Aerojet General Corp.

National Labor Relations Board - Board Decisions

Jun 15, 1972

197 N.L.R.B. 554 (N.L.R.B. 1972)

554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aerojet Ordnance and Manufacturing Company,-
Divi-sion of Aerojet General Corporation and Edna
Howerton . Case 26-CA-3913
June 15, 1972
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND
KENNEDY
On August 27, 1971, and February 29, 1972, Trial
Examiner Herbert Silberman issued the attached
Decisions in this proceeding. Thereafter, the General
Counsel and the Charging Party filed exceptions and
supporting briefs, and Respondent filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decisions in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings,, and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
ReLations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the complaint herein be, and it hereby is,
dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Trial Examiner: Upon a charge
filed on February 5, 1971, by Edna Howerton, an
individual, a complaint dated March 18, 1971, was issued
alleging that Aerojet Ordnance and Manufacturing Com-
pany, Division of Aerojet General Corporation,' herein
called the Company, terminated the employment of Edna
Howerton, on December 28, 1970, and thereby has
engaged in and is engaging in conduct constituting unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the National Labor Relation Act, as amended.
Respondent's answer to the complaint, as amended at the
hearing, denies that it has engaged in the alleged unfair
labor practices and interposes an affirmative defense. A
hearing in this proceeding was held in Batesville, Arkansas,
on June 8 and 9, 1971. At the conclusion of General
Counsel's case-in-chief, Respondent moved to dismiss the
complaint on the ground that a prima facie case was not
established. The hearing thereupon was recessed pending a
i At the time the complaint herein was issued the Respondent's name
was Batesville Manufacturing Company The Company's name was later
changed The caption reflects the present name of Respondent
decision on the motion . Briefs with respect to the motion
have been received from General Counsel and from
Respondent . Upon consideration of the record in this case
and the arguments advanced by counsel in their briefs and
at the hearing , the pending motion to dismiss the
complaint is disposed of in accordance with the findings
and conclusions set forth below.
1. THE BUSINESS OF RESPONDENT
The Company, a Delaware corporation,2 operates a
plant in Batesville, Arkansas, where it manufactures and
sells ordnance products. Only Respondent's Batesville
facility is involved in this case. During the 12 months
preceding the issuance of the complaint, the Company in
the course and conduct of its business purchased and
received at its Batesville, Arkansas, plant goods and
materials valued in excess of $50,000 which were shipped
from points outside the State of Arkansas, and during the
same period Respondent manufactured, sold, and shipped
from its Batesville plant products valued in excess of
$50,000 directly to points outside the State of Arkansas.
Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The single issue is whether the employment of Edna
Howerton was terminated on December 28, 1970, for a
reason which violates the Act.
During the times material hereto, the Company has had
a collective-bargaining agreement with International Asso-
ciation of Machinists and Aerospace Workers, AFL-CIO,
District Lodge No. 33 and Local Lodge No. 2248, herein
called the Union. While Mrs. Howerton was employed by
Respondent she was a member of the Union and worked in
a job classification covered by the Union's contract. Upon
reporting for work on December 28, 1970, Mrs. Hower-
ton''; foreman 1gave her a termination notice which, in
pertinent part, reads as follows:
Voluntary quit. Three (3) consecutive days unreported
absence-21, 22, 23 Dec. 70-assumed voluntary quit
pursuant to provisions of Article VIII, Paragraph
803(a) of the current labor agreement.
The reference is to the following provision of the
applicable contract:
An employee shall lose his seniority for any of the
following reasons:
(a) Resignation. Three (3) consecutive days' unre-
ported absence on scheduled work days shall be
considered a resignation.
General Counsel contended at the hearing that the
reason alleged by Respondent for her discharge is
pretextual and that Edna Howerton was unlawfully
discharged in violation of Section 8(a)(1) and (3) of the Act
because of "her concerted activity in efforts she made . . .
to rectify safety standards at the plant and also [because
of ] her extremism in seeking proper representation through
2 Aerojet General Corporation, the parent company, is an Ohio
corporation
197 NLRB No. 78
AEROJET ORDNANCE AND MFG. CO. 555
her union, the International Association of Machinists."
