296 N.L.R.B. 1252 (N.L.R.B. 1989)

Dynamics Corp.

National Labor Relations Board - Board DecisionsOct 10, 1989

296 N.L.R.B. 1252 (N.L.R.B. 1989)

1252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Fermont, a Division of Dynamics Corporation of America and Teamsters 1040, Brewery and Soft Drink Workers, Liquor Drivers & New and Used Car Workers a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , AFL-CIO. Cases 39- CA-1139, 39-CA-1140, 39-CA-1231, 39-CA- 1408, and 39-RC-315 October 10, 1989 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS HIGGINS AND DEVANEY On January 12, 1989 , Administrative Law Judge Harold B . Lawrence issued the attached supple- mental decision . The General Counsel filed excep- tions and a supporting brief, and the Respondent filed a brief in support of the judge 's decision. 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, and conclusions only to the extent consistent with this Supplemental Decision and Order. In the Board 's original Decision , Order, and Di- rection of Third Election, ' the Board adopted, inter alia , the judge 's finding that the Respondent violated Section 8(a)(1) of the Act by instituting against union activists , after the May 14, 19822 election, stricter enforcement of an attendance and punctuality policy that had been suspended pend- ing the outcome of the election . The Board also adopted the judge's finding that on May 7, the Re- spondent , through Supervisor Charles Davis, prom- ised to expunge warnings in the employees ' files if they voted against the Union . On June 3 , as further found , Davis told employees that the reason for the issuance of warning notices after the election was that the Company had not won the election. The Board modified the judge 's decision in this respect, however, by holding that the issuance of any warn- ings3 pursuant to the strict enforcement also consti- i 286 NLRB 920 (1987). 2 All dates are 1982 unless otherwise stated. "The counsel for the General Counsel, in his exceptions to the judge's supplemental decision , states that the Board , in reaching its conclusion that the stricter enforcement of the attendance and punctuality rule vio- lated Sec 8(a)(3), inadvertently limited that conclusion only to "warn- ings" issued pursuant to that strict enforcement , rather than extending it to suspensions and discharges emanating from that strict enforcement The term "warnings ," as used in the remand , referred to the physical documents used by the Respondent entitled "Employee Warning Notice " Suspensions , as well as warnings, were recorded on these no- tices Thus, the Board 's ruling that these unlawfully issued warnings were to be revoked and expunged encompassed suspensions as well tuted an independent violation of Section 8(a)(3). Accordingly , the Board ordered that "all warnings so issued be rescinded and expunged ."4 The Board noted that a legitimate basis for discharge or sus- pension cannot be established by unlawful discipli- nary warnings . Given the Respondent 's progressive system of discipline , s the Board remanded this por- tion of the case to the judge to consider what role, if any , the issuance of warnings pursuant to a strict- er enforcement of the attendance and punctuality policy may have played in the discharges and/or suspensions of the five employees named in the complaint, Christine Dumas, Miguel Lugo, Mark McGraw , Renan Reyes, and Thomas Johnson. In Wright Line,6 the Board set forth its test of causation for cases alleging violations of Section 8(a)(3) of the Act. First , the General Counsel must make a prima facie showing sufficient to support the inference that protected conduct was a moti- vating factor in the employer's decision . Once this is established , the burden shifts to the employer to demonstrate that the same action would have taken place even in the absence of protected conduct. In his supplemental decision , the judge found that the General Counsel failed to link the dis- charges either to an accumulation of unlawful warnings and suspensions or to any motivation on the part of the Respondent that is proscribed by the Act. The judge found that the Respondent, on the other hand , successfully demonstrated that the employees committed the infractions and that the attendance records justified the disciplinary action taken. Finally , by focusing solely on the Respond- ent's monthly attendance analyses, the judge found The original consolidated complaint alleged that the Respondent com- menced its strict enforcement of the attendance rule "on or about May 28, 1982 " The Board 's Order required expunction of all warnings issued "after 28 May 1982 ." 