Viracon Inc.

National Labor Relations Board - Board Decisions

May 16, 1982

266 N.L.R.B. 827 (N.L.R.B. 1982)

VIRACON, INC.
Viracon, Inc. and Miscellaneous Warehousemen,
Airline, Automotive Parts, Service, Tire and
Rental, Chemical and Petroleum, Ice, Paper and
Related Clerical and Production Employees
Union, Local No. 781, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case
13-CA-20860
May 16, 1982
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On July 23, 1982, Administrative Law Judge
Mary Ellen R. Benard issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions 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 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
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions of the Administrative Law
Judge and to adopt her 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, Viracon, Inc.,
Bensenville, Illinois, its officers, agents, successors,
and assigns, shall take the action set forth in the
said recommended Order.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. In this regard Respondent contends, inter
alia, that the Administrative Law Judge improperly discredited the testi-
mony of its director of industrial relations, David Knutson, with respect
to some matters, while nonetheless crediting his testimony with respect to
others. It is the Board's established policy not to overrule an administra-
tive law judge's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the reso-
lutions are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). Further, as Judge Learned Hand ob-
served in NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir.
1950), "nothing is more common in all kinds of judicial decisions than to
believe some but not all" of a witness' testimony. We have carefully ex-
amined the record and find no basis for reversing the Administrative
Law Judge's findings.
DECISION
STATEMENT OF THE CASE
MARY ELLEN R. BENARD, Administrative Law Judge:
The original charge in this case was filed on February
266 NLRB No. 151
23, 1981,1 by Miscellaneous Warehousemen, Airline,
Automotive Parts, Service, Tire and Rental, Chemical
and Petroleum, Ice, Paper and Related Clerical and Pro-
duction Employees Union, Local No. 781, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called
the Union, against Viracon, Inc., herein called Respond-
ent. On March 31, the complaint issued alleging, in sub-
stance, that Respondent discharged and failed and re-
fused to reinstate employee Margarita Negrete because
of her union and/or other protected concerted activities
and because she gave testimony before the Board, and
that Respondent thus violated Section 8(a)(4), (3), and (1)
of the Act. Respondent filed an answer in which it
denied the commission of any unfair labor practices.
A hearing was held before me in Chicago, Illinois, on
September 30 through October 2 and November 5, 1981.
Thereafter, the General Counsel and Respondent filed
briefs, which have been considered.
Upon the entire record in this case and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent is an Illinois corporation which maintains
various facilities, including one in Bensenville, Illinois,
where it is engaged in the manufacture of insulated and
tempered glass products. During the calendar or fiscal
year preceding issuance of the complaint, a representa-
tive period, Respondent, in the course and conduct of its
business operations, sold and shipped goods and materials
valued in excess of $50,000 directly from its Bensenville
facility to enterprises located outside the State of Illinois.
The answer admits, and I find, that Respondent is an em-
ployer engaged in commerce within the meaning of the
Act and I find that it will effectuate the policies of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Negrete's Union Activity and Testimony Before the
Board
Margarita Negrete was hired as an employee at the
Bensenville facility in November 1973.2 As detailed in
Viracon, 256 NLRB 245 (1981), the Union began an orga-
nizing campaign at that plant in August 1979. During the
course of the campaign Respondent committed numerous
unfair labor practices and, in consequence, the Board, in
Viracon above, ordered Respondent to bargain with the
Union. Negrete, who had signed a union authorization
t All dates herein are the last 6 months of 1980 or the first 6 months of
1981 unless otherwise indicated.
' Negrete was hired by another firm which apparently occupied the
Bensenville plant until Respondent began its operations there sometime
around 1977, at which time she was hired by Respondent.
827
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
card and attended a union meeting, testified in the unfair
labor practice proceeding. The Administrative Law
Judge issued his Decision on November 26; certain find-
ings in that Decision that Respondent had engaged in un-
lawful interrogation, solicited an employee to campaign
against the Union, and had given the impression of sur-
veillance of employees' union activities, were based on
Negrete's testimony.
B. The Discharge of Negrete
1. Negrete's accident and subsequent absences from
work3
Negrete credibly testified that about 5 o'clock on the
morning of November 23 she fell in her apartment and
lost consciousness for about 10 minutes. She also suffered
a broken nose and a cut on her forehead. When Negrete
regained consciousness she apparently went back 'to bed
but then got up again and called a neighbor to take her
to the hospital where she received stitches for the cut.