More specifically, General Counsel argued that Mrs.
Howerton was discharged because she sought to press
grievances on behalf of herself and other employees 3 and
because she, together with other employees, complained to
the Arkansas Department of Labor about the Company's
alleged violations of safety standards.4
A. The Alleged Protected Activity
Edna Howerton had worked for the Company approxi-
mately 3 years when she was discharged. During this
period and prior thereto the business of the Company had
fluctuated considerably. Peak employment was reached in
1966 when 1,400 persons worked at the plant while by
December 1970 employment had dropped to 275 persons.
The evidence adduced by General Counsel to support the
complaint for the most part concerns the 2 months
preceeding Howerton's termination and relates to incidents
which with but one exception are concerned with personal
complaints on the part of Howerton.5
Chronologically the first incident described by Mrs.
Howerton occurred in November 1970. She had been
absent from work for 2 days because of illness. When she
returned her foreman, Phillip Harmon, informed her "that
they had told him [Harmon] to give me [Howerton] a
reprimand . . . [b]ecause I had been off too much sick." In
their further conversation, Harmon informed her "that he
didn't really want to give [her] a reprimand, that they told
him to and he would have to."s The Company's written
absence record for Edna Howerton shows that on
November 5, 1970, she was given a verbal reprimand "for
excessive absenteeism." According to Howerton, she asked
the union stewards to file a grievance because of this
reprimand, but they refused.?
The next incident occurred on a Thursday in late
November or early December. Howerton testified that
after she had clocked in, she went to the restroom and as a
result reported to her place of work 2 or 3 minutes after her
3 Prior to her discharge, no grievance on behalf of Edna Howerton had
ever been filed with the Company She testified that , although she had tried,
she never succeeded in convincing the union stewards to file a grievance for
her General Counsel argued at the hearing "that Edna Howerton was
prodding the Union for better representation of employee complaints and
that the Employer was aware of this as evidenced by her numerous
complaints to the Company at the time she was receiving reprimands"
However , in his brief , General Counsel does not refer to Howerton's
unsuccessful efforts to file grievances as among the ascribed unlawful
reasons for her termination.
4 General Counsel in elaboration of his position argued at the hearing
Various acts of Howerton may have influenced Respondent's decision to
discharge her Although some of these acts fall within the statutory area of
protected activity and some may not , Respondent 's "total intent was
unlawful " Furthermore, "[ t ]he final event that took place that caused her
discharge was this concerted participation in preparing and then having
signatures of other employees and sending the letter to the Department of
Labor That is what caused the discharge " In his brief General Counsel
seems to limit the significance of the evidence which he adduced in support
of the complaint In his brief he argues that "the real reason [ for Howerton's
termination ] was the Company's disfavor with Howerton in reporting them
to the ADL and her letter to the Union [referring to a letter she wrote to the
Union's International president on December 14, 1970 in which she
enclosed a copy of her letter of the same date to the Arkansas Department
of Labor] " Thus, the "final event" to which General Counsel referred in his
argument appears to be the only event to which he refers in his brief
5 The applicable collective -bargaining agreement provides that before a
shift started at 4 p.m. The other girls in the area had not yet
begun to work. Nevertheless, her foreman, Darrell Garri-
son, told Howerton that he was giving her a reprimand for
being late. She explained to Garrison that she had stopped
in the restroom, but he said it didn't make any difference.
Then, according to Howerton, "He got real mad when I
refused to accept [the reprimand] and he said I had to
accept it and I told him I didn't have to accept anything. I
told him dust because he wore a tie didn't make him any
better than anyone else working out there and he really got
mad about that." Howerton observed Garrison then go to
Clark Knapp,8 the general foreman, and talk with Knapp.
When their conversation concluded, Garrison returned
and told Howerton that they were going to give her a
written reprimand. Howerton responded that she would
refuse that also and Garrison answered that she couldn't.
The next day Howerton asked Garrison if he was going to
give her the reprimand. Garrison answered that there had
been no time to type it. The following Monday Garrison
told Howerton that they had decided not to give her a
written reprimand although she then asked for one. Mrs.
Howerton spoke to Union Stewards Shipman and Craw-
ford about the incident and was told by Shipman that "it
[the oral reprimand] didn't make any difference, it didn't
mean anything."
