Diversified Contract Services, Inc.

National Labor Relations Board - Board Decisions

Jan 19, 1989

292 N.L.R.B. 603 (N.L.R.B. 1989)

DIVERSIFIED CONTRACT SERVICES
Diversified Contract Services , Inc and Industrial,
Technical and Professional Employees Division,
National Maritime Union, AFL-CIO and
Maureen V Johnson
Industrial , Technical and Professional Employees
Division , National Maritime Union , AFL-CIO
and Maureen V Johnson Cases 20-CA-20703,
20-CA-20951, and 20-CB-7207
January 19, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On July 12, 1988, Administrative Law Judge
Joan Wieder issued the attached decision The Re
spondent Union filed exceptions' and a supporting
brief, and the General Counsel filed a brief in re
sponse
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions only to the extent consistent with this
Decision and Order 3
The judge found that the Respondent Union
breached its duty of fair representation and violat-
ed Section 8(b)(1)(A) of the Act by treating the
harassment and discharge grievances of the Charg
ing Party, Maureen Johnson, in a perfunctory
manner For the reasons set forth below, we dis-
agree
The facts are fully set forth in the judge's deci-
sion In summary, Maureen Johnson was hired by
the Company on January 4, 1986,4 and elected
union steward in April On December 16, Johnson
1 No exceptions were filed to the judge s finding that the Respondent
Employer violated Sec 8(a)(1) and (3) of the Act when it issued the writ
ten warning of September 23 1986 required Johnson to provide a doc
tor s certificate in October to verify an illness reduced Johnson s work
ing hours on October 20 issued the disciplinary letter of October 30 and
discharged Johnson on December 16
2 The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
3 The judge s recommended Order combined the Order against the
Union and the Employer Because we have dismissed the complaint
against the Union we have set forth a new Order against the Employer
In addition we have included cease and desist language applicable to
each separate 8(a)(3) violation found by the judge Backpay will be corn
puted as prescribed in F W Woolworth Co 90 NLRB 289 (1950)
4 All dates are in 1986 unless otherwise indicated
603
was terminated for four violations of the Compa
ny's tardy and unexcused absence rules 5
Johnson was an active steward On June 9, Re-
spondent Employer's vice president John Miller
wrote Union Representative Maria Curtis a letter
informing the Union that the Company was trou-
bled by Johnson's activities as shop steward In his
letter, Miller expressed concern that Johnson was
soliciting or fabricating employee problems On
September 23, Miller wrote Union Representative
Robert George complaining again about Johnson's
performance as steward
Johnson, in the meantime, was not satisfied with
George's performance as union representative In
June, Johnson and Chief Shop Steward Maureen
Baird met with George and Curtis in San Francis
co Baird told George he was not doing a decent
job Baird and Johnson also made phone calls and
wrote to an official of the International Union in
New York complaining about George
Johnson was ill on October 13 At 9 am, well
before her 11 15 shift was to begin,6 Johnson tele
phoned Gerald Dormandy, the project manager, to
tell him that she would be out the rest of the week
because of excessive bleeding and that she was
under a physician's care Johnson testified that
Dormandy told her to be sure to phone back in a
week Johnson called again around 9 a m on Octo-
ber 15 and spoke to her supervisor, Elfriede De Fi-
lippo, who asked about her health Johnson told
De Filippo that the doctor had taken a biopsy and
that she was awaiting the results In addition, John
son reported that the doctor wished for her to stay
out of work for 1 month, but if the biopsy was
benign she would return to work on the following
Monday Supervisor De Filippo told Johnson that
everything was all right Johnson also called the
Union to tell them she was ill
On October 19 or 20, Johnson received a letter
from Miller that accused her of not communicating
her absence on October 14 and of a late or short-
notice call in on October 15 After reading the
letter, Johnson told Dormandy that Miller's accusa
tions were incorrect as she had called Dormandy
5 According to the February 9 1987 letter from the Company s direc
tor of human resources Johnson violated the Company s policies as fol
lows
1 October 14 1986-did not appear for scheduled duty
2 October 15 1986-short notice call in
3 October 29 1986-short notice call in
4 December 16 1986-short notice call in
s According to Baird s undisputed testimony the Company s rules re
quire employees to inform Diversified Contract Services at least I hour
prior to their scheduled worktime that they will be late or that they will
not be able to report for work that day The employees also understand
that after three short notice call ins the employee will receive a 14 day
suspension and after a fourth short notice call in the employee could be
discharged
292 NLRB No 62
604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
earlier to tell him that she would be out. She also
informed Dormandy that she had spoken to her su-
pervisor before 9:45 a.m. on October 15, which
would mean that there was no short-notice call-in
or failure to inform management of her absences.
Johnson then called the Union, and Union Repre-
sentatives George and Curtis told her that she was
being harassed and to disregard the vice president's
letter because it was not on a reprimand form.
Johnson did not file a grievance over the Miller
letter. 7
On October 27, the Union filed a charge in Case
20-CA-20703 with the National Labor Relations
Board alleging that the Company was harassing
union stewards and other union activists because of
their union activities.
On October 30, Johnson received an employee
performance report for a violation of the attend-
ance rules on October 29.8 The report also noted
that this was Johnson's third violation of the
attendance/tardiness rules. Johnson testified that on
October 29, her daughter who regularly drove her
to work phoned Johnson to inform her that the
car's tire blew out on the freeway. Johnson claims
to have called her supervisor at 9 or 9:15 a.m.
(more than 1 hour before she was to start work
that day) to report the car trouble, and that she
was told not to come in for the rest of the day.
However, Johnson did not file a grievance over
the October 30 report.
On December 8, Johnson filed a grievance claim-
ing that her supervisor was harassing her because
she was a shop steward. This particular incident
arose when Johnson clocked out and remained to
speak with various employees who wished to speak
with her as shop steward. Although under the col-
lective-bargaining agreement, shop stewards were
allowed on the Company's premises in order to
attend to union business, De Filippo ordered John-
son to leave. In her grievance, Johnson asserted
that she addressed about 95 percent of her union
business while off the clock because the Company
would not permit members to speak to her during
work hours, and that De Filippo harassed any
member that came to her on union matters.
On December 16, Johnson was discharged for a
fourth violation of the absenteeism/tardiness rules.
Johnson testified that a friend who was to provide
a car failed to do so in a timely manner, and that
' Under the collective-bargaining agreement, employees are required to
submit all grievances in writing to the project manager within 7 days of
receipt of a reprimand.
8 The report stated that Johnson was late for duty at I I a.m., that at
10:37 a.m. Johnson phoned in to say that she was having transportation
problems, and that she would be late for duty and possibly not be in to
work at all. The report then stated that Johnson did not report for duty
for her entire shift.
she phoned her supervisor to explain that she
would be late. De Filippo told her to come in
when the car arrived, and Johnson was about 10
minutes late. De Filippo then told her that she was
off the clock and was to go home. Johnson testified
that she went home, called the Union, and told
them she was late because of a problem with a
friend's car. The Union told her that she was being
harassed and that she should file a grievance.
The Union had a meeting planned for December
22 to consider various collective-bargaining issues.
Before the meeting began, Johnson handed her dis-
charge grievance9 to Union Representative George
who signed and dated it. George then gave the
grievance to Union Representative Curtis, who
told Johnson that she would file the grievance.
Johnson claims that she did not discuss the merits
of the discharge grievance with either George or
Curtis.
On December 29, representatives of the Union
and Company met in Oakland to consider John-
son's discharge grievance and other employee mat-
ters. The judge credited Johnson's testimony that
she was not informed that her discharge grievance
would be considered during the December 29
meeting. Neither Johnson nor Chief Union Steward
Baird was present at this meeting.
Employee complaints that management harassed
employees when they engaged in concerted pro-
tected activity were addressed at the December 29
meeting. However, these harassment claims were
not resolved and another meeting was set for Janu-
ary 14, 1987. George also reviewed Johnson's per-
sonnel file and examined Johnson's reprimands re-
garding her tardiness. Miller denied that any of the
reprimands were issued as harassment or in ill will
toward shop stewards. George then decided that
Johnson's termination was justified. Although he
had not completed his investigation of the harass-
ment allegations, George felt Johnson's discharge
grievance had been investigated and resolved at the
December 29 meeting. He testified that he did not
consider the December 8 grievance and Johnson's
termination as part of the alleged harassment. On
December 30, George wrote Johnson a letter that
stated that the Union concluded that the Company
did not violate the collective-bargaining agreement
when it discharged her.
With regard to Johnson's December 8 harass-
ment grievance, George investigated the harass-
ment claims concerning De Filippo by going to an-
other military base where De Filippo previously
9 Specifically, Johnson's discharge grievance states in part: "On the
Dec. 16th issue, I called Mr Dormady [sic] and told him I was sick and
that I would be out of work and under my doctor's care."
DIVERSIFIED CONTRACT SERVICES
had worked and speaking with her former employ-
ees On January 21, 1987, George resolved the har-
assment complaints about Supervisor De Filippo by
telling the Company that after investigation he had
found De Filippo to be a perfectionist, and that
there was no evidence that she was guilty of har-
assment There was no evidence that Johnson was
informed of the resolution of this grievance
The judge found that the Union treated John-
son's termination and harassment grievances in a
perfunctory manner thereby breaching its duty of
fair representation in violation of Section
8(b)(1)(A) Examples of the Union's perfunctory
treatment of Johnson's grievances included the
Union's failure to discuss the Company's position
with Johnson or Baird before the December 29
meeting, the Union's failure to inform Johnson of
the December 29 meeting or that her harassment
grievance was to be considered at any date, the
Union's lack of investigation of both grievances
that precluded Union Representative George from
making a favorable presentation to the Company,
and the Union's failure to advance a reason the dis-
charge grievance and harassment grievance could
not have been discussed on the same date The
judge found that "simultaneous discussion of these
two grievances was the most logical manner of
handling given their patent interrelationship " The
judge also found that the Union's actions rose
above mere mismanagement, negligence, or inepti
tude and that George gave the grievances perfunc
tory treatment out of animus against Johnson be
cause she complained about him The judge went
on to find that even absent animus, the Union treat-
ed Johnson's grievances in a perfunctory manner
thereby breaching its duty of fair representation in
violation of Section 8(b)(1)(A) of the Act
It is well settled that a union breaches its duty of
fair representation when it engages in conduct af-
fecting employees it represents, which is arbitrary,
discriminatory, or in bad faith Vaca v Sipes, 386
U S 171, 178 (1967) It is also well settled, howev
er, that the negligence or nonaction of a union by
itself will not be considered to be arbitrary, irrele-
vant, invidious, or unfair so as to breach the duty
of fair representation Something more is required
Teamsters Local 692 (Great Western Unifreight), 209
NLRB 446, 448 (1974)
Although the Union's conduct surrounding John
son's discharge and harassment grievances is far
from model union grievance handling, we find,
contrary to the judge, that the Union did not
engage in a pattern of conduct so egregious as to
warrant finding a breach of its duty of fair repre-
sentation
605
Although Johnson believed that she was unjustly
disciplined, she failed, on many occasions, to file
grievances over these instances, save the discharge
grievance and the harassment grievance of Decem-
ber 8 As a shop steward, Johnson knew that the
collective-bargaining agreement required that all
grievances be in writing and submitted within 7
days of receipt of a reprimand Johnson was clearly
aware of the procedures for filing a grievance and
knowingly chose not to exercise her right to file a
grievance The Union's failure to pursue matters
other than the discharge and December 8 harass
ment grievances would not, accordingly, support a
finding of breach of the duty of fair representa-
tion 10
As to the discharge grievance, the Union was
faced with two problems in arguing its merits to
the Company First, Johnson had been disciplined
on three prior occasions for tardiness or absentee-
ism within a little more than 2 months of her dis-
charge As noted above, Johnson had chosen not
to grieve any of these prior disciplinary actions
Second, the Union had problems concerning John
son's credibility and the true reason she was late
for work on December 16 Johnson testified that
she told the Union she was late on December 16
because of a problem with a friend's car However,
in the discharge grievance Johnson gave Union
Representative George on December 22, she stated
that on December 16 she called Dormandy and
told him that she was sick and under her doctor's
care Johnson's inability to give a consistent ac
count of what had happened on December 16 left
the Union with little to support Johnson's conten-
tion that exigent circumstances actually existed on
December 16 Because the inconsistencies came
from Johnson herself, there was little in the way of
investigation that the Union could do to strengthen
her case In sum, the discharge that the Union was
asked to contest on behalf of Johnson was based on
three incidents that Johnson had never grieved and
one incident about which she produced conflicting
explanations
Finally, although, as the judge found, the simul
taneous discussion of the discharge and harassment
grievances would be the most logical manner of
their handling, a union does not commit an unfair
10 Johnson asserts that she was unjustly disciplined and/or harassed on
the following occasions On September 23 Vice President Miller wrote a
letter to Union Representative George concerning adverse reports from
the Air Force on Johnson s work performance around October 5 John
son was required to obtain a doctor s certificate before she could return
to work after an illness Johnson was given an employee performance
report for being 4 minutes late on October 19 and on October 30 John
son received an employee performance report for insubordination on Oc
tober 28 Johnson failed to file a grievance over any of the above mci
dents
606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
labor practice by making good-faith, nondiscrim-
inatory errors of judgment in processing griev-
ances. See, e.g., Groves-Granite, 229 NLRB 56, 62-
63 (1977); Castelli v. Douglas Aircraft Co., 752 F.2d
1480 (9th Cir. 1985). George's decision not to dis-
cuss the two grievances together because he did
not consider the harassment allegation to be con-
nected with Johnson's termination is understand-
able in light of the fact that the harassment griev-
ance was limited to one specific harassment inci-
dent that occurred on December 8. Although this
decision may be seen by some as an error, it was at
most an error of judgment and not evidence of
breach of the duty of fair representation. Findley v.
Allegheny Corp., 639 F.2d 9:53 (3d Cir. 1981). Fur-
ther, the record does not support a finding of
animus.
Thus, though Johnson with others had com-
plained about the Local to the International, there
was no evidence that George harbored any ill will
toward Johnson. Instead, he had filed charges at
the NLRB on her behalf when she alleged harass-
ment and had sympathized with her complaints
when she called to complain about what she
viewed as unjust treatment :. Though George did
not act on every complaint she made, Johnson did
not file grievances over many of these incidents.
We find that the Union's failure to discuss the
Company's position with Johnson before the De-
cember 29 meeting , its failure to inform Johnson of
the two meetings at which the grievances were to
be discussed, and the lack of a full-scale investiga-
tion into both grievances do not under the circum-
stances of this case demonstrate an unlawfully per-
functory handling of Johnson's grievances. Rather,
they suggest only possible mismanagement on the
Union's part which we cannot equate with action
that is arbitrary, irrelevant, invidious, or unfair.
Rainey Security Agency, 274 NLRB 269 (1985).
Accordingly, we shall dismiss the complaint al-
leging that the Respondent Union failed in its duty
of fair representation in violation of Section
8(b)(1)(A) of the Act.
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 4 and renumber the
subsequent paragraph.
ORDER
The National Labor Relations Board orders that
the Respondent, Diversified Contract Services,
Inc., Sacramento , California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discriminating against employees in any
aspect of their employment, because they join, sup-
port, or assist a union or because they engage in
any other activity protected by Section 7 of the
Act.
(b) Discharging employees because they joined,
supported, or assisted the Union, engaged in con-
certed activities for the purpose of collective bar-
gaining or other mutual aid or protection, and in
order to discourage employees from engaging in
such activities for the purpose of collective bar-
gaining or other mutual aid or protection.
(c) Imposing more onerous and rigorous terms
and conditions of employment on employees be-
cause they engaged in union or protected concert-
ed activity.
(d) Issuing written warnings to employees be-
cause they engaged in union or concerted protect-
ed activity.
(e) Reducing employees' working hours because
they engaged in union or concerted protected ac-
tivity.
(f) In any like or related manner interfering with,
restraining , or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Maureen V. Johnson immediate and full
reinstatement to her former position, or, if that po-
sition no longer exists, to a substantially equivalent
position, without prejudice to her seniority or
other rights and privileges previously enjoyed.
(b) Make Maureen V. Johnson whole for any
loss of earnings that she may have suffered by
reason of the Respondent's unlawful discharge of
her as set forth in the remedy section of the judge's
decision, and make her whole for any loss of earn-
ings and other benefits she suffered by reason of
the unlawful discrimination practiced against her
including lost hours to leave work and secure a
doctor's certificate, and the reduction of scheduled
hours about November 1, 1986.
(c) Remove from its personnel records all refer-
ences to the above unlawful discrimination and
notify Maureen V. Johnson in writing that this has
been done and that those records and references
will not be used as a basis for future personnel
action against her.
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay and other amounts due under
the terms of this Order.