Negrete further testified that as of November 25 she still
felt so weak that she could not stand for any length of
time and she therefore called a friend who came to her
home and called an ambulance to take her to the hospital
again. She was admitted to the hospital and stayed there
until November 29. According to Negrete, when she was
admitted to the hospital a nurse called Respondent at her
request and apparently indicated the reasons for Ne-
grete's absence from work. The following day Negrete
called the factory and whoever answered the telephone
told her to come back when she felt better.
On December 2 Negrete went to the office of Dr.
David Ginsburg, who had been her attending physician
while she was in the hospital, and he removed her stitch-
es. She returned to work on December 9 and it is undis-
puted that no supervisor or management official of Re-
spondent indicated that her absence was not excused.4
Negrete worked regularly from December 9 until Jan-
uary 6 when she started feeling "very dizzy." She called
the factory and talked to Production Supervisor Donald
Schmidt and told him that she was sick and had to see a
doctor; according to Negrete's uncontradicted testimo-
ny, 5 Schmidt told her to let him know as soon as she
was ready to go back to work. Negrete then called Dr.
Ginsburg's office and was told by personnel there that
she was to call back on January 8, which she did, and
saw Ginsburg on January 9. According to Ginsburg's
office record of Negrete's visits, Negrete was "feeling
dizzy since she fell. Feels like she is going to faint, nerv-
ous, hasn't been able to work all week." Ginsburg credi-
3 The findings in this section are based on the credible testimony of
Negrete. Although she was often hesitant in replying to questions, I attri-
bute this hesitancy to her difficulties with the English language and in
remembering dates, rather than to any intent on her part to prevaricate
or be evasive. On the whole, Negrete impressed me as a conscientious
witness who testified to the best of her recollection.
4 Negrete credibly testified that when she returned to work on Decem-
ber 9 she had an excuse, apparently from Ginsburg. Although the docu-
ment is not discussed in the record other than the one reference made by
Negrete and is not in evidence, her testimony in this regard is not contra-
dicted.
a Schmidt did not testify. Although he was no longer employed by Re-
spondent at the time of the hearing, there is no indication that he was not
avaliable to be called as a witness.
bly testified that he believed that he also told Negrete on
January 9 that she should try staying off work for a
week but that this instruction was not reflected in his
record although normally it would have been.
Apparently on January 15, Negrete telephoned Gins-
burg's office to request a release to go back to work and
in consequence Ginsburg dictated the following excuse
bearing that date:
Margarita Negrete has been under my care for a
concussion. She may return to work 1/19/81.
D. Ginsburg, M.D.6
Ginsburg, M.D.
Negrete testified that on January 16 she tried to call
Schmidt at the plant but that he was not in and so she
talked to Benny, 7 a leadman, and told him that she was
returning to work on Monday, January 19. According to
Negrete, Benny said that that was all right and that he
would make sure that Schmidt knew. 8
On January 18 Negrete received a mailgram from
Schmidt with the following text:
Due to the fact that you have missed 21 days out
of the last 52 working days, it is my intention to ter-
minate you effective 1-16-81. If there are unusual
mitigating circumstances that you wish to bring to
my attention please contact me on Monday, 1-19-
81 or Tuesday, 1-20-81. If I do not hear from you
prior to Wednesday, 1-21-81, I will consider the
termination to be final.
2. Negrete's suspension on January 19
Negrete returned to work on January 19, but when
she arrived at the plant her timecard was not in the rack.
She mentioned this fact to someone in the shipping de-
partment, apparently a leadman or foreman,9 and he said
6 Ginsburg also wrote a release for Negrete dated January 13, which
stated as follows:
Margarita Negrete was off of work from 1/5-1/18/81 because
she felt weak. This is probably related to her head injury.
David Knutson, Respondent's director of industrial relations, who, as
discussed below, terminated Negrete, testified that he had never seen this
document, the original of which was introduced into evidence by the
General Counsel, until the instant hearing. Knutson also testified that Re-
spondent's normal practice when employees bring excuses to the office is
to keep the original and to give the employees back a copy as was undis-
putably done with Negrete's other excuse from Ginsburg. Negrete, how-
ever, testified that she gave the January 13 excuse to "Julie," apparently
Julie Stangle, a clerical employee who worked in personnel, along with
the January 15 excuse from Ginsburg and some other medical forms for
insurance purposes, and that Stangle made copies of the various docu-
ments and handed her back the originals. Stangle did not testify, although
there is no indication that she was unavailable. I credit Negrete, and find
that the January 13 excuse was turned over to Respondent, although, of
course, the fact that Stangle saw it does not necessarily mean that Knut-
son did.