On the Friday of the same week, Howerton was
informed after she had arrived at the plant that there was
no work because the machines in her department were not
operating.9 The office employee who told Howerton that
there would be no work also advised Howerton that they
had tried unsuccessfully to reach her before she had left for
the plant. Howerton testified that she should have been
paid for 4 hours' time on that occasion. She complained to
Union Steward Joey Shipman who said it would be taken
care of. However, she never received pay for the 4 hours.
The fourth incident involves a dispute between Hower-
ton and Garrison regarding the operation of a machine.
The Company manufactures ordnance items for the
United States Department of Defense. In that connection,
grievance may be processed beyond the first (oral) stage it shall be reduced
to writing The chief steward is responsible for processing all grievances
Prior to her termination no written grievances had been filed on behalf of
Mrs Howerton Mrs Howerton testified that there were "3 or 4, maybe
more" times when she had asked the Union to file grievances but always
without success However , her preheanng affidavit given to an agent of the
Board states that she had asked the Union to file a grievance only on one
occasion Mrs Howerton explained that the Board's agent misinterpreted
what she had told him
6 If credence is given to this testimony, then it would appear that long
before December 14, 1970, the Company , for reasons that are not stated in
the record , had been seeking excuses to discipline Mrs Howerton
r Howerton testified that she spoke to Area Steward Joey Shipman and
Chief Steward Jay Crawford about filing a grievance , but they told her that
the oral reprimand she had received "didn ' t mean anything " She protested
to them "that if it didn't mean anything, why did they harass me with giving
me one like that " Howerton also testified that "I had tried to file grievances
before and I didn't have any luck " Referring to the reprimand from
Harmon, Howerton testified , "They told me that it didn 't mean anything
and I asked Mr Crawford if it didn ' t mean anything, then , why do they give
you a reprimand? I said I had been told that after three that you would be
fired."
a Respondent 's motion to correct the record to reflect the correct spelling
of the name , Clark Knapp, is granted
9 The layoff on this particular Friday admittedly was for legitimate
economic reasons
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the times material to this case , 13 government inspectors
were stationed at the plant. According to Edna Howerton,
on the night of December 2, 1970, she refused to operate
the warhead hydrostatic machine at a pressure less than the
government specifications called for. Foreman Darrell
Garrison told her to operate the machine "as long as it
would run when no government inspector was around."
Howerton said she would not. Garrison responded that she
would do anything he told her to, but she insisted that she
would not run the machine when the specified pressure
could not be maintained. According to Howerton, "He
[Garrison] got real mad and said that I would even sweep
the grass if he told me to and I said I wouldn't sweep any
grass " She and Garrison spoke to Union Steward Joey
Shipman who told Howerton to do whatever Garrison told
her to do. After 10 or 15 minutes of conversation,
Howerton, decided to follow Garrison's instructions. When
she returned to her work station Garrison sat close to her,
checked the pressure gauges for her, and told Howerton
when to run the machine and when not to run the
machine.10 In connection with the same incident, Hower-
ton further testified that Garrison had told her about a
dozen times that if she didn't run the machine she would
be fired.ii
The final incidents relate to complaints made by
Howerton to the Arkansas Department of Labor. Accord-
ing to Lester W. Burdick, the Company's manager of
industrial relations, who was a witness called by General
Counsel, the Arkansas Department of Labor has conduct-
ed numerous routine investigations of the Company's
operations. In addition, in 1970, three investigations were
instigated by complaints filed with the department. The
first complaint was made in May 1970 by Chief Union
Steward Jay Crawford because one of the foremen had
removed the chairs from a line of machines so that the
female employees were unable to sit down at times when
their work didn't require them to be on their feet. A
10 Howerton also testified that after she finished-work that night she
wrote a letter to the Federal Bureau of Investigation There is no evidence
that the Company learned about Howerton's complaint to the Bureau at
any time before February 1, 1971
11 For about 2 weeks after the above incident, her chair was removed so
