Charge Card Association

National Labor Relations Board - Board Decisions

Feb 5, 1980

247 N.L.R.B. 835 (N.L.R.B. 1980)

CHARGE CARD ASSOCIATION
Charge Card Association and Angela Jones and
Sandra J. Clark. Cases 7-CA-14754 and 7-CA-
15092
February 5, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On September 4, 1979, Administrative Law Judge
Ivar H. Peterson issued the attached Decision in this
proceeding. Thereafter, Respondent and the General
Counsel filed exceptions and supporting briefs.
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, and
conclusions2 of the Administrative Law Judge 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 recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Charge Card Association,
Detroit, Michigan, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order.
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not overrule an
administrative law judge's re.slutions 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 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
I The Administratise Law Judge concluded that Respondent's "predomi-
nant" reason for requiring employees to submit doctors' certificates and
accept probationary status as a condition for returning to work was that they
had engaged in concerted activity. Upon reviewing the record, particularly
noting the absence of any established policy requiring sick employees to
submit a doctor's note after a I-day absence. and also noting Respondent's
remarks at reinstatement meetings on January 23-24, we find that the
concerted activity was Respondent's only reason for instituting the discrimi-
natory working conditions.
The General Counsel excepts to the Administrative Law Judge's failure to
find that Angela Jones was constructively discharged when she failed to
return to work on January 24 as a probationary employee. We find it
unnecessary to pass on the General Counsel's exception inasmuch as the
remedial relief would be the same as that already afforded by the Administra-
tive Law Judge's recommended Order that we have adopted. See the
Administrative Law Judge's recommended Order at par. 2(a). Thus. we have
adopted the Administrative Law Judge's finding that Respondent unlawfully
required Jones, and nine other strikers. to submit a doctor's certificate as a
condition for returning to work on January 11, 1978. Consequently.
Respondent must make an unconditional offer of full reinstatement to all
strikers. including Jones. and must make all strikers whole for any losses
247 NLRB No. 119
suffered from January I I. 1978. until a valid offer is made. Respondent's offer
to have strikers return to work only as probationary employees on January
23-24. 1978. does not constitute a valid offer and therefore does not serve to
toll Respondent's obligation to make whole Jones and the other employees as
provided by the Order.
DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Administrative Law Judge: The
hearing in this case was held on June 7, 21, 22, and 23, 1978,
in Detroit, Michigan, based upon the complaint issued by
the Regional Director for Region 7, on February 28, 1978,
which, in turn, was based upon a charge filed by Jones on
January II, later amended, against Charge Card Associa-
tion, herein called Respondent. In substance, the complaint
alleges that Respondent, from about January 12-24, 1978.
by its agent J. M. Collins and others, imposed discriminatory
working conditions upon Jones and nine other named
employees "in the face of unconditional offers to return to
work after the cessation of the work stoppage," which
occurred during the months of July through December 1977,
and was in support of an organizational campaign of the
Union. The complaint further alleged that on or about
January 10, 1978, the employees of Respondent engaged in a
concerted work stoppage protesting and seeking to improve
their working conditions. The complaint also alleged that, in
or about December 1977, Respondent, by its agents Mary
Litwin and Patricia Walker, coercively interrogated employ-
ees regarding their activities in support of the Union and
that, in December 1977, Walker threatened an employee
that Respondent would close its business in the event the
Union succeeded in its organizational campaign. The com-
plaint further alleged that from about January 12 until about
January 24, 1978, C. W. Nagy, Jean Dash, and other of
Respondent's agents, refused to reinstate Jones and nine
other named employees "in the face of unconditional offers
to return to work after the cessation of the work stoppage."
Finally, the complaint alleged that on or about January 24,
and thereafter, Respondent, by its agents Collins and others,
imposed discriminatory working conditions upon Jones and
the employees previously named "by placing them on a 180-
day probationary period and thereafter treating them as
probationary employees." The complaint also alleged that,
as a consequence of the actions previously described,
Respondent constructively discharged Jones and the other
named employees on named dates between January 19 and
February 7, 1978. Finally, the complaint alleged that by the
foregoing conduct, engaged in by Respondent because of and
in retaliation for the work stoppage engaged in by the
employees on January 10, Respondent engaged in conduct
violative of Section 8(a)(1) of the National Labor Relations
Act, as amended.
In its answer, received on June 2, Respondent admitted a
number of allegations, including the persons named as
occupying supervisory positions, denied the remaining alle-
gations of the complaint, averred that Clark "was suspended
for violating company rules while having one of the worst
attendance records for being absent and tardy and in
violation of company rules and regulations pertaining to
presenting doctor certificates when being absent for illness,"
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and also denied that Clark "was suspended for any activities
pertaining to a work stoppage that previously occurred."
Respondent's answer further denied the remaining allega-
tions of the complaint and affirmatively alleged that "at no
time has any of said employees been discharged or construc-
tively discharged."
Since the close of the hearing both counsel for the General
Counsel and Respondent have filed a number of motions
which will be dealt with hereinafter.' One such motion (G.C.
Exh. 27) is to amend the complaint in this matter to allege
that Respondent violated Section 8(a)(l) by withholding
previously scheduled wage increases solely because the
Union filed a representation petition and by granting wage
increases because of the withdrawal of the Union's represen-
tation petition. In support, counsel for the General Counsel
refers to Respondent counsel's affidavit attached to Respon-
dent's Exhibit 21 and certain testimony of Respondent's
witnesses. The motion to amend the complaint is hereby
denied. First, it is noted that, while the original charge in
Case 7-CA-14754 alleged that Respondent had denied
employees raises because of activities on behalf of the Union,
the amended charge in that case drops that charge. Such
action has long been considered to be a withdrawal of the
charge. The charges in Case 7-CA-15092 have no reference
to any conduct similar to such charge. Thus, I find that
there is no charge to support the proposed amendment.
Secondly, at least two witnesses gave testimony at the
hearing which might have justified such an amendment (if
there were a supporting charge),' but counsel for the General
Counsel took no action at that time which would have given
Respondent an opportunity to fully litigate the issue. In the
circumstances, I find the motion now to be too late.
I also reject counsel for the General Counsel's proffer in
General Counsel's Exhibit 25 and Respondent's counteroffer
of Respondent's Exhibit 19. During the hearing permission
was granted each party to file such documents. However,
since it appears that each party cannot agree on the
correctness of the other party's documents, it would seem
that the hearing would have to be reopened to litigate the
issue. Inasmuch as I find these documents unnecessary to
the resolution of the issues in this matter, as discussed
hereinafter, I see no reason to take such action. All of the
documents set forth in footnote I above are being included
in the exhibits as formal papers only. General Counsel's
Exhibit 25 and Respondent's Exhibit 19 are included as
rejected exhibits.
Upon the entire record in this case, from my observation
of the witnesses as they testified, and upon consideration of
the briefs of counsel for the General Counsel and Respon-
dent,' I make the following:
For convenience these documents will be referred to as follows: (a) as G.C.
Exh. 25. the General Counsel's motion to accept in evidence a summary from
timecards of absences of Respondent's keypunch operators dated June 30,
1978:; (b) as Resp. Exh. 19, Respondent's opposition to receipt of G.C. Exh. 25
dated July 11. 1978. and an attached countersummary of the absence records
of those employees and other materials: (c) as G.C. Exh. 26., the General
Counsel's opposition to receipt of Resp. Exh. 19 dated July 14, 1978; (d) as
Resp. Exh. 20, Respondent's reply to G.C. Exh. 26 dated July 21, 1978, with
the affidavit of Donna Meyka attached; (e) as Resp. Exh. 21, Respondent's
motion to strike the General Counsel's brief dated September 18, 1978, with
the affidavit of Respondent's counsel attached and brief in support thereof; ()
as G.C. Exh. 27. counsel for the General Counsel's motion to strike Resp.