' Benny's last name is not in the record.
8 I credit Negrete's testimony regarding this call for the reasons stated
above. In addition, her testimony that she called the plant on January 16
is uncontradicted as Benny did not testify, although there is no indication
that his identity was not known to Respondent or that he was unavail-
able.
9 Schmidt was not there when Negrete arrived at the plant.
828
VIRACON, INC.
he would take care of the problem. An hour later
Schmidt stopped her from working and told her that she
was suspended because she had missed 21 out of 52
working days. Negrete went to the office and asked Lee
Allard' ° about the situation and he sent her to David
Knutson, Respondent's director of industrial relations.
According to Negrete, Knutson told her that it was very
unusual for her to miss this much work because she was
sick, that the excuse from Ginsburg did not prove any-
thing, and that she would have to go to a company
doctor. Negrete explained that she had fallen and cut
herself and broken her nose and had felt dizzy and weak
but Knutson said that they wanted to send her to a com-
pany doctor "to make sure."
Knutson testified that on January 15 he was at the
Bensenville plant on another matter" and Schmidt told
him that he had received a call from Negrete 9 days ear-
lier but he had not been able to get in touch with her
since then although he had tried to do so. Knutson fur-
ther testified that Schmidt said that he had the impres-
sion from questioning other employees that Negrete was
out of town. Accordingly, Knutson drafted the telegram
quoted above which was sent over for Schmidt's signa-
ture. 1 2
According to Knutson, Negrete came in to the office
along with Schmidt on January 19 and gave him a doc-
tor's excuse dated January 15. When Negrete handed it
to him she said that she had been feeling weak and had
not been able to work because of the concussion. Knut-
son told her that he would have to have a qualified
person make the judgment as to whether her excuse was
valid and that if the company doctor validated it it
would be considered a mitigating circumstance.' Knut-
son also told Negrete that she was suspended until a de-
termination was made about the validity of her excuse,
but that if it was found valid she would be reinstated
with no loss of seniority and with full pay for the time
that she was suspended.
'o Although Allard was not identified in this record, he was Respond-
ent's production manager at the time of the earlier unfair labor practice
proceeding and it does not appear that his position changed subsequently.
II Knutson did not normally work out of the Bensenville facility but at
the time of the events at issue visited that plant regularly.
12 It is undisputed that Negrete had asked for time off over the holi-
days in December but had been told that if she took the time, she would
not be paid for the holidays. Negrete testified that she therefore decided
to stay and work. Negrete testified that in January, and specifically be-
tween January 6 and 19, she had a telephone at home, that Respondent
had her telephone number, and that she was at home the whole time that
she was ill. Knutson testified he had suggested to Schmidt that Negrete
be contacted but Schmidt indicated that he had been unable to contact
her by telephone because her telephone was disconnected and therefore
Knutson suggested sending a telegram.
I credit Negrete for the reasons stated above. In making this finding, I
note that to corroborate Knutson's testimony Respondent introduced into
evidence a telegram to Schmidt from the customer relations department
of Western Union which stated in substance as follows: "Your telegram
of 01-16 to Margarita Negrete ... is undelivered for the following
reason: Phone given is disconnected none listed .... " However, while
this telegram indicates that no telephone number was listed under Ne-
grete's name and that the number given to Western Union for her was
disconnected, it does not establish that she did not have a telephone or
that she had not given Respondent her correct number. Inasmuch as nei-
ther Schmidt nor any other personnel from the Bensenville plant testified,
there is also no evidence that Negrete had not in fact informed appropri-
ate plant personnel of her telephone number.
