American Greetings Corp.

National Labor Relations Board - Board Decisions

Dec 16, 1977

233 N.L.R.B. 1279 (N.L.R.B. 1977)

AMERICAN GREETINGS CORPORATION
American Greetings Corporation and United Steel-
workers of America, AFL-CIO-CLC. Case 9-CA-
10898
December 16, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On August 26, 1977, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in opposition to the General Counsel's
exceptions.
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, find-
ings,' and conclusions, 2 as modified herein, of the
Administrative Law Judge and to adopt his recom-
mended 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 Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
I The Administrative Law Judge, relying primarily on the demeanor of
the witnesses, found the testimony of alleged discriminatee Robert Banks to
be generally unreliable and, therefore, discredited Banks' testimony
whenever it conflicted with that of other witnesses. Thus, Banks testified
that Respondent Personnel Manager Richardson told him that "the
company did not need the Labor Relations Board." Banks further testified
that Supervisor Nolin made an obscene remark concerning Banks' wearing
of union buttons and also told Banks that he (Nolin) would disregard any
physical violence taken against Banks by other employees if Banks
continued to "run off at the mouth for being in the union." Banks also
testified that, on the night of his discharge, Nolin told him that, as long as
the principal stockholder of Respondent still owned most of the stock, he
(Nolin) would not have to take orders from any union. Richardson and
Nolin each testified that they did not make these statements attributed to
them by Banks, and although the Administrative Law Judge did not
specifically mention these denials, he generally credited both Richardson
and Nolin. We therefore find that Banks' testimony on these matters was
contradicted by that of other, more credible, witnesses.
The General Counsel has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In adopting the Administrative Law Judge's Decision, we do not rely
on his conclusion that "If the Respondent was embarked upon a course of
action to discharge union adherents for pretextual reasons it follows there
would have been others." The mere fact that an employer discharges one
233 NLRB No. 188
union adherent and not others is, in our view, insufficient to support a
finding that said discharge was nondiscriminatory. See Broyhill Company,
210 NLRB 288, 296 (1974).
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge: This matter
came to hearing before me on May 12, 1977, at London,
Kentucky, upon the General Counsel's complaint which
alleges that on or about June 18, 1976, the Respondent
discharged Robert E. Banks in violation of Section 8(a)3)
of the National Labor Relations Act, 29 U.S.C. sec. 151, et
seq. It is also alleged that the Respondent engaged in
certain activity violative of Section 8(a)(1) of the Act.
Upon the record as a whole,' including my observation
of the witnesses, briefs, and arguments of counsel, I hereby
make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
The Respondent is an Ohio corporation engaged in the
manufacture of greeting cards and related products at its
Corbin, Kentucky, facility. At that facility, it annually
receives goods, products, and materials valued in excess of
$50,000 which are shipped directly from points outside the
State of Kentucky. The Respondent admits, and I find,
that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO-CLC, is
admitted by the Respondent to be, and I find is, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Factual Outline
Richard Banks was first employed by the Respondent in
July 1975 and quit for personal reasons in September of
that year. At the time he quit, he had been promoted to and
was doing the job of a material handler on the night shift.
His immediate supervisors were Donald Storm and Sally
Smith.
While there is some conflict in the testimony, it appears
that Banks had some personal difficulties with Smith.
However, he was generally considered to be a competent
employee and, upon his termination, was given a satisfac-
tory evaluation including a comment by Storm that the
Company would recommend him if called upon and would
rehire him.
In April 1976, the Respondent's personnel manager,
Richard M. Richardson, in fact contacted Banks and asked
him if he would like to come back to work on the second
shift where his supervisors would be Donald Nolin and
Sally Smith. Banks agreed and was taken back on April 19,
1976, as a new employee.
t The Respondent's motion to correct the transcript in certain respects.
having been unopposed and appeanng appropriate, is hereby granted.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Richardson testified that he sought out Banks for
reemployment because there was an opening in that
department caused by the transfer of another employee to
the day shift. A Mr. Stida, referred to by Richardson as a
senior supervisor, had been impressed with Banks' work
during his first tour of employment.
