A & W Products, Inc.

National Labor Relations Board - Board Decisions

Sep 17, 1979

244 N.L.R.B. 1128 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A & W Products Company, Inc. and Local 445, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case 2-
CA- 15621
September 17, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENEI.I.O
On April 6, 1979, Administrative Law Judge Mi-
chael O. Miller issued the attached Decision in this
proceeding. Thereafter, the General Counsel, the
Charging Party, and Respondent filed exceptions to
the Administrative Law Judge's Decision; and the
General Counsel and Respondent filed briefs in sup-
port of their exceptions.
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, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, A & W
Products Company, Inc., Port Jervis, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph (c):
"(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations
of the Act not specifically found herein.
' In par. I(c) of his recommended Order, the Administrative Law Judge
used the broad cease-and-desist language. "in any other manner" Inasmuch
as Respondent has not shown a proclivity to violate the Act or to engage in
egregious or widespread misconduct demonstrating a general disregard for
employees' fundamental statutory rights, we shall modify the recommended
Order to provide the narrow injunctive language, "in any like or related
manner." See Hickmot Foods, Inc., 242 NLRB 1357 (1979).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present evidence, the National Labor Rela-
tions Board has found that we violated the law and
has ordered us to post this notice.
The National Labor Relations Act, as amended,
gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the pur-
poses of collective bargaining or other mutual
aid or protection
To refrain from any such activities.
In recognition of these rights, we hereby notify
our employees that:
WE WILL NOT discharge employees because
they file grievances or engage in other union ac-
tivities.
WE WILL NOI warn employees not to file griev-
ances or threaten employees with loss of jobs if
they file or pursue grievances.
WE WILL. NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL offer Mariel Uhrig immediate and
full reinstatement to her former position or, if
that is not possible, to a substantially equivalent
position, without prejudice to her seniority or
other rights and privileges previously enjoyed,
and WE WILL make Mariel Uhrig whole for any
loss of pay suffered by reason of our discrimina-
tion against her, with interest.
A & W PRODUCTS COMPANY, INC.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MIL.LER, Administrative Law Judge: This
case was heard on December 14 and 15, 1978. in New
York. New York, upon a charge filed by Local 445. Inter-
national Brotherhood of Teamsters, Chauffeurs. Ware-
housemen and Helpers of America, herein the Union. on
May 11, 1978, as amended on July 3, 1978. and a complaint
issued by the Regional Director for Region 2 of the Na-
tional Labor Relations Board, herein called the Board. on
June 30, 1978, as amended on November 21. 1978, and at
244 NLRB No. 175
1128
A & W PRODUCTS COMPANY, INC.
hearing. The complaint alleges that A & W Products Com-
pany, Inc.. herein called Respondent, violated Section
8(a)( 1) and (3) of the National Labor Relations Act, as
amended, herein called the Act, by discouraging the filing
of grievances through warnings and threats of reprisal and
by discharging two employees because of their membership
in and support for the Union. Respondent's timely answers
deny the commission of any unfair labor practices.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and to cross-exam-
ine witnesses, and to argue orally. Briefs, which have been
carefully considered, were filed by General Counsel and
Respondent.
Upon the entire record, including my observation of the
witnesses and their demeanor. I make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS AND THE UNION'S LABOR
ORGANIZATION STATUS- PRELIMINARY CONCL.USIONS OF
LAW
Respondent is a New York corporation engaged at Port
Jervis, New York in the manufacture, sale, and distribution
of clipboards, thumbtacks, compasses, and related statio-
nery supplies. The complaint alleges, Respondent admits.
and I find and conclude, that Respondent is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
The complaint alleges, Respondent admits, and I find
and conclude that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background
Respondent and the Union have had a collective-bar-
gaining relationship for a number of years.' For some time.
Respondent's business has been in a period of economic
decline, due at least in part to the effects of foreign compe-
tition. At its peak, around 1968. Respondent employed 150
to 160 employees. In 1973. Respondent underwent reorga-
nization under Chapter XI of the Bankruptcy laws. At the
time of the hearing. it employed about 64 persons.