"3 Knutson testified that under normal circumstances an employee
would be discharged for being absent more than 3 days but an exception
was made for Negrete because she was a long-term employee and be-
cause she brought in an excuse from Ginsburg. Thus, according to Knut-
Also on January 19 Knutson wrote to Dr. Leo
Pevsner, a physician whose practice is limited to indus-
trial medicine and surgery, and to whom Respondent
had referred employees in the past, asking him to request
Negrete's medical records from Ginsburg, review them,
"and tell us whether Ms. Negrete's length of absence
was justified." Subsequently, Pevsner called Knutson and
told him that Negrete would have to sign a release for
medical information and consequently Respondent sent
Negrete another mailgram on January 26 asking her to
come to the plant "to further discuss your situation" on
January 28. Negrete went to the plant on that date and
Knutson explained that she needed to sign a release of
her medical records from Ginsburg which she did. Ne-
grete was also told that when Pevsner received the
records he would call Julie Stangle, a clerical employee
who performed personnel work, and set up an appoint-
ment for Negrete.
Pevsner examined Negrete on February 9. It is undis-
puted that at the time of that examination she was expe-
riencing none of the symptoms of concussion. Pevsner
prepared a report for Respondent in which he described
the results of the tests he had performed on Negrete and
stated that in his opinion Negrete should have recovered
from the accident within a month after it occurred and
that:
[Negrete] then should have been able to return [to]
work somewhere between the 20th and 25th of De-
cember and continued to work without difficulty.
It, therefore] appears that the patient's symptoms
were motivated by other factors than the so-called
concussion to gain more time away from her em-
ployment. In my opinion, this patient could have re-
turned to work as indicated above, and any other
absenteeism based both on the history, the medical
records and clinical examination today, was unwar-
ranted.
By telegram dated February 16 Respondent advised
Negrete that "due to the conclusions made by Dr.
Pevsner" she was terminated as of January 19.14
3. The medical evidence
Negrete testifed that after she went back to work in
December she felt "alright" but was weak and wanted
something to make her stronger, that she then started
feeling very weak as though she would faint, and that
this condition continued until she decided on January 6
to again stay home from work. She also testified that she
had headaches constantly and that around Christmas she
felt "good" but in January she was again feeling dizzy.
Ginsburg's office file on Negrete contains the notation
dated January 8 "will see tomorrow for dizziness" and,
as noted above, the notation for January 9 states, inter
son, the excuse itself did not constitute mitigating circumstances but it
would be accepted as such if it was verified by a doctor selected by Re-
spondent.
4" There is no contention that Respondent was dissatisfied with Ne-
grete's work performance and Respondent advanced no reason other
than her January absence from work for the termination. Negrete testi-
fied that she had received written warnings for tardiness in the past, but
no such warnings were introduced into evidence and there is no conten-
tion that Respondent relied on them in deciding to discharge her.
829
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alia, "feeling dizzy since she fell. Feels like she is going
to faint, nervous, hasn't been able to work all week."
Ginsburg testified that on January 9 when he saw Ne-
grete she said that she had been feeling dizzy since she
was hospitalized and as if she was going to faint. Ac-
cording to Ginsburg he observed nothing which would
cause him to disbelieve these complaints although he
could not state with reasonable medical certainty wheth-
er her complaints were real. Ginsburg further testified
that he thought Negrete's dizziness was probably related
to her fall in November and that after the kind of head
trauma she had received a patient may feel fine after a
couple of weeks, but that some people still complain of
symptoms, including headache, dizziness, and sometimes
nausea and loss of balance several months later. Ginsburg
further testified that based on his observation of Negrete
when she was admitted to the hospital on November 25
she had a genuine concussion.
Pevsner testified that at the time he examined Negrete
there was nothing wrong with her, although she may
have had an injury in November, and that he was "puz-
zled" because she had been free of symptoms and then
had them again, a situation which Pevsner had never
seen, and that once a patient is free of symptoms from a
concussion they do not recur. Consequently, according
to Pevsner, it was unlikely that Negrete was off work
from January 5 to 18 because she felt weak in conse-
quence of her head injury as indicated in the January 13
excuse written by Ginsburg, because, inasmuch as she
worked for 3 or 4 weeks before January 5, she had re-
covered from the concussion.