Exh. 21. and motion to amend the complaint, dated September 29, 1978; and
(g) as Resp. Exh. 22, Respondent's reply to the matters in G.C. Exh. 27.
FINDINGS OF FACT
I. JURISI)CTION
Respondent, a Delaware corporation, at all material times
has maintained its only office and place of business in
Detroit, Michigan, where it is engaged in providing retail
customer credit checking, billing, and related services for its
member banks. This is the only facility of Respondent
involved in this proceeding. Admittedly, Respondent, during
the fiscal year ending January 31, 1977, a representative
period, engaged in operations and activities coming within
the jurisdictional provisions of the Act and the standards of
the Board and, in consequence, is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act. In addition, Respondent admits that Local No. 10,
Office and Professional Employees' International Union,
AFL-CIO, herein called the Union, is and has been a labor
organization within the meaning of Section 2(5) of the Act.
It further admits that the following persons occupy the
positions set opposite their names and have been and are
supervisors and agents of Respondent within the meaning of
Section 2(11) of the Act: C. W. Nagy-vice president; J. M.
Collins-director of personnel; Jean Dash-operations man-
ager; Mary Litwin-keypunch supervisor, day shift; and
Patricia Walker-Keypunch supervisor, afternoon shift.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues and Contentions
Counsel for the General Counsel, in his brief, contends
that the issues are as follows:
(a) Whether Respondent, by coercively interrogating
employees regarding their union beliefs and activities and by
threatening them with closure if the Union succeeded in its
organizing campaign, violated Section 8(a)(1) of the Act; (b)
whether Respondent, by refusing to reinstate returning
strikers following their unconditional offers to return,
violated Section 8(a)(1); (c) whether Respondent, by impos-
ing a 180-day probationary period on returning strikers in
retaliation for their having engaged in a work stoppage and
thereafter disciplining them for violating the terms of their
probation violated Section 8(a)(1); and (d) whether Respon-
dent, by refusing to reinstate the returning strikers and by
then imposing and enforcing a 180-day probationary period
as a condition of their reinstatement, constructively dis-
charged them and thereby violated Section 8(aX1) of the
Act.
:Thus employee Sandra J. Clark stated that Respondent's Vice President,
Nagy, told her that raises would have been given sooner "but for outside
activity." This was supported by the testimony of Respondent's wage and
salary administrator, Donna Meyka.
G.C. Exh. 27 includes a motion to strike the motion and brief of
Respondent in Resp. Exh. 21, partly on the ground that Respondent's Exh. 21
is in reality a reply brief in response to counsel for the General Counsel's trial
brief for which advance permission was not obtained. There is considerable
merit to counsel for the General Counsel's position. In the circumstances of
this case, however, I deny Respondent's motion to strike counsel for the
General Counsel's trial brief and deny counsel for the General Counsel's
motion to strike Respondent's reply brief.
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CHARGE CARD ASSOCIATION
On the other hand, counsel for Respondent asserts in his
brief that this case "is a classic illustration of the proverbial
impossibility of 'having one's cake and eating it, too."' He
states that the employees "apparently attempted to stage a
work stoppage" and to do so "in a manner that would
guarantee them full pay" therefor by calling in sick and
several days later "informing management that they really
had staged a work stoppage." In the meantime, "manage-
ment sought medical evidence substantiating their claim of
illness, in accordance with an established and well-known
company policy and subsequently placed the employees on
probation for falsely claiming to be ill." He concludes that
there is "no support in either the case law or the record for
the General Counsel's charge of unlawful interference based
upon these facts," and, therefore, requests that the com-
plaint be dismissed.
B. Interference. Restraint, and Coercion
In the latter part of 1977, the Union conducted a
campaign to organize certain employees of Respondent
which resulted in the filing of a petition for representation in
Case 7-RC-14609. In late November or the first part of
December 1977, Keypunch Department Day Shift Supervi-
sor Mary Litwin (admittedly a supervisor within the
meaning of the Act) had several meetings in a supervisor's
office with employees in her department concerning the
Union's campaign. During these meetings, which appear to
have been about 15 minutes long, Litwin gave the employees
a long three-page document to read, in the form of questions
and answers about the union drive, signed by Respondent's
president, Leo A. Cooney. Various employees testified and I
find that during these talks Litwin asked why the employees
felt that they needed a union, gave the employees reasons
why she felt they did not need a union, and named the
benefits that the employees had with Respondent. In the
meeting which employee Evette Demmons attended, Dem-
mons told Litwin that the employees were interested in the
Union because employees with less seniority had been given
positions not offered to other employees, and the employees
felt a need to have someone speak to higher management for
them because they were dissatisfied with immediate supervi-
sion. For the most part, Litwin's testimony is consistent with
these findings.' To the extent that her testimony is inconsis-
tent with the findings made, I do not credit her.
Patricia A. Walker (sometimes referred to in the record as
Angela), a supervisor within the meaning of the Act, is
afternoon supervisor over the keypunch department. Until
August 1977, she had been the supervisor of Sandra J. Clark
and apparently the two were quite friendly. Sandra J. Clark
(who will be referred to sometimes herein as Sandra J. to
distinguish her from employee Sandra Clark) testified, and I
credit her, that in October 1977, in a supervisor's office,
Walker attempted to "diagram" for Sandra J. how Respon-
dent "would fold if the Union came in" by showing "how
the banks would eventually pull out one by one."
Sandra J. also credibly testified that about 3 weeks later
Walker called her at home in the evening, during which
conversation Walker offered to trade information with her,
' Litwin did deny that she asked anyone in her department whether they
favored a union or not. That might be considered an indirect denial that she
asked the employees why they thought they needed a union.
saying "that she could give me facts about what [Respon-
dent] had on the union for some information, like how many
cards, how many people had signed up for the Union."
Sandra J. refused the offer and the conversation concluded.
Walker denied these conversations to the point of denying
that she "ever [had] a conversation with Sandra J. Clark
where unions were discussed." I do not credit Walker. From
the testimony and observation of the witnesses I do not
believe that Sandra J. Clark made up these incidents out of
the whole cloth as Walker intimates. Nor do I believe that
the two friends (then) went through an entire union
campaign without having a conversation in which unions
were discussed.
By asking employees their reasons for supporting the
Union and by seeking to persuade an employee to supply
Respondent with information concerning union activities,
Respondent put employees under pressure to reveal informa-
tion concerning protected activities and to take a public
position on matters the employees were privileged not to
divulge. Respondent thereby violated Section 8(a)(1) of the
Act. See, e.g., Paceco, 237 NLRB 399 (1978); ITTAutomo-
tive Electrical Products Division, 231 NLRB 878 (1977).
Further, Supervisor Walker's claim that Respondent's
major customers would withdraw their patronage and cause
Respondent to cease business if the Union were successful in
its organizing effort constituted a threat, in violation of
Section 8(a)(l), that the employees would lose their jobs
because of their participation in activities protected by the
Act. As stated by the Board in Blaser Tool & Mold Co., Inc..
