ALCO Standard Corp.

National Labor Relations Board - Board Decisions

Dec 26, 1972

200 N.L.R.B. 1133 (N.L.R.B. 1972)

U S CHEMICAL AND PLASTICS DIV 1133
U S Chemical and Plastics Division , ALCO Standard
Corporation and Oil Chemical and Atomic Work-
ers International Union, AFL-CIO Case
8-CA-6697
December 26, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On May 26, 1972, Administrative Law Judge i Ivar
H Peterson issued the attached Decision in this
proceeding Thereafter , Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings ,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, except
as modified herein
The Administrative Law Judge found, and we
agree, that Respondent violated Section 8(a)(1) of the
Act by threatening to discharge employee Miller and
four other employees if the conversation in which
they were engaged during working time concerned
the Union , and by threatening employee Giaqumta
with discharge if Respondent "heard anymore talk
about the Union" from her We also agree that the
union animus which Respondent displayed to the
aforesaid employees was expanded to include em-
ployee Marshall
Marshall, a union observer at the election which
the Union won, was considered by Respondent to be
so valuable an employee that despite the 36 times he
had been either absent or late from work from May 5
to August 16, 1971,3 and despite his further unex-
cused absences on August 18 and 19, for which he
received a 1-day disciplinary suspension on August
20 because of his failure to notify Respondent of his
intended absences on those 2 days, Respondent not
only retained him, but also told him immediately
prior to his suspension that if his attendance
improved and his work remained satisfactory, he
might be considered for a supervisory position Three
days later, however , armed with the knowledge that
Marshall had attended a union meeting on the
evening of August 18, Respondent presented him
with a final written warning which charged him with
lateness and absence and stated that "Additional
violation will result in dismissal " The pretextual
nature of this notice, however, is clearly shown by
credited evidence establishing that Marshall would
not have received the warning had he not attended
that union meeting That warning, moreover, was the
first written warning ever issued by Respondent
based on work attendance
Several weeks after Respondent had issued Mar-
shall's warning, it was notified by the Union that
Marshall had been elected chairman of the negotiat-
ing meeting When Marshall later attempted to
discuss certain employee grievances with Respon-
dent, he was met with hostility and pointed remarks
to the effect that the grievances he, sought to discuss
were none of his business In addition, one of the
grievants for whom Marshall sought to speak also
was given a final warning of discharge because he,
too, failed to report off from work, although he had
not received so much as a reprimand for committing
like offenses in the past
Shortly thereafter, on October 25, after 2 months of
favorable work attendance and 2 days before the first
scheduled neogtiating meeting, Marshall reported for
work 30 minutes late and was discharged solely
because of his tardiness Again, however, Respon-
dent's history contravenes its present action, since
the record shows that the 16 discharges it had meted
out over the past 3 years because of poor work
attendance had been based on a combination of
absences and tardiness
These facts clearly show that Marshall's discharge
was initiated by a pretextual warning occasioned by
his union activity, fostered by hostility because of his
subsequent union and concerted activities, and
effectuated by utilizing a waited-for event upon
which Respondent seized in order to rid itself of an
active and prominent union adherent who, in the
future, was to have chaired the employees' negotiat-
ing committee Accordingly, we find that Respon-
dent violated Section 8(a)(3) and (1) by discharging
Marshall because of his union and concerted
activities 4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
1 The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
2 The Administrative Law Judge s second Conclusion of Law is hereby
amended to read By threatening to discharge employees because of their
union or concerted activities, Respondent violated Sec 8(a)(1) of the Act
3 Unless otherwise noted all events herein occurred during 1971
4 In view of the broad order which we shall issue herein we deem it
unnecessary to consider or pass upon certain violations alleged but not
determined by the Administrative Law Judge We also do not adopt the
Administrative Law Judge s finding that Respondent violated Sec 8(a)(1) of
the Act by its June 14 discontinuance of the morning coffeebreak
200 NLRB No 141
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified herein, and hereby orders that Respondent,
U S Chemical and Plastics Division, Alco Standard
Corporation, Canton, Ohio, its officers, agents,
successors, and assigns, shall take the action set forth
in the Administrative Law Judge's recommended
Order, as so modified
1 Substitute for paragraph 1(b) of the Trial
Examiner's recommended Order the following
"(b) Threatening to discharge employees because
of their union or concerted activities "
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed insofar as it alleged
violations not found herein
CHAIRMAN MILLER, dissenting in part
Contrary to the majority, I would reverse the
Administrative Law Judge and dismiss the 8(a)(3)
