Texas Tag & Specialty Co.

National Labor Relations Board - Board Decisions

May 23, 1977

229 N.L.R.B. 856 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Texas Tag & Specialty Company and Printing
Specialties & Paper Products Union, Local 439.
Case 16-CA-6267
May 23, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On February 7, 1977, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Texas Tag &
Specialty Company, Wolfe City, Texas, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
I The Respondent excepts to the Administrative Law Judge's findings
concerning the number of hours of "tipping" work during the 6-month
period ending with October 1975. The Respondent states that there were
fewer hours of that work. However. the significance of those figures lies only
in the relative amount of tipping work each month: did it continue without
substantial reduction, as found by the Administrative Law Judge. until
October? It did.
The Respondent's figures show that the September tipping work was
roughly 120 percent of the average for the 5 months ending then. That
compares to about 110 percent using the Administrative Law Judge's
figures. In either case. the conclusion that the work did not decline
substantially until October is fully supported.
I The Administrative Law Judge found that a regular employee was
placed on the "tipping" machine for 3 weeks after Garcia's discharge.
However, another seasonal employee was Garcia's immediate replacement
and only later did regular employees devote large parts of their time to
tipping work.
:' The Respondent excepts to the Administrative Law Judge's refusal to
provide for the seasonal nature of the work performed by Garcia and Clark
in proposing a remedy. The amount of the loss suffered by Garcia and Clark
because of the Respondent's discrimination will be determined at the
compliance stage of this proceeding. The seasonal nature of their jobs
necessarily will be considered in determining the extent of that loss. We
note, however, that there is no finding that Clark was discriminatorily laid
off, but rather that it was the failure to recall her that was unlawful. Clark's
backpay will run from the latter incident: Garcia's from the date of her
unlawful layoff.
229 NLRB No. 123
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge: This matter
was heard before me at Greenville, Texas, on November 22
and 23, 1976, upon the General Counsel's complaint which
alleged, in substance, that the Respondent's plant supervi-
sor threatened an employee in violation of Section 8(aX)(1)
of the National Labor Relations Act, as amended, 29
U.S.C. § 151, et seq., and that the Respondent failed to
recall one laid-off employee and laid off and failed to recall
another because of their activity on behalf of a labor
organization in violation of Section 8(a)(3) of the Act. The
Respondent generally denied that it engaged in any activity
violative of the Act.
Upon the record as a whole, including my observation of
the witnesses, briefs, and arguments of the counsel, I make
the following:
FINDINGS OF FACT
I. BUSINESS OF THE RESPONDENT
The Respondent is a Texas corporation engaged in the
production of industrial tags and specialty items at its
Wolfe City, Texas, facility. During the course and conduct
of its business, the Respondent annually manufactures
goods valued in excess of $50,000 which are shipped
directly to customers located outside the State of Texas.
The Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
1. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that Printing
Specialties & Paper Products Union, Local 439 (herein the
Union), is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE RESPONDENT'S UNFAIR LABOR PRACTICES
A. Factual Background
The Respondent's business is essentially seasonal with
the busy time being from March or April through the fall.
Depending on how much work is available or projected,
the Respondent hires and lays off its seasonal employees.
There are also permanent full-time employees. During the
peak season the Respondent has approximately 125
production and maintenance employees.
Two of the Respondent's seasonal employees for a
number of years have been the alleged discriminatees in
this matter, Earlene Garcia and Karen Clark.
Earlene Garcia was first hired on April 19, 1971. Her
principal job was to run the tipping machine, a device
which puts glue on the ends of printed forms to hold the
forms together. She was laid off at the end of the 1971
season, recalled in March 1972, and again laid off on
October 30, 1972. During this period of employment she
was off for surgery for approximately 2 weeks.
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TEXAS TAG & SPECIALTY CO.
She was rehired on March 4, 1973, and was apparently
laid off at the end of that season. During this period of
employment she fell and was off for about 8 or 9 days. She
was recalled in 1974 but had to quit in July of that year
again because of surgery.