286 NLRB at 922 The record establishes that the initial flood of warnings issued pursuant to the strict enforcement of the attendance rule were dated May 26 , 1982, but that those warnings were not received by the employees until early June Under these circum- stances, the Board 's previous Order necessarily included expunction of those warnings dated May 26 , 1982, as those warnings were covered by the scope of the complaint as well as the intent of the Order *Id at 921 s The judge acknowledged that the Respondent 's disciplinary system was progressive , but he found that it was not mandatory, but rather dis- cretionary and nonbinding . In its brief, the Respondent asserts that whether the system is mandatory or not is a key issue, for if it is not man- datory , the question of whether the system is "progressive " or not is really irrelevant. In our view , because each link in the disciplinary chain served as a predicate for discipline which was to follow , the progressive nature of the disciplinary system set up the framework for establishing whether the ultimate discipline , i e, discharge, was warranted . The man- datory versus discretionary question is a "red herring ," given the issues here . The relevant inquiry is how the Respondent actually implemented its policy in practice In each instance outlined here , the Respondent in- variably followed a progressive discipline policy and imposed more severe sanctions for each successive breach 6251 NLRB 1083 ( 1980), enfd 662 F.2d 899 ( 1st Cir 1981), cert denied 455 U S 989 ( 1982), approved in NLRB v Transportation Manage- ment Corp., 462 U S 393 ( 1983). 296 NLRB No. 145 DYNAMICS CORP. that the Respondent placed no reliance on the warnings contained in the personnel records in im- posing discipline. The General Counsel has excepted to the judge's failure to find that the unlawfully issued warnings contributed to the suspensions and discharges, con- tending that the judge ignored documentary evi- dence in the record that conclusively shows that the suspension and discharge decisions were the culmination of prior warnings unlawfully issued pursuant to the stricter enforcement of the attend- ance policy. We find merit in the General Coun- sel's exceptions. Contrary to the judge's finding that the Re- spondent made its disciplinary decisions based on the employees ' total attendance records, without reference to the contents of their disciplinary records, we find that the accumulation of unlawful- ly issued warnings did serve as a basis for subse- quent discipline , including suspension and dis- charge , with respect to three of the employees named in the complaint , i.e., Christine Dumas, Miguel Lugo, and Mark McGraw. The Respondent's handbook for hourly rated employees states as follows: Normal disciplinary procedure for excessive absenteeism shall be as follows: 1st Offense-Verbal Warning (In presence of Shop Steward). 2nd Offense- 1st Written Warning 3rd Offense-Final Written Warning 4th Offense-Suspension from work with- out pay (3 days). 5th Offense-Discharge As previously discussed , during the months of March and April 1982, the Respondent withheld is- suance of any disciplinary warnings , pending the outcome of the May 14 election. On or about May 28, Christine Dumas received a "final written" warning, dated May 26, for breaches of the attend- ance and punctuality policy that occurred in March. A few days thereafter, she received a 3-day suspension notice , dated June 2, for breaches that occurred in April. The suspension notice itself refers to a previous "final written" warning for poor attendance during the month of March, thus further justifying the suspension. These warnings were unlawfully issued pursuant to the Respond- ent's stricter enforcement of its attendance and punctuality policy . Thus, these warnings must be expunged from her record and cannot be relied on as a basis for discipline . However , Dumas was sub- sequently discharged on July 13 as a result of the accumulation of the requisite number of warnings issued pursuant to the Respondent 's progressive system of discipline. 1253 Likewise, Miguel Lugo received a "first written" warning as well as a "final written" warning, both dated May 26, for breaches which had occurred in March and April, respectively. These warning no- tices were unlawfully issued pursuant to the Re- spondent 's stricter enforcement of its attendance and punctuality policy. Thus these warnings must be expunged from his record and cannot be relied on as a basis for discipline. However, Lugo subse- quently received a 3-day suspension dated June 15, which mentions a previous "final written" warning for attendance breaches in April, thus further justi- fying the suspension . Finally, he was discharged on July 13 as a result of the accumulation of the requi- site number of warnings issued pursuant to the Re- spondent's progressive system of discipline. Mark McGraw received a "verbal warning" and a "first written" warning, both dated May 26, for breaches that had occurred in March and April, re- spectively. These warning notices were likewise unlawfully issued pursuant to the Respondent's stricter enforcement of its attendance and punctual- ity policy, because the Respondent withheld their issuance pending the outcome of the election. Again, these warnings must be expunged from his record, and cannot serve as a basis for subsequent discipline . However, McGraw received a "final written" warning dated July 13 for breaches that occurred in June, and it specifically refers to the previous "first written" warning he had