B. The 1977 Strike, Grievance Filings and Evidence of
A nimus
Upon the expiration of the last collective-bargaining
agreement on March 14, 1977. Respondent's unit employ-
ees commenced a strike lasting until May 2, 1977. It was
resolved with the execution of a contract effective until
March 14, 1980. The Union's negotiating committee con-
sisted of Martel Uhrig and Jean Mineau, the alleged dis-
criminatees herein, Pauline Morgan and Tony Sutera, the
union stewards, and Gary Morgan. Gary Morgan. Pauline's
son, was a supervisor at the time of this hearing. According
I Respondent on bnef, asserts that the relationship has existed for 18
years.
to Pauline Morgan's uncontradicted testimony, during
April 1978. Karl Augustin. Respondent's vice president and
manager. told her that he blamed the negotiating commit-
tee for the strike, for being outpriced and tir having to give
raises.
Respondent's employees work on an incentive system.
being paid amounts above their base hourly rates for pro-
duction in excess of established quotas, as determined hb
either the pounds or number of pieces produced. For manN
years, Respondent's employees were able to maintain their
work assignments on particular machines on which theN
developed proficiencies and preferences. Following the
strike, and at least partly in response to the adverse eco-
nomic situation facing Respondent. Respondent instituted a
cross-training program. Under this program. employees
were assigned to different jobs. If. within a period of 30
days (approximately 21 working days), that employee was
able to make the quota for that job on any single day. that
employee would be deemed qualified for that job and
would be eligible to bid on it in the event of a layoff. The
senior employees would, thereby, be able to avoid laoHffs.
On May 18, 1977. approximately nine employees, includ-
ing Uhrig and Pauline Morgan, but not Mineau. filed a
grievance protesting the job reassignments; and bumping
procedures. Karl Augustin's written response stated that he
deemed the grievance unclear and insufficiently specific and
requested that the employees handle the matter on an indi-
vidual basis. The record does not reflect the future course of
this grievance except that four of the employees who had
signed that grievance withdrew their support for it on Janu-
ary 5, 1978. Neither Morgan nor Uhrig was among those
four.
On June 8. 1977, Uhrig filed a grievance protesting a
layoff when. she alleged. work was available for her (G.C.
Exh. 14). About July 19, according to Uhrig, Karl Augustin
came to her machine. She testified:
He said I should drop the grievances, that it wasn't
going to de me an) good, that if I wanted to get along
with the company I should drop the grievances. And I
said, '[N]o that I wouldn't. So he wanted me to sleep
on it . . . think about it very carefully. that I was jeop-
ardizing my job and I should let him know the next
day what my answer was going to be.... [H]e said ...
if it was going to arbitration it would cost him an awful
lot of money and he could [u]se that money tor some-
thing else.'
On July 21, 1977, while Mineau was working on a job
that was new to her, Karl Augustin approached her and
told her that she was not doing the work correctly. She
disregarded his order to stop working. At this point, accord-
ing to Mineau. Augustin suggested that she quit "and then
he mumbled. 'You are a bitch.' " Mineau called over to her
steward, Pauline Morgan, repeated what Augustin had
said, and told Morgan that she wanted to file a grievance.'
2 Karl Augustin denied that he told Uhrig, on or about July 19. 1977. "lhat
she was jeopardizing her job as a result of filing grievances."
I Karl Augustin did not specifically deny the uncomplimentars relerence
to Mineau. He testified that when he asked her to stop what she was doing
because everything that she had produced on that Job had been auls. she
ignored his direction and told Morgan that she was being harassed hN
Augustin
I 129
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mineau filed a grievance on July 23. 1977, in regard to this
incident. (G.C. Exh. 4). On the following day, Mineau went
on a medical disability and remained out until some time in
September or October 1977. After her return, Karl
Augustin met with her to discuss her failure to make quota
on her assigned job. He suggested that she take a layoff, but
the union steward prevented that action. Mineau was again
on medical leave from some time in November 1977 until
January 3. 1978.