allegation based on the discharge of Marshall
Marshall on August 20, 1971, received a 1-day
disciplinary suspension because of his failure to
notify the Respondent of his absences on August 18
and 19 In the 3-month period preceding this
suspension , Marshall on 36 occasions had been either
absent or late for work Though he did not attend
work on August 18 and 19, Marshall on the evening
of August 18 attended a union meeting This was
discovered by Respondent, and on August 23,
Respondent presented Marshall with a final written
warning, charging him with past lateness and
absences and stating "Additional violation will result
in dismissal " On October 25 Marshall was 30
minutes late for reporting for work and was dis-
charged
This termination was found discriminatory despite
record evidence that Respondent had a published
policy against poor attendance, and in the past 3
years had discharged 16 employees because of
combined absences and tardiness Furthermore, the
Administrative Law Judge himself found that the
General Counsel failed to establish that Respondent
had retained any other employee with an attendance
record comparable to that of Marshall, and hence it
could not be concluded that Marshall was the victim
of disparate treatment
The majority acknowledges Marshall's poor at-
tendance record and the fact that his discharge
occurred only after he violated the final warning
Nonetheless, the majority finds the discharge unlaw-
ful by concluding that the final warning was
pretextual That finding is unsound on substantive
grounds, and questionable as a matter of procedure
Although paragraph 7 of the complaint alleges
8(a)(1) violations regarding this warning notice, the
Administrative Law Judge did not find any such
violation, and no exception has been filed in this
regard Yet the majority, contrary to well defined
Board procedures, and despite the absence of
exceptions, entertains this issue
Indeed, the Administrative Law Judge' s dismissal
of this allegation and the absence of exceptions
thereto are understandable when one considers the
dearth of evidence supporting the majority's finding
that the warning was issued as pretext Thus, the
pretext finding is based upon a statement attributed
to management to the effect that Marshall would not
have received the warning had he not attended the
union meeting held on August 18 In context, this
statement was plainly neutral, for it does not
necessarily reflect hostility to union activity Mar-
shall's absences on August 18 and 19 were in
violation of Respondent's published rules The lack
of any excuse for his absence was blatantly eviden-
ced by the fact that he had no difficulty attending the
union meeting on August 18, while at the same time
failing to show up for work or notify the employer of
his absence that day or the next That was clearly the
meaning of Respondent's reference to the union
meeting Surely such incidental or descriptive refer-
ences to union activity do not constitute proof of
animus or taint otherwise appropriate discipline
In my opinion, therefore, no challenge to the
lawfulness of the warning is before us, as a matter of
procedure, nor would a preponderance of the
evidence support such a challenge in any event
Accordingly, as Marshall was discharged for conduct
in clear violation of the final warning, I would
dismiss the alleged 8(a)(3) and (1) violation
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IVAR H PETERSON, Trial Examiner This case was tried
at Canton, Ohio, on March 14, 21, and 22, 1972 The
charge was filed by the Union on November 2, 1971, and
the complaint was issued on January 18, 1972 Briefly
stated, the complaint alleges that on various dates from
June through November 1971 the Respondent engaged in
various acts constituting violations of Section 8(a)(1) of the
Act and on August 20 disciplined employee Kenneth
Marshall by giving him a day off and terminated him on
October 25 because Marshall had , or the Respondent
believed he had, assisted or become a member of a union
or engaged in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, all
in violation of Section 8(a)(1) and (3) of the Act In its duly
filed answer , the Respondent admitted the jurisdictional
allegations , but denied that it had committed any unfair
labor practices
Upon the entire record, including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the General Counsel and counsel for the
Respondent on May 1, 1 make the following
U S CHEMICAL AND PLASTICS DIV 1135
FINDINGS OF FACT
I JURISDICTION
ALCO Standard Corporation, a Pennsylvania corpora-
tion, is engaged in the manufacture of auto body repair
materials and catalysts, wiping cloths, polishing buffs, and
other products, having its principal office and place of
business in Valley Forge, Pennsylvania U S Chemical and
Plastics Division, the Respondent herein, is located in
Canton, Ohio, and is an unincorporated division of ALCO
In the course and conduct of its business, the Respondent
annually sells goods valued in excess of $50,000 from its
Canton facility directly to points outside the State of Ohio
The Respondent admitted it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act, and I so find I also find that the Union is a labor
organization within the meaning of Section 2(5) of the Act
The following persons are now agents of the Respondent
and supervisors within the meaning of Section 2(11) of the
Act
Jerome L Maggiore-President
Thomas T Banahan-Manager
William G Hohler-Superintendent