received as a basis for the subsequent warning . McGraw was suspended for 3 days on August 10 and was dis- charged on December 14. His final written warn- ing, suspension , and discharge were all based on an accumulation of the previously unlawfully issued warnings. For these individuals , the General Counsel has shown that the Respondent not only based later warnings on previous warnings, but also based the subsequent discharges on earlier warnings , includ- ing the discriminatorily issued warnings . The warn- ing notices, on their face, refer to and rely on pre- viously issued unlawful warnings . The "remarks" section of the "Personnel & Payroll Information" sheet states that the discharge is "due to excessive absenteeism and tardiness per company policy." Company policy , as indicated previously, dictates a system of progressive discipline , leading unalter- ably from a first verbal warning to a first written warning, then to a final written warning , then to a 3-day suspension, followed, finally, by discharge. The disciplinary course of each of the discrimina- tees followed this pattern to the letter. Finally, the "Monthly Attendance Analysis," relied on by the judge , has a column for the employee' s name, de- partment, number of absences, number of latenesses 1254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD or partial workdays , last disciplinary action, and recommended action . Under the "last disciplinary action" column, usually the date the last discipline was issued is noted . Invariably, the "recommended action" is the next step mandated in the Respond- ent's handbook. This evidence, together with other testimony discussed below, clearly "linked" the dis- charges to the unlawfully issued warnings . Thus, it is clear that the General Counsel has met her burden of showing that, for each of these individ- uals, the Respondent based their discharges on the discriminatorily issued warnings. The Respondent had the burden of demonstrat- ing that it would have reached the same decision without reliance on the discriminatorily issued warnings . The Respondent counters that the dis- charges were based on excessive absences and tar- diness, without regard to the warnings. The Re- spondent's attempt to portray its business as operat- ing with a "Chinese wall" between disciplinary ac- tions is unavailing . The judge found that the "Re- spondent placed no reliance upon the warnings contained in the personnel records in imposing dis- cipline." Yet, Joseph Adante, the Respondent's per- sonnel manager, testified that at the end of each month , the receptionist "turns over the attendance cards to [him] or [his] secretary, and either [one] prepares a listing of individuals who have violated the [attendance] policy and then the proper stage of the disciplinary action is carried through." (Emphasis added.) The "stages" of discipline are those de- scribed in the employee handbook. Under this pro- gressive system of discipline , an automatic warning is issued on the basis of the level of warning previ- ously issued . Thus, the warning notices are inextri- cably linked to the attendance records. Contrary to the judge 's finding, the Respondent failed to estab- lish that its decision to discharge these three em- ployees was based solely on its overall review of its attendance records . The judge found that the at- tendance records "justified" or "warranted" the Respondent 's discharge decisions . However, in a case turning on employer motivation , the issue is not one of whether the employer's actions were "justified" or "warranted," but rather one of why the employer acted as it did . The Respondent failed to demonstrate either that it normally dis- charged employees based on a review of the monthly attendance sheets (i.e., without regard to warning notices), or that it in fact discharged these three employees without relying on the unlawfully imposed warning notices. The Respondent has not met its burden of establishing that the discharges would have occurred without reliance on the un- lawfully issued warnings . Because these discharges were based on unlawfully issued warnings , the dis- charges themselves violated Section 8(a)(3) of the Act. Celotex Corp., 259 NLRB 1186 (1982). With respect to employees Thomas Johnson and Renan Reyes, however , a different result obtains. Johnson received a verbal warning and his first written warning before the filing of the representa- tion petition . His final written warning , which was dated June 15 , was issued for breaches occurring in May, and his suspension occurred on July 13. The Respondent normally issued disciplinary action in the middle of the month following the infractions. Thus, the June 15 warning was not unlawfully issued pursuant to the Respondent 's stricter en- forcement of its attendance and punctuality rules, inasmuch as the warning had no nexus with the withholding of warnings that had occurred in March and April. Accordingly, Johnson's subse- quent suspension was not based on any unlawfully issued warnings , nor was the suspension notice in- dependently issued to Johnson as a result of the