4. Respondent's practice with respect to employee
absences and medical excuses
According to a memorandum dated August 1, 1979,
and addressed to all employees from Kirt Melton, Re-
spondent's general manager, on the subject "attendance
policy," Respondent follows a progressive disciplinary
system for employees' absences as follows: (1) One unex-
cused absence or two occasions of tardiness and/or unex-
cused early leave within a 30-day period will result in a
written warning; (2) the second unexcused absence or a
third occasion of tardiness or unexcused early leave in a
30-day period will constitute grounds for dismissal; and
(3) the decision whether or not to discharge an employee
is discretionary on the part of the supervisor. The memo-
randum further defines unexcused absence as "[a]ny ab-
sence which occurs, but the employee failed to give
prior notice or failed to notify his/her supervisor by 9:00
a.m. of the day of the absence. Should the supervisor de-
termine that the reason is insufficient, he is not obligated
to excuse the absence. If he decides not to excuse the ab-
sence, the employee must be told immediately."15
The General Counsel introduced into evidence docu-
ments, including attendance records, employee change of
status reports, warning notices, and medical excuses from
i' Although the memorandum also instructs employees to "call [their]
supervisor directly," Knutson credibly testified that if an employee calls
the factory to report an absence and cannot reach his or her supervisor
the employee is supposed to call a leadman. I therefore find that despite
the statement on the memo, employees were not required to actually talk
to their supervisor in order to avoid an absence being found unexcused.
physicians, which appeared in the personnel files of em-
ployees and which were supplied by Respondent pursu-
ant to subpena.t 6 Specifically, the General Counsel in-
troduced medical excuses from nine employees17 for
dates ranging from January 21, 1979, through April 15,
1981. Knutson testified that he was unaware of any em-
ployee at the Bensenville plant other than Negrete who
had presented a medical excuse which was not accepted
by Respondent and that there have been no other in-
stances where Respondent sent an employee to a physi-
cian for a nonwork related injury because the employee's
excuse from his or her own physician was not believed.
"I Respondent contends that these documents are inadmissible because
no proper foundation was laid for them and because they were hearsay
and irrelevant and, in any event, it was prejudicial to introduce them
without introducing other documents from the personnel files as well. I
disagree. It is undisputed that all these documents were culled from per-
sonnel files maintained by Respondent and were supplied pursuant to sub-
pena. The medical excuses are all on printed forms bearing the letterhead
of various physicians or medical clinics and there is no indication that
Respondent, in including them in employees' personnel files, viewed
these excuses as anything other than what they purport to be. Knutson
referred to the attendance records, change of status reports (which
record such events as an employee's hire, discharge, or promotion), and
warning notices in his responses to questions from the General Counsel,
thus raising the inference that he, as an agent of Respondent, considered
these documents to be reliable records of employee attendance and of
personnel actions taken by Respondent. Accordingly, I find that there is
evidence sufficient within the meaning of Federal Rule of Evidence 901
to support a finding that these documents are what they purport to be.
See Alexander's Restaurant and Lounge v. NLRB, 586 F.2d 1300 (9th Cir.
1978); North Miami Convalescent Home, 224 NLRB 1271, fn. 3 (1976).
With respect to the hearsay issue, I consider the medical excuses only for
the proposition that they were received by Respondent and considered
by Respondent in making personnel decisions; in light of the discussion
above, I find that the other documents are personnel records maintained
by Respondent in the course of its regularly conducted business activity
and that, pursuant to Federal Rule of Evidence 803(6), they are admissi-
ble for the truth of the statements in them, e.g., that named employees
were hired, discharged, or disciplined on specified dates and that the
stated reasons were given by Respondent for its actions. With respect to
the question of relevance, the General Counsel contends, as discussed
below, that Respondent treated Negrete differently from other employees
because medical excuses furnished by other employees were accepted
while Negrete's was not. Thus, employees' medical excuses and evidence
as to what action Respondent took on the basis of them is clearly rele-
vant. Finally, Respondent contends that "even if the evidence is relevant
the prejudicial effect may outweigh the probative value of the evidence
proffered and therefore not admissible [sic]. Also, one document or one
file out of many documents or files may not be admissible where the pur-
pose may be prejudicial unless all documents are produced." Federal
Rule of Evidence 106 provides that "when a writing or recorded state-
ment or parts thereof is introduced by a party, an adverse party may re-
quire him at that time to introduce any other part or any other writing or
recorded statement which ought in fairness to be considered contempora-
neously with it." Respondent contended at the time these documents
were identified that a foundation was necessary to establish that they rep-
resented all the medical excuses in Respondent's files rather than a select-
ed sampling. However, particularly in a situation where the documents
offered are culled from files supplied by the adverse party, it seems ap-
propriate to place the obligation on that party to demonstrate that there
are other documents which "in fairness" should be considered contempo-
raneously. Respondent has not indicated what if any other documents
should have been introduced and has cited no cases to support its propo-
sition that introduction of the medical excuses was prejudicial to its case.