On May 12, Banks was excused from work to take his
sister to a doctor in Lexington, Kentucky.
Banks was also absent on May 21 and 22, the 2 days
before he left for National Guard summer camp. He
apparently called in sick on May 21 and 22 and those
absences were likewise "excused."
Nevertheless, on June 7, his first day back from summer
camp Nolin gave Banks a warning as a result of having
missed 3 workdays in the month of May. Nolin testified
that the fact that the absences were excused was immateri-
al. Each employee who misses as much as 3 days a month
is given a warning because such a pattern of absenteeism
amounts to more than a month a year of lost time.
On June 17, Nolin gave Banks an "informative message"
for unsatisfactory job performance with an indication on it
that he would again be reviewed on July 8.
On June 18, Nolin discharged Banks for loafing, that is,
standing at one machine for more than a half hour without
doing anything.
The union activity here commenced about mid-May.
Banks signed an authorization card and apparently
attempted to get some other employees to sign as well.
Banks signed his card on May 17 and within a day or two
started wearing union buttons. He wore union buttons at
work from that point until his discharge.
Although the record is quite sketchy on the organization-
al campaign generally, it is noted that there are approxi-
mately 1,100 employees at the Respondent's Corbin
facility. An election was held on September 9 with a
majority of eligible voters voting for no union. There were
apparently no objections to conduct affecting the results of
the election, nor any allegations of unfair labor practices
prior to the filing of the election petition other than those
set forth in the complaint herein.
B. Analysis and Concluding Findings
I. The discharge of Robert E. Banks
The principal issue in this matter is whether or not Banks
was discharged on June 18, 1976, in violation of Section
8(a)(3) of the Act. Thus the issue is whether Nolin, and
hence the Respondent, was motivated by Banks' union
activity when he effected the discharge or was motivated to
discharge Banks in order to discourage union activity in
general.
It is fundamental that an employer may discharge an
employee for good reason, bad reason, or no reason at all
except for that employee having engaged in union or other
protected activity or to discourage union or other protected
activity. Thus, the inquiry here concerns whether the
Respondent was in fact motivated by Banks' union
activity, or the union activity generally. In short, the
question is whether there was some causal connection
between the union activity and Banks' ultimate discharge.
While motive must be proved by a preponderance of the
credible evidence, and the General Counsel has the burden
of doing so, direct evidence is not required. The General
Counsel can prove the unlawful motive, the causal
connection, by inference from the surrounding facts and
circumstances. Shattuck Denn Mining Corp. v. N.L.R.B.,
362 F.2d 466 (C.A. 9, 1966).
Given the surrounding facts and circumstances, can it
reasonably be inferred that but for his union activity Banks
would not have been discharged? That is, if Banks had not
been involved in the organizational activity or had there
been none, would Banks have been fired when he was? An
analysis of the total factual situation leads me to conclude
that the evidence preponderates in favor of finding that
Banks would have been discharged absent any union
activity. I conclude that neither his union activity specifi-
cally, nor the organizational activity in general, had any
causal relation to Nolin's determination to fire him.
The General Counsel bases his case in this matter
principally upon the timing of the discharge vis-a-vis the
union activity and the argument that the reason offered for
Banks' discharge was pretextual.
While timing is important, as is an unreasonable cause
advanced for the discharge, they are not determinative.
Other factors must be considered as well, in reaching an
inference as to the motive. For instance, unexplained is
why Banks was the only employee of the Respondent who
was discharged for an allegedly pretextual reason. Banks
was not shown to be the leader of the organizational
campaign. At best, he wore some union buttons and passed
out a few cards. Banks did engage in union activity, but it
cannot be concluded he did so any more than anyone else.
If the Respondent was embarked upon a course of action
to discharge union adherents for pretextual reasons it
follows there would have been others. That Banks alone, of
the several hundred employees who favored the Union
with their vote, was discharged negates the inference of an
unlawful course of conduct.