Respondent's unlawfully strict enforcement of the attendance and punctuality policy. Likewise, the record shows that, contrary to the judge's finding in his original decision that Reyes received two warnings covering absences and la- tenesses that had occurred in March and April, Reyes' initial verbal warning was, in fact, dated June 15 for three absences that occurred in May; his first written warning was dated July 13 for ab- sences and tardiness occurring in June; and his final written warning was dated August 9 for breaches occurring in July . Clearly, these warnings did not coincide with the stricter enforcement of the at- tendance rule that occurred in May and covered the March through April period. Thus these warn- ings were not unlawfully imposed and were not among those ordered expunged. Reyes' subsequent suspension and discharge for further breaches of the attendance and punctuality rules were not based on any unlawfully issued warnings and did not therefore violate the Act. Accordingly, we find that the Respondent did not unlawfully suspend Thomas Johnson or unlawfully discharge Renan Reyes, and we dismiss the complaint allegations with respect to these two individuals. AMENDED CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has violated Section 8(a)(3) and (1) of the Act by suspending employee Chris- tine Dumas on June 2 and discharging her on June 15, 1982 ; by suspending employee Miguel Lugo on DYNAMICS CORP. June 15 and discharging him on July 13, 1982; and by suspending employee Mark McGraw on August 10 and discharging him on December 14, 1982. 4. The General Counsel has not established that the Respondent violated Section 8(a)(3) and (1) of the Act by suspending employee Thomas Johnson or by discharging employee Renan Reyes. THE REMEDY Having found that the Respondent has engaged in the unfair labor practices set forth above, we shall order that it cease and desist, take certain af- firmative action designed to effectuate the policies of the Act. Having found that the Respondent un- lawfully suspended and discharged Christine Dumas, Miguel Lugo, and Mark McGraw, the Re- spondent shall be ordered to offer them immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed, and to make each of them whole for any loss of earnings and other benefits suffered because of their suspensions and discharges, to be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest computed in the manner prescribed in New Horizons for the Retard- ed, 283 NLRB 1173 (1987). ORDER The National Labor Relations Board orders that the Respondent, Fermont, a Division of Dynamics Corporation of America, Bridgeport, Connecticut, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employees based on warnings unlawfully issued pursuant to a stricter enforcement of the at- tendance and punctuality rules because employees engage in activities on behalf of Teamsters 1040, Brewery and Soft Drink Workers, Liquor Drivers & New and Used Car Workers a/w International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, AFL-CIO or any other labor organization. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 employees Christine Dumas, Miguel Lugo, and Mark McGraw immediate and full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other 1255 rights and privileges previously enjoyed, and make them whole for any loss of earnings and other ben- efits they may have suffered by reason of their sus- pensions and discharges, in the manner set forth above in the remedy section of this supplemental decision. (b) Remove from its personnel files any reference to the suspensions and/or discharges of Christine Dumas, Miguel Lugo, and Mark McGraw and notify them in writing that this has been done and that evidence of these unlawful suspensions and discharges will not be used as a basis for future personnel actions against them. (c) 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 due under the terms of this Order. (d) Post at its Bridgeport, Connecticut plant signed copies of the attached notice marked "Ap- pendix."' Copies of the notice, on forms provided b} the Regional Director for Region 39, after being signed by Respondent's authorized represent- ative 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. (e) 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, as amended, is dismissed insofar as it alleges violations of the Act not specifically found. 7 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. Section 7 of the Act gives employees these rights. 