(e) Post at its facility in Sacramento , California,
copies of the attached notice marked "Appen-
DIVERSIFIED CONTRACT SERVICES
dix " I I Copies of the notice, on forms provided by
the Regional Director for Region 20, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
IT IS FURTHER ORDERED that the complaint in
Case 20-CB-7207 is dismissed
I I If 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 Nation
al 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
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT discriminate against employees in
any aspect of their employment with us because
they join, support, or assist a union or because they
engage in any other activity protected by Section 7
of the Act
WE WILL NOT discharge employees because they
joined, supported, or assisted the Union, engaged in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and
in order to discourage employees from engaging in
such activities for the purpose of collective bar
gaining or other mutual aid or protection
WE WILL NOT impose more onerous and rigor
ous terms and conditions of employment on our
employees because they engaged in protected con
certed activity
WE WILL NOT issue written warnings to employ-
ees because they engaged in union or concerted
protected activity
WE WILL NOT reduce employees' working hours
because they engaged in union or concerted pro-
tected activity
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer
607
case of the rights guaranteed you by Section 7 of
the Act
WE WILL offer Maureen V Johnson immediate
and full reinstatement to her former position, or, if
that position no longer exists, to a substantially
equivalent position, without prejudice to her se-
niority or other rights and privileges previously en
joyed and WE WILL make her whole for any loss of
pay she may have suffered by reason of our dis
crimination against her, with interest
WE WILL remove from our files any references
to the discriminatory actions including warnings,
reductions in hours, and all indicia of discipline
found to have been imposed for discriminatory rea-
sons, including Maureen V Johnson's discharge,
and shall notify her in writing that this has been
done and that evidence of these unlawful discipli-
nary warnings and discharge will not be used as a
basis for future personnel actions against her
DIVERSIFIED CONTRACT SERVICES,
INC
Christine A Rails Esq, for the General Counsel
Andrea Ford Roberts and Major Williams Jr Esqs (Alex
ander Millner & McGee), of Oakland California for
the Respondent
Sidney H Kalban Esq (Phillips Cappiello Kalban Hof
mann & Katz P C) , for the Union
DECISION
STATEMENT OF THE CASE
JOAN WIEDER, ADMINISTRATIVE LAW JUDGE These
consolidated cases were heard before me on various days
in July and October 1987 '
On a charge filed in Case 20-CA-209512 by Maureen
Johnson an individual on December 16 it is alleged she
was discriminatorily terminated by Diversified Contract
Services (DCS or Company) because of her union ac
tivities as a union shop steward, in violation of Section
8(a)(1) and (3) of the National Labor Relations Act
Johnson filed another charge on March 31, 1987 in Case
20-CB-7207 alleging that Industrial Technical and Pro
fessional Employees Division, National Maritime Union
AFL-CIO (the Union) breached its duty of fair represen
tation in its handling of her complaints of harassment and
discrimination and the processing of her grievance over
her termination
On a charge filed October 27 by the Union in Case
20-CA-20703 it was alleged that Diversified Contract
Services harassed shop stewards and others for engaging
in union activities, in violation of Section 8(a)(1) and (3)
of the Act Region 20 deferred these charges on the par
ties agreement to attempt resolution under their collec
tive bargaining agreements grievance procedure The
I All dates are in 1986 unless otherwise indicated
2 Originally the charge was numbered Case 32-CA-8636 but was re
numbered when transferred to Region 20
608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
consolidated complaint reflecting the charges of unlawful
termination and breach of duty of fair representation was
issued on April 30 1987, and amended at hearing Since
these allegations encompassed some of the issues de
ferred in Case 20-CA-20703 Region 20 revoked deferral
of this charge on May 29 1987, and issued a complaint
based on this charge on May 29, 1987, which was also
consolidated with the other charges for hearing The
complaint in Case 20-CA-20703 alleges that DCS unlaw
fully disciplined Johnson, disparately reduced her hours,
and imposed onerous and rigorous terms and conditions
of employment
The Respondents deny that they engaged in any un
lawful conduct and move for dismissal of the consolidat
ed complaint Rulings on these motions were deferred
for disposition in this decision I deny these motions for
the reasons stated post On the entire record in this case
and from my observation of the witnesses I make the
following
FINDINGS OF FACT
I JURISDICTION
The Company is a California corporation with an
office and place of business at Mather Air Force Base
(MAFB), Sacramento, California, where at all times ma
terial it has been engaged in the provision of food serv
ices DCS contracts to provide a variety of services to
the United States Government including operating ware
houses and commissaries It admits that in the course and
conduct of these operations it has performed contractual
services valued in excess of $5 million for the United
States Department of Defense The Respondents admit
and I find that DCS is an employer engaged in com
merce within the meaning of Section 2(2) (6) and (7) of
the Act
II THE LABOR ORGANIZATION
It is admitted and I find that Respondent Union is a
labor organization within the meaning of Section 2(5) of
the Act
III THE ALLEGED UNFAIR LABOR PRACTICE-THE
FACTS
A Background
DCS is a government contractor providing food and
warehouse services to various military bases In Novem
her 1985 , it commenced the provision of full food serv
ices for the military personnel at MAFB 3 There are four
locations at MAFB where food services are provided by
company employees the main dining hall, also called
building 1226 in flight kitchen SAC Alert, and the crash
kitchen also called the fire station Johnson worked in
building 1226 the location with the greatest number of
employees
3 Previously these services were provided by Moore s Cafeteria which
lost the contract and the Government operated the facilities for a period
using some of Moore s former employees as temporary civil service em
ployees Moore s Cafeteria had a contract with the Union
The supervisors were John Miller, vice president of
operations Gerald Dormandy project manager and his
assistant project manager, Elfriede Eppie or Effie
De Filippo 4 Only Miller had the authority to fire em
ployees De Filippo scheduled the employees for the
three shifts in building 1226 De Filippo and Dormandy
tried to work different shifts so that one or the other was
present most of the time and could oversee the oper
ations The service contract required a 24 hour a day op
eration It was DCS first full food service contract uti
lizing the most employees in all its operations and admit
tedly it experienced several problems in commencing op
erations
The Union and DCS have a long collective bargaining
history and DCS was found to have been a successor to
Moore s Cafeteria in a proceeding before the Department
of Labor DCS had hired many of Moore s former em
ployees The question of successorship is not an issue in
the instant proceedings They executed a contract cover
ing the MAFB employees on February 3 As here perti
nent, the union representatives assigned to MAFB were
Maria Curtis and Robert George
B Johnson s Employment and Discharge
Johnson was hired by the Company on January 4 and
started working on January 5 She was hired as a mess
attendant, specifically cashier Subsequently she became
a line server, the position from which she was fired on
December 16 Johnson was terminated according to
documents prepared by DCS for four violations of its
tardy and unexcused absence rules Johnson and the
General Counsel claim she was fired as part of a scheme
to harass union stewards and other union activists The
Company and the Union assert she was properly dis
charged for cause According to a letter dated February
9 1987 written by Melva Watts DCS director of human
resources during the last quarter of 1986 Johnson vio
lated the company policies as follows
1 October 14 1986-did not appear for scheduled
duty
2 October 15 1986-short notice call in
3 October 29 1986-short notice call in
4 December 16, 1986-short notice call in
Because the General Counsel asserts Johnson s discharge
was part of a pattern of harassment of union activists
her entire work history must be examined
According to Johnson prior to attending her first
union meeting she complained to Dormandy about not
receiving her 10 minute break At a union meeting held
in April, she was elected a union shop steward for build
ing 1226 There was only one union steward for the main
dining room even though it utilized the vast majority of
employees and had the majority of problems The other
shop stewards elected in April were Baird chief shop
steward who works at SAC Alert and the in flight
kitchen stewards Cornish and Adams Beverly Fisher
later became a shop steward at the in flight kitchen
* DCS had other supervisors below these including in building 1226
Holt Alexander Jones Iva Krauts Tonia Lopez and Smith
DIVERSIFIED CONTRACT SERVICES
where she had far fewer problems to address as shop
steward than Johnson
Prior to being elected a union steward Johnson re
ceived one disciplinary notice called an employee per
formance report dated February 6, for failure to clock
out on time The notice was signed by Toma Lopez
After explaining that the rule violation was occasioned
by Johnson s inability to find supervisors to give her a
form that had to be completed at the end of the workday
and to accept receipt of her cash drawer, the notice was
placed in her personnel file for a number of days and she
was cautioned to clock out on time Johnson sought the
assistance of the Union and George undisputedly told
her the Company would tear up the report because it
was management s fault she clocked out late Respondent
Company claims this notice was not considered in the
decision to terminate Johnson
1 Events of September 23 and related matters
Johnson was admittedly a very active union steward
On June 9 Miller wrote Curtis a letter informing the
Union the Company was experiencing problems with
Johnson s activities as a shop steward The letter relates
an incident where Johnson informed management of a
complaint by an employee who later stated she had no
such complaint In a subsequent meeting, Johnson told
the employee, Sun Chae Rollins that she had previously
given her different information Johnson then left the
meeting, which Miller considered unprofessional An
other incident related in the letter involved the work
schedule of Vanessa Brown Brown indicated to manage
ment that Johnson encouraged her to complain even
though she was satisfied with her current schedule and
that Johnson gave Brown incorrect information regard
ing her bumping rights Miller expressed concern that a
shop steward was soliciting problems or fabricating em
ployee problems and considered these actions as repre
senting an attempt to impede this employers contrac
tual requirements to the government
Curtis and thus the Union were aware at this early
date that Johnson believed she was being harassed by the
Company because of her activities as a union steward
De Filippo and Dormandy did not let Baird and Johnson
perform many of their duties as stewards while they
were on the clock and there were incidents were John
son was not permitted to conduct union business when
she was off the clock contrary to the collective bargain
ing agreement Johnson filed a grievance on August 12
claiming the Company was harassing her because of her
activities as a steward and denied employees access to
the shop steward
On September 22, Johnson represented an employee
Isolde Gallant at a meeting about a written reprimand
Gallant received for not wearing a hairnet Johnson in
formed management that Gallants hairnet came off on a
piece of equipment a frequent occurrence the Company
usually kept a box of hairnets for replacements in just
such circumstances The Company informed Gallant that
they did not have any hairnets left they were not going
to supply any more replacements Gallant was also repri
manded for arguing with another employee Gallant
complained that the other employee was not similarly
609
reprimanded When Johnson reported this apparent in
equality to management the other employee, Bedgood,
was also reprimanded, but the document was never
signed by management
On September 23 Miller wrote a letter to George
complaining about Johnson and the chief shop steward,
Baird The letter states
Since contract inception at our food service
project Mather Air Force Base, I as well as our
DCS management staff have listed concerns re
garding Ms Maureen Baird and Ms Maureen John
son Problems relating directly to these two specific
employees have been ongoing, as you must be
aware
It is my personal opinion that employee problems
have been solicited by at least one (1) of these two
(2) union stewards This assumption has been based
upon comments offered by members of our employ
ee staff, a fact of which you are aware Additional
ly the previous and current actions of shop stew
ards illustrate intentions to impede and/or interrupt
services to our military customers Obviously I can
not allow such a problem to continue
Enclosed is a statement offered by Mr Robert
Gogstad DCS Corporate Quality Assurance Based
only upon heresy [sic] I understand that Ms Baird
had made similar statements in the past However
this is the only time that this office can actually sub
stantiate such statements
Ms Baird has indicated that our firm, as well as
your union are involved in unprofessional and posse
ble illegal activities
I firmly believe Ms Baird has hereby made accu
sations against this employer which are of no merit
Therefore, I expect Ms Baird to provide your
union as well as this office, proof of her accusations
are [sic] an immediate retraction of her enclosed
statements to all union members at Mather Air
Force Base
In the event you are unable to resolve this prob
lem from within the union community I will re
solve this specific problem permanently It is still
obvious that your appointed shop stewards are not
aware of employer rights Our firm has always at
tempted to adhere to all employee rights at all DCS
projects Therefore our union/corporate problems
have been minimal We at DCS have encountered
more problems in ten (10) months at Mather than
during the previous ten (10) years at all our other
projects combined, again , a fact of which you are
aware It is statements similar to these current com
ments by Ms Baird that have in the past caused
and/or added to employee problems
I once overlooked Ms Baird s abusive negative
and profane comments directed toward a member of
our Corporate management staff However, I will
not accept in any form Ms Baird s adverse accusa
tions against this firm
A second and continuing problem involves the
shop stewards attempt to dictate policy to our on
site management staff The most recent problems in
610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
volves Ms. Johnson's attempt to dictate employees'
scheduled days off. You are personally aware of
other and/or past problems regarding this same sub-
ject. The Mather Shop Stewards have apparently
elected to act as union area representatives rather
than on-site representatives.
Regarding performance evaluation I consider Ms.
Baird to be only an average employee. Certainly,
when rated with her contemporaries Ms. Baird re-
mains below average in the areas of cooperation
and tact.
Ms. Johnson's performance is considered below
average. This particular employee has caused our
firm to receive two (2) official adverse notices from
the Food Service Officer at Mather. Both notices
were presented in the form of a Contract Monitor-
ing and Surveillance Report on August 28, 1986,
and again on September 12, 1986. Copies of both re-
ports are enclosed for your information.
I intend to provide Ms. Johnson with an official
notice of these specific performance problems. I
expect her to perform her future duties in a satisfac-
tory manner, in order to avoid the requirement to
enforce a more permanent solution.
Mr. George, I would like to again point to the
fact that your union and my office continue to ad-
dress employee rights at a number of projects of
which, Mather is only one. During our ten (10) year
association with the I.T.P.E., we have encountered
very few employee problems. Again, it is my honest
opinion that various problems at Mather have in
certain instances been fabricated and/or solicited.
Also, I believe that Ms. Johnson and Ms. Baird are
as equally concerned with disrupting this employ-
er's operation at Mather as they are interested in
protecting members' rights.
I am available at anytime to address these prob-
lems with your office in any manner you recom-
mend.
Baird, a current employee of DCS, has worked in food
services at MAFB since 1974 and has been a shop stew-
ard for at least 7 years. She and Maureen Johnson are
friends. Baird works at SAC Alert which has about eight
employees. The matter relating to Gogstad referred to in
Miller's letter is an employee comment for the record
which stated:
While sitting at the table at SAC Alert, Mrs. Baird
made the following statement: "She bloody well
was going to see about getting Bob George re-
placed because he is to wish washy [sic]. He tells
Diversified Contract Services, Inc. one thing and
the union shop stewards another. Bob George in-
formed her by telephone that another union
member could not supervise the other union person-
nel." She also stated, "that she would take no
orders or instructions from Miss Freeman," who is
designated the First Cook. At this time she asked all
other employees if they were going to take instruc-
tions from Miss Freeman, in which they replied, no
they were not. At this time, I informed Mrs. Baird
and the remaining employees that they would take
all orders that were given to them by Miss Freeman
until further notice. Mrs. Baird then replied, "You
might as well bloody well fire me, because I am not
going to take any orders from a fellow union
member." At that time I informed Mrs. Baird that I
would not be firing her on the statement she just
made. Then I repeated, regardless of which you just
told me, she would take instructions from Miss
Freeman until further notice. At that time Mrs.
Baird said that she was going to call New York and
talk to the head of the union to see about getting
Bob George thrown out, because it looks like "he is
rubbing noses with DCS."
Miller did not identify in his September 23 missive the
employees who claimed that Johnson and Baird solicited
grievances. The parties did not adduce evidence as to the
supervisory status of Gogstad but his directing Baird to
follow Freeman's orders indicates some agency relation-
ship to the Company and his comments were not a com-
plaint by a line employee. Miller did express concern
that Baird claimed the Union was a bedfellow with
DCS. The second incident involved a grievance being
filed by a Ms. Rawlins; when management approached
her, she allegedly became upset claiming she did not
want to file a grievance. Rawlins did not appear and tes-
tify. Her absence was not explained.
The Gogstad and Rawlins' incidents, Miller claims,
verified rumors that stewards were soliciting grievances
and complaining the union was not representing them
but was a bedfellow with the Company. Miller also testi-
fied that he did not believe that relations with the em-
ployees deteriorated or became more strained as the con-
tract progressed; rather, he opined, employee problems
decreased as the project became operational. This opin-
ion was not reconciled with the claim in the letter that
DCS had more problems at MAFB in 10 months than
during the past 10 years at all their other projects com-
bined.
Miller explained his reference to resolving the "prob-
lem permanently" as indicating that if the rumors persist-
ed he would resort to legal recourse. The reference to
performance problems was informational, indicating that
if Johnson did not improve, "a more permanent situation
[sic], would be a termination or a suspension." He could
not recall how many performance reports or reprimands
Johnson had received as of September 23. Admittedly,
the Company was receiving a greater number of employ-
ee grievances at MAFB.
Baird and Johnson were dissatisfied with the perform-
ance of George as their union representative, which was
indisputably the basis of Gogstad's report. Baird and
Johnson went to San Francisco and met with George
and Curtis around June. Baird told George he was not
doing a decent job and George asked for a little time.
They gave him 1 week and told him they were then
"going to New York with this. He said go, do it."