I therefore find no merit to this contention.
7 Two excuses were offered pertaining to employee Raphael Cabrera,
and three excuses for employee Rosa Mejia, including one dated January
18, 1980, which stated simply that Mejia "was unable to work from
August 12 to September 3-79 (3 wks.) for medical reasons. She was
under my care." A medical excuse was also admitted into evidence per-
taining to Arling Pederson, who at the time was a supervisor.
830
VIRACON, INC.
Knutson also testified that he did not consider Ne-
grete's injury a mitigating circumstance regarding her ab-
sence from work in January because prior to and during
his college years Knutson had received five concussions
and the condition claimed by Negrete did not coincide
with his personal experience and knowledge about con-
cussions. I do not credit Knutson's testimony that this
was the reason he determined that Negrete should be
sent to another physician. Knutson did not impress me as
a straightforward witness but, rather, on several issues
appeared to tailor his testimony to support Respondent's
asserted defenses. Accordingly, without finding it neces-
sary to determine whether Knutson in fact had had five
concussions as a youth and in college, I find that his per-
sonal experience of concussions was not the reason he
decided to require Negrete to be examined by a physi-
cian selected by Respondent.
With respect to Respondent's practice of discharging
employees for attendance problems, the record contains
documentary evidence of the discharges or other disci-
pline of 10 employees in 1979.'8 Three of these employ-
ees, Edwin Nicholas, Raymond Dangelmeier, and Ber-
nard Dillard, were discharged but were rehired within
about amonth after their discharges;'9 three others, Pat
Daley, Dan Barry, and Leoncio Hernandez, who were
discharged apparently without previous warning, had
worked for Respondent less than 3 months at the time of
their discharges; 20 Alexander Sambo and Victor Dayrit,
whose length of employment with Respondent is not in
the record, received written warnings for unexcused ab-
sences; and there is evidence that James Parker and Alex
Allen were terminated for attendance problems and ap-
parently not rehired. Parker was discharged on Septem-
ber 10, 1979, after receiving a written warning 3 weeks
earlier for not calling in and a subsequent disciplinary 3-
day suspension for an unexcused absence. There is no
documentary evidence regarding the discharge of Allen,
but Knutson credibly testified that he was terminated in
August 1979 for excessive tardiness.2 1
There is also documentary evidence that two employ-
ees had excused absences for substantial periods of time.
Luis Luna suffered an accident while off duty on No-
vember 22, 1979, and did not return to work until Febru-
ary 26, 1980; he then worked until he resigned on June 1,
1981. There is no evidence that he received a medical
's There is no evidence that employees were discharged or disciplined
for this reason in 1980.
"5 Nicholas received a written warning for tardiness the month after
he was rehired and a 3-day suspension for the same reason 2 months after
that, but there is no evidence that he was subsequently discharged.
2' Daley was hired October 29, 1979. The document referring to his
discharge is dated "10/2/79" but also bears the handwritten notation
"input 11-5-79." I therefore infer that the date on the document is an
error and that he was actually discharged November 2, 1979, 5 days after
he began working for Respondent. Although the date on the document
was discussed at the hearing, Respondent did not adduce any evidence or
make any contention as to what the date should be.
2" Knutson testified that originals of warning slips given to Allen, who
testified in the previous unfair labor practice proceeding, left Respond-
ent's possession in the course of that case and were never returned. The
General Counsel contends that Knutson's testimony regarding Allen is in-
credible. I disagree, but, as there is no evidence as to how long Allen
was employed by Respondent or the extent or frequency of his tardiness,
I find that there is no basis for comparing the circumstances surrounding
his discharge with those surrounding the discharges of other employees.
excuse before returning to work or that any disciplinary
action was taken against him for failure to produce such
an excuse. Jose Alspuro 22 was absent from work due to
an accident at home from about November 5 to 14, 1980.
A medical excuse in his personnel file stated simply that
he could return to work on November 14. Alspuro was
also on an excused leave of absence from February 25
through March 28, 1980, but no explanation of this ex-
cused absence appears in the record.