1256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD To organize To form, join , or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge or otherwise discrimi- nate against you based on warnings unlawfully issued pursuant to a stricter enforcement of the at- tendance and punctuality rules because you en- gaged in activities on behalf of Teamsters 1040, Brewery and Soft Drink Workers, Liquor Drivers & New And Used Car Workers a/w International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, AFL-CIO or any other labor organization. WE WILL NOT in any like or related manner interfere with , restrain , or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Christine Dumas, Miguel Lugo, and Mark McGraw immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist , to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their suspensions and discharges , less any net interim earnings, plus interest. WE WILL remove from our files any reference to the unlawful suspensions and/or discharges of Christine Dumas, Miguel Lugo, and Mark McGraw , and notify each of them , in writing, that this has been done , and that evidence of these un- lawful acts will not be used as a basis for future personnel actions concerning them. FERMONT, A DIVISION OF DYNAMICS CORPORATION OF AMERICA Jonathan B. Kreisberg, Esq., for the General Counsel. E. Terry Durant, Esq. (Durant, Sabanosh, Nichols & Hous- ton, Esqs.), for the Respondent. SUPPLEMENTAL DECISION Fermont, a Division of Dynamics Corporation of Amer- ica, the Respondent , was filed by Teamsters Local 1040, Brewery and Soft Drink Workers, Liquor Drivers and New and Used Car Workers a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union). The Board set aside the results of an election held on May 14 and directed that another election be held on November 12. On September 23, 1983, I issued a decision herein in which I found, inter alia , that during the course of the representational election campaign Respondent had violated Section 8(a)(1) of the National Labor Relations Act (the Act). I found that From and after May 28, 1982, the Respondent, in retaliation for their support of the Union , instituted against union activists stricter enforcement of an at- tendance and punctuality policy which had not pre- viously been uniformly enforced. In the same decision , I dismissed allegations that four employees , Christine Dumas, Miguel Lugo, Mark McGraw , and Renan Reyes, ostensibly terminated be- cause of poor attendance/punctuality records, had been discharged in violation of Section 8(a)(3) of the Act. I also dismissed an allegation that the suspension of Thomas Johnson on the same grounds violated Section 8(a)(3) of the Act. I found no evidence that the Respond- ent's discharge actions in these instances had been dis- criminatory or related to union activities . I concluded, instead , that they were "legitimately predicated on the individual employee's attendance/tardiness problems ff The Board has noted that a legitimate basis for dis- charge cannot be established by unlawful disciplinary warnings, and that therefore a pertinent consideration in this case should be "what role, if any , the unlawful disci- plinary warnings, found to be 8(a)( 1) violations, may have played in establishing a basis, given the Respond- ent's progressive system of discipline , for the discipline, discharge , or suspension of each of these employees." The Board has accordingly remanded the portion of this proceeding relating to allegations of the complaint that the discharges and/or suspen- sions of employees Dumas, Lugo, Reyes, McGraw and Johnson violated Section 8(a)(3)of the Act .. . for the purpose of considering what role, if any, the unlawful disciplinary warnings played in the dis- charges and/or suspensions of these employees.2 No further hearing was conducted . The parties were invited to submit briefs on the remanded question on the basis of the existing record. No application was made by STATEMENT OF THE CASE This supplemental decision is issued pursuant to a De- cision, Order and Direction of Third Election issued by the Board on November 19, 1987. In March 19821 a petition for certification as the col- lective-bargaining representative of the employees of ' All dates are in 1982 unless otherwise indicated 2 The General Counsel's brief contains a request for enlargement of the review to include a determination of the effect of the suspensions of these employees on their ultimate discharges, counsel contending that the sus- pension itself would have been unlawful if the warnings were unlawful I agree that the Board's Order implicitly relates to any intermediate disci- plinary steps which were invoked by Respondent on the basis of accumu- lated warnings. However, my determination herein that the discharges were not based on antecedent unlawful disciplinary actions makes formal clarification of the Board's Order unnecessary DYNAMICS CORP. any party to adduce further evidence . Briefs have been filed on behalf of the General Counsel and the Respond- ent. On the entire record and consideration of the briefs submitted , I make the following FINDINGS OF FACT Resurvey of the Evidence The Respondent 's attendance and tardiness policy and its disciplinary system are, of course, two different and distinguishable things . My earlier decision rested , in part, on the fact that Respondent had acted against the em- ployees in question directly on the basis of their attend- ance records without reference to the contents of their disciplinary records . The evidence showed that Respond- ent did not rely on the paper record of the employees' misfeasances, but upon the underlying known and undis- puted fact of the repeated occurrence of unexcused