that she had to stand during all her working hours
12 Benjamin F Davis was a witness for the Respondent who was called
out of order He testified that his inspection on September 16 showed that
the Company was in the process of making the necessary corrections to
eliminate the problem and therefore he made no recommendations in the
matter Davis also testified that "The attitude of the Company was
exceptionally good I was received quite cordially "
13 The letter is as follows
Arkansas Department of Labor
Commissioner of Labor
Little Rock, Arkansas
December 14, 1970
My Dear Commissioner
Please refer to your file, Letter from Edna Howerton, Employee,
Batesville Manufacturing Co On or about the 14 Sept 1970 1 charged
Batesville Manufacturing with violations of Sec 24-81-401 Sec
25-81-402 , Sec 16-81-108
We are at present continuing to breathe large amounts of PHOSPHA-
TEX TRICHLOROETHYLENE, MELTEX
We are exposed to fire Hazards , Recently a rag caught in between these
stacked barrels burst into flame
I was given reprimand for being allergic to these chemicals , my Doctor
Paul Gray, M D Examined me in a condition of severe hives, the plant
Nurse Glenda Mills made a report of this that night Glenda Mills was
grievance had also been filed with respect to the same
incident. The chairs were replaced by the time the
Arkansas Department of Labor investigator arrived at the
plant to make his inspection. The next complaint of which
the Company had knowledge was also filed by Jay
Crawford. In September, several people had been over-
come by an odorless gas in the processing area of the plant.
The Company immediately began to investigate the
problem. According to Burdick, a chemist employed by the
Company ultimately came to the conclusion that some
type of gas was being generated in sump holes where drains
emptied prior to the material being pumped out of the
plant. Based on this determination, the Company pumped
out the sumps and filled the holes with concrete so that
there would be no further collection of waste material
within the plant. In connection with this matter, Chief
Union Steward Jay Crawford called the Arkansas Depart-
ment of Labor. Crawford informed Burdick of his action
and said that his reason'for complaining to the Arkansas
Department of Labor was that Crawford hoped that the
State's safety engineers might assist the Company in
overcoming the problem. Because of Crawford's com-
plaint , Benjamin F. Davis, safety director with the
Occupational Safety Division of the Arkansas Department
of Labor, made an inspection of the Company's plant on
September 16, 1970.12 Edna Howerton also wrote to the
Department of Labor for the State of Arkansas complain-
ing that employees had been overcome by gas in the plant.
Her letter is dated September 15, 1970. Davis did not learn
of Howerton's complaint until after he had returned to his
office following his inspection on September 16. There is
no evidence that at any time prior to her termination the
Company had knowledge that Howerton had written such
a letter.
On December 14, 1970, Edna Howerton composed
another letter to the Arkansas Department of Labor.13 The
next day she carried the letter with her to the plant and
shortly laid off after i got My reprimand
Our Union Seems to be a toothless old dog. Our chief Steward J
Crawford Should Have followed this through and corrected this
situation but , He has a long Record of not processing complaints
This is why we are sending a copy to The I A M President and
charging him with certain charges to be tried before the Grand Lodge
The company 's foreman Gene Bingham Told me if I refused to run my
Machine in a unsafe condition I would be fired . He Said it as friendly
advice
This was in direct violation of labor contract agreement Reference 600
if such unsafe claim is made Mildred Thomas 's Machine was reacting
to air pressure in a erractic manner, she Notified Foreman Darrell
Garnson, He did nothing , told her to tell Gene Bingham when and if
he comes by Gene Bingham Came by. we yell at him, he stopped and
said he would come back , he never came back
One of our most difficult positions is that if the line is closed down for
safety conditions , the foreman may not reach productions quota, Our
union area steward works under the maintenance foreman he is
hampered by this company authority over him
I have a daily record of events and abuses being carried on here
WE have to use dirty gloves most of the time, some of us have been
refused any gloves because they said they were saving them for the day
shift
I am filing unfair labor practice against the company with the N L R B
I have sent them a blow by blow account of the abuses here
Respectfully
/s/ Edna Howerton
Edna Howerton
/s/ Inez Matlock /s/ Harry Curtis
AEROJET ORDNANCE AND MFG. CO.