In November or December 1977, Uhrig was again ap-
proached by Karl Augustin. He told her that she should
drop her grievances. When Augustin initiated a conversa-
tion in regard to increasing Uhrig's quota, Uhrig said that
she did not feel like talking him about such things at the
moment because of her concern for her husband who was
seriously ill. To this, she said, Augustin told her that she
was being punished by God and was jeopardizing her job
by filing grievances.'
On December 30, 1977, Uhrig received a call from Re-
spondent's office. She was wished a Happy New Year and
was told not to report back to work on January 3, 1978
(the end of a vacation period), as there was no work for her.
However, after speaking to her union representative, Uhrig
went to the plant on the morning of January 3. Mineau was
already there. With Pauline Morgan they went into Kaethe
Augustin's office where they were told that they were not
expected as there was no work for them. They asked to
speak with Karl Augustin. When he arrived, Uhrig asked
him why employees with less seniority were working. He
replied that seniority had nothing to do with it. He told
Uhrig that he would call her if he had any work for her.
Mineau then asked about work for herself. Augustin told
her that he doubted that he ever would have any work for
her. He suggested that they go to the unemployment office
and that, if they found other jobs, they should keep on
going. In the course of this conversation, Uhrig recalled,
Augustin told them that they either work with the Com-
pany or against it.6
Both Mineau and Uhrig filed grievances contending that
less senior employees were retained on January 3 while they
were laid off. Uhrig's grievance recited the events essen-
tially as set forth above, charged that Respondent had
threatened her with layoff because she would not drop her
grievances, and alleged that she was being harassed by Re-
spondent. Respondent's reply, signed by Karl Augustin,
stated:
If you read this grievance, you know who is being har-
rassed Isic]. This grievance is not clear. Get in touch
with Mr. Al Schueler [Union representative] and fol-
low grievance procedures. YES, there is still very little
work. (we are outpriced). and we are still on a three-
day work week. YES, you did refuse to be trained on
July 11, 1977 (see grievance dated 7/13/77). YES, if I
4 Augustin specifically denied that he made such statements or threats to
Uhrig on or about July 19, 1977 (see fn. 2. supra), and denied that he told her
"at any time" that she would lose her job if she continued to file grievances,
but he did not deny that he said, in November or December 1977, that her
husband's illness was divine punishment because of her grievance filings.
' All dates hereinafter are 1978, unless otherwise stated.
Uhrig's testimony is essentially corroborated by that of Mineau and is
uncontradicted.
get our clipboard business back you will be called; it
could be soon, it could take months. YES, a top senior-
ity girl is making 39 clips. NO, this company doesn't
harrass [sic] anybody and in the future I suggest you
refrain from using words that are not true or the mean-
ing is not clear to you.
On January 27, Pauline Morgan filed a grievance protest-
ing that she was only given 3 days per week of work while
a full 5 days was being worked in the thumbtack depart-
ment, for which she had been trained. She asserted that on
the basis of her position as steward, her 15-1/2 years with
Respondent, and her prior experience on the job, she
should have been offered the full workweek job. Upon re-
ceipt of this grievance, Augustin took it to employees in
other departments, had them read it, told them that Mor-
gan was "pulling rank" and that "this is the kind of thing I
have to put up with." Morgan was recalled to a full work-
week, but was not paid for the lost time.,
On February 8, Uhrig was recalled to work and was as-
signed to train on the production of items identified as the
"1210 OPI." About 3 weeks later, she was called into a
meeting with Augustin, Anna Kent. the leadwoman, and
Morgan. Augustin charged that Uhrig was not making an
effort to meet quota on the job; she denied it and was sup-
ported by Morgan. She was given an additional 5 days to
attempt to make quota and was then assigned to another
job when work ran out on the 1210 OPI.
Mineau also returned to work around February 8. On
March 21 and April 21, she filed grievances alleging that
she was being denied work or bidding rights in contraven-
tion of her seniority. The record does not reflect the dispo-
sition of these grievances.
