with some 19 plant employees in the park. The
meeting took place close to a shelter house which is ap-
proximately 150 feet from the steeet , and, in turn , another
50 feet from the plant entrance. After a number of ques-
tions and answers, and after MacCagno advised them that
they did not have to sign union cards and that it was lawful
for them to have a union in the plant, 19 employees signed
union cards. Among the 19 were 9 of the 10 alleged dis-
criminatees.3
As Weaver was under the impression that they needed
two more signatures , she, accompanied by Pat North, a
line leader, left the park gathering and went into the plant.'
In the lunchroom in the rear of the plant Weaver found
four employees, all of whom, at Weaver's invitation, signed
union cards . In leaving, some 15 feet from the lunch area,
Weaver still accompanied by North, asked 2 others to sign
union cards . Both refused . One, Bonnie Harper , a supervi-
sor, did so on the ground that she was a supervisor. Weaver
then took the four cards outside where she met MacCagno
and the other employees returning to the plant. They were
crossing the street between the park and the plant. At the
entrance to the parking lot immediately adjacent to the
plant, as Weaver was handing MacCagno the additional
four cards, MacCagno observed a man and a woman
standing at the loading dock next to the plant entrance.
MacCagno asked Weaver who the man was, and was told
that he was their boss (Brown), a fact established by the
record.
At 3:25 p.m. that same afternoon, Supervisor Harper,
who had been in the office with Brown and absent from
her usual position on the assembly lines during the preced-
ing couple of hours, went out into the plant and read from
a slip of paper the names of 10 employees , directing them
to report to Brown's office. Nine of the alleged discrimina-
tees, Carrie White being absent, left their lines and went
into the office, where they were told, first by Harper, and
then by Brown, that they were being laid off. Weaver asked
why, and was told by Brown it was because of lack of
work, and then, by Harper, that it was because of their bad
work, records. Shortly thereafter Harper passed out to each
of the nine alleged discriminatees present two checks, one a
normal payroll check for the prior workweek, and the other
a handwritten personal check signed by Diane Brown,
president of the Respondent and wife of Thomas Brown.
Carrie White was notified by telephone shortly thereafter
that she, too, was laid off. White picked up her check the
following day, at which time she also signed a union card.
Analysis and Conclusions
The General Counsel contends very simply that the Re-
spondent became aware of the union organizational effort
on the part of its employees at noon on May 29, and
moved quickly to quash it by discriminatorily laying off
within a few hours the 10 alleged discriminatees herein.
The Respondent, in denying the discriminatory allegations,
asserts that the 10 employees named in the complaint had
the 10 worst employee work records.5 and for that reason
they were laid off.
The Respondent's defense is predicated almost entirely
upon Brown's testimony and the work records of the em-
ployees involved. Brown testified that the Company has a
high employee turnover, having hired 117 employees dur-
ing the first 9 months of 1975, and maintaining an average
employee complement of but 25 to 30 employees.
He further testified that during the period in question his
production was way down for the number of employees
then employed (40-45), and for economic reasons he had
been considering for about 2 weeks the advisability of cut-
ting down his work force. Brown testified further that, be-
cause the Company's operations are based upon two pro-
duction lines with as many as 18 employees on a line,
absenteeism and tardiness by one employee can foul up a
whole production line, that for this reason these two fac-
tors were most important to the Company's production.
Thus, according to Brown, on May 29 he decided to lay
off 10 employees "for lack of work and their work record,"
and selected these 10 because "they had the 10 worst rec-
ords." Company records bear out Brown's testimony that
the 10 discriminatees did in fact have the worst work rec-
ords for the 3-month period, March through May. They
reveal the following, respectively, number of days absent
and number of days late:
Janice Weaver 5; 17
Carrie White 5; 17
Pat North 9; 7
Charles Brown 15; 13
Linda Brown 5; 12
Wanda Evans 8; 23
Jenniffer Jones 9; 12
Marlene Bolton 9; 12
Cornelia Beamon 3; 16
Gloria Beecher 4; 15
3 The 10th alleged discriminatee , Carrie White , was absent from work on
May 29, and did not sign a card until May 30.
° Weaver and North each testified that in passing the office of
Respondent's general manager , Thomas Brown , they observed Brown look-
ing out of his office window toward the park. Partly because Weaver cred-
ited North with first observing this alleged incident and North credited
Weaver with the same , and further, because Brown testified that his window
is opaque and covered with nondraw drapes, I credit Brown 's denial that
such occurred.