ab- sences and tardinesses . After reviewing the testimony in the light of the present inquiry, I come to the same con- clusion. Respondent 's Employee Handbook for Hourly Rated Employees specifies the hours of the work shifts, man- dates punctuality and defines "excessive absenteeism" as more than two absences or three tardinesses or partial workdays or any combination equaling three or more in any 1 calendar month , with allowance for certain special situations such as vacation time . Medical excuses for ab- sences must be substantiated but do not necessarily pre- clude a medically justified absence from inclusion in an employee's total for determination of whether absences were excessive. The Handbook contains provision for a disciplinary system as follows: Normal disciplinary procedure for excessive ab- senteeism shall be as follows: 1st Offense-Verbal Warning .. . 2nd Offense-1st Written Warning 3rd Offense-Final Written Warning 4th Offense-Suspension . . . (3 days) 5th Offense-Discharge When an employee has not violated the attend- ance policy for more than 6 months, previous warn- ings shall become null and void. Respondent's clerical department followed a practice of issuing warnings during the month following the month in which offenses occurred. In my earlier decision , I noted a marked discrepancy between the testimony of Respondent's witnesses regard- ing the disciplinary system and the way it operated in practice. Respondent 's witnesses testified that the issu- ance of warnings was mandatory , the centralized system having been designed to ensure fairness to all employees by eliminating supervisors ' discretion to consider em- ployees' excuses . In theory, except in cases expressly provided for in the Handbook, warnings were to be issued strictly by the numbers . However, their testimony and that of the employees revealed that in practice the 1257 system had, over the course of time, become extremely lax, and Joseph Adante Jr., Respondent' s personnel man- ager, conceded that supervisors were permitted to retain some discretion as to whether warnings should be given to employees. The result was that Respondent was per- ceived as acting with unaccustomed strictness when, around May 28, it began enforcing the punctuality and attendance rule and issuing warnings for excessive ab- sences . I concluded that the change had been prompted by the Union 's organizational drive and, accordingly, found that Section 8(a)(1) had been violated. In fact, the disciplinary system was not mandatory. This was a disciplinary system promulgated unilaterally by the Respondent , not a system instituted pursuant to a collective-bargaining agreement . The Handbook itself ex- plicitly states that the system would "normally" operate as described, thus opening the door for departure from it in management's sole discretion. There is almost no testimony at all in which manageri- al personnel mentioned documentation by means of warnings in the same breath with repeated violations of company rules and policies . For the most part, the record documents the fact that the employees with whom we are concerned were discharged or otherwise disciplined for excessive absences without any lip service to the disciplinary system described in the Handbook. When one of them at the time of his discharge ques- tioned whether he was guilty of excessive absences, the records which were checked were the attendance records, not the records of warnings . If a true, i .e., man- datory, progressive disciplinary system had been in- volved, there would have been no necessity to go back beyond the warning notices and the suspensions. Adante testified that his office prepared monthly com- pilations of the attendance records . When indicated, warnings were prepared and sent to the supervisors for transmittal to the employees concerned . Prior to 1979, "each supervisor was responsible on his own for disci- plining people for attendance as he saw fit." He asserted that the present system was instituted in 1979 for the purpose of ensuring fairness and uniformity of applica- tion of the underlying attendance policy. The supervi- sors' authority to judge the merits of excuses was elimi- nated : Adante made it sound mandatory : "In this case it's strictly by the numbers, except for the authorized items." He further testified, Q. I'm showing you what has been marked as General Counsel Exhibit 16, could you identify these, please? A. These are the monthly attendance analysis forms. Q. Now, who prepares this form? A. Myself or my secretary under my direction in my department. Q. And, the last column indicates recommended action ; what does that mean? A. That means that 's what's going to happen. Q. Why does it say recommended? A. That's just the way the form was made up in the beginning. 