196 NLRB 374 (1972), citing N.L.R.B. v. Gissel Packing Co.
Inc., 395 U.S. 575, 619 (1969): "It is well established that
employer predictions of adverse consequences arising from
sources outside his control are required to have an objective
factual basis in order to be permissible under Section 8(a)(1 )
of the Act." In this case Respondent offered no factual basis
for Walker's assertion that Respondent's customers would
withdraw and Respondent would "fold" if the Union came
in. In these circumstances, Walker's unsupported assertions
are not so much predictions as they are threats of reprisal.
C. Discipline of the Strikers
I. The grievances
The record indicates that Respondent's employees in the
keypunch department on the day shift had for some time
been disturbed about their working conditions, particularly
about Respondent's actions since the withdrawal of the
union petition in allocating wage increases. This was
discussed among these employees on Friday, January 6, and
it was suggested among them that they should take off from
work the following week in protest by calling in sick. On
Monday, January 9, under the apparent lead of employee
Pintcholla Taylor, a paper was passed around among the
keypunch operators upon which they listed grievances
concerning their working conditions. The final handwritten
list is as follows:
1. Raise.
2. Salary.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Heat.
4. Seniority doesn't count when it comes to learning
new jobs or new machines.
5. Filthy bathroom.
6. Why was letter sent around. [This seems to be in
reference to the manner that Respondent announced
wage raises for some, but not all, the employees.]
7. How was the raise evaluated? Some of the reasons
I heard were dressing nice and who do you know. This
has nothing to do with work.
8. If you are keeping up with other companies;
everyone should have got a raise.
9. Why aren't reviews given on time or our questions
answered promptly by our supervisor? [The reviews
referred to appear to be scheduled evaluations of
employees upon which decisions as to wage increases
may be based, at least in part.]
10. Why don't we get cost of living raises.
11 Why are they so strict with days [i.e., the
employees on the day shift] and not the other shifts.
Of the 19 keypunch operators on the day shift approxi-
mately 13 decided that morning that they would go as a
group to see Respondent's president, Cooney,' about their
grievances. Upon arrival at his office, the employees were
told that he was out of town. When they then went to see
Respondent's vice president, Charles W. Nagy, the employ-
ees were informed that Nagy would only see them individu-
ally. For the rest of the morning, the complaining keypunch
employees were called into Nagy's office to discuss the
employees' problems. Employee Taylor carried with her the
list of grievances made out by the keypunch operators.
According to her credited testimony, she told Nagy "that we
had a list of grievances and then proceeded to tell him the
grievances that was on this list."'
Though Nagy addressed the matters presented, the
employees were given no definite answers to their griev-
ances, Nagy stating that he would take these matters up with
Cooney when he returned. Nagy was aware that the
employees appeared dissatisfied with the results of the
meetings. Jack Collins, Respondent's director of personnel,
was kept advised by Nagy of these activities.
2. The work stoppage
The aggrieved employees, not satisfied with the response
to their grievances, thereupon decided, on June 9, to engage
in a work stoppage the following day by calling in "sick."
The following morning at least 10 keypunch operators on
the day shift called in asserting they were sick. They were
Anne V. Barksdale, Sandra Clark, Sandra J. Clark, Evette
Demmons, Barbara Erickson, Angela Jones, Amelia Legins,
Joan Morrison, Lutricia Salter, and Pintcholla Taylor. Of
these, Jones and Legins had been absent for illness on
January 9. Jones, however, testified that she was not actually
ill on January 10 and was participating in the work stoppage.
Legins asserted that at the time she was ill she did not know
that there would be a work stoppage on January 10. Barbara
'Supervisor Litwin testified that all but four left work that morning. The
record, however, shows that at least two other employees were out sick on
January 9.
^ Nagy's testimony was not essentially in conflict vith these findings. He
Erickson was also ill on January 10 and apparently did not
engage in the work stoppage at that time. All of these
employees, except Jones, called in early on January 10, and
spoke to the night shift supervisor, Venita Fair, advising her
that they would be out ill. Fair raised no questions
concerning these calls, telling the employees that she would
inform the day shift supervisor, Mary Litwin. Jones spoke to
Litwin directly, informing Litwin that she (Jones) still did
not feel well enough to come in. Litwin raised no question
concerning this. Litwin, however, reported this abnormal
absentee situation in her department to Personnel Director
Collins who decided that the absent employees should be
notified that day by telegraphic message and by telephone
that they would not be permitted to return to work without
presenting a certificate from a doctor attesting that they had
indeed been ill on January 10. As discussed hereinafter, this
was a requirement which, in the employee's experience, was
new and unexpected. Thus Joan Morrison testified that,
when Supervisor Jean Dash called her on January 10 and
said that Morrison would have to bring "a doctor's excuse
for being out that day" if she wanted to come back to work,
Morrison responded that "I had never heard anything [like
that]. I had been off before one day and I had never heard
anything about a note for one day." According to Barbara
Erickson, Dash told her that the requirement that she bring
a doctor's certificate to return to work was "for this one time
only."
3. Rejection of the strikers' offer to return to work
When these keypunch employees reported for work
January 11 without certificates from a doctor, they were not
permitted to sign in and start work. They were rebuffed in
their attempts to speak to someone in higher management
and were finally ordered off Respondent's premises. When
they reported for work on January 12, they were likewise
excluded from Respondent's premises. That day the 10
keypunch employees named above signed the following
letter addressed to Vice President Nagy (with a copy to
President Cooney):
January 12, 1978
Mr. Nagy
In regards to absentissm [sic] on Tuesday, January
10th, 1978. We staged a work stoppage in protest.
We are now unconditionally ready to return to work.
With the understanding we will receive a deduction in
pay for Tuesday, January 10th, 1978.
In Protest of:
1. Salary increases
2. Working conditions
3. Supervisory attitude
4. Favortissms [sic]
5. Change of policy without notifications
6. Non-Recognition of seniority
7. Late reviews.
testified, however, that although a number of the employees had the same or
similar complaints "not all of them really carried the same complaints. I think
each one of them wound up addressing things that seemed rather personal to
them at the time."
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CHARGE CARD ASSOCIATION
The above mention were discuss [sic] Monday Janu-
ary 10th, 1978, to Mr. Nagy.'
Collins testified that he did not receive a copy of this letter
until January 18.
The employees continued to report for work each work-
day morning through about Friday, January 20. but were
consistently refused admission to Respondent's offices.
Finally. Personnel Director Collins agreed to meet them
individually in his office on January 23 and 24.
4. The strikers' probation
At these meetings, on January 23 and 24, Collins gave
each of the employees a letter to read dated January 23,
signed by himself, addressed to each of the individuals by
her first name, and reading as follows:
This will confirm my discussion with you today
concerning your continued employment at Charge Card
Association.
On Tuesday, January 10, 1978, you telephoned us
and said that you were not coming to work that day
because of illness. In accordance with our established
written personnel policy, a supervisor may require
written verification for any sick day taken. You were
asked to provide such verification when you reported
for work on Wednesday, January 1 Ith, and you refused
to do so. We have now received a letter from you
admitting that your absence was not because of
sickness, but was an unathorized work stoppage.
Because of your actions, you have been suspended
without pay. Since you were paid for January 10, 1978
(as a sick day), and since you have failed to establish
that you were in fact sick on that day, an adjustment
will be made in your next paycheck to eliminate that
one day's pay.
You may return to your normal position at CCA
beginning at your next regular shift on a 180 day
probationary status During this probationary period,
any unexcused absenteeism or tardiness, or any failure
to properly perform your job in accordance with
company policy, or any other disruption, insubordina-
tion, or poor performance will result in the immediate
termination of your employment.