The Respondent 's counsel at the start of the hearing and in his brief
made it clear that "work record" relied on by the Respondent referred to
employee absenteeism and tardiness in reporting , and that proficiency at
their job or lack of it was not germaine to the issue. Brown hedged on this,
however, testifying in reply to whether he also considered work performance
in selecting the layoffs that " I did, in my own mind," and "I would say so,"
As the Respondent 's evidence in support of its defense to the 8 (a)(3) com-
plaint allegations does not substantiate Brown's testimony in this regard, I
shall treat the Respondent 's position as stated by counsel and argued in his
brief.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While the layoff on May 29 reduced the Respondent's
employee complement to around 30 or so, the record also
reveals that 5 weeks later, on July 9, the Respondent had
hired new employees increasing the employee complement
once again to 41 employees. Asked on cross-examination
to explain this , Brown unconvincingly replied "we were
still trying to get organized, I guess," and, in reply to the
further question as to a reason , testified "no . . . I don't
know ... I don't remember all those things."
While I have no quarrel with the Respondent 's assertion
that the 10 alleged discriminatees did in fact have the worst
work records in the plant , or that sound business judgment
would dictate the advisability of getting rid of undependa-
ble employees, the fact stands out (a) that the Company
had acquiesced in this extreme absenteeism and tardiness
on the part of so many employees over a period of time
without having taken any action , (b) that the decision to
lay off "because of lack of work" was not made nor effec-
tuated until the union activities commenced on May 29,
and then, within 3 hours of such activities, and finally, (c)
that the asserted reason for the layoff , as distinguished
from selection , "lack of work" is inconsistent with the fact
that at 10 o'clock that same morning, Thursday, May 29,
employees on both production lines, which included 9 of
the 10 here involved , were told by Supervisor Bonnie Har-
per that they had to work overtime on Saturday.
Under all of the circumstances , I find that, in fact,
Brown became aware of the extensive union activity across
the street, that, through personal observation and or that of
Supervisor Harper, he learned generally the identity of
most of those involved , that almost immediately , in seclu-
sion with Harper, he selected from his "work records" the
10 discriminatees , and proceeded to terminate them. I find
that, but for their open union activity on May 29, these
employees, plus Carrie White, would not have been laid off
on May 29.E
Accordingly, I find as alleged that the Respondent dis-
criminatorily terminated the employment on May 29, 1975,
of Janice Weaver, Carrie White, Pat North, Charles
Brown , Linda Brown, Wanda Evans , Jenniffer Jones, Mar-
lene Bolton , Cornelia Beamon , and Gloria Beecher, all in
violation of Section 8(a)(3) of the Act.7
IV. THE EFFECT UPON COMMERCE OF THE UNFAIR LABOR
PRACTICES
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above , have a close,
intimate and substantial realtionship to trade, traffic, and
commerce among the several States and tend to lead to
6 While White had not taken part in the May 29 union activities and did
not sign a union card until the following day, the fact remains that , but for
the union activity of the other "poor work record" employees , White. too.
would not have been terminated.
7 Janice Weaver testified that during her employment interview with Su.
pervisor Geraldine Gentry in mid -February 1975 , in reply to her question of
Gentry as to whether they had a union , Gentry told her not to mention a
union because Mr. Brown would fire her on the spot if she did . I credit
Gentry's denial in this regard and find this , the only independent 8(a)(I)
complaint allegation , to be without merit.
labor disputes burdening and obstructing commerce and
the free flow of commerce.
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Quick Pak, Inc., is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Association of Machinists and Aero-
space Workers, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of
employment of Janice Weaver, Pat North, Charles Brown,
Linda Brown, Wanda Evans, Jenniffer Jones, Marlene Bol-
ton, Cornelia Beamon , Gloria Beecher, and Carrie White,
on May 29, 1975, thereby discouraging membership in and
activity on behalf of International Association of Machin-
ists and Aerospace Workers, AFL-CIO, the Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. The Respondent did not engage in any independent
8(a)(l) conduct as alleged in the complaint.
THE REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices, it is recommended that it
cease and desist therefrom and that it take certain affirma-
tive action which is necessary to effecutate the policies of
the Act.