1258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Q. So, what is indicated under recommended action is, in fact , what happens ; is that correct? A. Yes. What stands out most remarkably in Adante 's testimo- ny is that the recommended action was indicated on the attendance form, not in any disciplinary record , and that the recommendation was made without reference to the disciplinary system . His testimony is that the policy was mandatory , not the disciplinary system ; he did not even mention the latter except in connection with the prepara- tion of the warnings transmitted through the supervisors. The warnings were just that , literally : education of the employee to the fact that he was getting into trouble. But when the trouble materialized , it was directly on the basis of his attendance record. The nearest that Adante came to suggesting that there was any mandatory element in the disciplinary system de- scribed in the Handbook was in his assertion that when his secretary compiles the list of individuals who have violated policy , "the proper stage of the disciplinary action is carried through by the supervisor." They are supposed to deliver the warnings as prepared . Neverthe- less, at the same time that he noted the supervisors' lack of discretion , he testified that they had to hand out the warnings "unless they know of something that might be a problem ...." It is apparent that discretion still exist- ed in the system and that it could not be relied upon as a basis for serious action with regard to a violator. Thus, Adante also testified , in connection with the monthly compilation of attendance information , that while each sheet was a 1 -month calendar period of absence occur- rences and showed whether he had received the previous warning notice, the last column was "the action which would be taken-the disciplinary action to that individ- ual for his violation." There is not the faintest intimation in his testimony of what the recommended action would be or that the next disciplinary action was automatic. Adante's testimony makes it clear that, in determining se- rious future action with regard to a violator , policy, rather than the disciplinary system , is paramount. Steven Basset , a manufacturing engineer who super- vised Reyes and McGraw , testified that he informally cautioned both employees that they were running afoul of Respondent 's "very structured attendance policy." In the course of his examination and cross-examination, Bas- sett never mentioned the disciplinary system or warn- ings . His discussions with these two employees , like his testimony, was concerned entirely with the attendance policy. Robert Abbatello, the supervisor of the electrical shop, was Lugo's supervisor . He testified that he discussed Lugo's attendance with him on a number of occasions. It is apparent that the only time the disciplinary system came up in the discussions was when Lugo was suspend- ed, while there appears to have been no mention of pro- gressive discipline at the time of his discharge . The em- phasis on the policy , rather than on the mechanics of the disciplinary procedure is demonstrated by the paucity of mention of the disciplinary procedure and the continual reference to the policy, both in the discussions between the supervisors and the employees and in the testimony given at the hearing . Abbatello testified, Q. And, when Mr. Lugo was suspended, what do you recall being said in that meeting? A. I told him he was going to be terminated be- cause of his absence and tardiness. Q. I'm referring to when he was suspended. A. The suspension? Q. What was said in that suspension? A. I told him that he was getting a three day sus- pension. Q. And, tell us again exactly what you recall being said when Mr. Lugo was suspended. A. I take him into my office and told him that I was going to have to give him a three day suspen- sion due to his absence and tardiness, primarily the tardiness. The only discussion of warnings between Abbatello and Lugo occurred when Lugo received several warn- ings simultaneously , but Abbatello's testimony makes it clear that their discussions of Lugo's record were con- ducted in terms of the number of absences and instances of tardiness rather than in terms of the number of warn- ings accumulated. Charles Davis, fabrication supervisor , supervised Christine Dumas, who was employed as a spot welder. According to her own testimony, her discussions with Davis and with Adante related entirely to the adequacy of her medical reports as excuses for her absences. When she was suspended , Davis told her it was "because of my absences in March ." Davis testified that he discussed her attendance with her: I discussed with her the fact that she was losing a great deal of time . If she didn 't straighten out her attendance and tardiness that she was headed for trouble. The following testimony by Davis contains the only suggestion in the entire record that the Respondent's dis- ciplinary system was indeed progressive , but in a fashion which emphasizes its pliability and suggests that it was anything but mandatory: I told her that she was headed for the next step if she couldn 't straighten out her attendance record. To try to straighten it out. When he gave her the first written warning , he said, "I told her the illness was getting bad. She was going to have a problem ." He testified that he told her the same thing when he gave her the