Each of the employees was asked to sign the letter in a
space provided to acknowledge receipt of the letter. They
were not required to sign and some of them refused to do so.'
Upon consideration of the testimony of the several
employees who related what occurred in these meetings, as
well as Collins' testimony,' I find that the following credited
testimony of employee Taylor is fairly indicative of the tone
and content of the meetings. Taylor testified that, after
giving her the letter to read, Collins "[b]asically . . . ran
through the letter, and I told him, I said, 'We had the legal
' Legins and Erickson, who, as has been noted, had not participated in the
work stoppage on January 10. helped to compose this letter, signed it, and saw
that it was posted to Respondent. Respondent treated them as strikers and
they thus evidenced their approval of and participation in the employees'
protest of working conditions.
' Amelia Legins testified that she was told she would be terminated if she
did not sign. I am convinced, on the basis of the entire record, that she is
mistaken in this, perhaps because Collins made it clear that she would be
terminated if she did not agree to the terms of this letter
right to strike.' He said, 'You can't run a company like that.'
. . . He said that since we lied about being sick and we had
been paid for that day . . . the day would be taken [from the
employees' pay] the following pay period. . .. He said that
we had disrupted the Company, and that their banks had
heard that, of the disruption, and he said we caused
management to have meetings over us, and they could have
been doing other things." Collins also informed some of the
employees, if not all of them, that Respondent had been
forced to "send their work out." According to the credited
testimony of Salter and Erickson, Collins stated that the
purpose of requiring the employees to return to work under
the conditions of probation set forth above was to make sure
that something like the action of the employees "didn't
happen again." Worthy of note, also, is the fact that at least
two of the employees, Sandra Clark and Barbara Erickson,
indicated to Collins that the requirement that they bring a
doctor's certificate for 1 day's absence was a new policy,
and, as Erickson asserted, it was unfair to impose probation
upon her "for being out one day sick."
5. The return to work
Four employees who participated in the work stoppage
never returned to work. Joan Morrison, who did not meet
with Collins and did not return to work with Respondent,
testified that she had heard from the other girls "what the
conditions were," and "really didn't need the aggravation."
Barbara Erickson asserted that she did not return to work
because "I didn't agree with the probationary period for
being out one day sick," and further that she did not like the
manner in which she had been treated by Litwin at the last
periodic review.'" Angela Jones testified that she also did not
return to work though she received a letter from Respondent
asking her to return. Sandra Clark, who apparently took her
vacation leave at the time, upon return from vacation on
February 15, quit her employment with Respondent, be-
cause, she states, the employees were "required to bring in
excuses for everything, and we couldn't be late, and I just
couldn't stay under those conditions." All of the other
employees who were involved in the work stoppage appear
to have returned to work on January 24 except Sandra J.
Clark, who was ill and returned to work at a later time.
The employees involved in the work stoppage who
returned on January 24 received a three-page communica-
tion signed by Respondent's president, Cooney, in the form
of 10 questions (framed in the form of employee questions)
and answers from Respondent. These ranged from Respon-
dent's replies to some of the employee grievances, arguments
against unionization, and a statement that Respondent's
employees who went on strike would receive no pay or fringe
benefits while on strike, to statements that the "striking
employee may be subject to discharge and replaced with
I have considerable doubt that Collins was able to recall what he said to
each employee in each separate meeting. He first indicated that he had
refreshed his memory as to these conversations by reference to notes made at
the time. He later admitted that these notes did not show what he said to the
various employees but only indicated what they said to him
"' Litwin denied this assertion. It is unnecessary to resolve this minor
conflict.
839
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
another worker," and that Respondent would continue to
operate during such strike.
6. Further discipline of the strikers
After they returned to work, each of the six employees
who had been involved in the work stoppage received one or
more disciplinary letters signed by Personnel Director
Collins. Thus, employees Barksdale, Salter, Sandra J. Clark,
Legins, Demmons, and Taylor each received a letter from
Collins, each dated February 14, stating that "since your
return to work on January 24, 1978, you have violated the
terms of the probation under which you were permitted to
return as follows .... " At this point the several letters
listed one asserted instance of "unexcused tardiness" for
Sandra J. Clark and Lutricia Salter; one asserted "unexcused
absence" for Amelia Legins; one asserted "unexcused
tardiness" and one asserted "unexcused absence" for Pintch-
olla Taylor;" six asserted "unexcused tardinesses" for Annie
V. Barksdale; one asserted "unexcused tardiness" and
"writing a personal note during work hours" for Evette
Demmons; and concluded, "The next violation of your
probation terms may result in the termination of your
employment."
By subsequent letters, each dated April II, Collins wrote
to Barksdale, Sandra J. Clark, and Demmons, repeating the
asserted violations of "the terms of probation" which had
been set forth in the February 14 letters, asserting that the
employee had "further violated probation terms" by certain
similar listed instances of "unexcused tardiness" or "unex-
cused absence," and stating that the "next violation" would
result in 5 days' suspension without pay.
There is no evidence that Respondent previously had used
such letters to discipline employees for these or similar
asserted offenses. Nor is there any evidence that such letters
were issued to any employees during the period following
January 24 except those who were involved in the work
stoppage.' The internal evidence of the letters themselves,
and the record as a whole, indicates, and I find that the
disciplinary letters were initiated as an additional form of
punishment of the employees who had engaged in the work
stoppage.
During the period of their probation, however, these
employees were given merit increases and regular wage
increases on the same basis as the other employees. (Respon-
dent contends, without record reference, that Sandra J.
Clark did not receive such increases.)
" It is noted that Taylor's "unexcused tardiness" referred to her being 5
minutes late on a day when all the employees were sent home by noon because
of a severe snowstorm. Demmons was also charged with being 7 minutes late
that same day. Taylor's "unexcused absence" referred to a day when she
called in and advised Respondent that she could not come in because her car
was stuck in the road.
': It is noted that on April 10 Respondent issued a general memo o all
employees asserting that Respondent was "experiencing undue absenteeism
and tardiness in certain departments" and advising the employees of
Respondent's asserted policy with respect to such matters. From this it is
inferred that this problem was not limited to the six employees who had
engaged in the work stoppage.
' As has been noted, the decision to require a doctor's certificate for the
7. Respondent's past practice with respect to doctors'
certificates, absenteeism, and tardiness
As has been previously noted, there was considerable
litigation as to Respondent's previous policy and practices
with respect to requiring employees to furnish a doctor's
certificate for days on which the employee called in ill. The
following are the relevant sections from Respondent's
personnel manual in effect in January 1978:
Medical Leave
A Medical Leave is defined as a leave of three or
more days under a doctor's care requiring confinement
and usually hospitalization. It requires notification to
the supervisor and a doctor's certificate upon return to
work.
[A] maximum of ten working days in any calendar year
is allowed for a Medical Leave. This time off is allowed
in addition to the (5) sick days allowed in any calendar
year. Payment will be at the full base rate of pay.
Sick Days
Sick days are defined as one or more days of illness
not usually requiring hospitalization. .. . sick days do
require daily notification to the immediate supervi-
sor....
[T]he employee is eligible for up to five sick days.
Payment for sick days is made at the normal base pay
rate. .... Sick days may not be accumulated from one
year to the next.
The supervisor may require written verification for
any sick day taken, particularly where there is a history
of excessive absenteeism.''
The testimony of counsel for the General Counsel's
witnesses, which I credit, is that the employees generally
understood that the Respondent did not require a doctor's
certificate to substantiate a claim of illness unless the
employees did not report for work for 3 days for that reason.