about 5 minutes before the end of her shift (quitting time is
12:30 a.m.) she obtained the signatures of eight other
employees to the document. According to Howerton,
Foreman Darrell Garrison was standing 10 or 12 feet away
at the time it was signed by three of the employees and
Garrison saw them sign it.14 The letter resulted in another
investigation by Benjamin F. Davis which was made on
December 23, 1970. The report filed by Mr. Davis shows
that he found no justification for the complaint.15
Although neither Howerton nor the Arkansas Department
of Labor advised the Company of Howerton's December
letter, Union District Representative Randolph Jiles, on
December 21 or 22, telephoned Burdick and advised
Burdick that Jiles had received a call from the Arkansas
Department of Labor informing him that Mrs. Howerton
had filed a complaint. Thus, the Company knew that
Howerton had filed a complaint with the Arkansas
Department of Labor at the time her termination was
effected.
B. Howerton's Discharge
The events directly leading to Howerton's discharge
began on December 1,1. While at work that night a piece of
steel became stuck in her finger. She and another employee
tried to remove it. During the next 3 or 4 days the finger
became sore although not so bad that she thought it
necessary to see a doctor. However, according to Hower-
ton, after she had reported for work on Friday, December
18 at the usual hour of 4 p.m., "about 8:00 or shortly after
the blood poisoning had reached my elbow and it was very
painful, I wasn't using it at all. I asked Mr. Garrison for a
pass to go home and he said I didn't need a pass, that I
couldn't find a doctor anyway and wait and go Saturday to
the Company doctor." 16 In her conversation with Garri-
son, the latter told her to do whatever work she was able to
do. At the end of the shift, Howerton told Garrison that
she was going to go to the hospital. Garrison then said that
he would leave a note for the nurse, who would be working
on Saturday, advising the nurse that Howerton was going
to the hospital. Howerton testified that on the night of
December 18 she made no complaint either to any of the
women who were working in her immediate area or to the
union steward that Garrison would not give her a pass to
leave the plant.
Howerton entered a hospital at 2:30 a.m. on December
19 and remained there until 6 p.m. on December 23. She
/s/ William Cooper /s/ Al Huff
/s/ Retha Hall /s/ Mildred Thomas
/s/ Norma Jean Smith /s/ Earnest Branscum
14 Contrary to her testimony at the hearing, in a statement which Mrs
Howerton gave to an investigator for the National Labor Relations Boaid,
she said that no supervisor saw the letter being signed
11 Davis testified that he was cordially received by management and that
the, Company cooperated with his investigation in every respect
16 Although the Company did not employ a nurse for the afternoon shift,
when Howerton reported for work that day she passed the nurse who works
on the day shift. Howerton did not mention her injury to the nurse because,
according to Howerton , the nurse "was not qualified " In an affidavit which
Howerton gave to an investigator of the National Labor Relations Board,
she stated , "I did not go to the nurse for fear of getting a reprimand "
17 In a pretrial affidavit which Howerton gave to an investigator for the
National Labor Relations Board, she states, "I do not know of anybody
557
learned of her termination when she reported for work at
the start of the 4 p.m. shift on Monday, December 28.
At the time Howerton entered the hospital, she knew of
the rule calling for the termination of employees for 3
consecutive days of unreported absence.17 Her husband
was also aware of the rule.
Burdick testified that the rule is uniformly enforced.
However, the Company accepts reports of absences in
many ways. "The one thing we insist upon is that the
absence be reported to the foreman of the individual."
Among the accepted methods used by employees to report
their absence from work are: a note delivered to the
foreman by another employee; a report to the foreman by
telephone; or a report to the plant's telephone operator or
guard for transmission to the employee's foreman. In
effect, Burdick testified that so long as a report of the
absence is somehow relayed to the employee's foreman the
report will be considered acceptable. Burdick also testified
that if an employee asks a third person to report the
employee's absence and the third person should fail to
notify the Company, the absence would be excused
because the employee had attempted to notify the
Company and the fault lay elsewhere.18
Because of the Company's 3-day rule, while in the
hospital, Edna Howerton requested her husband to notify
the Company of her absence. According to Edna Hower-
ton, "I insisted that he notify somebody that I was in the
hospital to be positive." William C. Howerton, Edna
Howerton's husband, testified that he did not wish to take
a chance making the report by telephone. His wife had told
him that "because she called in the FBI she would be fired,
that she wanted me to, well, eyeball it, tell somebody." In
like vein Mrs. Howerton testified that she told her husband
that "if he didn't notify the Company [of her absence] that
they would fire me, that they were looking for an excuse
.." Accordingly, Mr. Howerton drove to the plant on
Tuesday, December 22, arriving between 6 and 6:30 p.m.