Ernest D Morris-Foreman (since on or about
November 4, 1971)
II THE ALLEGED UNFAIR LABOR PRACTICES
A Introduction
On March 1, 1971, the Union filed a petition seeking to
represent all production and maintenance employees, of
whom there were approximately 36 The election was held
on Friday, April 2, in a unit described as "all production
and maintenance employees including truckdnvers, lead-
men and janitors" but excluding all office clerical
employees, guards, and supervisors as defined in the Act
The tally of ballots showed that there 23 votes for and 22
against the Union On April 6, the Respondent filed
objections to the election The Board rejected the objec-
tions and on July 21, 1971, certified the Union Under date
of July 28, Robert Welman, district organizer for the
Union, wrote to the Respondent requesting several items of
information in order that it might "intelligently present to
and discuss with you a complete list of contract proposals "
The Respondent furnished the information Under date of
August 16, Wellman wrote to Banahan thanking him for
furnishing him the information and requesting "that all
working conditions remain in a status quo position
including all fringe benefits and that no layoffs be made
outside the line of seniority" pending a meeting between
the parties On the same date, the Union addressed another
letter to Banahan noting that the Respondent had
discontinued the regular morning coffeebreak for female
employees, and that since this happened between the
election and the issuance of the certification of representa-
tives, the Union noted that "the affected employees had no
opportunity to bargain on the issue," and requested
immediate reinstatement of the morning coffeebreak
Under date of September 6, Wellman addressed the
following letter to the Respondent
On several occasions we have received reports of
acts of harassment against certain employees in the
Bargaining Unit After investigating some of these
complaints, we find that this problem does merit your
attention
We respectfully request that the company cease and
desist these tactics of harassment , immediately
We further point out that since all employees are
entitled to representation, that opportunity for repre-
sentation, be provided in all cases of disciplinary action
whether oral or written
These requests are made at this time in an effort to
improve and maintain good relations between the
involved parties
In a separate letter also dated September 6, George Martin,
recording secretary of the Union's Canton Local 7-450,
stated that the following employees had been selected for
the indicated offices
Chairman-Kenneth Marshall
Vice Chairman-Frances Ammond
Secretary-Robert Cale
Martin further advised that these officers would serve as a
bargaining committee for the unit and within a short
period the Union would request a collective-bargaining
meeting
On August 23, counsel for the Respondent replied to the
Union's request concerning restoration of the coffeebreak
for female employees, stating that it would be unlawful to
do so He referred to a notice dated June 14 which in
substance stated that the United States District Court had
held that Ohio female employees' protective laws were in
conflict with Title VII of the Civil Rights Act of 1964 and,
accordingly, beginning June 14 "there will no longer be a
morning rest period for women That rest period has been
in effect only to comply with the now invalid Ohio law "
Counsel continued that he had advised the Respondent
"that they cannot reinstate the morning coffee break for
women only since this would be a violation of Federal
Law I have also advised the Company that they cannot
extend their coffee break to male employees to eliminate
discriminatory treatment, since this would also be a
violation of Federal Law If the Company extended the
coffee break to male employees unilaterally, I am certain
you would complain that we had refused to bargain on the
issue and were in some way extending a benefit to
undermine the representation of the Union "
B Interference, Restraint, and Coercion
Gertrude Miller, who voluntarily left her employment in
June, testified that in May Banahan came to where she was
working with four other employees At the time, she was
talking to another employee but continuing to work
Banahan, she testified, told them if they "were talking
about the Union, he would get nd of all five of us on the
line and replace us all " Concerning this incident, Banahan
testified that he knew "where it came from" and stated that
he had on that occasion told the employees "if they didn't
quit their gabbing and go back to work, he would relieve
all five or four or whatever " Counsel for the General
Counsel contends that Banahan's statement was violative
of Section 8(a)(1) because, accepting Miller's testimony, it
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demonstrates he conditioned the discharge upon the
employees' talking about the Union
Shelly Giaquinta, who had been employed since April
1971 and worked on the tables labeling cans, testified that
her aunt, Venon Horsely, who was employed as an
overseer, came to her shortly after September 1 and asked
her to sign a paper which was captioned "We, the
undersigned, do not want to belong to the Union" She
refused to sign Later, Horsely came back and asked her
what she had thought about the matter and reminded her
that she had been instrumental in getting herjob and said
that it was with the understanding "that you would not