None of them had been required to produce a certificate
from a doctor for an absence of only I day before January
10.
However, Respondent's supervisors had, in fact, required
doctors' certificates on occasion from employees out ill less
than 3 days, but the record shows that this occurred only
where special circumstances indicated a need for such
procedure, as indicated in Respondent's written rule. The
employees' absence on January 10 was not made by the employees' immediate
supervisor but by Personnel Director Collins. Though Collins at one point
testified that he reviewed the attendance record of the employees who called
in sick on January 10 before he decided to require them to bring a doctor's
certificate, "because of the action that the ladies had taken," he also asserted
that he examined those records on either January 9, 10, or II. This is
implausible since on January 9 the employees had not yet called in sick and on
January I I he had already notified the employee to bring a certificate from the
doctor. I do not credit Collins apparent claim that he examined these records
immediately before deciding to require the employees to submit doctors'
certificates for their absence on January 10. It is additionally noted that,
except for Sandra J. Clark, Collins does not claim that any of these employees
had previous records of excessive absenteeism.
840
CHARGE CARD ASSOCIATION
one specific instance cited by Respondent's witnesses was a
requirement that the employee bring in a doctor's certificate
if absent proximate to a holiday in order to be paid for the
holiday. Thus, Respondent's witnesses Borum and Koby-
larz, who stated that they were aware that their supervisors
could ask for a doctor's certificate, asserted that they had
been asked to bring in such a certificate in order to qualify
for holiday pay. With respect to other employee witnesses
called by Respondent to testify that they were aware that a
supervisor could require a doctor's certificate, Roberts
testified that she was not required to bring such excuse for
absences of less than 3 days; Fogern had never been required
to bring in a doctor's excuse except for a 2-week absence;
Fleming had never been asked to bring in a doctor's
certificate; and Bullock and Work seemed not well informed
on Respondent's policies. Lois Ware, who, when advised by
Sandra J. Clark that the employees were going to call in sick
on January 10, told Clark that Respondent would require
them to bring in excuses herself brought in an excuse on
January 11 because she had been absent 4 days. With respect
to Respondent's supervisors, or past supervisors, who
testified that they had authority to require or had in fact
required employees to bring in such excuses, Gerald Johnson
and Mary Litwin were unable to state the basis upon which
they made this decision. Johnson asserted that he did so
"[jlust if I felt it was necessary with the individual
employee." Litwin testified that she made such requests at
the time the employee who was calling in sick was on the
telephone."
There is also evidence that Respondent's supervisors, or
some of them, tended to consider that, so long as the
employee used their 5 days' paid sick leave one at a time, the
employees were entitled to use them for personal reasons as
well as for illness. Thus, both employees Joan Morrison and
Amelia Legins credibly testified that their supervisor told
them that the time could be used for personal business at
their discretion, for, if they did not use it, it would be lost.
From the above, and the record as a whole, it is found that
the Respondent did not normally require its employees to
support their claims of illness of less than 3 days by
submission of a doctor's certificate, but did on occasion ask
for such certificate where some specific circumstance indi-
cated that such evidence be submitted, as where the
employee had a record of excessive absenteeism."
There is no evidence that Respondent had previously
required any employee to accept probation as a condition for
returning to work from a claimed illness without a doctor's
certificate. Indeed, Joan Morrison testified without contra-
diction that on a prior occasion she was not disciplined
(except, undoubtedly, by loss of pay) for failing to bring in a
doctor's certificate which her supervisor had requested.
" It is noted, however, that Litwin did not request that employees who
called in ill on January 9 or 10 bring a doctor's certificate. Nor did any of the
other supervisors who received such calls at that time so far as the record
shows. That decision was made by Personnel Director Collins as discussed
above.
" The various doctors' certificates from Respondent's files. niainly gathered
by Donna Meyka, who was Respondenl's assistant personnel manager, have
been considered in making this finding. Though Meyka originally seemed to
testify to the contrary in response to leading questions. it is clear from her
testimony as a whole that she did not know that any of these certificates were
requested by Respondent's supervision. There is further little indication of the
Respondent's witness Donna Meyka also testified that she
had found records in Respondent's files of all employees who
had in the past been placed on probation because of
excessive absenteeism and tardiness. The record is vague as
to why Respondent took such action, Meyka stating, in
answer to a leading question, only that Sandra J. Clark had a
worse absentee and tardiness record than any of the I 1.'"
In addition, Meyka testified that Respondent had dis-
charged 17 employees for "dishonesty": (1) one employee
after he advised the Respondent he would be absent an
additional 2 weeks in the hospital at a time when the
Respondent found he had been discharged from the hospital
and was off on a personal trip; (2) five employees who slept
on the job; (3) eight employees who stole, or falsified
timecards, their applications, or other documents: (4) one
employee who lied and wrote obscene material; (5) one who
used foul language; and (6) one for attitude, performance.
and insubordination.
D. The Termination of Sandra J. Clark
As previously noted, Sandra J. Clark (in this section of the
Decision referred to briefly as Clark), together with other
employees involved in the work stoppage, received letters
from the Respondent dated February 14 and April 11
concerning unexcused absenteeism and tardiness and threat-
ening disciplinary action. These letters asserted that she had
been absent on six occasions and tardy on 10 days since
returning to work after January 24.
On April 17, Clark became ill at work and requested
permission from her supervisor to go home for the remain-
der of the day. After some period of time (obviously used for
consultation with higher management) she was informed
that she could leave, but would have to bring in a doctor's
certificate for the half a day that she would be absent. When
she protested this unusual request she was informed that
such certificate would nevertheless be required.
When Clark saw her doctor, he instructed her to stay
home until Friday, April 21, and gave her a certificate
stating that he expected her to be able to return to work that
day. On the 21st, feeling drowsy from her medication upon
awakening, Clark called her supervisor, Litwin, at 6:30 a.m.
and said she would be a few minutes late. Litwin replied
that, if Clark was going to be tardy, she would have to obtain
another certificate from the doctor for that date. As a
consequence, Clark did not go to work on April 21. On
Monday, April 24, Clark called Assistant Personnel Direc-
tor Meyka and spoke to her about the situation. Later in the
day, Mayka called Clark and instructed her to report to
work as usual with her doctor's certificate the next morning.
However, when Clark arrived at work, at the usual starting
reason they were submitted by the employees involved. Thus employee
Demmons testified that she regularly turned in such certificates without
request from supervision whenever she saw a doctor no matter how long her
absence from work. In consideration of all the circumstances, these exhibits
have been given little weight
'* Meyka also testified, without any detail. that the files showed that
Respondent had terminated [tlwelse. eleven" emplo)ees in the past for
absenteeism and tardiness. It is not clear as to the circumstances leading to
these discharges, or whether the two groups (those put on probation and those
terminated) are mutually exclusive.
841
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time, Litwin would not permit her to go to work, stating that
Joyce Labell" had instructed Litwin that if Clark did not
have a doctor's certificate "dating to the 24th," Litwin
should send Clark home "with five days' suspension without
pay." Clark left and has not returned to work since that
time. At the end of the 5-day suspension, Clark called her
supervisor and told her that she was resigning from
Respondent's employ. Personnel Director Collins wrote
Clark on May 2, stating that, if she did not confirm her
resignation in writing, Respondent would "automatically
terminate you from our rolls."