Johnson and Baird made telephone calls to an official
of the International union in New York, Shannon Wall
and, after these calls were not returned, wrote him a
letter. The letter, according to Johnson's notes, repre-
sents that the shop stewards at MAFB:
DIVERSIFIED CONTRACT SERVICES
have severe problems with regards to our
Union Rep Mr Robert George The Company con
sistently violates the Union contract for what its
worth from Article 1 to Article 30, our Rep Mr
George continually defers to the Company not the
Union Contract As a result of this action our mem
bers are under great stress and are bitterly disap
pointed with The Union They feel this is a Compa
ny Union, this in turn makes the job for all shop
stewards extremely difficult We even took a
trip to S F San Francisco main union office for the
purpose of filing twenty two grievances We were
requested to let Mr George handle it his way
They expressed satisfaction with the efforts of Curtis
when she was allowed" to assist them They also in
formed Wall that the only other choice of receiving as
sistance was turning to the Board, as suggested by
George
Specific complaints were the contract was not being
observed, seniority was ignored cooks were being used
as supervisors, managers were performing unit work and
paid union dues health insurance, health and welfare
benefits, and pension plan contributions and were work
ing on the clock, and, union members hours were being
reduced The notes also indicate that the International
was informed that whenever these violations were raised
with management the shop stewards were told they were
troublemakers who were causing problems The Union
does not claim the letter was not received or Johnson s
notes not reflective of the missive
Also on September 23, Miller wrote a letter to John
son referring to her unsatisfactory performance based on
criticisms contained in the contract monitoring and sur
veillance reports, submitted by a food service officer on
August 28 and September 12 as related to him by Dor
mandy at some unspecified time5 Johnson received this
letter shortly after she represented Gallant in the previ
ously described matters regarding Gallants argument
with Bedgood and her loss of a hairnet
The reports were signed by a military inspector sever
al routinely monitor DCS performance and if they find
something they do not like, it is noted on these reports
Dormandy routinely gets the reports signs them, and
5 The letter stated
This offi'e is in receipt of two (2) adverse performance notices fur
rushed in the form of a Contract Monitoring and Surveillance Report
submitted on August 28 1986 and September 12 1986 Both reports
were furnished by the Mather Food Service Officer and both reports
are directed at your service Copies of these reports have been fur
coshed to your Union Area Representative
I recommend that you again read my letter presented to you on May
2 1986 regarding your requirement to perform employee duties in a
satisfactory manner even though you are a Union Shop Steward
On September 22 1986 your Project Manager informed you of his
decision to remove you from the serving line to another facility duty
station However I have informed Mr Dormandy that he will not
remove you from the serving line Simply you will correct the per
formance problems as directed by our one site [sic] management
staff In the event DCS encounters any future problem regarding
your performance on the serving line you may be assured that I will
enforce a more positive and permanent corrective action
You may address any questions regarding this reprimand to me per
sonally on September 24 1986 and/or your Union Representative
this is your decision
611
tosses his copy in the circular file The report goes to the
contracting officer and is used to determine if the com
pany should be monetarily penalized for poor perform
ance under the contract In Dormandy s experience, em
ployees other than Johnson have been reprimanded
when the Company can identify the individuals responsi
ble for the negative rating Dormandy testified that on
the specific occasions of the reports relating to Johnson,
he accompanied the inspector and observed the same de
ficiencies noted in the reports
According to Dormandy, he did not single out John
son, he had spoken to other employees who were cited
for deficiencies in similar reports when he could identify
them The September 18 report noted several deficien
cies, only one item related to Johnson, who was noted as
serving food in a sloppy manner The report also criti
cized the lack of pastries available, which was not John
son's responsibility, the individual responsible for that
function was not reprimanded or counseled This failure
was unexplained Another item mentioned in the report
referred to deficiencies of the individual performing the
duties of the vegetable girl,' and two other criticisms
involved the cook There is no evidence that the 'vege
table girl" or the cook was reprimanded or counseled for
these failings The decision to reprimand only Johnson
and not the other employees whose deficiencies were
noted in the report was unexplained Dormandy did not
claim he could not identify these other employees who
were criticized in the report
On September 24 both Baird and Johnson were given
copies of Miller s September 23 letters They met with
Miller, Dormandy and De Filippo Baird asked Miller to
show her the surveillance and monitoring reports and
after reviewing them told him it was harassment cause
they had to dig low to get these after a month He
[Miller] banged his fist on the table and he told me it
was not harassment He said he had-he d never had so
much trouble in all the 11 bases he had until he came to
Mather And we were nothing but troublemakers "s
When Baird discussed the letter with George she said
it was a bunch of bull and George agreed with her
Also during the meeting De Filippo admitted, according
to Johnson s testimony, that she was a good worker
George corroborated Johnson s testimony that De Fi
lippo admitted during this meeting that Johnson was a
good worker Baird also told Miller she thought manage
s Both Johnson and Baird accused Miller of often referring to them as
troublemakers including during several mandatory employee meetings
Miller s denial is not credited based primarily on demeanor I also note
that the asserted reference is consistent with the tenor of the September
23 letter discussing his concerns regarding Baird s and Johnson s activi
ties The notes for the Johnson and Baird letter to the International union
also refers to the practice of calling shop stewards who raise ostensible
contract violations troublemakers which convincingly corroborates
their claim Another consideration is that Miller volunteered information
and otherwise appeared to be tailoring his testimony to meet DCS litiga
tion theories rather than attempting to be forthright and candid In fact
on occasion he failed to reply to questions but instead volunteered infor
mation Accordingly Miller s testimony will be credited only where it is
uncontroverted or creditably corroborated
I also note in making my credibility resolutions that the witnesses
were not sequestered
612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment was harassing Johnson and Miller denied that was
their intent.
Johnson and Baird did not consider the letter regard-
ing the surveillance and monitoring report to be a repri-
mand because it was not given on the customary form.
Johnson claimed that she was told by the Union's repre-
sentatives to ignore the letters and that they were not
reprimands.
Also on September 24, George met with Johnson and
Baird to inform them of their obligations as stewards. He
wrote Baird a letter, dated September 25, with copies to
all stewards which stated, as here pertinent:
Section B of Article XII of our CBA states plainly
that the shop steward shall not interfere with the
management of the business or direct any work of
any employee, but may advise the Company of any
violations of the Agreement and of the employee
participating therein. For example-you cannot tell
the Company that Jane Doe should work here and
not there, nor can you tell Jane Doe to work here
and over there, Jane works where assigned to by
the Company.
In plain language-if you see or hear of a viola-
tion you have the right to inform-1. the company,
2.-the employee involved. This does not mean that
you drop what you are doing, to report such an
action, but, at the appropriate time you make the
report.
Section E of Article VIII-Grievance procedure
simply states that you have the right to investigate,
discuss and present grievances on COMPANY
TIME, however, such time shall be kept to a mini-
mum. Section C Article XII further states that shop
stewards will request permission from the supervi-
sor prior to leaving their work stations and WILL
NOT LEAVE the work area during rush
hours....
Above all, when handling a grievance do not tell
the worker that you can and will win the case.
When talking to management do not raise your
voice and get angry, do not threaten, but do not
hesitate to state you will follow the grievance pro-
cedure.. . .
In your day to day activities on the job your su-
pervisor and managers exercise certain authority
over you as a worker for that company, however,
when your [sic] are discussing , investigating and
presenting grievances you are an official representa-
tive of the Union and, should be treated as such.
You have equal status to the representative of the
Company. . .
2. Discipline of Johnson in October
In early October, Johnson was a couple of minutes late
because she had a flat tire. Lopez, a supervisor, did not
issue a reprimand. Later that same week, on or about
October 5, Johnson was ill and left work early after in-
forming Lopez she was sick. She missed the next day's
shift, and telephoned to inform the Company she would
not be in the next day. She spoke to Dormandy who,
when told she would probably not be in the next day,
informed her he might require her to bring in a doctor's
certificate. Johnson replied that she had to be out 2 days
before she was required to bring in a doctor's certificate
but said "okay." She then called the Union to relate the
conversation to Curtis who agreed she was not required
to bring a doctor's certificate until she was absent 2
days7 and opined Johnson was being harassed by the
Company. Curtis then checked with the Company and
telephoned Johnson the same day informing her "they're
being adamant about this, they are going to ask you for
the doctor's certificate." Curtis asked if others were simi-
larly required to present a doctor's certificate after only
1 or 2 days' absence and, if not, to get their written state-
ments.
When she returned to work, she was informed that she
could not return to work without a doctor's certificate.
Johnson was required to leave work and obtain the cer-
tificate before she would be allowed back to work. The
medical certificate was obtained and given to the Com-
pany when she next returned to work. No grievance was
filed with management concerning the Company's re-
quirement that she obtain a doctor's certificate before
being permitted to return to work. Johnson got employ-
ee statements indicating the Company's failures to simi-
larly require them to present doctors' certificates on their
return to work. She gave the Board the originals of these
statements and sent copies to the Union.8
Curtis inquired about the requirement and Miller, by
letter dated October 14, informed the Union that DCS
management has discretion to require a doctor's certifi-
cate as they deem necessary. Johnson had read and
signed a copy of the policy on January 31.9 Miller testi-
fied that he was informed that the management at
MAFB decided to require a doctor's certificate in each
instance an employee was absent because of illness. The
company policy statement that Johnson had signed, pro-
vides, in part: "An employee may be required to submit
a certificate of notification from a doctor as proof of ill-
ness before receiving sick pay."
De Filippo claims that she required doctors' certifi-
cates explaining absences due to illness in all cases, that it
was a company requirement. She testified she required
all employees who were out sick to bring a doctor's cer-
tificate, without exception.' °
7 The Company altered the rule in the collective-bargaining agreement
under a management -rights clause. There is no contention this alteration
violated the Act or was probative of proscribed motive.
6 Johnson's testimony is corroborated by Miller who testified that he
understood from Curtis that employees had submitted statements that
they were not required to provide doctors' certificates when returning
from illnesses and she was to supply copies of these statements . Miller
never received copies of these statements . If the Union had provided
these statements he claims all the documentation on the matter would
have been rescinded and all references to the matter removed from John-
son's file.
As here pertinent, Miller's letter stated:
It is my position that a physician's release be required specifically
whenever an employee becomes ill while on duty. I consider this
action a safeguard for both the employee and the employer. Simply,
if an employee must depart work prior to the end of his/her shift,
we should know the reason for the illness.
10 De Filippo later changed her testimony, and claimed only those em-
ployees who were out sick a day or more were required to provide a
doctor's certificate, not those who went home from work ill and returned
the next day.
DIVERSIFIED CONTRACT SERVICES
Initially , she testified that she was responsible for in
suring the Company s rules were enforced but later as
serted that she was not responsible for enforcing the
policies for all the employees at MAFB, only at building
1226 Freeman was the supervisor at sac alert and gon
zales at the in flight kitchen She then admitted that as
assistant project manager , she was responsible to ensure
all supervisors follow the Company s rules and one such
rule is that they require all employees who are off sick to
provide a doctor s certificate, even though the rule indi
cates the requirement is discretionary
The evidence , contrary to De Filippo s testimony, is
that many employees were not required to provide doc
tors certificates under circumstances similar to Johnson s
and not one was required to clock out leave work and
obtain a certificate before he or she was permitted to
resume his or her employment Johnson was the only
employee who lost pay to get a doctor s certificate De
Filippo explained this disparity of treatment as attributa
ble to her failure to check if the other supervisors fol
lowed company policy and required the submission of
doctors certificates of the employees they supervise
In practice , I find there was no consistent application
of a policy requiring employees to submit doctors certif
icates when absent due to illness for 1 day or more
There is no evidence that any other employee was sent
home and told he or she could not return to work with
out a doctor s certificate DCS did not claim that John
son s illness was different or required different treatment
for any reason Johnson went home ill with the flu and
several other employees were ill with the flu at about the
same time There was no evidence regarding how these
other employees were treated
De Filippo admitted that according to company
records there were a number of employees she super
wised who were out 1 or more days sick and DCS did
not have doctors certificates for them The absence of
doctors certificates is not solely attributable to lost or
misplaced documents , for a number of employees testi
feed they were not asked for such certifications , some of
whom worked in building 1226 Others were required to
provide such certificates This asserted management
policy of requiring doctors certificates in all instances of
absence due to illness was never claimed to have been
related to the employees 11
Johnson was again ill on October 13 According to
Johnson she telephoned Dormandy around 9 00 a in
well before the start of her scheduled workday which
was to commence at 11 15 to inform him she would be
out the remainder of the week Dormandy inquired
i 1 For example Martin Cornish a current employee testified that he
went home ill 1 day did not come in for several days and when he re
ported to work was never asked for a doctor s certificate Cornish
worked at a different building than Johnson his supervisor was Freeman
Cornish admitted being informed by Freeman that Dormandy required
the employees to bring in such certificates when they were out sick for I
or more days but he was not asked for one Stoakley another current
employee who works at building 1226 understood employees had to pro
vide doctors certificates only on a supervisors request Stoakley had oc
casion to leave work because he was ill and when he called to report he
would be out ill the next day was informed that he would have to pro
vide a doctor s certificate He obtained one but was never asked to
submit it to DCS
613
about the nature of her illness and she told him it was
excessive bleeding and she was under a doctors care
She claims Dormandy said okay, Maureen Just be
sure and call back in a week I said okay I will She
again called on October 15 around 9 00 a in and spoke
to De Filippo who inquired about Johnson s health
Johnson reported that the doctor had taken a biopsy and
was awaiting the results to determine if surgery would
be necessary, that the doctor wanted her to stay out of
work for one month but if the biopsy was benign, she
would return to work the following Monday De Filippo
indicated that everything was fine Johnson as was her
practice , then called the Union and told them she was ill
On October 19 or 20, she received a letter from Miller
dated October 16 The letter accused her of failing to
communicate an absence on October 14 and late or
short notice call in on October 15 12
On reading the letter , Johnson told Dormandy the as
sertions were incorrect because she called him earlier to
tell him she would be out and was under a doctor s care
She also told Dormandy that she talked to De Filippo on
October 15 , earlier than 9 45 am, and there was no fail
ure to inform management She further informed Dor
mandy that even if she had called in at the time alleged
in the Miller letter, she still had another 1 1/2 hours
before her shift commenced and so she was not guilty of
a short notice call in13 or failure to inform management
12 The letter provides
You[r] Project Manager Gerald Dormandy has informed me that
you personally contacted him on MONDAY OCTOBER 13 1986
and stated that you would not be present for duty on this date due to
illness You neither informed Mr Dormandy that you intended to
consult a physician nor that you would not be available for sched
uled employment on TUESDAY OCTOBER 14 1986 You simply
did not appear for scheduled duties
On WEDNESDAY OCTOBER 15 1986 you finally contacted
Mr Dormandy and informed him that you would not be available
for duty for the remainder of the scheduled duty week You estab
lished contact with Mr Dormandy at approximately 9 45 a in which
was approximately 45 minutes before you scheduled duty shift
began
Your actions on Tuesday October 14 1986 were in direct conflict
with this firm s employee absenteeism policy This is a policy which
you are totally familiar with as a Union Shop Steward Simply no
person except for yourself was aware that you would not be avail
able for employment duties on this date
It is necessary to establish the fact that I have discussed your con
versations on the above dates with Mr Dormandy thoroughly I ac
complished this action based upon our previous communication
problems involving other subjects Additionally Mr Dormandy was
concise in retention of your telephone conversation It remains with
out question that you did not indicate or communicate the fact that
you would not be present for your duty shift on Tuesday October
14 1986
If you have any comments to offer in your behalf you should
direct them to the Vice President Operations 8201 Capwell Drive
Oakland CA 94621 no later than five (5) calendar days after receipt
of this notice
If you have any questions please do not hesitate to contact me
13 According to Baird s uncontroverted testimony the Company s
rules require employees to inform DCS at least 1 hour prior to their
scheduled worktime that they would not be able to report for work that
day or would be late It was also generally understood that after three
short notice call ins the employee would automatically receive a 14 day
suspension and after a fourth short notice call in the employee could be
terminated There was no claim that Johnson was not aware of or did not
appreciate the requirements of the attendance rules including short
notice call ins
614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
She then requested the presence of the chief shop stew-
ard, which was denied, as usual. Johnson then called the
Union and both Curtis and George informed her she was
being harassed and to disregard the letter because it was
not on a reprimand form. Johnson did not file a griev-
ance about the Miller letter.
Dormandy had informed Miller of the events which
Miller addressed in his October 16 letter to Johnson. Ac-
cording to Miller, Dormandy did not call him to report
each instance an employee breaches the Company's ab-
sence rules, rather he was called by Dormandy only
when action needed to be taken; when there was a loom-
ing suspension or termination. This testimony calls into
question Respondent's actions in this instance, because
there was no looming suspension or termination at the
time Dormandy telephoned Miller. There was no expla-
nation why routine was not followed in this instance.
The Company's timesheets do not indicate that John-
son had unexcused absences fo:r October 13 through 18;
these records indicate she was not scheduled to work
those days. DCS did not explain why her timesheet did
not denote she was sick or absent without excuse for the
days in question. Interestingly, Johnson asserts that she
produced a doctor's certificate on her return from this
illness but it was not in her personal file.
In contrast to Johnson's detailed testimony, Dormandy
initially admitted she telephoned him on October 13 but
he could not recall the time. He claims Johnson did not
inform him she would not be available to work the next
day and he expected her to report for work on October
14. He also initially testified he recalled she told him she
was seeing a doctor but does not recall being informed
why or that she was experiencing excessive bleeding.
Dormandy noted there is no written company rule re-
quiring employees to notify the Company daily when
absent due to illness. There was no evidence that the em-
ployees or Johnson in particular was informed of an un-
written company rule requiring such daily reports during
an illness of more than 1 day, particularly in these cir-
cumstances where the employee is found to have report-
ed they would be absent the entire week.
The company log for October 13 noted that Johnson
called and reported that she was unable to work that day
because of stomach cramps. De Filippo wrote the note in
the logbook, even though Johnson reported her illness to
Dormandy. Dormandy then testified that he could not
recall if he was the supervisor that took Johnson's call
that day. This poor recall and :inconsistent testimony im-
pairs his credibility. De Filippo also wrote an entry in
the logbook for October 14 indicating that Johnson did
not call in or report for work although she was sched-
uled for duty from 10:30 to 19:00. Other than the log-
book, Dormandy had no independent recollection of
Johnson's duty hours on October 14, but he did admit
they varied, as Johnson claimed. De Filippo did not tes-
tify how she acquired the information she recorded in
the logbook under the date October 13. Neither Dor-
mandy nor De Filippo claimed they informed Johnson
that she was required, under the circumstances, to call in
every day she was out sick.
Based primarily on demeanor, I credit Johnson's ver-
sions of the October 13 and 15 telephone conversations.
In support of this finding is Johnson's demonstrated su-
perior facility to recall the events and Dormandy's in-
consistent testimony and admitted lack of recall. Similar-
ly, De Filippo failed to demonstrate clear recall of these
events.
Johnson was next reprimanded for being 4 minutes late
on October 19. October 19 was Johnson's first day back
at work after her illness that commenced October 13.
Johnson claims, without refutation, she was not late, but
on arriving at work and before clocking in, was called
into Dormandy's office. Thereafter, she forgot to clock
in and was reminded by Lopez of this failure. Johnson
then went to clock in and did so 4 minutes late.
Two days later, Johnson was given an employee per-
formance report, signed by De Filippo. The report states
she failed to meet the schedule by being 4 minutes late
because she was held up at the gate for not having the
necessary documentation for her car. Johnson checked
the box on the form indicating she agreed with the Com-
pany's statement. She explained that she checked the box
for she did clock in 4 minutes late. Dormandy approved
the reprimand. When she was given the reprimand,
Johnson's request for a steward was denied.
Dormandy admitted routinely denying Johnson's re-
quests for a union steward, which was contrary to the
provisions of the collective-bargaining agreement. He
reasoned she was a union steward herself, and apparent-
ly, therefore, did not need representation. Also, he said
the only other steward available was Baird who worked
at SAC Alert. He claimed Johnson knew she could bring
Baird at a time Baird was not working, as long as the
time was mutually agreeable. He never claimed he made
this offer to Johnson or how she had gained this assumed
knowledge.
Johnson called the Union on receipt of the reprimand
and states she was again told she was being harassed.
She never grieved the issuance of this reprimand. The is-
suance of a reprimand under these circumstances was not
claimed or shown to be the result of disparate treatment.
The Company, in its position paper to the Region dated
February 9, 1987, asserts that this tardiness was not
relied on as one of the four violations of the absence
rules that led to their decision to terminate Johnson.