Uhrig went on medical disability leave on April 26. After
a period of hospitalization to treat an ulcer condition, she
returned to the plant to pick up insurance forms and, while
there, spoke with Augustin. He told her, "You know Mariel
.. . your ulcers wouldn't be bothering you if you stopped
making out these grievances and work with the company
and you'd be better off." He told her that she should stop
listening to Pauline (Morgan), Mineau and another em-
ployee, Margaret, who, he said, were putting ideas into her
head, and that she should stop her "Welsh stubbornness ..
don't make out these grievances and just mind your own
business." He told her that the grievances were costing him
a lot of money he could use elsewhere and could cost her
her job.'
Augustin denied telling other employees that Pauline Morgan was "pull-
ing rank" but did not deny that he spoke with or showed other employees the
grievance that Morgan had filed.
Morgan further testified that an unidentified assistant supervisor told her
that she would be paid for the lost time and that if she did not agree to that.
Respondent would devise a plan to get rid of her. When asked whether
anything was said about Respondent's position towards employees who file
grievances, she responded, "He said they don't need people working at A &
W who file grievances and cause trouble." The record does not divulge
whether the person to whom that statement was attributed was Karl
Augustin (who denied so stating) or the unidentified assistant supervisor
(about whom there was no evidence to establish statutory status). Accord-
ingly. I give no weight to either of these alleged statements.
a Augustin denied telling Uhnrg "that she shouldn't be listening to other
employees with respect to the filing of grievances," or that he ever told her
that she could lose her job if she continued to file grievances.
1130
A & W PRODUCTS COMPANY. INC.
From the foregoing. I must conclude that Karl Augustin
harbored animus toward both the Union's negotiating com-
mittee and those employees who would file grievances un-
der the contract. His statement to Pauline Morgan, blaming
the negotiating committee for the strike, the contractual
raises and Respondent's adverse pricing situation, stands
undenied. His displeasure or frustration with the filing of
grievances is shown, in part, by the written response to
Uhrig's early January grievance wherein he refers to the
filing of such grievances as harassment of Respondent.
Moreover. my careful consideration of the record herein,
with due consideration accorded to the demeanor of the
witnesses, leads me to conclude that Mariel Uhrig's testi-
mony, relating conversations with Karl Augustin in regard
to her grievance filing activities, is more credible than his
rather narrow denials thereof. Thus, while Uhrig described
the conversations in detail, Augustin denied only specific
portions thereof and did not deny that he spoke with Uhrig
about the filing of grievances or present any contrary ver-
sions of the conversations. I therefore find that Augustin
asked or told Uhrig, on several occasions, to drop her griev-
ances, blamed her personal problems on her grievance filing
activities, told her that the grievances were costing him
money that he would rather spend in other ways, and told
her that her grievance filing would jeopardize or could cost
her her job. One of these conversations occurred around
early May 1978, and, as alleged in the complaint, I find that
by these statements Respondent warned its employees not
to file grievances and threatened them with the loss of jobs
if they did file grievances, in violation of Section 8(a)( 1) of
the Act.
C. The Work Performance of Mineau and Uhrig
Jean Mineau began working for Respondent in August
1968. The record does not indicate any problem with her
work, in terms of either quality or quantity, prior to Janu-
ary 1977. At that time, she was placed on the blister line
and on one occasion between then and the strike which
began on March 15, 1977, Augustin criticized her work per-
formance. She made quota on her job, the # 591 assembly,
in the week ending January 8, 1977, before she went on the
blister line where she remained until July 22, 1977. She was
absent, on disability, from July 25 to August 26, 1977. On
her return, she returned to the #591 assembly where she
worked for the most part until November 1977. She ex-
ceeded the quota for that job in the weeks of October 15,
22, and 29, and November 5, 1977. She was again on dis-
ability from November 1977 until January 3, 1978 and did
not return to work until the week ending February II,. 1978.
At that time, she was assigned to the job designated as 1210
OPI. Mineau remained on that job, and one other, the #2
clip, until April 28. She failed to make quota for any week.9
According to Augustin, Mineau was retrained on four
jobs since the end of the strike and was able to make quota
on only one, the #591 assembly. The records indicate that
during that period, besides working on the 591. Mineau
'The records from which the foregoing was drawn do not indicate daily
production.
worked only 3 hours on a job identified as the = 39C assem-
bly, a total of 11-1/2 hours on the #22 S & C job tin 3
different days), approximately 30 days on the 1210 OPI
job and II days working on #2 clips. Except for a period
of 3 hours on the 1210 OPI., it does not appear that
Mineau made hei quota on any of these jobs.