Respondent offers two explanations for Clark's suspension
from employment. In its brief (p. 9), it is first asserted that
"she was suspended for excessive absenteeism and tardi-
ness," then it is stated, at the end of the same page, that
while she "was absent with medical certification [from April
17 through April 20] [t]he doctor's letter stated that she
should be capable of returning to work on April 21, 1978.
She did not return on April 21. 1978. and she was therefore
suspended. "(Emphasis supplied.)
Respondent introduced evidence to show that, in addition
to the instances in which Clark was absent or tardy
following January 9, as set forth above, from June 1977 to
January 9, 1978, Clark had been absent on 14 days because
of illness or for personal reasons, had lost part of 3 days for
personal reasons, and had been tardy on 53 days. During
this period, though she was spoken to about these matters,
there is no evidence that she was disciplined or threatened
with discipline for absenteeism or tardiness.
E. Analysis and Conclusions
1. Discipline of the strikers
As has been noted, a majority of Respondent's employees
in its keypunch operation, after stating their grievances to
management on January 9, agreed that they would concert-
edly refuse to come to work on January 10 in protest of their
grievances and in dissatisfaction with management's re-
sponse to those grievances. In accordance with their agree-
ment, each of these employees notified supervision that she
was ill and would not report to work." Such concerted
activity by employees for such purposes has repeatedly been
held to be protected conduct under Section 7 of the Act for
which the employees may not be subjected to discipline. See,
e.g., Citizens Trust Bank, 206 NLRB 320 (1973); Toledo
Commutator Company, 180 NLRB 973 (1970); Central
Broadcasting Corporation d/b/a WENO, 182 NLRB 866
(1970), enfd. 441 F.2d 1145 (6th Cir. 1971). Respondent
here contends, however, that it was justified in this case in
first refusing to permit the employees who had engaged in
" While there are numerous references to Lahbell in the record, she does not
seem to be specifically identified. On the record as a whole, however, it is
found that she occupies a position of authority with Respondent.
" A total of 2 of the 10 employees involved here were, in fact, ill on that
day. However. Respondent thereafter treated them as strikers and the 2
employees. Legins and Erickson, thereafter joined with the others and
participated in the concerted activity.
" In some instances, where the supervisor has a special reason for such
action as where the employee claims to be sick before or after a holiday, a
doctor's certificate may be requested. Here no special circumstance for
requiring such certificate was asserted or appears other than the fact that the
employees were obviously engaged in a concerted action.
the walkout to return to work without a doctor's certificate
on the ground that it was "not informed and did not know
that the named employees were engaged in protected
concerted activities" (Resp br., p. 21), and, assertedly, was
applying a normal plant rule to employees claiming to be on
sick leave. Respondent secondly argues that it was justified
in placing these employees on probation for 180 days and
treating them as probationers on the basis that the strikers
engaged in "misconduct" in untruthfully claiming that they
were ill when they were not, thus taking advantage of
Respondent's policy of paying employees for 5 days' sick
leave each year (Resp br., p. 16, et seq.).
Though Respondent claims not to have been aware of the
nature and reason for the employees' refusal to work on
January 10, the evidence compels a contrary conclusion.
Thus, the employees in the keypunch operation in a group,
on January 9, had approached management to discuss their
grievances. Respondent's vice president, Nagy, had spoken
to each one of them, in turn, about these matters and was
aware that the employees were not satisfied with the
response they were getting. Respondent's director of person-
nel, Collins, was informed of these events.
The following morning, more than half of Respondent's
keypunch operators called in sick, an admittedly unusual
occurrence. This was sufficiently out of the ordinary that the
keypunch department supervisor felt impelled to notify
Personnel Director Collins, who decided that, in these
circumstances, the employees claiming to be sick should
each be personally notified by telephone and telegram that
she would not be permitted to return to work without a
doctor's certificate. The singular character of this action is
emphasized by a number of factors: First, as has been
discussed, it is not Respondent's normal rule to require a
doctor's certificate for a -day absence from work;"' and
second, if such a certificate were to be requested, this
decision would normally be made by the department
supervisor and communicated to the employee when she
called in ill, and it was extraordinary that telephone calls
and telegrams should be directed to employees that they
would not be permitted to return to work without a doctor's
certificate.'"
Thus, though the employees themselves did not tell
Respondent that they were engaging in concerted action or
the reasons therefor on January 10, the only reasonable
inference from Respondent's own radical reaction to the
employees' conduct is that Respondent realized that the
employees were acting concertedly for a purpose. Respon-
dent clearly did not believe that they were sick.' As to the
purpose of the employees' concerted activity, Collins was
aware, for Nagy had kept him informed, that these same
employees had just the previous day taken group action with
' The indication in he record is that failure to bring in such a certificate
would normally he treated as all unexcused absence without pay. As discussed
previously, none of the incidents cited by Reslondent fr comparin hears
any similarity to the present instance.
:' Two days later, on January 12. the employees sent Responden a letter
setting forth specifically that they had engaged in a work stoppage because of
the grievances discussed with Nagy on January 9. Respondent's brief (p. 7)
significantly remarks that the "letter also coifirned na/laget,nt belief that
its signor [sic] had lied about being ill." In our industrial sociely. one wsould
have to be secluded indeed not to be aware that a recurrent euphemism for a
work stoppage is he term "sickout." See the cases cited aboe.
842
CHARGE CARD ASSOCIATION
respect to their working conditions, and that Nagy had been
unable to satisfy them as to their complaints.
On the record as a whole, and for the reasons stated, I find
that on January 10, Respondent was aware and believed that
the keypunch operators who called in sick were, in fact,
engaged in concerted action in protest of their working
conditions."
By January 18, at the latest, Respondent was in possession
of a letter signed by the employees engaged in the work
stoppage asserting that their refusal to come in to work was
in protest of stated grievances that had been discussed with
Vice President Nagy, and offering to return to work
unconditionally. The letter stated that the employees under-
stood that they would not be paid for their absence on
January 10. Respondent asserts that this letter confirmed its
belief that the employees had lied about being ill on January
10 and had expected to be paid for their absence.'
Respondent argues that this was misconduct which made
the walkout unprotected under the Act, and that it thereaf-
ter disciplined the employees by placing them on probation
and by written reprimands because of this misconduct and
not because of their strike activity.
The record as a whole, however, is convincing that
Respondent's motive in disciplining the employees who
walked out on January 10 was to punish them for the work
stoppage, not for their alleged "misconduct." This is
particularly evidenced by the thrust of Personnel Director
Collins' complaints in interviews with the strikers after
receiving their letter. Thus, though he told them that, since
they had lied about being ill they would not be paid for the
day, his primary complaint to the strikers was that they
"had disrupted the Company," that management had been
forced to waste time in meetings dealing with the strikers,
that Respondent had had to "send their work out," and that
Respondent's client banks had heard of this. Collins told
some of the employees, if not all of them, that the purpose in
requiring the strikers to return under probation was to make
sure that such action of the employees "didn't happen
again."
Further, the record strongly indicates that in normal
circumstances Respondent did not tend to become con-
cerned over occasional absences from work even though the
employee did not present supporting evidence of claimed
illness. As has been noted, Respondent did not, except in
special situations, require doctors' certificates for absences of
less than 3 consecutive days. Respondent's policies granted
employees 5 paid days annually for illness. As the record
shows, on occasion employees have been advised by their
supervisor that they should use their 5 days of sick leave for
personal business rather than lose the days permitted.