Demonstrable union animus tends to infer unlawful
motive. However, absence of union animus cuts the other
way. Counsel for the Respondent stipulated that they did
not want the Union to win the election and some
documentary evidence submitted indicates that the Re-
spondent engaged in a campaign against the Union. This,
however, does not prove that the Company's animus was
so strong as to infer that it would engage in unfair labor
practices. Indeed, the only unfair labor practices alleged
with regard to this entire matter are those relating to Banks
and occurring in a short period of time and apparently
before the election petition was filed.
There is no showing of any kind of design on the part of
the Respondent to commit unfair labor practices or
discharge union adherents. Thus, if Banks in fact was
discharged in violation of the Act, it was because Nolin
was so motivated. Of course, the Respondent is liable for
Nolin's actions and such a motive on his part would bind
the Respondent. But to establish such an unlawful motive
requires proof.
There were other employees under Nolin's direct super-
vision who wore union buttons and presumptively were
known to be active in or at least supporters of, the Union.
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AMERICAN GREETINGS CORPORATION
None of them, as far as this record shows, were discharged
or had pretextual cases of discipline built against them.
If Banks' testimony were credited in its entirety, then
some statements made to him by Richardson and Nolin on
the day before and the day of his discharge would tend to
establish animus and imply an unlawful motive. Thus,
Banks testified that Richardson asked him if he had been
to the National Labor Relations Board and made some
comment about the Company not needing the Labor
Board. Banks also testified that Nolin told him to take the
union button and "stick it up his -. " Finally, when Nolin
discharged Banks, he stated that as long as the principal
stockholder of the Company still owned most of the stock
he would not have to take orders from any union.
My observation of all the witnesses and an evaluation of
the testimony, some of which was uncontested, lead me to
conclude that Banks was essentially unreliable and should
not be credited where there was a direct conflict on
material issues.
Critical in this regard is Richardson's testimony that
shortly after the union activity began, Banks came to him
and offered to be a "spy" and report back who favored the
Union and the like. Richardson demurred and nothing
further occurred. This event, however, undenied by Banks,
tends to show his basic unreliability. Further, I found
Richardson to be a generally credible and straightforward
witness.
Then there is a substantial amount of conflicting
testimony concerning events that occurred during Banks'
first tour of employment, particularly as it relates to his
problems with Supervisor Sally Smith. Banks generally
denied that he had many of these problems whereas
Richardson, and Michael Storm, his supervisor during this
term, testified credibly to the contrary.
Whether Banks had problems during the first tour of
employment is of course irrelevant as to the material issues
here. In fact, the Respondent did give him a good
evaluation when he quit and did hire him back. However,
the conflicting testimony, which I generally resolve against
Banks, tends to undermine his reliability as a witness.
A confusing bit of testimony relates to whether Banks in
fact contacted the Board in May. This fact, if it occurred
would seem to be favorable to Banks, and conversely not
favorable to the Respondent if Nolin knew about it. Banks
denied that he advised Nolin or anybody else that he in
fact had gone to the Board in May. On the other hand,
Nolin testified that Banks told him that on May 12, when
he took his sister to Lexington, he filed charges against
Nolin and that Nolin would be hearing from the Board
within 2 weeks or so.
I resolve this against the event having occurred, believing
that something along these lines may have taken place
following Banks' discharge but not before. The point here
is that Nolin, whose testimony in other respects is
diametrically opposed to Banks and who to a large extent
is the principal in the matter, in attempting to be forthright
in fact testified to the existence of a detrimental fact. Such
in my view tends to enhance Nolin's veracity, if not his
recall.
Nolin testified that a number of employees complained
about Banks. Those employees whom he named were
called by the General Counsel in rebuttal and each denied
that they had complained to Nolin. The matter of
"complaining" or not is generally a rather vague and
conclusionary term. To that extent, therefore, it is not
particularly meaningful that there would be a conflict
between Nolin's testimony and that of the other employees.