Finally, she was reemployed on April 14, 1975, was off
work a few days in July and was laid off on August 11,
according to the Respondent, because the tipping work
became slack. She has not been rehired, according to the
Respondent, because they did not have enough work for
her as a tipper, and as she was slow learning that machine,
she was not given the opportunity of doing the replacement
job-the bond-fan-a-part process.
The Respondent also asserts that it has not rehired Mrs.
Garcia because on several occasions she broke company
rules concerning going to other departments and talking to
other employees.
Karen Clark was first hired on or about October 10,
1973, to work in the wiring and stringing department. She
was reemployed during the 1974 and 1975 seasons and, on
May 28, 1975, along with the rest of her department, was
laid off. Subsequently four newer employees in that
department were recalled.
The Respondent states the reasons that Karen Clark was
not recalled was because she had "lied" to an insurance
man; she "coerced" an employee in the shipping depart-
ment to join the Union; she did not get along with her
foreman; and that she kept others from producing by being
away from her work station and talking.
The union activity in this matter began in April 1974.
After some talk about getting a union among employees,
Earlene Garcia called the Union's president, Bill G. Dyess.
The first meeting of employees with the Union was on or
about May I, 1974, at Garcia's house. There were
subsequent meetings and organizational activity. Garcia
solicited authorization signatures from 30 to 40 fellow
employees and distributed literature at the plant.
Following the organizational campaign there was an
election which resulted in the Union being certified to be
the exclusive bargaining representative of the Respondent's
production and maintenance employees.
Following the election, a negotiation committee of
employees was established on which Garcia served. The
Union and the Respondent entered into a contract
following which four employees were appointed shop
stewards for their particular departments. Earlene Garcia
was appointed for her department and Karen Clark for
hers.
B. Analysis and Conclusions
1. The alleged 8(a)(1) activity
Karen Clark was appointed one of the four shop
stewards in early May 1975. Shortly thereafter, on or about
May 21, she talked to her immediate supervisor about a
prospective problem that two employees had come to her
about concerning loss of seniority if they were to take off
from work. As a result of this conversation, her immediate
supervisor, Ray Lumpkin, took her to the office of George
Moore the plant supervisor. It was during this interview
that Moore is alleged to have had engaged in activity
violative of Section 8(a)( I) by orally warning Clark that her
union activity could jeopardize her job and by threatening
to discharge her for engaging in union activity.
Present were Karen Clark, George Moore, Ray Lump-
kin, Linda Howell, the foreman of the shipping and
receiving department, and Carole Lyday, who Clark had
asked to be present as a witness for her.
In substance, Clark testified that Moore told her that she
had made Lumpkin very upset and he asked her why she
was talking about union matters with a foreman. She
replied she was a shop steward, which Moore did not
"recognize" because he had not received notification in
writing. Moore said that she could not talk about the
contract "within the plant, on company time or on my time
at break . . . in the streets of Wolfe City or in your own
home." He said that she should go to work and not worry
about union business and he finally stated that he could
fire her at any time with or without reason.
According to Carole Lyday, Moore told Clark that she
had been "agitating and provoking" employees, and had
upset Lumpkin. Lyday testified that Moore said he had the
power to hire or fire even if he did not like the way an
employee looked.
There was also some conversation concerning Clark
"agitating" one of the employees in the shipping and
receiving department, which was apparently why Linda
Howell was present at Moore's office in the first place.
Upon being advised of this and shown the contract, Clark
told Howell she was sorry and did not realize that she was
"agitating." Lyday also corroborated that Moore told her
not to discuss union business even on the streets of Wolfe
City.
Against this, Moore testified that he had been advised by
Lumpkin that Clark had been appointed a shop steward,
although he had not received a notification of this in
writing as required by the contract. Moore stated that they
did discuss the two employees being off work, but he
testified that he told her she could discuss union business
on her break but not on company time. He also denied that
he ever told her that she could not discuss union matters
away from the plant, at home, or so forth.
Lumpkin's testimony generally supported Moore. He
testified that Moore said only that Clark could not discuss
union business on company time and that she could not
coerce fellow employees because such is prohibited by the
contract.