Mariel Uhrig began working for Respondent in March
1970. as a machine operator. For 7 years, while working on
her regular job, she was deemed a good employee, meeting
her quota and performing satisfactory work. Since the
strike. Karl Augustin had complained to union steward
Morgan about Uhrig's quantity of production on a couple
of occasions. During that time, she was trained on three
jobs and failed to make her quota on any of them. The
production records covering the period of February I
through the week of her discharge indicate that she made
quota only on two jobs of 2 days' duration each and on a
single I -I /2 day job. Notwithstanding this. Pauline Morgan
characterized Uhrig as an average worker who did not fail
to make her quota any more often than other employees.
D. The Discharges of Mineau and LUhrig
On April 28, Jean Mineau's health problems caused her
to go to her physician, Dr. Daniel P. Schultz. The doctor.
she testified, prescribed rest, at home, until May 31. and he
wrote a prescription for her to that effect. Mineau sent Dr.
Schultz' note to the Company through a fellow employee
and it was given to Augustin on Monday morning. May I.
by Pauline Morgan.
Augustin, puzzled by the duration of the prescribed ab-
sence, called Dr. Schultz and asked why Mineau would be
out for another month. The doctor, he testified, replied,
"What do you mean for another month? A couple of days:
you're mistaken." When Augustin insisted that the note
prescribed a month's leave, Dr. Schultz asked him to come
to the office. Augustin immediately went to Schultz' office,
which was nearby. He showed Schultz the handwritten
note, which stated, "return to work on May 31." Dr.
Schultz looked at it and stated, "That is not what I wrote
down. I wrote down to the third." The doctor's nurse cor-
roborated this, according to Augustin. Augustin returned to
Dr. Schultz' office the following morning with Gary Mor-
gan as a witness. At Augustin's request, Dr. Schultz re-
peated what he had said on the prior evening. He added
that someone had changed his comma following the "3" to
a "I." Dr. Schultz then took the note, scribbled out the "I"
in "31" and placed a comma after the "3. " 'o
Respondent had made a copy of the original doctor's
note prior to Dr. Schultz' alteration of it. That copy. Re-
spondent's Exhibit No. I (which was not of a quality which
would lend itself to reproduction within this decision)
showed Mineau's return date as May 31. There was no
comma after the number and the appearance of the "I" was
such that a non-expert observer might reasonably conclude
that the "I" had been superimposed over a comma. Thus,
the lower portion of the "I" appears slightly thicker than
the rest and the bottom tails off sharply to the left as a
comma might do.
I' Augustin's testimony is corroborated by that of Gary Morgan.
1131
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Augustin returned to the plant and called Pauline Mor-
gan into his office. He showed her the note and asked
whether she had altered it. She denied doing so and
Augustin told her of his conversations with Dr. Schultz.
According to Morgan's uncontradicted testimony, Augustin
told her that the note had been "doctored up" and stated,
"I've got her now." Augustin next directed Morgan to call
Mineau and ask her to resign on the basis of a violation of
Respondent's "honor code."" Morgan subsequently re-
ported back that Mineau would stand on the doctor's note
and would not resign. Augustin then discharged Mineau.
The discharge letter, dated June 2, to the Union, asserted
that Mineau was "laid off' because she had failed, since
June 1977, to qualify on a job and had falsified the doctor's
note. It alluded to this as the third incident of falsified infor-
mation to be attributed to Mineau in 3 months.
Dr. Schultz initially testified that he prescribed a leave of
absence until May 31 when Mineau first came to his office
on April 28. He had no independent recollection of having
done so, however, and subsequently testified that his origi-
nal prescription was for a shorter absence, only until May
3. That was how he filled out the prescription form. Some
time before May 3, he said, Mineau returned, asked that he
approve a longer leave, and he extended it by a month.