He testified that he didn' t see any activity within the plant,
although the shift to which Mrs. Howerton was assigned
was at work. He sat in his car for about 3 to 5 minutes and
then drove to a supermarket. While there he recognized
Glynn Fuller who is a foreman for the Company.
Howerton testified, "I asked him if he was Glynn Fuller
and he said, `Yes,' and I told him, I asked him if he worked
at BMC. Well, I made a statement there `Do you know
Edna Howerton?' and he said, `Yes, how is she doing?' and
I said, `Well, she's still in the hospital,' and I said, `I want
to see Darrell Garrison, real bad.' And he says, well, why
who has missed three work days consecutive days and did not call in and
was not discharged "
18 There is no evidence in the record sufficient to indicate that there has
been any deviation on the Company's part in the application of the 3 days'
unreported absence rule However, Burdick, who was called as an adverse
witness by General Counsel , testified somewhat inconsistently as to the
application of the rule At one point in his testimony he testified that after
the 3 days had passed the only way Edna Howerton could have changed the
Company's action terminating her employment was "if she could establish
that her absence had been reported or that she was unconscious and
absolutely unable or anybody else unable to report her absence " Later in
his testimony he indicated that Howerton 's separation might have been
rescinded if an attempt had been made to report her absence and there was
a failure on the part of somebody to carry out her wishes However, in her
case, according to Burdick , the Company's investigation indicated that no
attempt had been made to tell the Company of her absence
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
came up [sic] and I told him I wanted to notify him, and
we thought at that time that she may lose her arm; the
infection hadn't went down I says, `I want him notified,'
and he said, `I'll be sure and tell him.' " On cross-
examination, Howerton testified that his meeting Fuller
was accidental and he knew Darrell Garrison, not Fuller,
was his wife's supervisor.
On cross-examination, Mr. Howerton was asked whether
he went to the plant on December 22 to pick up his wife's
paycheck. At first he denied that fact. However, after being
shown his pretrial affidavit,19 he testified that one of the
reasons, but not the main reason, for going to the plant was
to pick up his wife's paycheck. Mrs. Howerton also
testified that one of the reasons her husband went to the
plant was to pick up her paycheck. He reported back to her
that "no one was there."
When Mrs. Howerton reported for work in the afternoon
of December 28, her foreman, Darrell Garrison, gave her a
termination slip and told her she was fired. Howerton did
not ask Garrison why she was discharged or tell Garrison
that her absence had been reported.20 However, she asked
to see a union steward Garrison told her he didn't know
where there was one but that she could see Mr. Burdick.
Mrs. Howerton went to the office of Burdick who was not
then in When Burdick arrived, according to Howerton, "I
asked him what about this blue slip [termination notice]
and he said there wasn't anything he could do about it
. . . . So I said, `I guess we'll have to wait and see about
that,' and left. I told him that he had been notified-the
Company had been notified."21 According to Burdick,
"She came in and she had the slip in her hand and she, I
think her words were, `What about this?' I said, `Well, you
were absent for three days unreported and there's nothing I
can do about it.' She said she was in the hospital and not
able to report I said, `Well, the hospital staff or your
husband or somebody could have reported your absence
for you and there's nothing I can do about it.' I asked her if
there was anything else she had to say and she said, `No,
not at this time,' and she left " Burdick testified that Mrs.
Howerton did not make any claim to him that her husband
had reported her absence.
Burdick who was called as an adverse witness by General
Counsel was questioned extensively regarding the Compa-
ny's decision to discharge Mrs. Howerton. Burdick testified
that, although he did not learn of Howerton's hospitaliza-
tion until December 28, he knew that she had been in the
hospital before the decision to terminate her was reached.
However, according to Burdick, "My investigation estab-
lished to my satisfaction that her absence had gone
unreported for three consecutive days and we uniformly
applied the rule, as we had done in many cases before."