Howell's testimony concerning this meeting was simply
that Moore read the no-discrimination clause in the
contract and Clark said that she was sorry if she upset
anyone. Howell was not asked concerning the other
statements attributed to Moore by Clark and Lyday.
A number of subjects were obviously discussed at this
meeting. Since the meeting occurred nearly a year and a
half prior to the hearing of this matter, exact recall by any
witness was difficult. Nevertheless I am generally im-
pressed with the straightforward demeanor of Karen Clark
and Carole Lyday and I was negatively impressed, not only
with this aspect of Moore's testimony and that of Lumpkin,
but with other aspects as well. While Howell appeared to
be a generally credible witness, it is noted that she was not
asked by Respondent's counsel to deny the specific
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statements of Moore which are alleged to be violative of
the Act.
I conclude that during this meeting Moore did tell Clark
in effect that her job was in jeopardy if she engaged in
protected union activity and that he told her not to do that
anymore.
It should be noted that neither the managers nor the
employees at this time were particularly sophisticated with
regard to labor-management relations or dealing with one
another under a collective-bargaining agreement. I am
persuaded that Clark had been seeking to do what she felt
was not only her right but her obligation as a shop steward.
I further find that Moore attempted to dissuade Clark, and,
by implication, other shop stewards and union adherents
from pursuing grievances under the contract by his
threatening and warning remarks to Clark.
Accordingly, I conclude that Moore, as alleged, did
violate Section 8(a)(1) of the Act by threatening Karen
Clark with reprisals including discharge.
2. The layoff and failure to recall Karen Clark
On May 28, 1975, 1 week after his meeting with Clark,
Moore determined to lay off the entire wiring and stringing
department because he "decided to overhaul the depart-
ment."
Nine employees were laid off. On or about August 1, four
were reemployed. Each of the four reemployed were new
employees having been hired only in April 1975. The five
employees who were not rehired, including Karen Clark,
had worked for the Company in previous seasons.
Moore's claimed reason for rehiring the four new
employees over the others is the four had not had an
opportunity to "prove themselves," thus implying that it
would be more fair to rehire the junior employees than the
employees who had worked for the Company before. He
did not, however, state that Clark or the other four
employees were generally not competent.
Moore then stated that the reasons he did not rehire
Clark was: "she lied to our insurance man"; "she did
coerce an employee in the Shipping and Receiving
Department"; "She could not get along with her foreman,
myself and Ray Lumpkin or the other people"; "her
production was pretty good, but she was capable of doing
better"; and "She spent a lot of time away from her work
station talking to other employees, and thus, was not only
not producing herself, but was holding other people up
from working." The one instance when Clark used
profanity in addressing Lumpkin, while discussed in the
Respondent's brief, was not advanced by Moore as a
reason for not recalling her.
Although Moore gave four reasons why he has not
recalled Clark, the principal reason advanced by the
Respondent is that "Mr. Moore believed that due to her
talking and visiting with other employees, she was partially
responsible for the poor production recorded by the
department as a whole." I find this, as well as the other
alleged reasons, to be pretextuous.
Karen Clark testified that she was never reprimanded for
talking to other employees during working time, that she
was never advised by her superiors not to do so, nor did she
in fact talk to other employees more than anyone else. This
testimony was not contested by Moore and Lumpkin. On
the other hand, it was supported by the testimony of Janice
Sieberhausen, who impressed me as being credible.
She testified that Karen Clark did not talk any more than
anyone else and that in any event the talking did not
interfere with her work or the work of others. The
testimony of the Respondent's leadlady, Gladys Tidwell,
concerning the fact that Clark's talking affected production
is just simply too vague to be credible. Similarly, the
testimony of fellow employee Debra Davis that Clark
caused her production to drop is not supported by the
documentary evidence, and is vague and generally not
credible. On the other hand, documentary evidence shows
that Clark's production was well above average on her
principal job and her attendance excellent.