When asked about his conversation with Karl Augustin on
May I, Dr. Schultz recalled Augustin asking why Mineau
would be absent for so long. He was then asked whether he
told Augustin that he had only prescribed a few days ab-
sence for her and responded, "I may have said it, but I
don't recall it." He thought the possibility "far fetched."
However, he also admitted the possibility that he asked
Augustin why the note Augustin showed him read "May
31" when he had prescribed a leave until May 3. And, while
admitting to a degree of confusion brought on by Augus-
tin's questioning, he testified that he did tell Augustin on
May 2 that he never made the line on the note which made
the date May 31. He crossed out the "I," saying, "That's
not my note."
Mariel Uhrig returned from her disability leave on June
12 and was assigned to work on the 3 clip, a job she had
performed without achieving quota for a total of 8 days in
February and March. She worked on that job for an addi-
tional 13 days, still failing to reach the quota.
On the morning of June 26, a Monday, Karl Augustin
told Pauline Morgan that that would be Uhrig's last day on
the #3 clip because of her failure to make quota. Morgan
told Augustin that perhaps she would make the quota and
then told Uhrig what Augustin had said.
Shortly thereafter, Uhrig's production for the prior work-
day, Friday, June 23, was being weighed and Uhrig walked
over to the scales to watch. She did so, she said, because an
" The "honor code" to which Augustin referred had allegedly been re-
ferred to in a bulletin to employees posted on February 24, 1978. That notice
said that there was an "honor system," and pointed out that it was a viola-
tion to give faulty information needed for company records. It cited art 15
of the contract, the "Discipline, Suspension and Discharge" article, which
includes the provision: "The only cause for immediate discharge of an em-
ployee shall be for proven theft of money, goods or merchandise during
working hours."
12 The record contains only one other allegation of falsification by Mineau
and the evidence does not support any contention that she had willfully
falsified a production record in that instance.
acting floor lady, Margaret Leonard, was doing the weigh-
ing and she was concerned. When she got there, one barrel
had already been weighed and the other was on the scale.
She watched Leonard balance the weight but claimed that
she could not read the scale from where she stood. She
recorded the weight as Leonard gave it to her, approxi-
mately 188 pounds in one barrel, 153 pounds in the other.
She totalled it up and found that she had exceeded the
quota. It did not occur to her that an error had been made,
she testified, as the barrels were of different sizes and she
was not so familiar with the work as to be able to make
accurate guesses of the weight of her production. She told
Morgan of her success.
Morgan related the good news to Augustin. Augustin
was suspicious, however, because in the prior 19 days,
Uhrig had not come close to the quota. He checked the
work himself. He could tell without weighing the barrels
that the recorded weights were wrong: one barrel was only
half full and could not have weighed nearly as much as the
full one. Leonard, the acting floor lady, could not explain it.
A series of meetings was held involving Augustin, Morgan,
Leonard and finally Uhrig, in which it was concluded that
there had been an error in the weigh-in, that error was
Leonard's in calling out a weight of 100 pounds more than
the actual weight, and that the error was obvious, at least to
Augustin and Morgan. Augustin told Morgan that he be-
lieved that Uhrig had cheated by failing to report the obvi-
ous error. When the error was pointed out to Uhrig, she
acknowledged that the weight she had claimed could not
have been correct. In her defense, however, she pointed out
her own inexperience on that job and that Leonard. not her,
had made the mistake. Notwithstanding her defense.
Augustin told her that she had breached Respondent's hon-
or system. He asked her to resign and she refused. She
asked himn if he was accusing her of cheating and he replied,
"Take it as it is . .. you no longer work here." She said,
"This is on account of all the grievances I made out, isn't
it?," and Augustin merely "sort of laughed and just
shrugged his shoulders,"
E. Analysis and Conclusions as to the Discharges
Respondent contended in its brief that Mineau was a
generally unsatisfactory employee, but acknowledged that
the incident with the doctor's note was the precipitating
factor in causing her discharge.