Though there is evidence that employees have been disci-
: Respondent cites AHI Machine lit)l ad Die. I,(. s N. L. R. B.. 432 F.2d
190 (6th Cir. 1970). arguing that the "court held that employer knowledge of
the protected concerted nature of the walkout could not bh inferred rom the
facts before the court" (Resp. hr., p. 21). However, I do not understand that
case to hold thatl here the facts arc sufficient employer knowledge may not
he inferred. See N.L.R.. s. Pioneer Plus.ic Crp.. 379 F.2d 01 (1st Cir.
1967). also cited by Respondent on another point.
With respect to employees Erickson and Legins. who clearly were ill on
January 10. Respondent asserts that these employees lied by asserting in the
letter that they were etigaged i a work stoppage ion Jaiuary 10.
~' I have fully considered the many ca;ses cited by Respondent (se. c g.
N.L..R.. v. Pioner Pluatict Crp., upru. N.I..R.B k .,ihller ras Co,. a
plined for excessive absences. there is no indication that
Respondent previously admonished employees against using
sick leave for personal business or disciplined anyone before
January 10 for doing so.
On the record as a whole, and for the reasons stated, it is
found that Respondent's predominent reason for first requir-
ing the employees to submit doctors' certificates as a
condition of returning to work, then refusing to permit the
strikers to return to work without such certificates, and
thereafter disciplining them by placing them on probation
and issuing disciplinary warnings to them was because they
had engaged in a concerted refusal to work on January 10.
which was a concerted activity protected by the Act."
It is therefore held that, by requiring the strikers to submit
doctors' certificates as a condition of returning to work, by
refusing to permit the 10 employees engaged in the walkout
to return to work beginning January 11 and continuing to
January 23,"' by conditioning the reinstatement of the
strikers on their accepting probationary status for 180 days.
and by thereafter issuing disciplinary warnings to the
returned strikers because they were on probationary status,
Respondent violated Section 8(a)(1) of the Act.
In making this finding, I have considered Respondent's
argument that the disciplinary letters issued to the strikers
were justified by the fact that these employees were, in fact,
tardy and absent as stated in these letters and thus merited
the disciplinary warnings contained therein. However, the
record is clear that the only reason that such disciplinary
letters were issued was because these employees had been
placed on probation. Respondent had not previously issued
such letters for such employee conduct. The disciplinary
letters therefore constituted a direct part of Respondent's
retaliation against the strikers because of their protected
concerted activity. I do not pass on Respondent's right to
discipline employees generally for tardiness and absenteeism,
but find in this instance that the discipline was specially
adopted to punish the employees for exercising their rights
under the Act, and thus violated the Act.
2. The alleged constructive discharges
(1) Joan Morrison, Barbara Erickson, Angela Jones, and
Sandra Clark did not return to work for Respondent on
January 23 when Respondent finally permitted the strikers
to return on probation. Sandra Clark took vacation leave at
that time and quit on February 15 at the end of her leave.
The record is clear that Morrison, Erickson, and Sandra
Clark refused to return to work for Respondent because of
Respondent's repressive conduct in placing the strikers on
probation and enforcing rules against them for absenteeism
and tardiness in a manner different from that required of
ub.hidiary of U. I,dulriei. Inc.. 509 F.2d 704 (5th Cir.. 1975) to the effecl
that an employer may discharge or discipline an employee for untruthfulness.
or other cause if that is the real hasis fr the employer's action, but a the
court also staled in Pioiecr Plavtics Corp.. 79 F.2d at 301)7 "the mcre
existelnce of a valid ground fr discharge is ni defense to all unfair lalbor
practice charge if such ground was a pretext ald not the mosing cause."
' These 10 are Anile V. Barksdale. Sandra Clark. Sanldra J Clark. Evette
Demmons, Barbara Ericksom. Angela Jones. Amelia Legins. John Morrison.
Lutricia Salter. and Pintcholla Taylor. Though Erickson and Legins joined
with the othcrs in their protest after January It) Rerndent reated them as
strikers fromn the first and they sire entitled it the same renmedy as the other,.
843
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other employees, which conduct has been found to violate
the Act. Inasmuch as Respondent's illegal conduct was the
direct cause of the termination of these employees' employ-
ment, Respondent thereby constructively discharged Morri-
son, Erickson, and Sandra Clark in violation of Section
8(a)(1) of the Act because of their participation in concerted
activity protected by the Act.
The record, however, indicates that Angela Jones failed to
return to work for Respondent because she had obtained
other employment. Indeed, she thereafter refused a written
request to return to work. I shall recommend that the
allegation of the complaint that Angela Jones was construc-
tively discharged be dismissed.
(2) Sandra J. Clark (no relation to Sandra Clark discussed
above) returned to work after the other strikers because she
was ill. She received disciplinary letters on February 14 and
April 11 similar to those issued to the other strikers. On
April 17, when she became ill at work and requested
permission to go home, she was told that she would be
requi-red to bring in a doctor's certificate for the half a day
she would be absent, an unusual requirement which she
protested. When Clark visited her doctor, he instructed her
to remain at home until April 21, and gave her a certificate
to that effect. However, when Clark called her supervisor on
the morning of April 21 and advised that she would be a few
minutes late in coming to work that morning, her supervisor
said she would have to obtain another doctor's certificate for
that date. Clark did not return to work on April 21. Though
Clark thereafter attempted to return to work, she was not
permitted to do so. On April 24, Respondent placed Clark
on 5 days' suspension without pay for failing to submit a
doctor's certificate for April 21 and 24. At the end of her
suspension Clark called her supervisor and resigned her
employment.
Respondent contends that Clark was suspended because
of her record of absenteeism and tardiness and because she
did not return to work on April 21 in accordance with her
doctor's certificate.
Respondent's conduct toward Clark in this instance is
difficult to understand on any basis other than that Rcspon-
dent was harassing her because of her strike activity. No one
can contest Respondent's right to nondiscriminatorily disci-
pline employees for absenteeism and tardiness. Even though
the requirement that Clark submit a doctor's certificate in
order to leave work when she was ill, which was clearly a
rule made up for the occasion, might have some basis as an
extreme means to regulate her absenteeism (though this is
questionable), there would seem to be no justification, and
none is offered, for requiring Clark to bring in a doctor's
certificate in order to be a few minutes late. Respondent,
after refusing to permit Clark to work from April 17-24,
stated it was suspending her because she did not have a
doctor's certificate for that period.
Clearly, the suspension of Sandra J. Clark was part of the
pattern of conduct in which Respondent engaged to punish
the employees who had gone out on strike and as such was in
violation of Section 8(a)(l) of the Act. Inasmuch as this
pattern of conduct, and her suspension in particular, was the
cause of Sandra J. Clark's termination, Respondent thereby
constructively discharged Clark in violation of Section
8(a)(l) of the Act because of her participation in the work
stoppage on January 10, an activity protected by the Act.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent engaged in unfair labor practices in
violation of Section 8(a)( ) by the following acts and
conduct:
(a) By interrogating employees with respect to their union
activities, by soliciting employees to disclose information
concerning union activities, and by threatening that Respon-
dent's business would be closed because of employees' union
activities.
(b) By failing and refusing to permit Anne V. Barksdale,
Sandra Clark, Sandra J. Clark, Evette Demmons, Barbara
Erickson, Angela Jones, Amelia Legins, Joan Morrison,
Lutricia Salter, and Pintcholla Taylor to return to work
beginning January 11, 1978, except upon compliance with
certain discriminatory conditions of employment because
those employees had engaged in, or Respondent was
convinced that they had engaged in, a strike or concerted
activity beginning January 10, 1978, which activity was
protected by the Act.