Apart from its obligations under the collective-bargain-
ing agreement, the Respondent has the right to discharge,
lay off, and fail to recall its employees for any reason or no
reason at all, except for their engaging in union or
protected concerted activity. If, however, the asserted
reason for laying off an employee or failing to recall one is
not reasonable, then that fact is evidence that the true
motive lies elsewhere. "If he [the trier of fact] finds that the
stated motive for a discharge is false, he certainly can infer
that there is another motive." Shattuck Denn Mining
Corporation (Iron King Branch) v. N.L.R.B., 362 F.2d 466,
470 (C.A. 9, 1966).
Given the generally pretextual nature of the alleged
reasons for failing to recall Karen Clark, along with the
subsequent recall of junior nonunion employees, all
occurring in close proximity Clark's election and activity as
a shop steward lead me to conclude that the Respondent
failed to recall her because of her union activity. Prior to
her overt union activity, she was considered by the
Respondent to be a competent employee. The Respon-
dent's refusal to recall her on August 1, 1975, was in
violation of Section 8(aX3) of the Act.
There is no allegation that the initial layoff was
discriminatorily motivated or that failure to recall any of
the others was unlawful.
3. The layoff and the refusal to recall Earlene
Garcia
The General Counsel alleged that Earlene Garcia was
laid off on August 11, 1975, because she had engaged in
union activity and that thereafter the Respondent refused
to rehire her for the same discriminatory reason.
The undisputed facts show that Garcia was one of the
early union activists. She was on the contract negotiating
committee and, after a contract was executed, she served as
a shop steward.
On August 8, she took union business leave. She, another
employee, and Bill Dyess went to Dallas to confer with the
Union's attorney concerning the possibility of filing an
unfair labor practice charge. This was on a Friday. The
following Monday, some time around 3 or 3:30, Dyess
called Moore. During this conversation, he advised Moore
that the Union was considering filing a charge with the
Board concerning the recall interview Moore had with
Garcia on April 15, and the Respondent's failure to recall
Karen Clark.
858
TEXAS TAG & SPECIALTY CO.
An hour or so later, Garcia was laid off, according to the
Respondent, because the slack season had started and
there was not enough work for two people to operate the
tipping machines. Which tipper was to be laid off was a
management decision not motivated by union animus.
The documentary evidence, however, shows that the
total tipping hours were not significantly reduced until
October. Thus the total tipping hours in May was 236.5;
June 203.0; July 204.5; August 248.5; September 271.75;
and October 184.5. Further the regular full-time employee
who operates the tipping machine only as needed in the off
season was put on the tipping machine full time for about 3
weeks after Garcia's discharge. This was unusual.
Finally, the record shows that the Respondent's season
usually runs into the fall months. This is consistent with the
records showing reasonably steady tipping hours from May
through September.
In short, the evidence does not support the Respondent's
assertion that on August Il I it did not need the services of
Garcia as a tipper.
The Respondent also maintains that it has not reem-
ployed Garcia because the tipping operation has been
substantially replaced with the new bond-fan-a-part pro-
cess. The Respondent contends that, while it considered
rehiring Garcia and putting her on that job, it was
determined not to because she was a slow learner on the
tipping machine.
The Respondent's contentions are unpersuasive. If, as
argued by the Respondent, Earlene Garcia was not
competent enough to rehire in 1976 assuming her layoff in
1975 was justified, it follows that she would not have been
rehired on the four previous occasions.
While the Respondent's supervisors talked in general
terms about Garcia's inability to do the work, there were
no specifics advanced. There is no evidence that she was
reprimanded, counseled, or in any way advised that she
had not been a good employee. There is no evidence that
she ever had rejection slips or other indicia of not
performing her job competently. And the contention that
she learned slowly is both vague and unrealistic. If she was
as bad as the Respondent now maintains, she would not
have been kept on.
The Respondent further argues that it has not rehired
Garcia because she spent a lot of time going to the shipping
and receiving room to talk to other employees. As with the
same contention about Karen Clark, I find this to be vague
and unpersuasive.
But for Garcia's union activity, even if she would have
been laid off due to slack work in 1975, she would have
been recalled as work picked up in 1976. 1 conclude that
the Respondent failed to recall her in 1976 because of her
substantial union activity.