belong to the Union " She further stated, according to Mrs
Giaqumta, that if she did not sign the paper Horsely would
have her fir( d Shortly before this, but on the same day,
Mrs Giaquinta had had a conversation with her supervi-
sor, William Hohler After the conversation between
Horsely and Mrs Giaquinta, Hohler, who had overheard
Mrs Giaquinta and Horsely, asked what had been going
on and Mrs Giaquinta told him what Horsely had been
talking about and in addition told him that she would not
sign the paper Hohler then stated, so Mrs Giaquinta
testified, that "if he heard anymore talk about the Union,
he would have Tom Banahan fire me " This incident
occurred shortly after September 1 when the negotiating
committee had been elected 1
Foreman Hohler denied that he had stated he would
"fire" anyone if he heard anymore union talk Hohler gave
the following testimony with respect to this incident
Q It has been testified that you told her that, if you
heard anymore union talk, you will have all the people
fired by Mr Banahan Is that true
A No I never mentioned the word "fire" about
anybody
It should be noted that the record quite plainly shows that
Mrs Giaquinta had testified only that she herself was
threatened with discharge, whereas counsel for the Res-
pondent did not state her testimony accurately in directing
the above question to Hohler It seems apparent, therefore,
that Hohler in his testimony did not deny the threat
specifically as to Mrs Giaqumta, but merely denied using
the word "fire "
Under date of August 20, Marshall , whose termination
will be discussed hereafter , was given a warning notice
stating that it was "a final warning" following two verbal
notices concerning lateness and absence, and that addi-
tional violation would result in dismissal Marshall denied
that he had had two earlier warnings He testified that the
afternoon after he received the notice he saw Supervisor
Hohler and "asked him did he know about the slip I
received and he said he knew about it and said this
wouldn't have happened if I hadn't been at the union
meeting the other night " Another employee, Gary Rohrer,
a polyester mixers helper, was absent from work on
October 25 and 26 because his wife was in labor He went
to work on October 27 and saw Banahan, who chided him
for not repotting He was asked to, and did, sign a warning
1 Sandra Lee Mercier who had worked for the Respondent from May
19 1971, until January 12 1972 testified that she overheard the foregoing
conversation between Mrs Giaquinta and Foreman Hohler and related that
notice He testified that previously he had not been warned
or required to sign a warning notice
The complaint alleged that on or about November 4,
Supervisor Morris announced and implemented restric-
tions on relief periods for machine operators Dons
Sandor, a machine operator , testified that on November 4
Moms, who had just been made a supervisor , instructed
the employees not to go to the restroom in pairs but to go
when a machine was down or in need of being filled
Frances Ammond , also a machine operator, and vice
chairman of the negotiating committee , attended a negotia-
tion session on November 4 and, after learning of the rule
changes instituted by Moms, spoke to him about the
matter Morns testified that he called the people in his tube
department together and explained the rules to them He
told them it was desired that unnecessary breaks be
eliminated , and that the breaks would be confined to 5
minutes, prior to a tube machine being filled or when a
machine broke down According to Moms, he had been
told by Banahan to issue the instruction about the
restroom breaks
C The Layoff and Termination of Kenneth
Marshall
Marshall, a young man of 21, began working for the
Respondent on January 4 and was terminated October 25
He worked under the supervision of Hohler As stated
above, he was selected as chairman of the Union's
negotiating committee He signed an authorization card on
February 27 He also acted as the Union's observer at the
April2 election
When Marshall started to work, as a towmotor operator
and materials handler, he was told that his rate of pay
would be at least $2 an hour, however, when he received
his first paycheck he calculated that he was only receiving
$1 70 an hour He then went to see Supervisor Hohler, who
took it to Superintendent Banahan Marshall told Hohler
that he could not afford to work for $1 70 an hour and that
he would have to quit Banahan told him there had been a
mistake made and that Marshall "was too good a worker
and he didn't want to lose me and the imstake would be
corrected " His next paycheck was for $2 25 an hour plus
$30 80 backpay Thereafter, he received $2 25 per hour
Marshall was absent on Wednesday , August 18, and also
the following day because, so he testified, he had a
migraine headache The union meeting was scheduled on
the night of August 18 During the afternoon of August 18,
Welman called him and told him that it was essential that
he be at the meeting, and he did attend He testified that
the following day he felt even worse, and that he called to
report he would not be in on both days He reported to
work on Friday, August 20, and discovered that his
timecard was not in the rack He then went to see Foreman
Hohler to inquire about this circumstance and he was told
that he had to see President Maggiore before he could go
to work He did see Maggiore between 9 30 and 10 a in
Maggiore , so he testified , stated that he had missed too