On October 20, Miller informed Curtis by letter that
the Company was reducing a shift's hours, and specifical-
ly mentioned by name only Johnson, as steward, would
be affected and offered her the opportunity to exercise
her bumping rights. Johnson did complain to the Union
about the reduction in her hours. The General Counsel
argues that this action is indicative of proscribed motive
for only Johnson's hours were shown to have been re-
duced while other employees on the same shift worked
the same number of hours as they had prior to the
letter.14 Dormandy could not name any employees who
14 The General Counsel also argues that the letter, by only mentioning
Johnson by name , is further indication of proscribed motive. This argu-
ment is not convincing because Johnson was the only steward claimed to
be involved and there was no demonstration that any other employees
were in a situation where they held bumping rights. I note Johnson also
claimed that her hours were reduced after she became shop steward. The
Company argues that the timesheets for April through May fail to sup-
Continued
DIVERSIFIED CONTRACT SERVICES
similarly had their hours reduced during the same time
period and there was no documentation introduced by
the Company that indicates the General Counsel was in
error claiming only Johnson s hours were reduced at this
time The Company s assertion that other employees on
the shift were similarly affected was unsupported This
bare claim is unconvincing The timesheet for November
1-15 shows Johnson working only 52 hours, which was
less than most other employees on the shift, even though
the collective bargaining agreement required her as stew
and to be considered the most senior employee In con
trast, the timesheet for September 15-30 showed Johnson
working a total of 85 hours, more than any other em
ployee on the exhibit 15 The Company failed to explain
why only Johnson s hours appeared so greatly affected,
while less senior employees worked about the same
number of hours during these periods Respondent Com
pany, on brief only asserts that it notified the Union of
the potential impact of a shift wide manning reduction
there was no explanation why Johnson was the most ap
parently and greatly impacted by this asserted change I
find this obvious lapse indicative of proscribed motive
I find support for this determination in Dormandy s
testimony that there was never any across the board re
duction on any shift in October Dormandy could not ex
plain the reduction in Johnson's hours on November 1
There were no demonstrated shift changes or other non
discriminatory event in October that would explain the
noted reduction in Johnson s hours
On October 30 Johnson received two written warn
ings The first warning was for insubordination on Octo
ber 28 According to the employee performance report
prepared by De Filippo, Johnson failed to follow prior
instructions to not leave the serving line to get a drink of
water unless properly relieved and to not drink the
water on the line When approached by the supervisor
on this matter, you became loud, crude and rude Your
voice was unnecessarily loud, especially in the presence
of other customers Johnson refused to sign the report
Dormandy approved the issuance of the report When
Dormandy attempted to give Johnson the report she re
quested a shop steward and he refused her request John
son told him Miller said he would permit shop stewards
to be present in these situations but Dormandy again re
fused her request so Johnson informed him she would
not further discuss the matter with him Johnson asserts
she did not sign the notice for it was incorrect and she
was not permitted to be represented by the requested
union steward Johnson said she was told by the Union
she was not to receive any reprimands without the repre
sentation of a union steward
Johnson testified that she had gone to get a glass of
water and was near the cash register when she was ap
port this claim There is no evidence that Johnson actually worked 12
hours l week shortly after she was elected a union steward However
De Filippo did not refute Johnson s testimony that she was scheduled to
have her hours cut to 12 hours and after complaint to the Union and De
Filippo her hours were restored Accordingly I do not find the failure
of the timesheets to demonstrate a cut in hours a complete refutation of
Johnson s testimony that the Company intended to cut her hours shortly
after it learned she was elected the union steward for building 1226
15 See G C Exhs 83 and 84
615
proached by De Filippo who told her she could not
drink out of a container, that there was a water faucet in
the kitchen Johnson replied that all the other employees
drank out of either cups or glasses while working on the
line De Filippo told her she did not want Johnson to
drink from a container and to return to work Johnson
took the glass to the dishwashing area and consumed the
drink The Charging Party maintains that she was not
loud and abusive or otherwise insubordinate and did not
consume the drink in the area of the line, rather she went
to the dishwasher area to drink the water She asserted,
without refutation, that her duty station encompassed
both sides of the line and so did not leave her work sta
tion to get the water According to Johnson, there was
another employee assigned to the line performing similar
work Johnson admitted that one of her duties was to
ensure the line was running efficiently
De Filippo s version of the incident is that Johnson left
her duty station while there was a long line of customers
to get a glass of water According to De Filippo, John
son was the only employee assigned as line server and
her absence left customers without service 16 Another
difference in testimony is that De Filippo avers that
when she told Johnson she was not allowed to drink the
water while on the job and she was not to leave her
area, Johnson replied loudly that she did not like De Ft
lippo s instructions and continued to walk through the
line while dunking the water and went to the dishwasher
room, not following instructions
The reference to loud and abusive, according to De
Filippo, is Johnson assertedly replied to her instructions
thusly Jesus Christ, I can t even get a drink It s very
hot in here And you are always after me And she was
mumbling something as she was walking away All right
you could not hear what she was mumbling 17
According to De Filippo s uncontradicted testimony
for sanitation reasons drinking beverages on the line was
against Air Force regulations that state that the only
time they could drink on the job was at the water pump
in the kitchen area De Filippo estimates that Johnson
was away from the serving line for approximately 3 min
utes
Baird who had worked at building 1226 for 3 months,
confirmed that there was a rule against drinking behind
the food line but asserted convincingly that it was not
enforced She observed a cook who had been an employ
ee for 7 years dunk coffee every morning while working
behind the line The cook was supervised by De Filippo
and Dormandy and she worked a regular shift from 5
am to 1 p in when De Filippo was present Baird
when informed of Johnson being reprimanded for drink
1e De Filippo who was responsible for scheduling employees asserted
that the infraction occurred during dinner hour when the other mess at
tendants (the chow runner vegetable service and a pastry server) were
not on the serving line for they had fewer customers for dinner than for
lunch However De Filippo could not recall who else was scheduled on
the same shift as Johnson on October 28 No company records were
proffered to support De Filippo s claim
17 De Filippo did not reconcile her claim that Johnson was loud
crude and abusive with her testimony and that she could not hear most
of what Johnson said because she was mumbling De Filippo also failed
to relate any crude and rude statements
616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mg water behind the line telephoned Curtis and in
formed the Union of the event Curtis told Baird that the
Union would definitely file a grievance asserting harass
ment Baird s testimony was unrefuted and based on
her demeanor which appeared candid and forthright, is
credited
I credit Johnson s version of the incident based primar
ily on demeanor Johnson appeared to be testifying in an
open and honest manner In contrast, De Filippo ap
peared less than forthright, not answering questions di
rectly at times, but volunteering information not ad
dressed in questions to ensure certain statements were in
cluded in the record Also her rendition of the incident
appears confusing at the least for the alleged violation is
drinking water from a glass when Johnson allegedly left
a busy serving line where she was the only server for
about 3 minutes to get the glass of water Also as de
tailed above her testimony about Johnson s statements is
inconsistent with the claim of loud, rude, and abusive re
joinders and inability to hear her because Johnson was
mumbling The anomaly of this claim is increased by the
failure to refute Johnson s claim that other employees
also regularly consumed beverages while working on the
line without being thus disciplined
This incident was not used as a basis to discharge
Johnson, but the General Counsel argues that because
the Company raised the incident in a position paper it is
an example of the Company s animus
Also on October 30, Johnson received an employee
performance report for a violation of the attendance
rulesi8 on October 29 The report noted that this was
Johnson s third violation of the attendance/tardiness
rules Johnson refused to sign this report for she was
again refused the presence of the chief shop steward
when Dormandy approached her with the discipline
Johnson s attendance sheet indicates that she was not
scheduled to work on October 29 This anomaly was un
explained She could not recall if she was to work that
day Also on October 30 Miller wrote Johnson a letter
concerning her unsatisfactory performance The letter re
ferred to October 1 correspondence which supposedly
listed employer policies Johnson had violated Miller
then wrote
On October 29 1986, you performed a short
notice call in to report that you would not be
present for your scheduled duty shift Apparently,
you reported that an immediate family member was
utilizing your personal automobile As you are
aware, our published absenteeism policies outline
that it is each employees responsibility to provide
his/her own transportation Simply, transportation
to your place of employment is a responsibility that
is your own and not this employers Furthermore
you were not able to comply with the excusable ab
Specifically the report states
You were scheduled for duty at 11 00 AM [sic] at 10 37 AM [sic] I
received a call from you stating that you had a problem with trans
portation You told me that you would be late for duty and it was
possible that you would not be in to work at all
You did not report for duty your entire shift
senteeism procedure regarding transportation (veri
fiable repair and/or towing) as listed in our policies
On October 28 1986, you departed your work
station during a customer meal period in order to
obtain a glass of water You were observed by your
Assistant Project Manager Mrs De Filippo in
formed you that you could not return behind the
meal serving line with any beverage container
Also she informed you that a water fountain was
available behind the serving line wall for employees
while on duty, a fact of which you were aware
You responded to your manager with the following
comments in a loud and abusive voice in the pres
ence of other co workers and customers Other
employees do it and You always have something
to say to me Additionally, you continued to
ignore Ms De Filippo s directive and continued to
drink as you walked through the kitchen area to the
dishwashing room
Your above actions were in direct violation of
three (3) Corporate policies You displayed outward
insubordination towards a member or your manage
ment staff you failed to comply with a lawful di
rective of your manager and you departed your
work station during a customer meal period without
authorization
Ms Johnson, your actions on October 29, 1986
dictate an employee suspension of 14 normal work
days You are totally aware of this action as con
tamed in the DCS Absenteeism Policy However I
do not intend to impose this suspension at this time
I do not feel that a suspension will correct the many
problems I have encountered with your ongoing
performance at Mather It is essential that you fully
understand my following comments and if you have
any questions you must contact me immediately
IF DURING THE NEXT SIX (6) MONTH
PERIOD THIS EMPLOYER ENCOUNTERS
ANY PROBLEMS REGARDING YOUR ABILI
TY TO COMPLY WITH ANY PUBLISHED
EMPLOYEE PROCEDURE YOUR FUTURE
EMPLOYMENT WITH OUR FIRM WILL BE
TERMINATED
The letter also referred to an incident involving the
injury of another employee where Johnson was consult
ed, by an employee about disability claims The employ
ees claim which was related to the Union was that the
Company did not take the employees to the hospital in a
timely manner According to Johnson s uncontroverted
testimony, pursuant to George s instructions she amica
bly related the incident to De Filippo
Johnson who did not have a drivers license was
driven to work by her daughter, who also used the car
to go to and from her own employment Johnson repre
rented that on October 29 her daughter telephoned her
to report the cars tire blew out on the freeway After
obtaining a friend s assistance she went to the car and
the tire was replaced Johnson claims she called De Fi
lippo at 9 or 9 15 a m to report the blowout and was in
structed not to come in the rest of the day The call was
more than 1 hour before she was to start work that day
DIVERSIFIED CONTRACT SERVICES
She was not instructed to get verification of car repairs
Regarding Miller s reference to an October 1 letter, she
could not locate or recall getting the letter She claims
Miller s letter is replete with inaccuracies Johnson un
derstood Miller s reference to ongoing performance
problems to her continued union activities because she
had no bad reports about her work
De Filippo who wrote the report, logged the call in
pursuant to company policy She also reported the
matter to Dormandy Her testimony was not detailed
about the incident She vaguely recalled Johnson calling
in and saying she would be late for work or might not
report at all due to transportation problems, but De Fi
lippo definitely claims she did not excuse Johnson from
work that day, although she had the authority to tell her
not to report for work Johnson did not show up at 11 15
a in Again, De Filippo s demeanor was not convincing
and she had to be instructed to answer questions
Miller testified he wrote the October 30 letter to
inform Johnson that she had a number of violations and
to afford her an opportunity to correct her performance
The reference in the letter to his October 1 correspond
ence was an error he may have been refering to the Oc
tober 16 letter
Although admitting that this third violation of the
absenteeism/tardiness rules normally would dictate a 14
day suspension he did not suspend Johnson for he deter
mined it was not the answer to correcting her problems,
that in similar circumstances he gives the employee a set
period of time to correct his or her performance prob
lems In Johnson s case he gave a 60 day probationary
period
At the time Miller made this determination not to sus
pend Johnson he did not know if she had been taken off
the schedule on October 29 or had been given the oppor
tunity to verify that she had a problem with her car on
that date 19 He also did not know whether Johnson was
directed to report the incident involving the employee
who Johnson understood had a hairline fracture He did
not explain what, if any part, her activity as a union
steward which was commented on in the letter, played
in his determination to issue the letter imposing a broad
and long probationary period He did not explain why
his probationary letter referred to any future rule viola
tions resulting in termination rather than a fourth viola
tion of the absence policy
Johnson did not file a grievance over the discipline re
ferred to in Miller s October 30 letter She explained that
she wrote a grievance after receiving two letters from
the Company and having contacted the New York office
of the International she did not again contact the local
office in San Francisco I note that her affidavit does not
state she contacted the Union after receipt of the Octo
ber 30 letter or that she was informed by Curtis to disre
gard the letter even though she testified to those events
The affidavit was not introduced into evidence and it is
not possible to access if these failures were caused by the
19 By the time Miller sent this probation letter the Union filed the
charge alleging the Company was harassing union stewards and other
union activists because of their union activities This charge in Case 20-
CA-20703 was filed on October 27 and served on DCS on October 28
617
affidavit focusing on the discharge and not the allegation
that the Union breached its duty of fair representation
Accordingly no inferences will be drawn from these
failures 20
Johnson credibly claimed she informed the Union each
time she was disciplined by the Company but filed only
one greivance claiming harassment and one concerning
her discharge Curtis admitted receiving numerous tele
phone calls from employees about asserted contract vio
lations or problems at MAFB and if she thought she
could resolve the matter, would immediately contact the
Company She did not claim to have done so in any of
the matters concerning Johnson, this failure was unex
plained However, based on Curtis testimony I find that
the Union had a practice of accepting informal griev
ances and attempted to resolve them as a matter of
course
3 Events occurring in December
a Discharge of Johnson
Johnson was discharged on December 16 for a fourth
violation of the absenteeism/tardiness rules A few days
earlier, her car broke down and she and her daughter
relied on a friend to provide a car The friend failed to
provide the car in a timely manner on December 16 and
she telephoned DCS informing De Filippo that she
would be late De Filippo told her to come in when the
car arrived Johnson was about 10 minutes late and she
was told not to clock in De Filippo wanted to speak
with her first De Filippo informed her she was off the
clock and was to go home 21 Johnson asked why she
was instructed to report De Filippo replied she had not
been thinking that she called the home office and was
directed to send her home Johnson went home and
called Baird and the Union The Union instructed her to
file a grievance and either George or Curtis, she was not
sure which, told her she was being harassed The union
agent also informed her that the Union had already filed
the harassment charge
Later in the day Baird telephoned and informed John
son that she had been terminated for being tardy John
son then called the Union and told George she wanted
her check and anything else owed to her and asked him
to ensure everything was ready when she went to
MAFB the base the following day On the morning of
December 17 Johnson attempted to place a collect call
to the Union however the local refused to accept the
charges Johnson then telephoned the International office
in New York spoke to an individual she believed was
Elwood Hamton, who told her to stay on the line and
they contacted the local and assured her that the local
would accept her call and assist her in protesting her dis
charge She does not know who at the local refused her
call, but stated it was not either George or Curtis
20 I also note that Johnson asserts that her affidavit is incorrect in stat
ing that her car broke down on December 16 her car blew up 4 days
prior to that date
21 I note that the Company s timesheet for Johnson does not indicate
that she was absent or guilty of a short notice call in on December 16
618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Also on December 16, Miller sent a letter to Johnson,
which provided, as follows
As you are aware, I have personally addressed
your performance on a number of separate occa
sions More important, I provided you correspond
ence on October 30, 1986, which specifically ad
vised you of the following
First, your performance through the date of my
[sic] October 30, 1986, did dictate a 14 day suspen
sion of employment However, this suspension was
not enforced based on my personal belief that such
suspension would not correct your performance
problems
Secondly, you were specifically informed that
any performance problems during the next six (6)
month period would result in your termination of
future employment with DCS
On December 16 1986, you again failed to report
on time for your scheduled employment duties
Also, you again performed a short notice call in
(shift scheduled to begin at 11 00 a in -management
was contacted at approximately 10 55 a m) and
stated you would not be present for duty due to
transportation problems This was the excuse that
you offered for your absenteeism on October 29,
1986
I now find it necessary to inform you that effec
tive upon your receipt of this notice your future
employment with DCS is hereby terminated This
decision on my part is directly in accordance with
my previous notice Therefore, I am of the opinion
that you were provided sufficient advance notice in
an attempt to offer you the opportunity to correct
your performance
You are offered the opportunity to appeal this
action However any comments submitted on your
behalf must be submitted in wasting within seven (7)
calendar days after your receipt of this notice
If you have any questions please do not hesitate
to contact me
On December 17 Johnson went to MAFB and with
Baird met with Dormandy Dormandy gave her the
Miller letter dated December 16 and a form indicating
she was terminated for tardiness Johnson objected as
serting she was not tardy four times so Dormandy
crossed off the check mark next to the tardiness box
on the form and wrote see attached letter This was a
reference to Miller s letter of December 16 Johnson
never contacted Miller or used the company appeal
process referred to in Miller s letters This letter and the
other company documents given Johnson on or about
December 17 and therafter do not specify the dates