Respondent, I have found, harbored animus towards
those employees who served on the Union's negotiating
committee and who filed grievances. In conversations with
Uhrig (but not with Mineau), Augustin expressed that ani-
mus and threatened that reprisals would be taken against
grievance filers. Mineau was both a member of the negoti-
ating committee and a filer of grievances. She had filed four
since the end of the strike, three of which challenged Re-
spondent's training system and the application of seniority.
The last two grievances were filed not more than 6 weeks
before her discharge. In light of this protected activity and
Respondent's animus thereto, the events leading to
Mineau's discharge require close scrutiny to ascertain Re-
spondent's real motivation.
1132
A & W PRODUCTS COMPANY. INC.
In this case, Augustin had received a physician's note
calling for an extended medical leave for a marginal em-
ployee who had previously taken long medical leaves.
When he checked with the doctor, his suspicions were
aroused by the doctor's response to the effect that he had
not prescribed an extended leave. He investigated this thor-
oughly, twice going to the doctor's office. What Dr. Schultz
said-that he did not write the prescription for a May 31
return-and what the doctor did-striking out the number
"I" and changing the date to "May 3,"-coupled with the
suspicious appearance of the note itself led Augustin to the
only logical conclusion available, that the note had been
altered. He checked further with Morgan, who denied alter-
ing the note. Thus, Augustin was left with the conclusion
that Mineau must have altered the note herself in order to
extend her leave.'3 Checking no further, he discharged
Mineau. In these circumstances, I cannot find that the dis-
charge was motivated in any significant way or would not
have occurred "but for" Mineau's earlier protected activi-
ties or that the suspected alteration of the note was a pre-
text for an otherwise unlawfully motivated discharged. See
Waterbury Community Antenna v. N.L.R.B., 587 F.2d 90
(2nd Cir. 1978), Montgomery Ward& Co.., 227 NLRB 1170
(1977). In so concluding, I have considered Respondent's
apparent satisfaction at being able to terminate Mineau.
That satisfaction, however, is consistent with both Respon-
dent's general displeasure over her work performance and
its union animus. Moreover, as the Board has stated:
If an employee provides an employer with sufficient
cause for his dismissal by engaging in conduct for
which he would have been terminated in any event,
and the employer discharges him for that reason. the
circumstance that the employer welcomed the oppor-
tunity to discharge does not make it discriminatory
Similarly, I have considered both Respondent's failure to
question Mineau about the source of the apparent alter-
ation and its assertion of multiple reasons for her termina-
tion. In light of Mineau's work performance since the end
of the strike and Respondent's dissatisfaction with that level
of performance, neither of these factors warrants an infer-
ence that Mineau's discharge was unlawfully motivated.
Zarda Brothers Dairy, Inc., supra. Accordingly, I shall rec-
ommend that the complaint, to the extent that it alleges
that the discharge of Jean Mineau was unlawful, be dis-
missed.
Similar close scrutiny leads me to the opposite conclusion
in regard to the discharge of Mariel Uhrig. In Uhrig's case,
Augustin made a complete investigation of the weigh-in in-
cident. The investigation revealed that the error was not
Uhrig's but the floorlady's. He then disregarded the results
of his investigation and discharged Uhrig. The floor lady
escaped the incident unscathed. Such contradictory treat-
13 Mineau denied altenng Dr. Schultz' note. That denial is difficult to
accept although other less likely scenanos are conceivable. It is not necessary
to resolve this credibility question as the only evidence available to Augustin
at the time he made his decision pointed almost conclusively to Mineau as
the one who altered the note.
" Klae Holt Co.. 161 NLRB 1606, 1616 (1966). Zarda Brothers Dair,
Inc., 234 NLRB 93 (1978).
ment. directed at an employee who had been the object of
repeated threats and expressions of animosity because of
her protected activity, together with Augustin's failure to
deny Uhrig's accusation that he was discriminatorily moti-
vated, leads to but one conclusion-that Uhrig's role in the
weigh-in incident was but a pretext for a discharge which
would not have occurred had the employee not been in-
volved in that protected activity. See AMontgomer' lard &
Co., Inc., supra. Accordingly, I find that hb discharging
Mariel Uhrig on June 26. 1978. Respondent discriminated
against her because of her union and protected activity and
thereby violated Section 8(a)(l) and (3) of the Act.