many days and was tardy too many tunes and he needed
Hohler stated that if Mrs Giaquinta did not quit talking union he would see
that she was discharged
U S CHEMICAL AND PLASTICS DIV 1137
someone there everyday, as his work was important
Maggiore further stated, so Marshall testified, that he "had
me in mind for a supervisory job that was opening up in
the back of the plant and it was essential that I be there
every day " Marshall asked Maggiore if his work was
satisfactory and Maggiore responded "when your work
isn't satisfactory, I will let you know " He then left the
office and asked Foreman Hohler for his timecard, Hohler
went to see Maggiore and then came back and said that
Maggiore did not need him that day and that he could go
home and report back to work Monday morning and then
see Plant Superintendent Banahan He then left the plant
On the way, he discovered that his car had no brakes and
ran into the back of a car He was cited and had to go to
court the first thing Monday morning and was fined $1
and court costs for mechanical failure He testified that he
notified the Company that he would not be in on time, but
he did come in at noon When he arrived at the plant, he
waited for Banahan to come back from lunch, who told
him substantially the same thing Maggiore had stated,
namely, that he had been late too many times and that the
Company had him in mind for a supervisory job opening
in the back shop 2
In the afternoon, Hohler told Marshall, according to the
latter, that he would not have been given the warning slips
if he had not gone to the union meeting the preceding
week
After being elected chairman of the negotiating commit-
tee on September 1 and prior to his discharge, Marshall
undertook to take up with management problems of
employees About 2 weeks before being dismissed, he took
up a pay problem of employee Rohrer, who had been
receiving $1 70 an hour and then was transferred to a
higher paymgjob on which other employees were receiving
$2 an hour According to Marshall, Rohrer had talked with
management several times about the matter and was told
that the reason he did not receive thee higher rate was
because of the wage-price freeze Marshall testified he
knew that this was not so because he had read a bulletin in
which it was stated that if an employee was promoted he
should receive the higher rate for the job to which he was
promoted Marshall spoke to Superintendent Banahan as
well as Foreman Hohler about this matter Marshall
testified that, when he informed Banahan of his point of
view, Banahan "became infuriated and told me it was none
of my business," and that he had talked to Mr Rohrer on
the phone Banahan further stated, according to Marshall,
that he had asked his attorney about the matter and the
latter had stated that his hands were tied until November
13 On the same occasion, Marshall spoke to Banahan
about his own and other employees' insurance As to
himself he had "put in for family coverage some time ago"
and had not received it He was concerned, he testified,
because his wife was expecting a baby He also discussed
the problem of a Mr and Mrs Giovanm who were both
employed the same day and had not received their
insurance cards With respect to the Giovanni's problem,
Banahan stated the matter was none of Marshall's
business
On October 25, Marshall was 30 minutes late for work
and when he went to the timecard rack his timecard was
missing He then went to Hohler's office to ask about the
matter and Hohler found it on his desk Banahan then
appeared and stated that he wished to talk to Marshall
Hohler then left and, so Marshall testified, Banahan stated,
"Well, Ken, you are late again Of course, this is it You
can come back and pick up your check this afternoon
When you do, don't walk through the plant Come to the
front office and get your check " After he received his
check, Marshall asked the receptionist if he could speak to
either Maggiore or Banahan She stated that they were not
available He then saw Controller Rand, who came out
into the inner office and asked if he knew about his
termination Rand stated that he did and said, so Marshall
testified, "Yes It is too bad " He then asked Rand if he
thought it was fair, and finally Rand stated, "We both
knew it was coming " Rand also told Marshall, according
to the latter, that it was evident "they were out to get me
and he also told me that I wouldn't have a problem getting
another job and that, if I needed a reference, to have them
call him and he would give me a good reference "
Marshall testified that before he acted as observer in the
Board election management personnel treated him in a
cordial manner but that after the election "they ignored me
in the morning " About 2 weeks before the election, an
employee named Carmen Adma asked him to talk with the
women in the shop to vote against the Union and
attempted to persuade him that he would advance to a
better job if he worked against the Union Adina also said
that if Marshall repeated what he had said to him "you can
end up at the bottom of the river with cement at your feet "
Marshall reported this to Banahan, Hohler, and Maggiore
Immediately after the election, two truckdrivers and Adina
called him names Marshall said it was "apparent they
were angry because the Union had won the election "
Later Marshall called his mother to come pick him up and
Banahan came into the shipping department and "told me
he would escort me to the gate, but, after I got out, he
didn't care what happened to me " Hohler, who was