The termination slip form given to Mrs. Howerton calls for
four signatures Each of the persons who signed or initialed
the form participated in the decision to separate Mrs.
19 The pretrial affidavit which William Howerton gave a Board
investigator says "On Dec 22, 1970 , around 6 p in I went to the Batesville
Manufacturing Company to pick up my wife's check (Edna Howerton) I
was also going to advise the plant that my wife was in the hospital"
20 Edna Howerton testified that before she left the plant on December 18
she told her foreman , Darrell Garrison, that she was going to the hospital
However , she did not tell Garrison that if she did not report for work the
following Monday he should assume that she was still in the hospital
Howerton. They included the department head (0. K.
Davis), the receiving department head (Moore), personnel
head (Burdick), and general manager (Robert H. King).
The final decision rested with King, the Company's
president and plant manager. Burdick testified that he
informed King that Howerton had been in the hospital but
recommended that "we uniformly apply the rule just as we
had done in every other case."
In describing the procedure which led to Mrs. Hower-
ton's discharge, Burdick testified that on December 23,
prior to the beginning of the 4 p.m. shift, Mr. Davis'
secretary informed him that Mrs. Howerton had been
absent for 2 days and that if she did not report on the 23d
it would be her third consecutive day of unreported
absence. Burdick further testified that such reports are
standard for the Company. "It's to alert us." That
afternoon Clark Knapp, who is the general foreman, left a
message for Garrison to check all records at the close of his
shift to ascertain whether Mrs. Howerton had reported her
absence.22 At the end of his shift, Garrison left word that
Mrs. Howerton had not reported her absence. Garrison's
report was available on Monday morning, December 28,
when the question of separating Mrs. Howerton was raised.
Burdick testified that the procedure followed in connection
with Mrs. Howerton's separation was no different from
that in the cases of other employees who were separated for
the same reason.
On December 29, 1970, Mrs. Howerton wrote a letter to
the Company protesting her discharge. In her letter, among
other things, she advised the Company about her hospitali-
zation and that on the evening of December 22 her
husband had spoken to Glynn Fuller who promised that he
would tell Darrell Garrison about her hospitalization.
Following receipt of this letter, Burdick made a further
investigation of the matter and spoke with Fuller. Fuller
informed him that Mr. Howerton had spoken with him
(Fuller) on the evening of December 22 and told him that
Edna Howerton was in the hospital and was suffering from
blood poisoning. However, Mr. Howerton did not ask
Fuller to report the matter to Garrison or anyone else and
Fuller forgot about the incident and did not mention it
until he was questioned by Burdick on December 30.
C. Conclusions
In the absence of contrary Board precedent, I shall apply
the same standards in deciding the instant motion as do the
district courts of the United States in the application of
Section 41(b) of the Rules of Civil Procedure. Accordingly,
I shall draw such inferences as are reasonable after
evaluating and weighing all the evidence introduced in the
record and shall deny or grant the motion depending on
whether I find or do not find that General Counsel has
proved the allegations of the complaint to the same degree
as he would be required to do if the Respondent, as well as
21 The next day, December 29, Howerton wrote the Company a long
detailed letter recounting the events leading to her discharge In this letter,
she does not mention that during her interview with Burdick she told him
that her absence had been reported
22 According to Burdick , a report of absence would have been timely if it
had been received before the conclusion of the shift on the third day, in
Howerton 's case before 12 30 a in, December 24
0
AEROJET ORDNANCE AND MFG. CO 559
the General Counsel, had rested its case at this stage of the
proceeding.23
While the reliability of both Mr. and Mrs. Howerton's
testimony may be subject to question, for the purposes of
this motion, I shall accept as true Mr. Howerton's
testimony that he requested Glynn Fuller to report his
wife's hospitalization to Foreman Garrison and Fuller
agreed that he would do so.24 Also, Mrs. Howerton had
been confined to a hospital as a result of an injury
sustained in the course of her employment. In these
circumstances Mrs. Howerton's separation, or at least the
Company's refusal to reconsider her separation, would
appear to have been unduly harsh This then raises a
question as to what other factors might have influenced the
decision to terminate Edna Howerton.