and/or incidents relied on in the decision to discharge
her This failure was not alleged by the Company to be a
standard practice
Miller testified he terminated Johnson for perform
ance problems ' He could not recall the exact basis for
the decision but understood it was solely based on four
violations of the absenteeism policy He notified the
Union in advance but could not recall if he consulted
anyone in the Company before determining to terminate
her Dormandy testified he telephoned Miller s office to
report Johnson was absent for a fourth time, pursuant to
his standard practice
When Miller was recalled he was much surer in his
testimony He explained the process of appeal, that the
employee could give the Company a statement explain
ing his or her absence such as a receipt from a garage or
service station in the event of a vehicle breakdown
Johnson was not asked by De Filippo or Dormandy for
such documentation No such documentation was prof
fered by Johnson to the Company or by the General
Counsel during the course of the trial
The General Counsel asserts that the decision to terms
nate Johnson was patently pretext For example, Miller s
letter claims Johnson said she would not be present for
duty, but she did report for work, late Also the dis
charge after four violations of the absenteeism/tardiness
was not followed in all cases and thus was additional
evidence of disparate treatment Miller routinely issued
14 day suspension letters in most cases and in these let
ters he threatened termination if the employee again vio
lated the attendance rules (emphasis added) 22
b Johnson s termination grievance
The Union had a meeting scheduled for the evening of
December 22 to consider collective bargaining issues, in
cluding the claim the Company was harassing union
stewards and/or activists and to elect a shop steward to
replace Johnson The principal purpose of the meeting
was to prepare for a planned meeting with DCS manage
ment to be held on December 29 where the scheduled
discussion was of recurring employee complaints As is
the case concerning the other events on which this deci
sion rests, the testimony is contradictory and credibility
resolutions will be determinative of whether there were
any violations of the Act
In preparation for the meeting George and Curtis ar
rived on the afternoon of December 22 Baird met them
at MAFB at about 1 45 p in Baird was with the union
representatives about one half hour during which time
she informed them that Johnson would be at the meeting
that evening to file a grievance over her discharge Ac
cording to Baird whose testimony is credited they all
left together 23 At some point the Johnson grievance
was included in the agenda of the December 29 meeting
22 For example see the letters issued to Mark Becker Louise Cooper
Stephanie Cnspi James Harris Suzette Harass William Jefferson De
lores Kyle Juanita Moreno Lawrence Murphy and others where the at
tendance or other specific performance problems were mentioned in the
threatened discharge for future violations
22 George claimed he briefly left Curtis and Baird and telephoned
Miller to place the Johnson grievance on the agenda for the December
29 meeting the Union had scheduled with DCS Miller did not corrobo
rate George s testimony but Curtis did I do not find George s testimony
or Curtis corroboration convincing They both did not appear to be at
tempting to present all the facts regardless of the impact on the case
They both did not answer questions asked by counsel for the General
Counsel having to be directed to respond at times and they volunteered
information George admitted to poor recall and was notably unrespon
sive as a witness he did not appear to be attempting to be helpful in de
veloping the record Both were patently reticent to give testimony they
perceived as antithetical to the Union s interests Accordingly their testi
mony is not credited if it is not an admission against the Union s interests
or is not credibly corroborated
DIVERSIFIED CONTRACT SERVICES 619
Before the union meeting began on December 22,
Johnson handed her discharge grievance to George who
signed and dated it and then he handed it to Curtis who
told Johnson she would hand" (sic) it in She did not
discuss the merits of the grievance with either George or
Curtis and convincingly claims that she never discussed
the merits with George Baird, Curtis, Melvin Stoakley,
and Johnson testified that George never mentioned that
the Johnson grievance was to be discussed during the
December 29 meeting with the Company 24
Two employees, Martin Cornish and Fisher testified
that George announced Johnson s grievance would be
considered during the December 29 meeting with the
Company Fisher took notes in pencil during the meet
ing, as was her custom Because the notes were written
with a pencil, Fisher could not read half what I
wrote There was a reference to Johnson's discharge
and a car blowing up-in the same sentence she refers to
a meeting with the Company on December 29 Fisher
had no independent recall of the events and could not
confirm that the reference was to Johnson's grievance
The purpose of the December 22 meeting was to prepare
for the Union' s meeting with the Company on December
29 to consider the employees problems including such
matters as scheduling during holidays, forthcoming nego
tiations, seniority, equal opportunity, safety equipment,
and heavy duty assignments These subjects were the an
nounced reasons for the December 22 and 29 meetings 25
I credit Johnson s testimony that she was not informed
that her discharge grievance would be considered during
the December 29 meeting with the Company Johnson
did not attend the meeting and, considering her activism
on both her own and others behalf, it appears highly un
likely she would not have attended if she had known the
meeting with the Company would include consideration
of her discharge grievance Also, the announcement of a
meeting to consider her grievance is a fact Johnson
would likely recall Baird was also not in attendance on
December 29, claiming convincingly based on demean
or that she was not informed of the inclusion of John
sons discharge grievance in the meetings agenda and
she was not invited to assist in representing Johnson 26
24 Stoakley is a current employee of the Company who has no interest
in the outcome of this case He was recently promoted by the Company
His position of disinterested witness in addition to his demeanor leads
me to credit his testimony Although he admits to leaving halfway
through the meeting Fisher claims that her notes indicate the announce
ment concerning Johnson s discharge grievance would have to have been
made at the beginning of the meeting Her testimony is discussed post
Thus Stokeley s departure before the conclusion of the meeting does not
diminish the reliability or convincing nature of his testimony
25 As support for this finding I note that George s missive to the mem
bets dated December 30 relating the subjects discussed at the December
29 meeting does not mention Johnson s grievance The union service
report George prepared after the meeting does not mention Johnson s
discharge grievance being included in the December 29 meeting Add]
tional support for this conclusion is contained in George s testimony
where he claimed he informed Johnson of the inclusion of her grievance
in the agenda for the December 29 meeting in a telephone call placed the
afternoon of December 22 and prior to the commencement of the meet
ing not during the meeting as Fisher claimed
I also note that Miller testified he could not recall meeting with the
Union concerning Johnson s termination
25 Baird testified without contradiction that in the processing of the
grievance of another employee, Kyle Baird went to building 1226 to
assist in the representation of the employee but was told by George that
Baird had a 1 week vacation after the December 22
meeting, she was at home that week George could not
recall if he told Baird that Johnson's grievance would be
discussed at the December 29 meeting
George testified that the evening of December 22, he
talked to Johnson about her grievance before the meet
ing started According to George, Johnson made various
and contradictory statements about why she was late on
December 16 George told her, after asking which was
the correct version, it was alright they would sort it out
later One version he recalled was that Johnson men
tioned her car blew up while her daughter was driving it
and she and a neighbor had to go get her and the neigh
bor was to bring her to work but then she realized she
would be late George never asked for verification that
her car broke down, nor is there any convincing evi
dence he discussed all the incidents relied on by the
Company with Johnson either before or after the De
cember 29 meeting In fact, there was no clear showing
George knew which incidents the Company relied on in
determining to terminate Johnson
George then asserts that they discussed different as
pects of her grievance, and he mentioned the December
29 meeting was to commence at 9 a in, in Miller s office
in Oakland Because Curtis did not confirm these repre
sentations, for the reasons previously given I do not
credit these self serving statements However even if
they are credited there is no claim by George that he
announced during the meeting that Johnson s grievance
was to be considered during the December 29 meeting,
contrary to Fisher s testimony 27
In contrast is Curtis testimony, which is more con
vincing because it is contrary to her former Employer s
interests Curtis testified that George merely told John
son he was going to call Miller to see if the discharge
grievance could be handled during the December 29
meeting
c The December 29 meeting
Neither Baird nor Johnson attended the December 29
meeting where the Union and Company discussed John
son s discharge grievance The Union did not call either
Baird or Johnson before commencing consideration of
the Johnson discharge grievance I find this failure is fur
ther affirmation that neither was informed of the meeting
he would be present and she could not attend the meeting Accordingly
there appears to be a pattern where George deemed it unnecessary to
have the chief shop steward present during grievance meetings with the
Company if he was present This undisputed precedent lends additional
credence to Baird s and Johnson s testimony
27 George s testimony was inconsistent and confusing For example he
testified that he arrived at MAFB at about 12 50 p in In a letter to union
counsel dated May 4 1987 he asserts he arrived at the base at 11 a m
and talked to De Filippo and Dormandy about Johnson s termination and
then telephoned Miller to see if the matter could be discussed on Decem
her 29 Miller did not assent until later in the day about 2 30 p in
George then claims he telephonically notified Johnson of the meeting
that was to commence on December 29 at 10 am He testified he told
Johnson that the meeting was to commence around 9 a in These incon
sistencies were never reconciled George merely claims the letter is more
accurate than his testimony Baird claimed she met with George and
Curtis after I p m and Curtis claimed they amved between 12 30 and 1
pm
620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and was not expected to attend 28 George was aware
that Johnson considered at least some of the reprimands
a form of harassment in retaliation for her union activi
ties as an active shop steward He was not aware that
she considered all the reprimands part of the Company s
campaign of harassment against her shop steward activi
ties 29 This admission indicates that George did not
speak with Johnson about her discharge grievance, in
corroboration of Johnson's claims
I also note neither George nor Curtis testified that
they consulted one another about the harassment and dis
charge grievances, although Curtis testified that George
was in and out of the office between December 22 and
29 Curtis knew Johnson felt she was being harassed be
cause she was an active shop steward, but there is no in
dication that she participated in any manner in the De
cember 29 resolution of Johnson s discharge grievance
The meeting also addressed employee complaints that
management harassed them when they engaged in con
certed protected activity In George s report to the mem
bers concerning the results of the meeting he wrote
Our complaint that when members complain to man
agement or go to the Union about grievances, that retali
atory action is taken against them such as undeserved
reprimands and harassment was flatly denied We were
told to give specific instances, and remedial action would
be taken
George also informed the members that they should
consider arbitration of the harassment complaints, even
though the harassment charge that the parties mutually
agreed to arbitrate was not resolved George when he
addressed the employees claim that De Filippo in par
ticular harassed the employees did not have any MAFB
shop stewards present The harassment claims were not
resolved at the December 29 meeting and another meet
ing was scheduled for January 14 1987
Rather than determine if the shop stewards or employ
ees at MAFB had specific instances illustrative of their
claims of harassment George went to another military
base where De Filippo formerly worked He chose this
course of action to verify DCS claims about De Filip
po s style of management and determined that her former
28 Baird was sent an agenda of the meeting on or about December 23
but due to the difficulties surrounding Christmas mail delivery credibly
testified that she did not receive the notification until January after the
meeting This claim is confirmed by a return receipt dated January 3
1987 This agenda does not mention Johnson s discharge grievance Thus
it appears that Curtis who prepared the agenda did not know that the
Johnson discharge grievance was to be considered at the meeting There
is no corroboration of George s claim that he and Miller had agreed to
discuss the grievance at the meeting Thus I conclude that neither John
son nor Baird was informed that the meeting would include consideration
of Johnson s discharge grievance I also find that the Union admittedly
accepted responsibility for presentation of this as well as the harassment
grievance
29 When George was asked You were aware weren t you that some
of the instances of discipline meeted out to Maureen Johnson were the
subject of the [harassment] charge that Effie De Filippo was harassing
the unit members weren t you ? George replied Not positively Thus
I find that George admitted that at the very least he did not understand
the full nature and scope of the grievances he was handling George
claimed he did not have any responsibility for handling that charge but
he failed to explain how he then handled the discussions of the harass
merit issues during the December 29 and any other meeting concerning
the harassment grievance This confusing and somewhat conflicting testi
mony further erodes George s credibility
employees found her very strict but fair The employees
of this other base were also represented by the Union
George concluded that De Filippo was simply strictly
adhering to the rules He considered this a complete in
vestigation of the harassment charges
On examination by the union attorney, George testi
fled somewhat differently, claiming that he spoke to the
majority of the employees at MAFB and some indicated
De Filippo showed favoritism to employees He then
went back and talked to the same employees and deter
mined that they felt that although she was very strict,
required complete adherence to the company rules and
her rules, that they felt she was fair He did not claim
to have attempted to reconcile the different views of the
employees or to determine why any may have changed
their opinion George concluded after speaking to the
employees at the other military base that De Filippo was
very strict and the employees at MAFB misinterpreted
her actions and statements as harassment, that there was
no indication De Filippo harassed employees because of
their union activities
On or about December 8, Johnson filed a grievance
claiming harassment of her as shop steward by De Fi
lippo The incident arose when Johnson, after her shift
ended, clocked out and remained to speak with employ
ees who had requested the opportunity to consult her as
shop steward She was ordered to leave by De Filippo
even though she informed De Filippo that she was a]
lowed on the premises to meet her obligations as a shop
steward Johnson asserted in the grievance that she ad
dressed about 95 percent of her union business while off
the clock because the Company would not permit mem
bers to speak to her during working hours She also
claimed that De Filippo harasses any member that
comes to me on Union matters
There was no indication Johnson was present at the
meeting addressing this grievance This failure further
substantiates her claim that she was never informed the
December 29 meeting would include consideration of
her discharge grievance George did not indicate he in
vestigated this grievance or talked to Johnson before re
solving it with DCS Apparently George had followed
his established practice and handled both of her griev
ances without consulting her about the basis for her
grievances
George considered Johnson s discharge grievance as
having been completely investigated and resolved at the
December 29 meeting, even though he had not complet
ed his investigation of the harassment allegations George
testified as follows I did not consider the grievance and
her termination as part of the alleged harassment ' Al
though not detailing the measures agreed on by the
Company and the Union George noted as the disposi
tion of the grievance that procedures were adopted to
improve investigation by the shop stewards He informed
Dormandy that the collective bargaining agreement re
quired the Company to afford shop stewards time while
they were on the clock to perform investigations They
agreed to permit such time for investigations if the shop
stewards notified their supervisor The record is silent
DIVERSIFIED CONTRACT SERVICES
whether George notified the stewards of this resolution
of Johnson s harassment grievance
In preparing for the discharge grievance portion of the
December 29 meeting George knew Miller was sched
uled to leave for Alaska shortly and that he would be
gone until February George admitted the only discus
sion he had with Johnson was at the December 22 meet
ing even though he told her he would get back to her
recognizing that he did not clearly understand her posi
tion On December 29 he asked and was permitted to
review Johnson s personnel file After examining all her
reprimands relating to tardiness and Millers denial that
any were issued as harassment or ill will toward shop
stewards, which George considered an honest response
he determined Johnson s termination was justified There
was no indication he asked Dormandy or De Filippo
whether they felt any ill will toward Johnson or other
shop stewards because of their union activities
There was no indication that Miller or any other corn
pany representative indicated to Johnson and/or George
which reprimands were relied on in the determination to
discharge Johnson George had been present when
Miller Dormandy, and De Filippo discussed the repri
mand issued to Johnson concerning the surveillance
monitoring report that alleged performance deficiencies
and when the supervisors were asked by Johnson about
her work, they admitted she was a good worker con
trary to Millers September letter George never com
mented on this apparent inconsistency He did not indi
cate that this information was considered in assessing the
Company s decision to terminate Johnson or his treat
ment of the harassment claims
On December 30 George wrote Johnson a letter in
forming her that the Union concluded that the Company
did not violate the collective bargaining agreement when
it terminated her employment 30 The letter is further in
dication that George did not inform Johnson of the
meeting for it states the site of the meeting and lists the
attendees as if she did not know This reference to meet
ing site and attendees was not claimed to be routine The
letter does not mention any evidence or facts presented
by Johnson Baird or any other person who may have
been consulted on Johnson s behalf It was only at the
trial that George claimed he did not credit Johnson be
cause she gave confused versions of the December 16
late call in when he talked to her on December 22 He
30 Specifically the letter states
As a result of the above reference a meeting was held at Diversi
fled Contract Services Inc Oakland California on the 29th of De
cember 1986 Present at this meeting were the following
For the Union
Robert J George ITPE representative
Maria H Curtis Administrative Assistant
For the Company
John Miller Vice President Operations
G Dormandy Site Manager [sic] Mather AFB
Ms Melba Watts Director of Human Resources
Jack Hall Manager
The Company presented documented evidence portraying your
work performance (absenteeism) and attitude while at work
We therefore find that the Company did not violate any of the
articles of our Collective Bargaining Agreement in the termination
of your employment
If I can be of any further assistance please do not hesitate to con
tact this office
621
did not mention this as a reason in his December 30
letter This failure is unexplained and is found to be evi
dence that the reason is an afterthought
On January 21 1987, George resolved the harassment
complaints about De Filippo by informing the Company
she is found to be a perfectionist and there was no evi
dence she was guilty of harassment that would or could
be characterized as discouraging Union Membership or
interfering with Union Management There is no evi
dence or claim that George informed Johnson of the res
olution of this grievance George admitted he did not
inform Johnson of any meeting concerning this griev
ance there is no claim he discussed any matters relating
to the grievance with her
IV ANALYSIS AND CONCLUSIONS
A Alleged Discrimination
As indicated above, the complaint asserts that Re
spondent Employer committed several violations of Sec
tion 8(a)(3) and (1) of the Act Section 8(a)(1) of the Act
makes it an unfair labor practice for an employer to
interfere with, restrain, or coerce employees in the exer
cise of the rights guaranteed in section 7 of the Act