locking up the plant, told Marshall, "In a way, Ken, I am
glad the Union won the election " Marshall asked why and
Hohler replied, "Because, if the Union had lost, it would
have meant your job "
On cross-examination, Marshall testified that he called
in on August 18 and 19 and believes that he spoke to
Hohler and advised that he would not be in because he had
a migraine headache
Plant Manager Banahan testified that when he assumed
his position in June 1968 the Respondent was experiencing
a serious problem with absenteeism In consequenbie, he
posted a notice stating that as of January 1 a daily record
would be kept of attendance and this record "would be a
main factor for future pay increases and discharging of
personnel [sic] " Since becoming plant manager, Banahan
has discharged a considerable number of employees for
2 Marshall was married on July 10 and had permission from Maggiore to afternoon handed him a slip of paper and asked him to sign it This was a
be off on the 2 days before and 3 days after the wedding After Banahan final warning that further violation of rules relating to tardiness would result
had spoken to him and Marshall had gone to work, Banahan in the in dismissal
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
absenteeism According to Banahan, it is important that
machine operators and material handlers maintain good
attendance records as compared with other employees He
testified that he had given verbal warnings to Marshall
between March and August, his attendance record prior to
March had been considerably better When Banahan
returned from his vacation on August 23, he gave Marshall
a written warning to the effect that it was final notice, that
if further violation occurred he would be terminated
According to Banahan, he interviewed Mrs Giaquinta,
as well as all other employees hired , and President
Maggiore does not become involved in the hiring of
employees He stated that he never told anyone that they
would be fired if they talked about the Union, nor did he
ever give any instructions with respect to talking on
company time He did give instructions that employees
should talk union business at breaks and before the
workday started or after the day's end, but not during
working hours He denied that he told a group of
employees, as testified by Gertrude Miller, that if they were
talking about the Union he would get rid of them all He
did, however, tell a group that if they did not "quit their
gabbing and go back to work, I will relieve all five or four
or whatever "
Supervisor Hohler testified that Marshall did not call
him on August 18 or 19 to report off, in fact, Hohler stated
that he had never talked to Marshall on the telephone at
any time Hohler further denied that he had told Marshall
that he was glad the Union had won the election because if
it had lost Marshall would have been terminated Nor did
he tell Marshall on August 20 or any other time that if
Marshall had not been at a union meeting he would not
have received the warning notice and a disciplinary
suspension He further denied the testimony of Mrs
Giaquinta that he told employees that if he heard any more
union talk he would have Banahan fire them Employees
used to congregate and talk about various subjects and
Hohler would break it up and tell them to get to work
Hohler acknowledged that Marshall was a good worker
Supervisor Morris testified that Banahan told him to
explain the rules concerning going to the restroom to the
employees in his tube department He told them that the
Respondent wanted to eliminate unnecessary breaks and
that they could go to the restroom when the tube machine
was being filled for a period of 5 minutes or when a
machine broke down and that two or three should not go
at the same time
President Maggiore testified that Marshall did not call in
on August 18 or 19 nor did anyone report to him that
Marshall had done so When Marshall returned to work on
August 20, Maggiore called him into the office and
attempted to impress on him how important it was that all
of the employees show up every day He related that
Marshall said he was very sick in bed and in response to a
question why he had not called in Marshall said "he had
been unable to get out and that he had asked his wife to
phone and that she had attempted to phone for 2 days and
that our line was busy " According to Maggiore, the
Respondent has three lines on a rotary system "and it is
very seldom loaded 11
D Conclusions
Upon consideration of the entire record and the able
briefs filed by counsel , I come to the conclusion that in
substantial part the evidence sustains the allegations in the
complaint We will first consider the discontinuation of the
morning coffeebreak on June 14
On June 14, a few days after the Union had held an
informational meeting , the Respondent posted the follow-
ing notice
We have been advised by our attorney , that the
United States District Court has held the Ohio female
employee protective laws to be in conflict with Title
VII of the Civil Rights Act of 1964
Therefore , beginning June 14, 1971, there will no
longer be a morning rest period for women That rest
period has been in effect only to comply with the now
invalid Ohio law
Section 4107 42 of the Ohio Revised Code provides,
among other things, that female employees "shall be
entitled to not less than thirty minutes for meal time" and
if an establishment finds it impractical to provide a
suitable lunchroom "female employees shall be entitled to