It having been found that the Respondent discriminato-
rily laid off employees Janice Weaver, Pat North, Charles
Brown, Linda Brown, Wanda Evans, Jenniffer Jones, Mar-
lene Bolton, Cornelia Beamon, Gloria Beecher, and Carrie
White, on May 29, 1975, thereby violating Section 8(a)(3)
and (1) of the Act, it is recommended that the Respondent
offer the above-named individuals immediate and full rein-
statement to their former jobs or, if their jobs no longer
exist, to substantially equivalent positions, without preju-
dice to any rights and privileges to which they are entitled,
and make them whole for any loss of pay they may have
suffered by reason of the discrimination against them, by
making payment to them of a sum of money equal to the
amount that they would have earned from the earliest date
of the discrimination to the date of the offer of reinstate-
ment, less net earnings during said period to be computed
on a quarterly basis in the manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289 (1950),
and shall include the payment of interest at the rate of 6
percent per annum to be computed in the manner set forth
by the Board in Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
It is further recommended that the Respondent preserve,
and upon request, make available to the Board or its
agents , for examination and copying, all payroll records
and reports, timecards, and all other records necessary to
compute the amount of backpay.
QUICK PAK, INC. 1083
As the unlawful discharges of the above-named employ-
ees are of such serious nature and strike at the very heart of
rights intended to be protected.by the Act, it is recom-
mended that a "broad" cease-and-desist order issue requir-
ing that the Respondent cease and desist in any manner
from infringing upon employee rights.8
Upon the foregoing findings of fact, and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDERS
The Respondent, Quick Pak, Inc., its- officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activity on behalf of
the International Association of Machinists and Aerospace
Workers, AFL-CIO, or any other labor organization, by
laying off or refusing to reinstate any of its employees, or
in any manner discriminating in regard to the hire or ten-
ure of employment, or any term or condition of employ-
ment, in violation of Section 8(a)(3) and (1) of the Act.
(b) In any other manner interfering with, restraining or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist any labor organiza-
tion, and to bargain collectively through representatives of
their own choosing and to engage in other concerted activi-
ties for the purpose of collective bargaining or other mutu-
al aid or protection.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer Janice Weaver, Pat North, Charles Brown,
Linda Brown, Wanda Evans, Jenniffer Jones, Marlene Bol-
ton, Cornelia Beamon, Gloria Beecher, and Carrie White
immediate and full reinstatement to their former jobs or, if
their jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to any rights and privileges to
which they are entitled, and make them whole in a manner
and in accordance with the method set forth in the section
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records and reports,
timecards, and all other records necessary to compute the
amount of backpay due under the terms of this recom-
mended Order.
9 N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536-537 (C.A. 4. 1941).
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.
10 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
(c) Post at its Cincinnati, Ohio plant, copies of the at-
tached notice marked "Appendix." 10 Copies of said notice,
on forms provided by the Regional Director for Region 9,
shall, after being duly signed by an authorized representa-
tive of the Respondent, be posted immediately upon re-
ceipt thereof and be maintained by Respondent for at least
60 consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify said Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be"dismissed inso-
far as it alleges violations of the Act not specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT lay off or refuse to reemploy , or other-
wise discriminate against our employees in order to
discourage membership in, or support of, Internation-
al Association of Machinists and Aerospace Workers,
AFL-CIO, or any other labor organization , or infringe
in any manner upon the rights guaranteed in Section 7
of the Act.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
rights guaranteed them by Section 7 of the National
Labor Relations Act, as amended.
WE WILL offer Janice Weaver , Pat North , Charles
Brown , Linda Brown , Wanda Evans , Jenniffer Jones,
Marlene Bolton , Cornelia Beamon , Gloria Beecher,
and Carrie White, immediate and full reinstatment to
their former jobs or , if their jobs no longer exist, to
substantially equivalent positions without prejudice to
any rights or privileges to which they are entitled and
WE WILL make them whole for any loss of pay they may
have suffered by reason of our discrimination against
them.
All our employees are free to become or remain, or to
refrain from becoming or remaining members of Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CIO, or of any other labor organization , except to
the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condi-
tion of employment , as authorized in Section 8(a)(3) of the
Act, as modified by the Labor Management Reporting and
Disclosure Act of 1959.
QUICK PAK, INC.