Section 8(a)(3) of the Act makes it an unfair labor prac
tice for an employer by discrimination in regard to hire
or tenure of employment to encourage or discour
age membership in any labor organization
In determining if DCS violated Section 8(a)(3) and (1)
of the Act the Board in Wright Line, 251 NLRB 1083
1089 (1980) enfd 662 F 2d 899 (1st Cir 1981) cert
denied 455 U S 989 (1982), approved in NLRB v Trans
portation Management C o r p, 462 U S 393 403 (1983)
adopted a causation test based on employer motivation
Initially the General Counsel must make a prima facie
showing that protected activity was a motivating factor
in Respondent Employers decision to take the allegedly
discriminatory action Once the General Counsel has
made this showing the burden of persuasion shifts to
the employer to show that the employee would have
received the discipline or other claimed discrimma
tory action in any event because of unprotected con
duct Champion Parts Rebuilders v NLRB 717 F 2d
845 849 fn 6 (3d Cir 1983)
These statutory standards are applied to the individual
interrelated allegations of discriminatory action consid
ered herein
1 The written warning of September 23
The General Counsel argues that the issuance of the
September 23 written warning was motivated by dis
criminatory considerations for it was the only reprimand
issued to a MAFB employee based on a contract mom
toring and surveillance report Miller admitted he did not
routinely receive such reports and DCS was able to
identify only one other employee, Gates who received
written discipline based on deficiencies mentioned in a
contract monitoring and surveillance report 31 The
3i Gates received an unsatisfactory performance letter from Miller
based on three employee performance reports issued in less than a 6
Continued
622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
letter, dated August 21, 1987 cautioned Gates against
any additional violations of employee work requirements
during the next 60 days An additional violation could
result in your suspension If you have any questions re
garding your work requirements and/or procedures,
please ask your Supervisor There were no similar disci
plenary actions adduced for receipt of unsatisfactory re
ports from the military prior to Johnson s discharge
Dormandy sought to have Johnson removed from the
position of line server and given another assignment-a
request Miller denied Dormandy testified he made the
request because he previously talked to Johnson about
deficiencies in her performance This bare assertion was
not complemented by any details of any asserted previ
ous conversations or the specifics of the employees per
formance deficiencies on these occasions He also made
the bare claim that he spoke to the other employees men
tioned in the contract monitoring and surveillance re
ports, but he failed to identify these individuals or supply
any details concerning these talks There was no expla
nation why these other employees were not similarly dis
ciplined
As noted above, Dormandy, based principally on de
meanor, was not found to be a credible witness I also
note that he testified that he spoke to the individuals he
could identify who were also referred to in the contract
monitoring and surveillance reports that led to disciplin
ing Johnson Dormandy testified he followed the inspec
tor around and could not explain any failure to identify
any particular employee whose deficiencies were men
tioned in the reports Thus, the basis for the Company s
failure to similarly treat the other miscreants is disingen
uous at the least The Company s failure to substantiate
Dormandy s claim that it was not singling out Johnson
or otherwise explain the apparent disparate treatment in
dicates the discipline levied the same day Johnson vigor
ously represented another unit member, was for pro
scribed reasons
This conclusion is further supported by the finding
that Dormandy s claim that he wanted Johnson removed
from the serving line because of asserted prior similar
performance problems is also pretext Johnson s corrobo
rated testimony is that Dormandy and De Filippo admit
ted Johnson was a good worker This testimony was not
specifically refuted by either Dormandy or De Filippo
Dormandy s testimony which I find is dissembling fur
ther supports the conclusion of unlawful motive
Dormandy has not requested, and except for Gates
notice Respondent Company had not issued any other
employee performance reports or imposed other disci
pline for alleged service deficiencies noted in monitoring
and surveillance Yet Respondent failed to show that it
requested reassignment of other employees similarly
criticized by military inspectors This apparently unusual
request is another indication of disparate treatment of
Johnson This conclusion is buttressed by Dormandy s
admission that he normally throws away the monitoring
and surveillance reports-an action dispelling any asser
tion these reports were of major import
Another indication of motive is the verbiage chosen by
Miller in his September 23 letter Johnson was warned of
greater disciplinary action after receiving only one repri
mand for performance problems on the serving line Re
spondent has not adduced any evidence of similar warn
rags being issued to other employees who committed
similar infractions On this same date Miller wrote the
letter to George asserting that Baird and Johnson were
causing the Company problems in their actions as shop
stewards and also asserting, without details, Johnson s
performance is considered below average Again this as
sertion is contradicted by the unrefuted and corroborated
testimony of Johnson that both Dormandy and De Fi
lippo admitted on or about September 23 she was a good
worker
The infractions noted on the contract monitoring and
surveillance report was the asserted basis for the claim
her performance was below average Assuming this is
the basis, for it is the only discipline levied for her per
formance as of this date, the reference to a more perma
nent solution in the event she does not perform her
future duties in a more satisfactory manner, infers dis
charge (suspension does not arguably effect a more per
manent solution') 32 I find this inference and the resort
to pretext establish a prima facie case This conclusion is
reinforced by my earlier finding that Miller often re
ferred to Baird and Johnson as troublemakers which is
often used as a pseudonym for union activists There was
no other personnel file placed in evidence that contained
a letter with the threat of termination for the first per
formance or other initial rule infraction This apparent
disparity in method and severity of discipline was not ex
plained
Also unexplained was the delay between the receipt of
the contract monitoring and surveillance reports and the
issuance of the Miller letters This delay conjoined with
the concomitance of the issuance of the letters with
Johnson s actively representing another unit member and
Miller s complaints to the Union about her activities as a
shop steward is another indication of proscribed motive
and refutes any assertions of mere coincidence This in
ference is rendered even more persuasive by Dormandy s
reaction of seeking Johnson s reassignment even though
she was considered a good worker by De Filippo a
judgment he did not contradict Dormandy did not ad
vance any reason for this unusual request it was not
demonstrated to be work related Accordingly I find
that the General Counsel has made a prima facie case of
proscribed motive
I further find that Respondent Employer failed to bear
its burden of proving it would have issued the letter
absent Johnson s concerted protected activities DCS
argues that the contract monitoring and surveillance re
22 The only other discipline meted out to Johnson as of this date was
month period One report was for clocking out late on August 10 an in February for failing to clock in on time This infraction was not
other was for clocking out late on July 28 and the third for failing on claimed as either a basis for any of the statements made by any represent
April 22 1987 to time and date fruit salad he placed in the walk in re ative of DCS on or about September 23 or any subsequent actions I also
fngerator which resulted in the receipt of an unsatisfactory report from note that this February incident does not contain any reference to any
the military inspector performance deficiencies while working on the serving line
DIVERSIFIED CONTRACT SERVICES
ports could have led to adverse action against them by
the military This assertion is not disputed, but Dor
mandy admitted he usually threw them out which indi
cates the threat of adverse action was not very great
DCS did not dispute that they frequently get such re
ports and they have only shown one other instance
where an employee was disciplined by the issuance of an
employee performance report, an action taken well after
Johnson was discharged
The Company's failure to similarly discipline other
employees occurred at a time, according to Dormandy,
when the military was frequently inspecting their oper
ation,33 and that at the time of trial there were fewer in
spections The mention of an employee in the reports
was not asserted to be an uncommon occurrence, yet
there is no evidence of another employee being similarly
disciplined Respondent DCS did not establish nor even
claim that the Johnson incidents differed from those in
volving other employees The failure by DCS to estab
lish that it had a practice on or about September 23 of
disciplining employees if they were the subjects of com
ments in one or two or more contract monitoring and
surveillance reports, or any other basis for their disparate
action, leads to the conclusion that they engaged in dis
parate treatment for discriminatory purposes in violation
of Section 8(a)(3) and (1) of the Act
2 Requiring a doctor s certificate
The General Counsel argues that DCS treated John
son differently when it required her to leave work and
lose pay to get medical verification of an illness Re
spondent rejoins that De Filippo always required an em
ployee returning from sick leave to provide a doctor s
certificate In fact, Miller in a letter to the Union dated
October 14, claimed it was his policy to require all em
ployees who left work because they became ill to pro
vide a physician s release as a safeguard Respondent
Company also argues the meets of its rule There is no
claim that the rule is without merit, only that it had
never been applied in a similar manner and was imposed
on Johnson in a manner that made it an onerous working
condition
There was no question that several employees had
been suffering from flu before Johnson also reported she
was leaving work because she too had caught the flu
There was no claim by De Filippo that Johnson s par
ticular illness was the basis for sending her home when
she returned to work Respondent failed to demonstrate
that any other employee was similarly sent home to ac
quire a doctor s certificate even though several employ
ees, according to its records did not provide doctors
certificates Sonny Cornish was not required to provide a
doctor s certificate when he was out ill, even though he
was told that all employees could be required to supply
one 34
33 Baird testified without refutation that the Air Force frequently in
spected DCS operations as often as two to three times a day This testi
rnony is undisputed at the times here pertinent There was no claim that
note of individual deficiencies was singular or otherwise warranted un
usual action
34 Stoakley as previously indicated left work ill and was called by a
supervisor and instructed that he needed a doctor s certificate before he
623
Respondent Company also argues that it explained its
policy in its October 14 letter and the Respondent
Union never claimed that DCS was improperly enforc
mg its rules Curtis did not convincingly disclaim telling
Johnson, when she informed the Union that she was sent
home to get the doctor s certificate the Company was
harassing her Also, the rule was not in question and
whether the Respondent Union raised the propriety or
manner of enforcement is not probative of whether DCS
imposed more onerous working conditions on Johnson
Inasmuch as De Filippo was responsible for managing
the entire facility this disparity in requirements no less
singling out Johnson as the only employee sent home
and forced to lose pay to provide a document some em
ployees were never required to provide, under the cir
cumstances here present I find establishes a prima facie
case that Respondent imposed more onerous working
conditions on Johnson for discriminatory reasons Also,
as indicated post, Cornish was told Dormandy wanted
doctors certificates from all employees who were out ill
for 1 day and Miller indicated in his letter to the Union
that all employees who became ill at work were required
to present doctors' certificates on their return to work
The claim of such a broad policy does not explain why
some employees were never required to present doctors
certificates to DCS on their return to work, or why the
policy was only occasionally enforced
Respondent failed to bear its burden of proving that
Johnson would have been required to clock out and
remain barred from working until she obtained a doctor s
release even if she was not an active and effective union
shop steward That other employees were required to
provide doctors certificates is not persuasive here
where at least one was informed prior to his return to
work that he would have to bring the document prior to
returning to work, but was never asked for it 35 The Re
would be permitted to return to work Stoakley went to the expense of
getting the certificate yet when he returned to work no one asked him
for it it was not required as a condition precedent to his being permitted
to return to work
35 Respondent Employer argues on brief that Cornish testified he was
required to bnng in a doctor s certificate after he left work for a doctor s
appointment for high blood pressure Cornish testified as follows
Q Have you had any problem receiving sick leave?
A Oh I was-taken off one day I hadda leave early cause I was
sick And I was taken off the next day Let s see-was in 86
around sic about June or July at 10 00 in the morning Well I
have a blood pressure problem and I have taken treatment from a
doctor So I was taken sick on a-on a Monday morning I think it
was And I went home went to my doctor I came back-and I
called in that Tuesday and didn t come to work And I came back
that Wednesday morning on my job
Q And what happened when you got back to work?
A Well nothing really happened I just went on to work and did
my job
Q Were you ever required to produce verification of the fact that
you were sick?
A No one asked me for any proof but I had my medicine medi
cation and stuff like if they asked for proof But no one asked for
any
Cornish also went home ill in 1987 and was not asked for any verification
he was sick when he returned to work the following day
Cornish later testified that he knew of the requirement to bung a doc
tor s excuse and he had one but no one asked him for it A supervisor
Continued
624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent Employer did not indicate the circumstances
under which it obtained other certificates, but none were
similar to these applied to Johnson. Also, Respondent
Company failed to require the submission of such certifi-
cates from Cornish who left work ill. DCS did not
present any evidence that it knew Cornish had in fact
come to work with a doctor's certificate. Cornish was al-
lowed to return to work without presenting a doctor's
slip even though he was advised he could not return
without one.
There are other employees who were out sick and
were not required to obtain certificates. The parties stip-
ulated that there were no doctor's certificates for at least
10 employees who worked in building 1226 and who
were absent because of illness. Respondent Company
failed to explain the absence from the Company's files of
medical slips for these employees. De Filippo, Dor-
mandy, and Miller also failed to describe what mecha-
nisms they instituted to ensure that their variously de-
scribed policies for providing doctor's certificates were
followed. These apparent dissimilarities in treatment
were not convincingly explained by any other policies or
the testimony of DCS representatives.
I find that this singular and unusual treatment of John-
son was an attempt to discourage her from her intense
pursuit of her duties as shop steward and the reasons of-
fered by DCS were pretexts. Thus, I conclude that the
General Counsel has made a prima facie case that DCS
has not convincingly rebutted and that by its discrimina-
tory actions DCS has violated Section 8(a)(1) and (3) of
the Act.
3. Alleged discriminatory reduction in hours
The General Counsel argues that DCS failed to
adduce evidence that other employees' hours were simi-
larly reduced.36 Further, the Company's suggestion that
she had bumping rights to other shifts, which had fewer
employees, would significantly reduce the number of em-
ployee grievances she would address as a shop steward.
Respondent Employer claims the reduction in John-
son's hours was not discriminatory, that she was in-
informed him Dormandy required them to bring "an excuse if we were
out sick for one day. We had to bring an excuse for that."
Respondent failed to show that Johnson was similarly informed of the
policy that all employees had to bring in doctors ' certificates as a matter
of course if they went home sick or were out ill for 1 day. Miller testified
during the resumption of the hearing that DCS has the discretion to ask
for such a certificate , not that it will be required in all instances or cer-
tain specified instances of illness . In contrast De Filippo testified: "Any
employee that showed up for work but went home because he or she
didn't feel well was not asked for a doctor slip by me to bring in for that
remaining day. It only was the employee that stayed out a whole day,
never showed up to work that were asked to bring in a doctor slip
.." The shifting and contradictory testimony by Respondent's agents
on this issue lead me to conclude that their explanations are pretexts.
36 The General Counsel also argues that the Company offered no ex-
planation why Johnson was the only employee named in the notice the
Company sent the Union . This argument , as noted above, is found to be
unpersuasive for Johnson was the only shop steward, thus the most
senior employee on the shift at building 1226 under the parties ' collec-
tive -bargaining agreement . This status could very well explain why Re-
spondent noted its concern for the protection of her rights and mentioned
her by name.
formed when hired her hours would fluctuate.37 The
Company failed to demonstrate through the production
of demonstrative evidence, apart from self-serving testi-
mony, that the exercise of her bumping rights would
have resulted in Johnson avoiding a reduction in her
hours. Respondent Company claimed that the need to
reduce hours resulted from the need to improve produc-
tivity. DCS failed to adduce any details supporting this
claim of need to effect operating efficiencies or even
show that reducing Johnson's hours would create operat-
ing efficiencies. Further, there was no evidence that by
asserting her bumping rights, Johnson would not have
suffered a reduction in hours. Her present shift was the
largest and, thus inferentially, the most active requiring
at least equal man-hours to the other shifts. There was
no assertion the other shifts or projects Johnson could
bump into were not also subject to the same needed pro-
ductivity changes. Respondent DCS also failed to
adduce any details concerning the overall reduction in
hours or other particulars that would affirm the claimed
reduction of all the employees' hours on the shift. No
other employees in building 1226 were shown to have
been similarly affected on or about October 20. When
asked, Miller specifically could not identify another em-
ployee whose hours were reduced one-half hour per day
other than Johnson.38
Also considered is Dormandy's testimony that there
was never an across-the-board reduction in employee
hours in October 1986 and he could not explain why
Johnson's hours were affected or why the documentary
evidence fails to support DCS's claim that there was a
"shift-wide manning reduction." Also considered, as
noted above, was Dormandy's inability to explain the re-
duction in Johnson's hours on November 1 while other
37 Johnson claimed her hours were also to have been reduced shortly
after she was elected shop steward in April, as previously noted. This as-
serted reduction in hours is not alleged to be a violation of the Act. As
Respondent Company commented, her hours fluctuated and actually in-
creased immediately after she was elected shop steward. Her hours were
never reduced to 12 per week as she testified was the threatened action.
Johnson's testimony on this point, as found above , does not require the
discrediting of all her testimony. There is a difference between a threat,
as she claims, and an actual reduction in hours. Assuming her testimony
was erroneous , this one instance of engaging in hyperbole does, however,
requires the close scrutiny of her testimony . "Nothing is more common
than to believe some and not all of what a witness says ." Edwards Trans-
portation Co., 187 NLRB 3-4 (1970), enfd. per curiam 437 F.2d 502 (5th
Cir. 1971); Wilco Energy Corp., 246 NLRB 851 fn. 1 (1979). In general, I
still find Johnson 's testimony more credible than that of DCS's witnesses
who appeared hesitant and not as forthright, candid, and straightforward
as Johnson's.
38 Johnson testified that she brought the reduction in hours to the
Union's attention and sought its assistance in gaining relief from what she
considered continuing harassment because of her activities as shop stew-
ard. Curtis could not recall if Johnson filed a grievance concerning the
reduction in hours but admitted discussing the matter with her, including
the filing of a grievance , that there were many discussions of the matter.
Curtis did not refute Johnson's testimony that when she discussed the re-
duction in her hours with Curtis , Curtis told her she was filing charges
with the Board for harassment . "[I]t is settled law that where a witness's
testimony is not contradicted , a trier has no right to refuse to accept it."