(c) By requiring that the employees named in subpara-
graph (b) above comply with certain discriminatory condi-
tions of employment in order to return to work on January
11, 1978, and thereafter.
(d) By disciplining employees who engaged in or partici-
pated in a strike or concerted activity beginning January 10,
1978, in protest of working conditions, which activity was
protected by the Act, by discriminatorily requiring that they
produce doctors' certificates to justify their absence, by
permitting them to return to work only as probationary
employees, by suspending one of them without pay, and by
issuing written letters of criticism and warning to those
employees because they participated in such concerted
activity.
(e) Suspending Sandra J. Clark without pay and construc-
tively discharging Sandra J. Clark, Sandra Clark, Joan
Morrison, and Barbara Erickson because of their participa-
tion in the strike or concerted activity beginning January 10,
1978, which was a concerted activity protected by the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) of the
Act, it will be recommended that Respondent cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
It having been found that Respondent failed and refused
to permit the employees participating in the protected
concerted activity beginning January 10 to return to work
beginning January 11, 1978, upon their unconditional
request to return, that Respondent has since that time failed
844
CHARGE CARD ASSOCIATION
and refused to reinstate those employees fully and uncondi-
tionally to their former jobs, and that Respondent construc-
tively discharged four of them in violation of Section 8(a)(1)
of the Act, it will be recommended that Respondent be
ordered to offer each of those employees full, immediate, and
unconditional reinstatement to the position she held prior to
January 10, 1978, or, if such position no longer exists, to a
substantially equivalent position,' without prejudice to her
seniority and other rights and benefits, and make each of
them whole for any loss of pay or benefits she may have
suffered by reason of the discrimination against her, as found
hereinabove, by payment to her of a sum of money equal to
that she would have earned as wages or other benefits from
January 11, 1978, to the date of her full and unconditional
reinstatement, less her net earnings during such period, with
interest thereon to be computed in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977)."
It having been found that Respondent refused to permit
Sandra J. Clark to return to work and suspended Sandra J.
Clark from April 21-29, 1978, in violation of Section 8(a)(1),
thereby causing the termination of her employment in
violation of the Act, it will be recommended that Respon-
dent offer her reinstatement in the manner set forth above
and make her whole for any loss of pay or benefits suffered
as a result of her suspension and termination of employment
by payment of the sum of money she lost thereby, with
interest thereon computed as set forth above.'
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER2"
The Respondent, Charge Card Association, Detroit,
Michigan, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees concerning
union activities or the reasons for such activity.
(b) Soliciting employees to disclose information concern-
ing union activities.
(c) Threatening that its business would be closed because
of employee support for or activities on behalf of a union.
(d) Disciplining employees by imposing conditions upon
their further employment, by suspending them, by issuing
reprimands or warnings to such employees, or by otherwise
disciplining such employees because such employees engage
in, or threaten to engage in, a work stoppage or other
activity protected by the Act.
" Respondent's obligation to reinstate the employees involved in the
protected concerted activities upon their unconditional offer to return was not
satisfied by the discriminatory and conditional offer made on or about
January 23, 1978, or by the reinstatement of some of these employees under
such unlawful conditions. It is indicated that Respondent at some point made
an offer of reinstatement to Angela Jones. If necessary, the adequacy of that
offer may be determined in compliance proceeding.
See, generally, Is Plumbing & Heating Co.. 138 NLRB 716 (1962).
' Respondent argues that Clark was insubordinate to her supervisor on
January 9 and again on April 28, the latter instance clearly provoked by
Respondent's discriminatory actions against her. In neither case was she
disciplined fr her alleged conduct. While such alleged conduct is not
condoned, in the circumstances of this case, it is found that such asserted
conduct is not disqualifying for further employment.
(e) In any like or similar manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the purposes of the Act:
(a) Offer to Anne V. Barksdale, Sandra Clark, Sandra J.
Clark, Evette Demmons, Barbara Erickson, Angela Jones,
Amelia Legins, Joan Morrison, Lutricia Salter, and Pintch-
olla Taylor, to the extent it has not already done so,
immediate and full and unconditional reinstatement to their
former positions or, if such position no longer exists, to a
substantially equivalent position, without prejudice to her
seniority and other rights and privileges, and make each of
them whole for any loss of earnings or benefits she may have
suffered by reason of Respondent's discrimination against
her as set forth in the remedy section of this decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
facilitate the effectuation of the Order herein.
(c) Notify, in writing, each of the employees named in
subparagraph (a) above who was returned to work on or
after January 23, 1978, as a probationary employee that she
is not on probation, and that the disciplinary letters issued to
such employee dated February 14, 1978, and April 11, 1978,
pursuant to such probationary status, has been rescinded
and expunged from Respondent's records.
(d) Rescind and expunge from its records all references to
the imposition upon the employees named in subparagraph
(a) above of a probationary status on or after January 23,
1978, and rescind and expunge from its records the
disciplinary letters referred to in subparagraph (c) above.
(e) Rescind and expunge from its records all references to
the suspension of Sandra J. Clark from April 21-29, 1978.
(f) Make Sandra J. Clark whole for any loss of pay and
benefits she may have suffered by reason of its refusal to
permit her to return to work or by suspending her from
April 21-29, 1978, and because of the termination of her
employment, as provided in the remedy section of this
Decision.
(g) Post at its office and places of business in Detroit,
Michigan, copies of the attached notice marked "Appen-
dix." ' ° Copies of said notice, on forms provided by the
Regional Director for Region 7, after being duly signed by
Respondent's authorized representative, shall be posted by
Respondent 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
:' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
"' In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
845
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(h) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of the
complaint not found herein to be in violation of the Act shall
be dismissed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL. NOT threaten that the Company's business
would be closed because of employee support for or
activities on behalf of a union.
WE WILL. NOT coercively question employees con-
cerning union activities or the reasons for such union
activities.
WE Wl.L NOT solicit employees to give the Company
information concerning union activities among the
employees.
WE WIll. NOT discipline employees by imposing
conditions upon their employment, by suspending
employees, by issuing reprimands or warnings to
employees, or by otherwise disciplining employees
because such employees engage in, or threaten to
engage in, a strike, work stoppage, or other concerted
activity protected by the National Labor Relations Act,
as amended.
WE WILL NOT in any like or similar manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL offer to Anne V. Barksdale, Sandra Clark,
Sandra J. Clark, Evette Demmons, Barbara Erickson,
Angela Jones, Amelia Legins, Joan Morrison, Lutricia
Salter, and Pintcholla Taylor immediate, full, and
unconditional reinstatement to their former jobs (to the
extent that we have not already done so) or, if such jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority and other rights and
privileges, and WE WILL make each of them whole for
any loss of earnings and benefits they may have suffered
by reason of the Company's discrimination against
them, as ordered by the National Labor Relations
Board.
WE WILL rescind and expunge from company rec-
ords any reference to the imposition of probationary
status upon the employees named above, WE WILL.
notify each of those employees that she is not on
probation, and WE WIt.I. rescind and expunge from
company records all reference to the disciplinary letters
dated February 14 and April 11, 1978, issued to those
employees.
WE WILL rescind and expunge from company rec-
ords all references to the suspension from work of
Sandra J. Clark from April 21 through April 29, 1978,
and WE WILL make Sandra J. Clark whole for any loss
of pay and benefits she may have suffered by reason of
the Company's refusal to permit her to work from April
21 through April 28, 1978, or because of the termina-
tion of her employment thereafter.
CHARGEI CARI) ASSOCIATION
846