C. Analysis and Conclusion
The General Counsel contends that Negrete was dis-
charged in reprisal for her union activity and for her tes-
timony in the previous Board proceeding. Respondent
contends, however, that Negrete was discharged because
of her unexcused absence from work from January 6
until 19.
At the outset, it is important to emphasize that the
issue in this case is not whether Negrete was in fact
unable to work in January because of the injuries she
had suffered in November, but whether Respondent be-
lieved, as of January 19, that she had no valid reason for
her failure to be at work and that she had not notified
Respondent that she would be absent, and whether Re-
spondent discharged her for that reason. 23 As discussed
above, it is undisputed that Respondent has not failed to
accept medical excuses for the absence of any employee
at the Bensenville facility other than Negrete. The sole
evidence advanced by Respondent for its refusal to
accept Negrete's excuse was Knutson's testimony that (1)
based on his experience of concussions he could not con-
sider her excuse mitigating circumstances without the
testimony of a medical doctor; and (2) Schmidt told him
on January 15 that he had received the impression from
other employees that Negrete was not in town. As dis-
cussed above, I do not credit Knutson's testimony that
the reason he was unwilling to accept Negrete's medical
excuse was his personal experience with concussions. As
to the second reason to which Knutson testified, al-
though it is possible that Schmidt told Knutson January
15 that he thought Negrete was in fact out of the area,
Negrete's testimony that she called the plant on January
16 is undisputed.2 4 Interestingly, there is no evidence as
to whether other employees (such as Luna or Alspuro)
who were absent from work for substantial periods of
time were required to call in regularly during their ab-
sence.
In view of the short lapse of time between issuance of
the Administrative Law Judge's Decision in the previous
proceeding and Respondent's decision to suspend Ne-
*2 Alspuro is also known as David Barbossa.
's Thus, even if Negrete were found to be ill in January, if Respondent
discharged her in the mistaken belief that she was not, such a discharge
would not run afoul of the Act.
" As stated earlier, neither Benny nor Schmidt testified, although
there is no evidence that either individual was unavailable. As noted
above, Knutson credibly testified that if an employee calls the factory to
report an absence and cannot reach his or her supervisor the employee is
supposed to call the leadman. Thus, for purposes of receiving telephone
calls reporting absence, Benny was clearly an agent of Respondent and I
therefore find that Negrete discharged her obligation to call in on Janu-
ary 16 and that Benny's knowledge of that call must be imputed to Re-
spondent.
831
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grete;2 5 Respondent's animosity toward the Union, as
evidenced in the earlier case;26 the fact that Negrete, a
longtime employee, was discharged without warning de-
spite her proffer of a medical excuse, while employees
who gave no excuses for their absences received warn-
ings prior to being discharged, were subsequently re-
hired, or, if discharged without warning, had been em-
ployed by Respondent for very short periods of time;
and the disparity in treatment between Negrete and
other employees demonstrated by requiring her to have
her excuse "validated" by examination by a physician of
Respondent's choosing although Respondent had never
imposed such a requirement on any other employee at
the Bensenville plant; I find that the General Counsel has
made a prima facie showing that Negrete's protected
conduct was a "motivating factor" in Respondent's deci-
sion to discharge her. 2 7 Having discredited Knutson's
testimony as to why he refused to accept Negrete's
medical excuse, I further find that the reason Respondent
suspended Negrete was not that Knutson had an honest
belief that she had not in fact been ill as she claimed, but
that Respondent was seeking some plausible justification
for terminating her employment in retaliation for her
giving of testimony adverse to Respondent in the earlier
case.
Respondent's reliance on Dr. Pevsner's subsequent
report concerning Negrete is misplaced, for, inasmuch as
I have found that Respondent acted discriminatorily in
sending Negrete to Pevsner for examination, any findings
consequently made by Pevsner in that examination
would not justify her subsequent discharge.28 Accord-
ingly, Respondent has not come forward with credible
evidence to rebut the General Counsel's prima facie case.
