A & T Manufacturing Co.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1183 (N.L.R.B. 1985)

A&TMFG CO •1183
A & T Manufacturing Company and United Steel-
workers of America , AFL-CIO-CLC. Cases 9-
CA-15756, 9-CA-15898, and 9-CA-16029
30 September 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON ,
On 16 December 1982 the Board issued the De-
cision and Order in this proceeding,' in which the
Board, in agreement with the judge, found that the
Respondent had violated Section 8(a)(3) and (1) of
the National Labor Relations Act by laying off 25
shop employees. The Board also adopted the
judge's finding that the Respondent violated Sec-
tion 8(a)(1) by threats of plant closure or discharge,
interrogations, promulgation of overly broad no-so-
licitation rules, threats to conduct surveillance and
the actual surveillance of union meetings, inform-
ing employees that their fellow employees were
laid off because of their activities on behalf of the
Union, and warning employees not to sign union
cards. The Board further found, in disagreement
with the judge, that the Respondent discharged
employee Jimmy Popp on 23 September 19802 in
violation of Section 8(a)(3) and (1) of the Act.
Upon application for enforcement of the Board's
Order, the United States Court of Appeals for the
Sixth Circuit on 29 June 1984 refused enforcement
with respect to the finding that the Respondent dis-
charged employee Jimmy Popp in violation of Sec-
tion 8(a)(3) and (1) of the Act and remanded the
case to the Board for further proceedings consist-
ent with its opinion.3 The court held that substan-
tial evidence did not support the Board's finding
that Popp's repeated violations of the Respondent's
rule on reporting absence/tardiness played no part
in the decision to discharge him. The court re-
manded the case to the Board to determine wheth-
er Popp's repeated failures to comply with the Re-
spondent's rule in fact partially motivated the Re-
spondent's decision at the time of the discharge
and, if so, whether Popp would have been dis-
charged for violating the rule even in the absence
of protected activity. -
Thereafter, the Board accepted the court's
remand and notified the parties that they could file
statements of position concerning the issues the
remand raised. Subsequently, the General-Counsel
and the Respondent filed statements of position.-
T he National Labor-Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel. -
The Board has considered the record as a whole
in light of the court's order and the statements of
position on remand and now makes the following
findings.
The- Board in its original decision and the court
found that the General Counsel clearly demonstrat-
ed that union animus contributed to the decision to
terminate Popp. The court, as had the Board and
the judge, further found that the Respondent' s reli-
ance on the August 27 insubordination incident as a
.reason for Popp's discharge was clearly pretextual
in view of the length of time between the incident
and the decision to discharge. The court of appeals
stated that the focal point in dual motivation cases
is the employer's motive at the time the discharge
takes place. Therefore, at issue is. whether Popp's
absences partially motivated the Respondent's
action and whether he would have been discharged
in the absence of his union activity.
We find the discharge of Jimmy Popp lawful, be-
cause the Respondent successfully met its burden
under Wright Line, 251 NLRB 1083 (1980), of es-
tablishing that it would have discharged Popp not-
withstanding his union activities. Popp was absent
for 5 consecutive days; on 3 of those days he did
not call in. When the Respondent's president,
Charles Browder, discharged Popp, he told Popp
that the reasons for the action were Popp's insub-
ordination and his -unreported absences. While the
insubordination charge was pretextual, the Re-
spondent established that Popp would have been
discharged for his unreported absences in any
event.
The Respondent presented its rule entitled "'Re-
porting Absence/Tardiness," which requires em-
ployees to notify the Company as soon as possible
on the day of an absence and specifies discharge as
the penalty for unreported absences. The Respond-
ent also demonstrated that it -had discharged em-
ployees in the past for unreported absences.4 Presi-
dent Browder testified that, regardless of the insub-
ordination . incident, he would have discharged
Popp for his consecutive unreported absences.
1 265 NLRB 1560 ( 1982) Member Babson was not a member of the
Board at the time the Decision and Order issued
2 Except as otherwise indicated , all dates are in 1980
3 NLRB Y A & T Mfg Co, 738 F 2d 148 (6th Cir 1984 ). The court
granted enforcement of the Board's Order as to the Respondent 's unlaw-
ful layoff of 25 shop employees on 22 August 1980 and as to the viola-
tions of Sec 8(a)(1) of the Act.
4 The Respondent's evidence is a list of 33 employees discharged for
attendance -related reasons between January 1978 and March 1981 Eight-
een employees were discharged for "excessive absenteeism", six for "ab-
senteeism", four for "unreported absences", and one each for "absentee-
ism and failure to report to work by phone," "not reporting for work and -
tardiness," "unsatisfactory attendance and punctuality ,' "unexcused ab-
sences," and "absenteeism and failure to report to work 3 days lq onn
week " -
276 NLRB No. 129
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The burden is on the Respondent to show that
Popp would have been discharged notwithstanding
his protected activity. Absent countervailing evi-
dence, such as evidence of disparate treatment, we
find that the Respondent has met its burden under
Wright Line, supra, by establishing it has a rule re-
quiring employees to call in on days of absence, the
penalty for disobeying the rule is discharge, and
other employees have been discharged for not call-
ing in . That the Respondent was glad to be pre-
sented with the opportunity to discharge Popp is
legally inconsequential . Klate Holt Co., 161 NLRB
1606, 1612 (1966). Accordingly, we find that
Popp's discharge did not violate Section 8(a)(3)
and (1) of the Act.
Therefore, we shall dismiss those complaint alle-
gations that the Respondent unlawfully discharged
Popp.
ORDER
The complaint allegations that the Respondent
unlawfully discharged Jimmy Popp are dismissed.