not less than one hour for meal time during which hour
they shall be permitted to leave the establishment " It also
provides that a female employee must be given a meal
period of at least a half hour after not more than 5 hours of
continuous labor (Sec 4107 46) In reply to the Union's
protest concerning discontinuation of coffeebreaks, the
Respondent represented that if it extended coffeebreaks to
men the Union probably would have asserted that such
action was an unlawful refusal to bargain The record
plainly demonstrates that the jobs occupied by women in
the Respondent 's plant , namely that of machine operators
and assemblers, were the more confining Thus it appears
that if there was disparate treatment with respect to
coffeebreaks , it was on the basis of job classification rather
than sex and, therefore, would not be in conflict with
Equal Employment Opportunity laws Thus it appears that
Respondent was in fact depriving employees of benefits
prior to the certification of the Union and in effect
advising the Union that after the certification it could
bargain about getting the benefits restored In view of the
insubstantiality of the Respondent 's defense , considered in
the light of the nature of the act and the timing , I find that
the discontinuation of coffeebreaks was the withdrawal of
a privilege in reprisal for the union activity of the
employees , and accordingly, was violative of Section
8(a)(1) of the Act
I was not favorably impressed with the reliability of
Superintendent Banahan as a witness, and therefore I am
persuaded that the testimony of Gertrude Miller to the
effect that Banahan told her and four other employees that
if they were talking about the Union he would get rid of all
five of them and replace them all is credible I therefore
find that this threat of discharge violated Section 8(a)(1) of
the Act I also accept the testimony of Mrs Giaquinta that
Foreman Hohler told her that if he heard "any more talk
about the Union, he would fire me " In this connection, it
is significant that Mrs Giaquinta's aunt , Horsely, had
asked Mrs Giaquinta to sign an antiunion petition and,
when she refused, told her that she had assisted in
U S CHEMICAL AND PLASTICS DIV 1139
obtaining her a job with the Respondent on the under-
standing that Mrs Giaquinta would not belong to the
Union Hohler, having overheard this conversation, ques-
tioned Mrs Giaquinta and, after she had related what had
occurred and stated that she had refused to sign the
antiunion petition, remarked that if he heard any more talk
about the Union he would have Banahan fire her Mrs
Giaquinta's testimony is corroborated by Sandra Lee
Mercier and Hohler's testimony on the point is equivocal
at best Moreover, it is to be noted that Hohler, so far as it
appears, did not reprimand Horsely for her part in the
conversation or for her antiunion activities Nor did
Horsely testify Accordingly, I find that Hohler made the
statement on this occasion and that it was violative of
Section 8(a)(1) of the Act
Concerning the layoff and eventual termination of
Marshall, I come to the conclusion that the 1-day
disciplinary layoff given him in August was not motivated
by antiunion considerations, however, I am persuaded that
his termination on October 25 was so motivated My
reasons for so concluding follow I have no doubt he was ill
with a migraine headache on August 18 and 19 He
testified that he did in fact telephone the plant on both
days to report his need to be off, at first stating that he
talked to Banahan and then, being reminded that Banahan
was on vacation that week, asserted that he spoke to
Hohler On the other hand, Hohler vigorously denied that
he had ever spoken by telephone with Marshall There
seems to be no doubt about the fact that when he did
report to work on Friday, August 20, his timecard was
missing and that Foreman Hohler told hum that he should
see President Maggiore before he could go to work When
he did see Maggiore, the latter told him that he had missed
too many days and that he had been tardy too many times,
and, in consequence, he was given a disciplinary layoff for
that day If in fact he had called in on August 18 and 19, it
would seem strange indeed that his timecard would be
missing when he came to work on the 20th On balance, I
am persuaded that he did not inform the Respondent of
the fact that he would be off on the 18th and 19th 3
The termination of Marshall on October 25 stands on a
considerably different footing This event came about 2
weeks after Marshall had met with Banahan on the
grievances of Rohrer and the Giovannis In both cases,
Banahan reacted with hostility and told Marshall that the
problems of other employees were none of his business It
is also to be noted that the termination came 2 days before
the scheduled negotiating meeting Marshall did not testify
as to the reason for his tardiness on October 25, but in this
connection he did relate that on occasion he was late
because of some mechanical defect in his 1954 automobile
which he was "restoring " Counsel for the General Counsel
in the posthearing brief argues that three named employees
had worse records of tardiness and absenteeism than
Marshall However, a review of the employment records
indicates that most of these instances were with permission,
in contrast to those of Marshall On the other hand,
3 I find it unnecessary to determine whether Marshall told Maggiore as
the latter testified that he and his wife had been unable to get through on
the telephone on its face this appears quite implausible