NLRB Y. Ray Smith Transport Co., 193 F.2d 142, 146 (5th Cir, 1951). This
holding is not without limit but on this record there is no basis to ques-
tion Johnson's version of this conversation . Cf. NLRB v. Howell Chevrolet
Co., 204 F.2d 79, 86 (9th Cir. 1953); Plasterers Local 394 (Burnham Bros.),
207 NLRB 147 in. 2 (1973).
DIVERSIFIED CONTRACT SERVICES
employees on the shift worked substantially more hours
than she I conclude that the reduction in Johnson s
hours was based on a proscribed motive
The Company s failure to provide any records demon
strating that other employees on Johnson s shift received
similar reductions in their scheduled hours, leads me to
conclude that the General Counsel has presented a prima
facie case that Johnson was singled out for disparate
treatment, and given the history of her employment at
DCS including references to her as a troublemaker and
the other previously stated reasons I find this treatment
was motivated by animus occasioned by her activities as
a shop steward
I further find that Respondent Company s failure to
demonstrate through documents that it has in its posses
sion that the less senior employees on the shift were semi
larly affected requires a finding that it has failed to dem
onstrate that Johnson s hours would have been reduced
absent her protected concerted activity In fact, the time
sheets refute DCS claim Accordingingly I conclude
that Respondent Company violated Section 8(a)(1) and
(3) of the Act by reducing Johnson s hours on or about
October 20 for discriminatory reasons
4 The October 30 letter
As was the case with the other allegations considered,
determination of this issue also rests on my credibility
resolutions, consideration of all the other indications of
proscribed motive, and the existence of nondiscrimina
tory reasons for the issuance of this letter
The General Counsel avers that the substance of Mil
ler s October 30 letter supports the conclusion it was
issued in retaliation for Johnson s activities as a shop
steward The General Counsel notes that Dormandy and
De Fillipo admitted the facts they testified to occurring
on October 13-15 were different than those they report
ed to Miller Several factors according to the General
Counsel are illustrative of the discriminatory motive in
the issuance of the letter including not only complaining
about Johnson s work performance but also the refer
ences to her activities as a shop steward in the same
letter The failure to issue an employee performance
report for Johnson s asserted failure to report on October
14 or asserted short notice call in on October 15 was
support for Johnson s claim she did not commit these in
fractions and thus is indicative of prejudice because of
Johnson s shop steward activities
It is also argued by the General Counsel that the fail
ure of Miller to routinely suspend Johnson after her al
leged third violation of the Company s attendance/
tardiness rules is a deviation from the Company s system
of progressive discipline and thus strongly suggestive of
unlawful motive DCS did not impose a 14 day suspen
sion in all cases as part of its system of progressive disci
pline The General Counsel argues that the only other
times DCS did not impose 14 day suspensions involved
employees with many violations of the Company s poli
cies and rules The General Counsel failed to adduce evi
dence showing that there was a clear and cognizable dis
tinction between the treatment of Johnson and the other
employees who were not suspended for infractions of the
625
rules Therefore, the failure to suspend Johnson, standing
alone, does not support a finding of unlawful motive
DCS argues that the facts do not support the allega
tion of discriminatory motive claiming concern that
Johnson had committed an infraction of the rules on Oc
tober 26 with a short notice call in shortly after receiv
mg a warning about absenteeism and failing to report on
October 16 This argument might have been persuasive if
advanced by Miller, but all that Miller provided in way
of explanation for his decision not to suspend Johnson
was the amorphous and unspecific conclusion that she
would not benefit from a 14 day suspension Specifically,
when Miller was asked why he decided to depart from
standard procedures by failing to impose the usual 14
day suspension he testified
I will, rather than suspend-because suspension is
not always the answer to correcting performance-
give them the opportunity to continue their work
and at the same time inform them that they have
had a number of violations or a number of per
formance problems, and I expect these all to if you
will, improve
The tenor of this reply is at great variance from the
tone of the letter which explained the failure to impose
the usual 14 day suspension because I do not feel that a
suspension will correct the many problems I have en
countered with your ongoing performance at Mather
The letter did not reflect the reason Miller proffered in
his testimony for his decision not to suspend Johnson
The raising of this reason only after her discharge at the
hearing is indicative of unlawful motive
Another basis advanced by DCS for issuing the letter
was the drinking water incident Johnson left her duty
station, got a glass of water that she continued to con
sume when she returned to her duty station where she
also was alleged to have been insubordinate to De Fi
lippo The many problems mentioned in the October
30 letter were not detailed Management had previously
admitted Johnson was a good worker thus the vague
reference to many problems appears to evidence
Miller was, at the very least exaggerating
Other indicia that Respondent was disingenuous in this
action, as detailed previously include Baird s undisputed
testimony that when she worked at building 1226 for 3
months a cook regularly consumed coffee while work
ing behind the line There was no evidence the cook was
ever reprimanded or instructed to refrain from such ac
tivity much less disciplined for it Johnson s testimony
that other employees frequently drank beverages behind
the line was also undisputed Respondent Company and
particularly De Filippo did not claim ignorance at what
has been described as frequent patent violations of the
rule De Filippo said Johnson was absent from the line
for 3 minutes yet this assertedly blatant action was not
mentioned in the disciplining notice Also De Filippo
claimed Johnson was loud and abusive, yet when asked
what she said, claimed she could not hear her because
she was mumbling Thus , she admitted she was not loud
and if she could not hear what was being said the char
626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
acterizing of the unheard comments as abusive cannot be
credited and is found as pretext for imposing discipline
Respondent Employers claim that the letter was war
ranted because it reflects valid Employer concerns
would be persuasive if their witnesses were credited
However the noted disparities and contradictions in
DCS s case and principally their demeanor require me
not to credit their testimony Also, Johnson was not
even scheduled to work on October 29 according to
DCS s attendance sheet, another unexplained evidentiary
anomaly Johnson s claim that she called in and was told
not to report was recited in a manner that bespoke clear
recollection compared to De Filippo s testimony, which
was hesitant unresponsive at times, and admittedly sub
Ject to poor recall on occasion
My conclusion that the letter was issued, at least in
part, because of DCS dissatisfaction with Johnson s ac
tivities as a shop steward is buttressed by the statement
in the letter that termination would follow any violation
of the Company s rules , rather than a fourth violation of
the absenteeism/tardiness rules Miller failed fully to ex
plain why such a broad threat was included in the letter
This is another failure to fully, hence, persuasively, ex
plain the basis for claimed nondiscriminatory action and
again evidences proscribed motive
In sum, I recognize that facially it appears easier to
find that Respondent Company was warranted for bust
ness reasons in taking the various allegedly discriminato
ry actions against Johnson However, after closely ob
serving the demeanor of the witnesses and considering
the failure of DCS to convincingly refute the General
Counsel's prima facie cases, I conclude that Respondent
again violated Section 8 (a)(l) and (3) of the Act by issu
ing the disciplinary letter of October 30
5 Termination of Johnson on December 16
The General Counsel argues that Johnson s discharge
was done in a precipitous manner indicative of unlawful
ness Specifically, the General Counsel notes no employ
ee performance report was prepared for the alleged late
call in of December 16 instead Miller was immediately
contacted by Dormandy Johnson, although she reported
to work was sent home and her termination letter was
drafted the same day contrary to the treatment other
similarly situated employees received The General
Counsel asserts that [n]o other DCS employee was
treated as summarily as Johnson as a review of the
record demonstrates Only one other employees termina
tion letter issued the same day as his final rule violation
and this other occasion occurred after Johnson s termina
Lion
The General Counsel also argues there is additional
evidence that Johnson was treated disparately After
summanzing employee personnel records, the General
Counsel notes that 12 employees were given 14 day sus
pensions to cure their attendance problems Ten of
them were subsequently terminated after further infrac
tions Six of these employees had more violations of the
attendance rules than Johnson allegedly had, yet they
were not terminated on the fourth violation (Cooper
Gallant, Harris , Jefferson, Kyle, and Pullum) Three
employees had both attendance and performance prob
lems but received raises during their tenures after receipt
of discipline
In conclusion the General Counsel contends that,
even if it is assumed December 16 was Johnson's fourth
violation of the absenteeism rules, she was treated dif
ferently and harsher than similarly situated employees
In particular, the personnel records of Gallant, Kyle and
S Harris, who were terminated for multiple violations of
the attendance rules, show that they had numerous per
formance problems
I find this argument unpersuasive because there was no
evidence adduced concerning the decisions to terminate
these other employees For example, Kyle had three vio
lations of the absenteeism rules between April 8 and
August 21 when she was suspended for 14 days She
was then tardy on October 6 when no employee per
formance report was issued After her next attendance
problem on October 8, an employee performance report
was issued and Miller wrote her an unsatisfactory per
formance letter She again had infractions of the attend
ance rules on January 3 and 7, 1987 for which no em
ployee performance reports were issued but Miller sent
her a termination letter dated January 12, 1987 She also
had three employee performance reports for disobedi
ence from October 27 to December 19 and one for work
quality in June
Gallant was tardy or had attendance rule infractions
on July 4 and September 17 and 20 Employee perform
ance reports were issued for each infraction Also May
31 and August 11 she received employee performance
reports for work quality and May 31 she received an em
ployee performance report for `uniform Miller on
September 23 wrote her an unsatisfactory performance
letter and on October 3, a 14 day suspension letter She
was terminated by letter dated November 3
Harris received two employee performance reports for
work quality on March 13 and 14 and another report for
eating without paying on May 21 On June 4 Biller
wrote her a letter about her unsatisfactory performance
She received another employee performance report for
work quality on December 4 On July 7 and 29 and Feb
ruary 18 1987, she received employee performance re
ports for tardiness No 14 day suspension or other disci
phne was imposed on her until March 16, when an em
ployee performance report was issued for taking food
without paying and on March 17 1987 Miller transmit
ted her termination letter
The record was not developed regarding how DCS
calculated the 6 month period contained in the absentee
ism rule or the basis DCS used in determining the van
ous disciplines imposed on Harris, Gallant, and Kyle, the
exemplars relied on by the General Counsel to demon
strate disparate treatment The question of mitigating car
cumstances in any of these examples was not explored
Another consideration is that Miller travels frequently
and there was no evidence adduced concerning his avail
ability to draft termination letters or make the decision
to discharge at the time the terminated employees com
matted their last rule infractions Thus there was no indi
cation of his availability to act on the day of their last
rule violation
DIVERSIFIED CONTRACT SERVICES 627
There were other disparities in the treatment of em
ployees that were unexplained For example, William
Jefferson was terminated in late August 1987 after re
ceiving five employee performance reports for tardiness
between April 6 and July 22, 1987, two employee per
formance reports for work quality and a Miller letter
about unsatisfactory performance in July 1987 In con
trast, Stephanie Lewis was suspended after three viola
tions of the attendance rules between September 18 and
October 24, 1986, and terminated on April 3, 1987, after
the fourth violation of the attendance rules that occurred
on April 1, 1987 No employee performance report was
issued for her fourth violation that was a failure to report
or call There was no explanation for these apparent dif
ferences in the application of Respondent's disciplinary
policies
Another argument posed by the General Counsel is
that Dormandy testified Johnson was terminated accord
ing to established policy and he bore the responsibility
for documenting the basis for her discharge According
to the General Counsel, Dormandy knew on December
16 that Johnson had not received four reprimands for
violations of the attendance rules or a 14 day suspension
even though he knew others were not automatically ter
minated on the day of their fourth rule infraction Also
in support of her position, the General Counsel avers
that by the close of the instant hearing, no shop steward
had replaced Johnson at building 1226
DCS argues that the General Counsel failed to estab
lish a prima facie case, that pretext was not involved in
its decision to terminate Johnson, rather, Johnson was
fired for legitimate business reasons In support of this
argument, DCS claims they and the Union had a long
and successful bargaining history and that the collective
bargaining agreement at MAFB was quickly negotiated
Thus the General Counsel failed to prove the necessary
element of antiunion animus in its disciplinary and dis
charge decisions and that any animus was caused by the
personally fractious relationship 39 between De Filippo
and Johnson In the alternative, DCS argues that even if
the General Counsel presented a prima facie case it per
suasively demonstrated that Johnson would still have
been discharged for reasons unrelated to union consider
ations that she was continuously warned about work at
tendance problems that she was afforded the opportune
ty to avoid the reduction in hours and that given the
benefit of the doubt she was not suspended 40
The termination claims DCS was for valid business
reasons, Johnson repeatedly violated the Company s
absenteeism/tardiness policy as reflected in the employee
performance reports and Miller s letters Johnson was of
forded the opportunity to challenge the claims of rule
violations and/or present verification of car problems but
failed to do so by filing a grievance or other response 41
39 Citing Lucky Stores 275 NLRB 1438 at 1439 (1985)
40 I find this argument specious Miller never claimed he was giving
Johnson the benefit of the doubt in determining not to suspend her The
letter explains his decision was based on the determination she would not
benefit from a suspension so he placed her on 6 months probation
4 i I have found above that Johnson consulted with the Union about
each violation and refuted the validity of at least most of the disciplinary
actions with representatives of DCS at the time the employee perform
DCS also argues Johnson s union status is not a shield of
fording protection from discipline or discharge for rule
violations It contends it merely reasonably and patiently
attempted to uniformly enforce its policies, as it tries to
do in all cases It avers that it was not unreasonable for it
to disbelieve Johnson's excuses DCS admitted that on
occasion there may have been administrative error42 re
garding the number of violations but that was not the
case regarding Johnson
The question to be determined is the causation of
Johnson s termination The test is whether Johnson's ac
tivities as a shop steward were a substantial motivating
factor in DCS s decision to discipline and discharge her
and, if so, has DCS demonstrated that it would have
taken the same action had it not been for her activities as
shop steward Wright Line, 251 NLRB 1083 (1980), enfd
662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989
(1982) See also NLRB v Transportation Management
Corp, 462 US 393 (1983) In determining Respondent s
motivation, the various comments and attitudes of Re
spondent Company s representatives that testified Miller,
Dormandy, and De Filippo, have been examined For ex
ample, Dormandy, who recommended Johnson s dis
charge, exhibited poor recall of the events assertedly the
basis for his recommendation and Miller s action Miller's
statements about Johnson and his references to her as a
troublemaker demonstrate that DCS knew Johnson was
an extremely active shop steward and took umbrage to
her zeal
I find based on these and the other considerations dis
cussed, that the General Counsel has made a prima facie
case that DCS discharged Johnson because of her activi
ties as a shop steward Miller s letters of September 27
and October 30 patently demonstrate that he was very
displeased with Johnson s activities as the building 1226
shop steward The Company attempted to reduce John
son s hours offering the possibility of relocating her to
another shift with fewer employees or even to another
base As found above, no other employees were shown
to have their hours similarly reduced even though John
son, as shop steward was the most senior employee on
the shift In fact, the timesheets demonstrate other em
ance reports and/or letters were issued Johnson not only asserted she
was being harassed but the Union considered her claims had sufficient
ment to file an unfair labor practice charge reflecting these claims of har
assment There was no evidence that Johnson was ever asked for proof
of car problems and in the case of the flat tire there was no indication
or reasonable expectation that documentary proof existed Regarding the
asserted rule violations when Johnson was ill I found above that her ver
sions of the incidents were the most credible and that she related to van
ous company representatives that she would be absent and why
42 The claim of administrative error was made only on brief as noted
above there was no evidence indicating the basis for the differences in
treatment of the various employees as previously detailed This bare
claim that the differences were solely attributable to administrative error
is found to be unsubstantiated and without ment I also note that the var
sous supervisors for the in flight kitchen fire station and Sac alert did
not appear and testify in support of DCS s inferences that apparent dis
crepancies in treatment was attributable at least in part to different su
pervisors making the decision This argument also overlooks De Filippo s
admission that she had overall responsibility for supervising the entire
base as did Dormandy which would include eliminating any apparent
disparities in the application of any rules and policies
628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees were working substantially more hours than
Johnson.
Thus, I have found the offer to permit Johnson to
bump into another shift or location disingenuous and not
evidence of lack of animus. This was clear evidence of
disparate treatment of a shop steward deemed by DCS
to be over zealous. I find that the reason propounded by
DCS for this action is a pretext. As held in Shattuck
Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir.
1966) : "if [the trier of fact] finds that the stated motive
for a discharge is false, he certainly can infer that there is
another motive. More than that he can infer that the
motive is one that the employer desires to conceal-an
unlawful motive-at least where, as in this case, the sur-
rounding facts tend to reinforce that inference."43
Once the General Counsel has established a prima
facie case of a violation, the burden then shifts to the em-
ployer to prove that it would have taken the same action
absent the employees concerted protected activity. Still,
the General Counsel retains the burden of proving the
unfair labor practice by a preponderance of the evidence.
I conclude that DCS has not overcome the General
Counsel's prima facie showing and has not demonstrated
it would have terminated Johnson if' she had not been an
active and effective shop steward.44
I find the Employer's defenses only superficially per-
suasive and consideration of the credited evidence re-
quires the conclusion that Johnson was discharged for
her activities as shop steward. Johnson was a highly visi-
ble and active shop steward, insistent on the Employer's
compliance with the collective-bargaining agreement.
There was no evidence that the Employer experienced,
much less tolerated, such zeal by any other shop stew-
ard. The chronology of events previously detailed pre-
dicts the discharge of Johnson for unlawful reasons. At
the outset was Miller's September 23 letter, complaining
stridently about Johnson's actions. The predicates for
Miller's complaints were never substantiated on the
record. This failure was unexplained. Within 3 months of
this opening campaign, Johnson was discharged. Moore
Business Forms, 288 NLRB 796 (19813).
The Employer's animus was also reflected in its con-
sistent refusal, contrary to its contractual obligations, to
afford Johnson the right to have the chief shop steward
present when she was given disciplinary notices. Re-
43 Another persuasive indication that Respondent Employer's stated
basis for Johnson 's discharge is merely a false device is that at the outset,
Miller claimed Johnson had performance problems although her supervi-
sor, De Filippo, at the same time, admitted she was a good worker. Also
there was only one disciplinary action occasioned by her performance
that was the subject of the letter. There were no prior performance prob-
lems detailed by any witness. Dormandy's vague reference to other un-
specified problems fails to establish the existence of prior problems. The
reference to problems thus appears as the initial step to establish a pretext
to discharge an active shop steward.
44 In reaching this determination , I have also considered my prior find-
ings that Respondent, moved by hostility toward Johnson's very active
efforts as shop steward, had discriminatorily: (1) given a warning letter
on September 23; (2) required her to leave work, clock out, and lose pay,
in order to acquire a doctor's slip; (3) imposed a reduction in work hours
on October 20; and (4) issued the written warning of October 16. In
reaching these conclusions , I have also found that at least some of the
rule violations on which DCS based Johnson's termination were fabricat-
ed or based on exaggerated renditions of the events in efforts to quell
Johnson's shop steward activities.
spondent did not claim that the various disciplinary ac-
tions could not be timed to afford Baird the opportunity
to be present and represent Johnson. Baird testified with-
out contradiction that she was, at least at times, afforded
the opportunity to be present and represent other em-
ployees receiving discipline during nonwork hours. This
disregard of their contract in those instances Johnson
was disciplined is in contrast to its claims of rigid adher-
ence to contractual and other policies as the basis for ter-
minating Johnson. Such disparate reasoning and treat-
ment is indicative of unlawful motive in terminations.
Quality Inn Albany, 283 1146 (1987).
Contrary to DCS' argument, the Union never claimed
it declined to commit itself to prosecute the grievances
when Johnson filed them; on the contrary, it argues it
fully investigated them. Further in this instance, the
Union is not the final arbiter of the question and its ac-
tions or inaction does not exculpate DCS.
The Respondent Employer did adduce evidence that
some employees were discharged for similar violations;
however, I find that at least some of the asserted John-
son violations were fabrications or the result of the dis-
parate application of company rules or policies, such as
the medical certificate and drinking water incidents.
I further find that Johnson did tell her supervisors in
October that she would be out for 1 week due to illness
and that she was not required to call in daily to avoid
discipline. That she called in on October 15 does not
weaken this finding; considering her situation it would be
reasonable for her to exercise caution and keep her su-
pervisors informed. Also, assuming DCS did not fabri-
cate or disparately apply its rules to Johnson, I have
considered the fact that there are some unexplained dis-
parities in DCS's reasons for terminating Johnson. In as-
sessing DCS's claim that Johnson would have been dis-
charged absent her shop steward activities, I have con-
sidered that Respondent did not discharge all employees
immediately on their fourth violation of the absentee-
ism/tardiness rules, and it failed to clearly and convinc-
ingly distinguish Johnson's situation from those employ-
ees that were retained after their fourth violation of the
same rules. Only DCS would have this information and,
I assume, it would have been presented if it was exculpa-
tory.