While there is some evidence that the Respondent would
have laid off Garcia sometime in the fall of 1975, the timing
of her discharge on August 11, following the call from
Moore, and the fact that for at least the next 6 weeks there
was at least average tipping work to be done lead me to
conclude that her layoff was effected prematurely as
discipline for her engaging in union activity. The Respon-
dent thereby violated Section 8(a)(3) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is, and at all times material herein
has been, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Printing Specialities & Paper Products Union, Local
439, is, and at all times material herein has been, a labor
organization within the meaning of Section 2(5) of the Act.
3. By threatening employee Karen Clark with discharge
for engaging in union activities and warning her that her
activity as a union steward would jeopardize her job on
May 21, 1975, the Respondent violated Section 8(aXl) of
the Act.
4. By failing to recall Karen Clark on August 1, 1975,
the Respondent violated Section 8(a)(3) of the Act.
5. By laying off Earlene Garcia on August 11, 1975,
and refusing to recall her, the Respondent violated Section
8(a)(3) of the Act.
THE REMEDY
Having found that the Respondent has committed
certain unfair labor practices, it will be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act. The
Respondent will be ordered to offer Karen Clark and
Earlene Garcia immediate and full reinstatement of their
former positions of employment, or, if those positions no
longer exist, to substantially equivalent positions without
prejudice to their seniority or other rights or privileges, and
to make them whole for any loss of wages or benefits that
they may have suffered as a result of the discrimination
against them in accordance with the formulas set forth in
F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Although Clark and Garcia might very well have been
laid off in the normal course of business, as they had in the
past, this cannot be known with certainty. And it is the
Respondent's unfair labor practices which caused the
problem of not knowing precisely whether or when Clark
and Garcia would have been laid off and when they would
have been rehired. The question is whether in ordering
backpay a hiatus period should be set and if so what it
should be. While they should not be more than made
whole, the burden of any error should be borne by the
Respondent whose unfair labor practices caused the
problem. Since there was in fact work available at their
usual jobs throughout the winter of 1975-76, 1 will order
backpay to them for the entire period of their employment
until the date they are offered reinstatement. However, if,
during the compliance proceedings, the Respondent is able
to prove that Clark and/or Garcia would have been laid off
for a specific period, such period will be excluded.
Upon the foregoing findings of fact, conclusions of law,
the entire record in this case, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
859
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 1
The Respondent, Texas Tag & Specialty Company,
Wolfe City, Texas, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Threatening employees with discharge or other
reprisals because they engage in activities on behalf of the
above-named or any other labor organization, or engage in
activity protected by Section 7 of the Act.
(b) Discharging or otherwise discriminating against
employees because of their interest in or activity on behalf
of the above-named or any other labor organization.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer reinstatement to Karen Clark and Earlene
Garcia and make them whole for any losses in accordance
with the provisions set forth in the section of this Decision
entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other documents
necessary and relevant to analyze and compute the amount
of backpay due under this Order.
(d) Post at its facility at Wolfe City, Texas, copies of the
attached notice marked "Appendix."2 Copies of the said
notice, on forms provided by the Regional Director for
Region 16, after being duly signed by the Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof and maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
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.
2 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."
APPENDIX
NOTICe To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties were represented by
attorneys and afforded the opportunity to present evi-
dence, it has been found that we have violated the National
Labor Relations Act in certain respects and we have been
ordered to post this notice and carry out its terms.
WE WILL NOT threaten with discharge or other
reprisals any of our employees because they engage in
any activity on behalf of Printing Specialties & Paper
Products Union, Local 439, or any other labor
organization.
WE WILL NOT discharge, fail to recall, or otherwise
discriminate against employees because of their interest
in or activity on behalf of the above-named or any
other labor organization.
WE WILL offer Karen Clark and Earlene Garcia
immediate and full reinstatement to their former jobs
or, if those jobs no longer exists, to substantially
equivalent positions of employment.
WE WILL make the above-named employees whole
for any loss of wages or benefits suffered by them as a
result of the discrimination against them with interest
at 6 percent per annum.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
rights guaranteed them by Section 7 of the National
Labor Relations Act.
TEXAS TAG & SPECIALTY
COMPANY
860