4 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
Marshall's employment record shows that he had not been
tardy or absent during October prior to the incident of
October 25 I credit Marshall 's testimony that Foreman
Hohler told him that if Marshall had not been in
attendance at a union meeting he would not have received
the warning notice and a 1-day disciplinary suspension
Admittedly, Marshall was a good worker On balance, I
very much doubt that his 30-minute lateness in reporting
on October 25 would in and of itself have caused the
Respondent to terminate him I come to the conclusion
that his membership in and prominent activity in behalf of
the Union was a moving factor in a decision to terminate
him Accordingly, I find that Marshall was discharged on
October 25 in violation of Section 8(aX3) and (1) of the
Act
CONCLUSIONS OF LAW
1 By discontinuing the coffeebreak for female employ-
ees, the Respondent engaged in an unfair labor practices
affecting commerce within the meaning of Section 8(a)(1)
of the Act
2 By questioning employees concerning their member-
ship in and activities in behalf of the Union, the
Respondent also violated Section 8(a)(1) of the Act
3 By terminating the employment of Kenneth Mar-
shall on October 25, 1971, the Respondent violated Section
8(a)(3) and (1) of the Act
4 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
5 By giving a disciplinary layoff to Kenneth Marshall
on August 23, 1971 , the Respondent did not violate Section
8(a)(3) and (1) of the Act
THE REMEDY
In order to effectuate the policies of the Act , I find it
necessary that Respondent be ordered to cease and desist
from the unfair labor practices found and from any other
invasions of the Section 7 rights of employees , and to take
appropriate affirmative action
Having discriminatorily discharged employee Kenneth
Marshall , I find it necessary that Respondent be ordered to
offer him full reinstatement with backpay , computed on a
quarterly basis plus interest at 6 percent per annum, as
prescribed in F W Woolworth Company, 90 NLRB 289
and Isis Plumbing & Heating Co, 138 NLRB 716, from the
date of the discharge to the date reinstatement is offered
Upon the foregoing findings of fact and conclusions of
law, upon the entire record and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended
ORDER4
Respondent, U S Chemical and Plastics Division,
ALCO Standard Corporation, Canton, Ohio, its officers,
agents, successors, and assigns, shall
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
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1 Cease and desist from
(a) Discharging or otherwise discriminating against any
employee for supporting Oil, Chemical and Atomic
Workers International Union, AFL-CIO, or any other
union
(b) Coercively interrogating or threatening any employee
about union support or union activities
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act
2 Take the following affirmative action which I find
will effectuate the policies of the Act
(a) Offer Kenneth Marshall reinstatement to his former
job or, if the job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole in the
manner set forth in the section of this Decision entitled
"The Remedy "
(b) Notify the said employee, if presently serving in the
Armed Forces of the United States, of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces
(c) Rescind its notice of June 14, 1971, discontinuing the
coffeebreak for female employees
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to determine the amount of backpay due
(e) Post at its premises in Canton, Ohio, copies of the
attached notice marked "Appendix "5 Copies of said
notice, on forms provided by the Regional Director for
Region 8, 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 notices are not altered, defaced, or covered by
any other material
(e) Notify the Regional Director for Region 8, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith 6
5 In the event that the Board s Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading Posted by
Order of the National Labor Relations Board shall be changed to read
Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board
6 In the event that this recommended Order is adopted by the Board
after exceptions have been filed this provision shall be modified to read
'Notify the Regional Director for Region 8 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
The National Labor Relations Board having found, after a
trial, that we violated Federal law by discharging and
threatening to discharge employees who engaged in union
activity
WE WILL offer Kenneth Marshall full reinstatement,
and pay him for the earnings lost as a result of his
discharge, plus 6-percent interest
WE WILL NOT discharge or discriminate against any
employee for supporting Oil, Chemical & Atomic
Workers International Union, AFL-CIO, or any other
union
WE WILL NOT threaten to discharge employees
because of their union or concerted activities
WE WILL NOT unlawfully interfere with our employ-
ees' union activities
US CHEMICAL AND
PLASTICS DIVISION ALCO
STANDARD CORPORATION
Dated By
(Representative) (Title)
We will notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of his right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service and the Universal Military Training and
Service Act
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 1695 Federal Office
Building, 1240 East Ninth Street, Cleveland, Ohio 44199,
Telephone 216-522-3725