There is other conflicting testimony, some on immaterial
issues. For instance, ex-employee Margaret Hamblin
testified that Banks was often around her machine
bothering her and trying to get her to sign a union card.
And he once asked her to go out with him. Banks testified
to the contrary, that he did not ask her to sign a union card
at her machine, that he did not bother her, and that she
asked him to go out with her even though she is married.
The precise truth of this is not so important as the fact that
something like this occurred shortly prior to Banks'
discharge. Such tends to establish that Banks was the type
of employee who, in making his rounds with materials,
would not be totally diligent. And this is the type of thing
which a supervisor could observe critically.
Given these factors, I am constrained to conclude that
the evidence does not establish a reasonable inference that
Nolin determined to discharge Banks on June 18 because
of his activity on behalf of the Union or to discourage
union activity. Absent an inference, or direct evidence, of
an unlawful motive, the fact of Banks' discharge cannot be
found to be an unfair labor practice.
It might be noted further in this regard that neither the
warning for absences on June 7 nor the "informative letter"
of June 17 were alleged by the General Counsel to be
discriminatorily motivated.
2. The 8(a)(1) activity
a. Threats
It is alleged that on June 15 Nolin threatened an
employee with discharge for engaging in union activities.
According to Banks, Nolin said that if he caught Banks
distributing union literature in the break area, even on his
own time, he would march him over to the timeclock. If
this occurred it would be a threat in violation of Section
8(aX)(1). However, Nolin denies that such a thing occurred.
Since not even Banks claims that he in fact was passing out
union literature, I find it unlikely that this actually took
place. Absent Banks passing out literature there would be
no basis for it. Accordingly, I find this allegation has not
been established by a preponderance of the credible
evidence.
b. Disregarding physical violence
It is also alleged that on or about June 15, apparently
during the same time, Nolin informed an employee (Banks)
that he would disregard any physical violence against him
by other employees if he continued to "run off at the
mouth for being in the union." The General Counsel
argues that there is a section in the Company's rules that
physical violence would lead to immediate discharge
"except in self-defense." The General Counsel then reasons
that when Nolin used the word "self-defense" he implicitly
was telling Banks that, if another employee should hit
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Banks, Nolin would not discipline the other employee. I
find this reasoning somewhat strained and in any event, as
with these other matters, I do not feel that Banks' version
of this should be credited over Nolin's. Accordingly, I find
that this allegation has not been sustained.
c. Denying employees pay raises and promotions
It is further alleged that on June 18 Nolin informed an
employee that he was denying that employee a pay raise
and a promotion because of his union activity. There is no
evidence in the record to support this allegation and
accordingly it has not been sustained.
d. Interrogation by Richard M. Richardson
It is finally alleged that the Respondent violated Section
8(a)(1) by interrogating an employee concerning his
communication with the National Labor Relations Board
on June 18. Banks testified that Richardson asked him
whether he had been to the Board. Richardson denied any
such event occurred. I find it quite improbable that
Richardson would have in fact made such a statement,
particularly in view of the fact that any contact with the
Board was yet to come in time. It appears from the totality
of the record that Banks did not have any contact with the
2 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.
Board or make any statements to that effect until sometime
subsequent to his discharge. Given the probable unreason-
ableness of such an inquiry by Richardson and generally
crediting his testimony over Banks, I conclude that this
event did not happen as testified to by Banks.
In any event, I conclude that in this respect, as well as
the others, the General Counsel has not supported the
allegation by a preponderance of the credible evidence and
therefore conclude the allegation has not been sustained.
THE REMEDY
Having found that the General Counsel has failed to
establish the substantive allegations of unfair labor practic-
es by a preponderance of the credible evidence, I shall
recommend that the complaint be dismissed in its entirety.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this matter, and pursuant to
Section 10(c) of the Act, I hereby make the following
recommended:
ORDER2
It is hereby ordered that the complaint be, and the same
hereby is, dismissed in its entirety.
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.
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