I therefore conclude that the General Counsel has estab-
lished by a preponderance of the credible evidence that
Negrete was discharged because she gave testimony ad-
verse to Respondent at a Board hearing and that the dis-
charge therefore violated Section 8(a)(4) and (1) of the
Act. I further find that the intent and effect of the dis-
charge was to discourage activity in support of the
Union and that it therefore violated Section 8(a)(3) of the
Act as well.2 9
Upon the basis of the above findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Viracon, Inc., is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
gs None of the other employees who testified in that proceeding were
in Respondent's employ by the time the Administrative Law Judge's De-
cision issued.
sa It is clear that Respondent's prior unfair labor practices may proper-
ly be considered as background in the instant case. Barnes and Noble
Bookstores, 237 NLRB 1247 (1978).
27 Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899
(1981); Limestone Apparel Corp., 255 NLRB 722 (1981).
a8 I therefore find it unnecessary to pass upon the General Counsel's
contention that Pevsner was an agent of Respondent in effectuating Ne-
grete's discharge.
29 Seligman & Associates, 240 NLRB 110, 120 (1970). I therefore find it
unnecessary to determine how significant a role Negrete's union activity
prior to the time she testified played in Respondent's decision to dis-
charge her.
2. Miscellaneous Warehousemen, Airline, Automotive
Parts, Service, Tire and Rental, Chemical and Petro-
leum, Ice, Paper and Related Clerical and Production
Employees Union, Local No. 781, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By discharging employee Margarita Negrete and re-
fusing to reinstate her because of her union and/or pro-
tected concerted activity and because she gave testimony
under the Act, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3), (4), and
(1) and Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the purposes of
the Act.
As I have found that Respondent unlawfully dis-
charged Margarita Negrete, I shall recommend that Re-
spondent be ordered to offer her immediate and full rein-
statement to her former job or, if that job no longer
exists, to a substantially equivalent job, without prejudice
to her seniority or other rights and privileges previously
enjoyed. I shall further recommend that Respondent be
ordered to make her whole for any loss of earnings she
may have suffered as a result of the discrimination
against her by payment to her of the amount she normal-
ly would have earned from the date of her termination
until the date of Respondent's offer of reinstatement, less
net earnings, in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), to which shall be added interest, to be
computed in the manner prescribed in Florida Steel
Corp., 231 NLRB 651 (1977).30 I shall also recommend,
in accordance with the Board's recent decision in Ster-
ling Sugars, 261 NLRB 472 (1982), that Respondent be
ordered to expunge from its records any reference to Ne-
grete's unlawful discharge and to provide written notice
to her of that expunction and inform her that Respond-
ent's unlawful conduct will not be used as a basis for
future personnel action concerning her.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDERS t
The Respondent, Viracon, Inc., Bensenville, Illinois,
its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees in regard to hire or tenure of employment, be-
cause they engage in union and/or other protected con-
35 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
3' 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.
832
VIRACON, INC.
certed activities or because they testify in proceedings
under the National Labor Relations Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
right to engage in or refrain from engaging in any or all
of the activities specified in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer Margarita Negrete immediate and full rein-
statement to her former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to her seniority or other rights and privileges pre-
viously enjoyed, and make her whole for any loss of
earnings she may have suffered as a result of Respond-
ent's discrimination against her, in the manner set forth
in the section of this Decision entitled "The Remedy."
(b) Expunge from its files any reference to the dis-
charge of Margarita Negrete on January 19, 1981, and
notify her in writing that this has been done and that evi-
dence of this unlawful discharge will not be used as a
basis for future personnel actions against her.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its Bensenville, Illinois, facility, copies of
the attached notice marked "Appendix." 3 2 Copies of said
notice, on forms provided by the Regional Director for
Region 13, after being duly signed by Respondent's rep-
resentative, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
S2 In the event that this 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
(e) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against employees in regard to hire or tenure
of employment, or any term or condition of em-
ployment, because they engage in union or other
concerted activities or because they give testimony
in proceedings brought under the National Labor
Relations Act.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of their rights guaranteed in Section 7 of
the Act to self-organization, to form, join, or assist
labor organizations, to bargain collectively through
representatives of their own choosing, and to
engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activity.
WE WILL offer Margarita Negrete immediate and
full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent job,
without prejudice to her seniority or other rights or
privileges previously enjoyed, and WE WILL make
her whole for any loss of earnings she may have
suffered as a result of our discrimination against her,
with interest.
WE WILL expunge from our files any references
to the disciplinary discharge of Margarita Negrete
on January 19, 1981, and WE WILL notify her that
this has been done and that evidence of this unlaw-
ful discharge will not be used as a basis for future
personnel actions against her.
VIRACON, INC.
833