The incidents described above involving Howerton's
reprimands from Harmon and from Garrison and her
dispute with Garrison were personal matters and not
"concerted" activity. Accordingly, if these incidents con-
tributed to Howerton's discharge no violation of the Act is
spelled out therefrom. General Counsel argued at the
hearing that, with respect to those matters and to her claim
for report-in pay, the Company knew that Howerton
sought to prosecute grievances through the Union, and
among the reasons for her discharge were her efforts to
induce the Union to file grievances on her behalf. The
paramount defect with this argument is the absence of
proof that the Company was aware of Howerton's
described difficulties with the Union and her efforts to get
the Union to process grievances for her. (General Counsel
does not press this argument in his brief.) There remains
only the December 14 letter to the Arkansas Department
of Labor That, of course, falls within the area of protected
23 See Southern Arizona York Refrigeration Company v Bush Manufac-
turing Company, 331 F 2d I (C A 9), Huber v American President Lines, 240
F 2d 778 (C A 2), Trask v Suskind, 376 F 2d 17 (C A 5), Palmentere v
Campbell, 344 F 2d 234 (C A 8), 5 Moore's Federal Practice, at 1155
24 Even crediting Mr Howerton in this respect there is no evidence that
Fuller had communicated to Garrison that Mrs Howerion was in the
hospital Furthermore, although both Mr and Mrs Howerton testified that
it was their intention to be positive that Mrs Howerton 's absence was
reported because they feared the Company might be seeking an excuse to
discharge her, nevertheless , they went no further than to ask Fuller whom
Mr Howerton accidently met in a supermarket and with whom Mr
Howerton had never previously spoken to report Mrs Howerton's hospital
confinement Respondent argues , for reasons more fully set forth in its brief,
that, on December 22, Mr Howerton went to the plant only to get his wife's
paycheck and as of that date she had no intention of returning to work
25 In his brief , General Counsel advances the following argument "It is
imminently [sic ] clear that the Company's asserted reason , 3 days'
unreported absence , is a pretext and the real reason was the Company's
concerted activity . However , there is no evidence that the
Company was any more aggrieved by Howerton's com-
plaint to the Arkansas Department of Labor than it was by
the two earlier complaints made by Crawford. Further-
more, the investigation which was instigated by Hower-
ton's complaint resulted in . no adverse recommendation
and the inconvenience suffered by the Company in
connection with the investigation was minimal . In these
circumstances , the record will not justify an inference that
Howerton's complaint to the Arkansas Department of
Labor was a motivating factor contributing to the decision
to discharge her. Also, the reason advanced by Respondent
for Howerton's discharge is not so conspicuously bad that
it necessarily gives rise to an inference that the Company
must have been concealing an unlawful motive.25
Upon consideration of the evidence offered by General
Counsel in support of the complaint herein, I find that he
has not, established prima facie the violations of the Act
alleged in the complaint. Accordingly , I grant Respon-
dent's motion to dismiss the complaint.
CONCLUSION OF LAW
General Counsel has failed to prove that the Respondent
has violated Section 8(a)(1) and (3) of the Act as alleged in
the complaint.
Upon the foregoing and the entire record, and pursuant
to Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER
The complaint is dismissed in its entirety.
disfavor with Howerton in reporting them to the ADL and her letter to the
Union " While the Company was informed by Jiles that Howerton had
lodged a complaint with the Arkansas Department of Labor, there is no
evidence that the Company saw the letter she wrote to the Department of
Labor prior to the time she was terminated Also there is no evidence that
the Company knew that she had complained to the Union 's International
president In any event, General Counsel does not explain why an inference
should be drawn that Howerton' s December 14 letters to the Arkansas
Department of Labor and to the Union' s International president influenced
the decision to terminate her There is no evidence that the Company, or
any of its officials, resented or were inconvenienced by the Department of
Labor's inspections or were disposed to visit reprisals on employees who
instigated such investigations . On the other hand, Howerton testified that in
November she was informed by Foreman Harmon that he was instructed to
give her a reprimand which suggests that months before her separation she
had gained the Company 's disfavor , and twice in December she had
acrimonious disputes with her foreman, Darrell Garrison , which might well
have prompted him to search for a convenient excuse to seek her discharge