Assuming DCS may have had valid grounds for termi-
nating Johnson, such a finding is not dispositive that the
termination was lawful NLRB v. Texas Independent Oil
Co., 232 F.2d 447, 450 (9th Cir. 1956). A respondent vio-
lates the Act where it is established that, despite the ex-
istence of a valid reason or reasons for discharge, the
evidence shows that the employer has resorted to such
reason or reasons as the basis for building a case against
an employee, as here, due to their union activities. United
Aircraft Corp. v. NLRB, 440 F.2d 85, 92 (2d Cir. 1971);
NLRB v. Lipman Bros., Inc., 355 F.2d 15, 21 (1st Cir.
1966); Blue Bell, Inc., 238 NLRB 555 (1979).
In addition to the lack of uniformity in the application
of the progressive discipline system, I note that within
approximately 1-1/2 months from Miller's September 23
letters, Johnson received numerous disciplinary actions,
including four asserted violations of the absentee-
DIVERSIFIED CONTRACT SERVICES 629
ism/tardiness rules Johnson s employment record prior
to Miller s letter of September 23 was almost unblem
ished, with only one employee performance report issued
in early February for late checkout 45 From the incep
tion of its case building, DCS threatened Johnson with
discharge, contrary to its demonstrated practice of pro
gressive discipline
After fully considering all Respondent Company s ex
planations for its actions I conclude that its decision to
terminate Johnson was not based on good faith assess
ments of her performance and attendance record but was
part of an orchestrated plan to rid the Company of a
shop steward who tried to ensure adherence to the col
lective bargaining agreement Respondent has failed to
convincingly demonstrate the employee would have
been discharged in any event because of unprotected
conduct Champion Parts Rebuilders Inc v NLRB, 717
F 2d 845, 849 fn 6 (3d Cir 1983) Accordingly, I find
that Respondent has not overcome the General Counsel s
prima facie case, and I conclude the Johnson s discharge
violated Section 8(a)(3) and (1) of the Act
The Board held in Service Employees Local 579 (Beverly
Manor), 229 NLRB 692, 695 (1977)
[s]o long as it exercises its discretion in good faith
and with honesty of purpose, a collective bargain
ing representative is endowed with a wide range of
reasonableness in the performance of its duties for
the unit it represents Mere negligence, poor judg
ment or ineptitude in grievance handling are insuf
ficient to establish a breach of the duty of fair rep
resentation
The Board further explained in Glass Bottle Blowers
Local 106 (Owens Illinois Inc), 240 NLRB 324 (1979)
Where as here, a union undertakes to process a
grievance but decides to abandon the grievance
short of arbitration, the finding of a violation turns
not on the merit of the grievance but rather on
whether the Union s disposition of the grievance
was perfunctory or motivated by ill will or other
invidious considerations
B Alleged Breach of the Unions Duty of Fair
Representation
To determine if there has been a violation of Section
8(b)(1)(A) of the Act it is helpful to understand the basis
for this duty The Board and the Courts have imposed an
obligation on unions to fully and fairly represent those
employees for whom they are the exclusive representa
tive as a concomitant to the exclusive representation
rights given labor organizations in Section 9(a) of the
Act In Vaca v Sipes, 386 U S 171, 177, 190 (1976), the
United States Supreme Court held
It is now well established that as the exclusive
bargaining representative of the employees the
Union [had] a statutory duty fairly to represent all
of those employees [This duty] includes a stat
utory obligation to serve the interests of all mem
bers without hostility or discrimination toward any,
and to avoid arbitrary conduct
A breach of the statutory duty of fair representation
occurs only when a union s conduct toward a
member of the collective bargaining unit is arbi
trary discriminatory or in bad faith
Thus represented employees are protected from arbi
trary, irrelevant or invidious discrimination by their ex
clusive representative by virtue of this duty to fairly rep
resent them This duty extends to the investigation and
representation of employees in the processing of griev
ances However, the Board and the Courts have afforded
the unions substantial latitude in their representational
decisions
45 It is not necessary to show illegal motivation behind each employee
performance report or unsatisfactory performance letter where as here
I find a pattern of disparate treatment and inconsistent application of
rules conjoined with patent animus toward Johnson s concerted protected
activities as shop steward Elects Flex Co 228 NLRB 847 (1977) enfd
570 F 2d 1327 1334-1335 (7th Cir 1978) cert denied 439 U S 911
(1979)
The relative merits of a grievance may bear directly on
the arbitrariness of a union s failure to process it, but
proof of actual merit is not essential to the establishment
of a breach of the union 's duty of fair representation
Glass & Pottery Wokers (Owens Corning Fiberglass) 282
NLRB 1296 1300 (1987)
In determining whether a union breached its duty of
fair representation the applicable standard requires a
broad inquiry including a finding that the union s con
duct was arbitrary or based on irrelevant, invidious or
unfair consideration A finding of negligence standing
alone, does not constitute arbitrary conduct The Gener
al Counsel must demonstrate more than mere negligence
to justify finding a violation of Section 8(b)(1)(A) of the
Act Office Employees Local 2 , 268 NLRB 1353 (1984)
affd sub nom Eichelberger v NLRB, 765 F 2d 851 (9th
Cir 1985)
The General Counsel avers that the Union breached
its duty of fair representation in its handling of Johnson s
harassment and discharge grievances She deems ineffec
tive and unpersuasive the Union s defenses 46 The Gen
eral Counsel argues that the Respondent Union proc
essed both of Johnson s grievances in a perfunctory
manner
The filing of the harassment charge does not abrogate
the Union 's responsibility to investigate Johnson s griev
ance that she was being harassed The Union failed to in
vestigate Johnson s complaints , even though George by
Miller s September 23 letter was on notice the Company
was dissatisfied with Johnson s activities as a shop stew
and and criticized her performance despite admittedly
46 The specific defenses mentioned by the General Counsel are (1)
Johnson did not file formal grievances on any of the allegations in the
complaints other than her termination (2) Johnson s complaints regarding
the harassment in September and October were not clearly covered by
the unfair labor practice [charge] filed by Curtis (3) George did not
think the complaints of harassment were connected with Johnson s terms
nation and (4) the Company s evidence against Johnson was more credi
ble [than Johnson s evidence]
630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
hearing from De Filippo that she was considered a good
employee. When Johnson claimed to the Union that the
criticism over the contract monitoring and surveillance
reports was unwarranted and extraordinary, the Union
presented no evidence it sought to determine if the other
employees mentioned in these reports were similarly in
disciplined; or whether the Company had a practice at
that time of discipling employees because of adverse
comments made in these reports.
Johnson notified the Union of what she claimed was
the discriminatory application of the doctor's certificate
requirement. Curtis commented that the Company was
harassing Johnson and directed her to obtain employee
statements confirming her claim the requirement was dis-
criminatorily applied. Johnson obtained these statements
and sent the originals to the Board with copies to the
Union. The Respondent Union's claim that it never re-
ceived these copies is not believed based on my previous
credibility findings. However, even if the Union's claim
had merit, it failed to explain why it did not seek to see
and/or obtain copies of the originals held by the Board;
the General Counsel argues these failures constitute com-
pelling evidence of the perfunctory manner in which the
Union investigated Johnson's harassment grievance.
George did not investigate the basis for Johnson's ter-
mination as he claimed, and the General Counsel argues
that he merely accepted the Company's position. For ex-
ample, there was no claim by the Respondent Union that
George raised Miller's October 30 letter at the December
29 meeting, even though he knew that Johnson was not
suspended for 14 days but threatened with termination
for any future violation of any company rule, a deviation
from established company practice. George also failed to
contact and interview witnesses such as Baird. In fact, I
note, there was no indication that he talked to Curtis
about the grievance, even though it was Curtis who filed
the unfair labor practice charge asserting that the Com-
pany was harassing shop stewards, including Johnson.
The General Counsel argues that similar to his han-
dling of the harassment grievance, George failed to in-
vestigate the discharge grievance. He failed to meet with
Johnson before the December 29 meeting, did not pre-
pare by examining documents before the meeting, and
failed to raise Miller's letters of September 23 and Octo-
ber 30 as indications of unlawful motive or at least
animus toward Johnson because of her activities as shop
steward.
The General Counsel also avers that even assuming
the Union informed Johnson of the December 29 meet-
ing, it should not have proceeded with consideration of
her discharge grievance without her. The Union did not
advance any reason the grievance meeting could not be
rescheduled. Inasmuch as Johnson was one of the
Union's shop stewards, there was no reason it could not
have given her the benefit of the doubt when she failed
to attend the meeting and at least asked for deferral of
consideration of her grievance until she could attend
rather than proceeding without even determining the
reason for her absence . This manner of conducting his
duties, the General Counsel claims, "is potent evidence
of George's attitude toward Johnson."
The Respondent Union asserts it did not breach its
duty of fair representation; the General Counsel failed to
prove it acted in bad faith or in an arbitrary or discrimi-
natory manner . As noted above, the Union observed that
Johnson never filed a grievance regarding the September
23 letter or that the matters raised in the letter played
any role in her discharge. Johnson as shop steward knew
that under the collective-bargaining agreement she was
required to submit all grievances in writing to the
project manager within 7 days of receipt of a reprimand.
Her failure to file a grievance, the Union claims, left it
with, "no action the NMU could take on her behalf."47
The Union denies advising Johnson to ignore the Miller
letter because it was not a proper reprimand, and further
argues that even if they gave such advice, it should be
classified as "mere negligence."
Equally unconvincing is the Union's argument that
Johnson never filed a grievance about being required to
obtain a doctor's certificate and her reduction in hours.
The Union claims General Counsel's Exhibit 27 shows
all the employees working the same shift as Johnson also
had their hours reduced by one-half hour, but Johnson
was offered the opportunity to bump into another
shift.48 This exhibit is merely the Company's letter to
the Union informing it of the asserted reduction in hours
for all employees on the shifts. It does not demonstrate
that any other employee on the shift actually had his or
her hours reduced nor does it demonstrate that Johnson
could have worked more hours if she exercised her
bumping rights.
Regarding the discharge grievance, the Union initially
argues, even assuming Johnson was given notice of the
meeting, the Union is not required to have the grievant
present; particularly here where it would be reasonable
to have Johnson absent "[g]iven the hostility between
Ms. Johnson and members of management which Gener-
al Counsel is asserting herein." The Union claims the dis-
charge grievance was fully investigated and George de-
termined it lacked merit. It comments that Johnson never
availed herself of the opportunities afforded by DCS to
present exculpatory documentation regarding her
claimed car problems or otherwise convincingly refuted
the propriety of the various disciplines she received. The
Union did not claim that it attempted to determine if
such exculpatory evidence existed or that Johnson had
an affirmative duty to avail herself of the appeal right of-
fered by the Company prior to the Union instituting an
investigation or incurring any other obligation to the unit
member.
°' This argument is found to be without merit. It fails to address
Curtis' testimony that she told Johnson she would raise some of the inci-
dents that resulted in discipline with the Company and she had the estab-
lished practice of handling similar complaints by other members with the
Company. This testimony clearly refutes the Union's claim that it could
do nothing absent grievances, because it had the practice of handling in-
formally at least employees' verbal grievances. The Company did not
claim it would not consider resolving these matters without a grievance.
48 Johnson claimed she filed a grievance concerning the October 30
letter but admitted not giving a copy to the project manager . Curtis and
George claimed they never saw this grievance. There is no indication
and it is not argued that the Union breached its duty of fair representa-
tion with regard to this grievance.
DIVERSIFIED CONTRACT SERVICES
George claimed he was told various stories' by John
son, as she gave differing renditions to the Board for ex
ample her affidavit said her car broke down and while
testifying she claimed her car blew up several days
before her discharge on December 16 and a friend she
was relying on to provide transportation was late This
and other inconsistencies were unexplained and thus the
Union had good reasons to give credence to DCS s ver
sions of their basis for Johnson s discharge I note that
most of the asserted inconsistencies and inaccuracies
mentioned by the Union were not arguably cognizable to
Respondent Union and, in particular George until the
instant hearing
In sum, the Respondent Union argues it sufficiently in
vestigated Johnson s grievances and if it is found defi
cient such deficiency is only mere negligence It as
serts that all the Company was found to have done was
follow the agreement by discharging an employee for
four clear violations of the valid absentee policy
I find, after examining all the surrounding circum
stances, the Union engaged in a pattern of conduct de
monstrative of perfunctory handling of Johnson s griev
ances warranting a finding of a failure in its duty of fair
representation
Johnson complained to the Union about George and
his actions, or lack thereof The Union failed to present a
persuasive reason the December 29 meeting was sched
uled to include consideration to Johnson s discharge
grievance without prior investigation as to its merits
The Company s position was not determined and dis
cussed with Johnson and Baird before the meeting
There is no evidence the Union knew which alleged rule
violations the Company considered in its termination de
cision There is no claim Johnson pressed for expedition
If the harassment grievance could be discussed on Janu
ary 14 there was no reason advanced why the discharge
grievance could not have been discussed on the same
date I find simultaneous discussion of these two griev
ances was the most logical manner of handling given
their patent interrelationship I do not credit George s
declaration that he did not consider the grievances inter
related he had a lot of experience as a union representa
tive and there is no basis on the record to find him as
obtuse as he claims
George admitted in his testimony about his December
22 conversation with Johnson that he did not understand
her version of the events leading to her discharge and
also admitted he recognized the need for further discus
sions and so informed her He failed to explain why he
did not meet this recognized need Regarding Johnson s
harassment grievance as distinguished from the harass
ment charge there was no evidence presented that
George investigated this matter in any manner This fail
ure is unexplained Even assuming that George felt
unable to rely on Johnson s rendition of events he did
not detail why he did not ascertain a clear understanding
of her position before reaching this decision Also unex
plained is his failure to talk with Baird who as chief
shop steward, may have had information about the
merits of these grievances
Having committed itself to prosecuting a grievance a
Union is under a duty to present it most favorably Aaron
631
Kesner v NLRB 532 F 2d 1169 (7th Cir 1976) affd sub
nom Teamsters Local 705 (Associated Transport), 209
NLRB 292 (1974) Miller could not even recall if George
raised the issue of Johnson s discharge grievance at any
meeting and it would appear a favorable presentation
would provoke at least some memory of the event How
ever, the lack of any investigation into the grievances I
find precluded George from making any favorable pres
entation even if he was so disposed
Other indicia of this failure was the lack of notice to
Johnson and Baird that the discharge grievance was to
be considered on December 29 George admitted that he
did not notify Johnson that her harassment grievances
were to be considered on any date This lack of notice, I
find is a more accurate reflection of George s method of
handling Johnson s grievances and adds credence to her
claim that she was not informed of the December 29
meeting I also note that I credited Johnson s testimony
that the Union repeatedly told her she was being har
assed by the Company when informed by her of the var
ious disciplines she received, yet when her grievances
were filed they were not considered together and she
was not afforded the opportunity to give the Union in
formation, much less participate in the grievance meet
rags
Another consideration giving weight to Johnson s as
sertion that she did not know of the December 29 meet
ing is that George admittedly knew Johnson had trans
portation problems but never raised the issue of whether
she could get to Oakland for the meeting The Union
usually held grievance meetings at MAFB to permit the
grievant the fullest opportunity to participate Miller
made no claim he was unable to come to MAFB for a
meeting on Johnson s discharge grievance
This course of action is telling for the Union indicated
it credited her claim of harassment sufficiently to file an
unfair labor practice charge Thus I conclude that the
Union s actions rise above mere mismanagement mere
negligence or ineptitude George s contradictory and un
convincing testimony about his efforts to pursue John
son s grievances at best, loudly bespeak a willful indif
ference I find that George gave the grievances perfunc
tory treatment for he held animus against Johnson be
cause she complained about him, including complaints to
the International union However, even absent such
animus, the Union treated her grievances in a perfuncto
ry manner thereby breaching its duty of fair representa
tion in violation of Section 8(b)(1)(A) of the Act
CONCLUSIONS OF LAW
1 Respondent Diversified Contract Services Inc
Sacramento, California, is an employer engaged in corn
merce or in industry affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act
2 Respondent Industrial, Technical and Professional
Employees Division National Maritime Union AFL-
CIO is a labor organization within the meaning of Sec
tion 2(5) of the Act
3 Respondent Diversified Contract Services has vio
lated Section 8(a)(1) and (3) of the Act by engaging in
the conduct described in the above decision
632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Respondent Industrial , Technical and Professional
Employees Division , National Maritime Union AFL-
CIO has violated Section 8(b)(1)(A) of the Act by failing
to fairly represent Maureen V Johnson in their handling
of her grievances
5 The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent Employer engaged in
unfair labor practices proscribed by Section 8(a)(3) and
(1) and Respondent Union Section 8(b)(1)(A) of the Act,
I recommend that they cease and desist and that they
take certain affirmative action designed to remedy the
unfair labor practices and to effectuate the policies of the
Act
Having found that Respondent Company discrimina
torily discharged Maureen V Johnson I recommend
that it offer her immediate and full reinstatement to her
former or substantially equivalent position without prey
udice to seniority or other rights and priveleges Further
having found Respondent Company violated Section
8(a)(1) and (3) and Respondent Union Section 8(b)(1)(A)
of the Act I recommend that they be ordered to jointly
and severally make Maureen V Johnson whole for any
loss of earnings she may have suffered by reason of their
discrimination and lack of fair representation All back
pay provided herein shall be computed with interest in
the manner provided in New Horizons for the Retarded
283 NLRB 1173 (1987) 49
[Recommended Order omitted from publication ]
49 In accordance with our decision in New Horizons for the Retarded
283 NLRB 1173 (1987) interest on and after January 1 1987 shall be
computed at the short term Federal rate for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to January 1 1987 (the effective date of the 1986
amendment to 26 U S C § 6621) shall be computed in accordance with
Florida Steel Corp 231 NLRB 651 (1977) See generally Isis Plumbing
Co 138 NLRB 716 (1962)