CONCLU SIONS OF LAW
1. By warning its employees not to file grievances and
threatening them with loss of jobs if they persisted in filing
or pursuing their grievances. Respondent has violated Sec-
tion 8(a)(1) of the Act.
2. By discharging Mariel Uhrig because she had filed
grievances and engaged in other union activities. Respon-
dent has violated Section 8(a)(3) and (1) of the Act.
3. Respondent has not engaged in any unfair labor prac-
tices not specifically found herein.
4. The unfair labor practices enumerated above are un-
fair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
TItF REMEDY
It having been found that Respondent has engaged in
certain unfair labor practices in violation of Section 8 (a)( I)
and (3) of the Act, it will be recommended that Respondent
be required to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
It having been found that Respondent discriminatorily
discharged Mariel Uhrig, Respondent shall offer her mmne-
diate and full reinstatement to her former or a substantially
equivalent position, without prejudice to her seniorit or
other rights and privileges, and shall make her whole fr
any loss of pay she may have suffered by reason of the
discrimination against her. Any backpay found to he due
shall be computed, with interest, in the manner prescribed
in F W. Woolworth Company, 90 NLRB 289 (1950). and
Florida Steel Corporation, 231 NLRB 651 (1977)."
"A violation of Section 8(a)(3) goes to the ver, heart of
the Act." It therefore warrants that Respondent be further
required to cease and desist from infringing in amn other
manner upon the rights guaranteed employees in section 7
of the Act. Pan American Exterminating Co.. 206 NLRB
"See, generally, Isis Plumbing Hearing Co. 138 NLRB 716 l1962)
General Counsel. in its supplemental bnef, argued persuasiel) for an n-
crease in the interest rate as set forth in Florida Steel, supra. pointing oul that
by pegging the interest rate to the "adjusted prime interest rate" the Board
failed to accomplish an increase in the rate of interest attached to backpan
awards. Thus, General Counsel argued, since interest rates hase climbed.
current Board orders fail to make employees whole. However. the Adnins-
trative Law Judge is constrained to follow Board precedent and. to dale, the
Board has not chosen to revise the formula set forth in Florida Steel See, for
example. St Regis Paper Company, 239 NLRB 688 (1978) ccordingl the
General Counsel's request that the remedial interest rate he raised , denied
I 133
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
298 fn. 1 (1973); Entwisile MJg. Co., 23 NLRB 1058 (1940).
enfd. as modified, 120 F.2d 532 (4th Cir. 1941).
Upon the basis of' the entire record. the findings of fact.
and the conclusions of law, and pursuant to Section 10(c) of
the Act. I hereby issue the following recommended:
ORDER' 6
The Respondent, A & W Products Company. Inc., Port
Jervis, New York, its officers, agents, successors, and as-
signs, shall:
I. Cease and desist from:
(a) Warning its employees not to file grievances and
threatening them with loss of jobs if they file or pursue
grievances.
(b) Discharging its employees because they file griev-
ances or engage in other union activities.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist Local 445, Interna-
tional Brotherhood of Teamsters. Chauffeurs, Warehouse-
men and Helpers of America or any other labor organiza-
tion, to bargain collectively through representatives of their
own choosing. to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities.
16 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. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Offer Mariel Uhrig immediate and full reinstatement
to her former position or. if that is not possible, to a sub-
stantially equivalent position, without prejudice to her se-
niority or other rights and privileges. and make her whole
for any loss of earnings she may have suffered by reason of
the discrimination against her, in the manner set forth in
the section of this Decision 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, timecards.
personnel records and reports, and all other documents nec-
essary and relevant to analyze and compute the amount of
backpay due under this Order.
(c) Post at its Port Jervis. New York. plant copies of the
attached notice marked "Appendix."' Copies of said notice
on forms provided by the Regional Director for Region 2.
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by it immediately upon receipt
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 insure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
(d) Notify the Regional Director. in writing, within 20
days from the date of the Order, what steps Respondent has
taken to comply herewith.
17 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 Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
134