final written warning. When she was suspended for 3 days, he told her Basically the same thing as before . After this, if you continue you are going to get fired for your poor attendance. He did not handle her termination, so he had no dis- cussion with her at that time. DYNAMICS CORP. Davis discussed McGraw's attendance with him. He gave McGraw a verbal warning and a first written warn- ing for absenteeism on May 6, at which time he refused McGraw 's request for time off, telling him "That he had a bad attendance record and he should find some other means of taking care of his business other than regular working hours." All of the testimony , from both the employees and the supervisory personnel, makes it plain that discussions be- tween them dwelt on the substantive problems of their attendance and tardiness . There was no counting of warnings or threats of a "next" or "progressive" discipli- nary step. Analysis There is no getting away from the fact that Respond- ent successfully demonstrated that the attendance records of the five employees in question abundantly jus- tified its action in discharging them , while the General Counsel failed to link their discharges either to an accu- mulation of unlawful warnings and suspensions or to any motivation on the part of the Respondent which is pro- scribed by the Act . Respondent did not lose its right to impose discipline on these employees simply because they attended union meetings , signed union authorization cards, and wore union T-shirts . The fact that Respondent unlawfully engaged in a stepped up campaign of disci- pline does not necessarily mean that the specific disci- pline imposed on these employees was improper or "tainted ." My second traversal of the evidence in this case, at the invitation of the Board , leads me once again to the conclusion that the employees in question fully merited the discharge actions taken against them by Re- spondent , and that there has been no proof that their dis- charges were discriminatorily motivated in violation of the Act or that the disciplinary action which was im- posed on them was in any way tainted by the illegality which hung over Respondent 's institution of strict en- forcement measures with regard to the attendance and tardiness policy . Put another way, there is no evidence that but for the stricter enforcement they would not have been discharged . Quite obviously , the institution of rigorous enforcement of the attendance policy does not, all by itself, taint all disciplinary action taken by Re- spondent. The employees committed the infractions for which they were ultimately discharged and the Respond- ent convincingly demonstrated that the infractions were the true reason for the discharges . The complete lack of any evidence that the "tainted " warnings played a role in the discharges is simply the other side of the proposition that Respondent 's position would not be vitiated by the mere fact , standing alone , that the employees ' files might have contained some of the illegally issued warnings-so long as Respondent was able to demonstrate that its sole true reason for discharging them was legitimate. In any event, the evidence clearly demonstrates that Respond- ent discharged the five employees without regard to the nonbinding disciplinary system. 1259 The result which I reach herein is consonant with the cases cited in the posthearing brief submitted on behalf of the General Counsel . It is well settled that an employ- er cannot rely on unlawful disciplinary action taken pur- suant to a progressive disciplinary system to justify oth- erwise lawful disciplinary action taken at a later stage of the same system . In such cases, however, the central question remains whether disciplinary action was taken pursuant to a progressive disciplinary system which is mandatory. Thus, in Celotex Corp., 259 NLRB 1186 ( 1982), the Board noted that in assessing discipline , Respondent had relied on a prior unlawful warning , and the administra- tive law judge had pointed to testimony by the plant manager that the employee 's suspension was based on a prior discriminatory warning contained in the employee's personnel file "as well as insubordination ." The adminis- trative law judge specifically found that the suspension was based on the prior unlawful warning . There was no testimony as to what discipline would have issued had the prior warning been discarded . Similarly, in Parker Seal Co., 233 NLRB 332 (1977), the administrative law judge defined the issue as being whether the employee's discharge "rested in any part" on an earlier illegal warn- ing and expressly found that there was no accompanying good -faith belief on the employer 's part that the employ- ee had actually been guilty of the misconduct charged. Florida Tile Co., 255 NLRB 360 (1981 ), involved a disci- plinary system mandating automatic discharge after a certain number of warnings and the administrative law judge found that the employer had trumped up charges in order to be able to issue the requisite number of warn- ings to support discharge . In Glover Bottled Gas Corp., 255 NLRB 137 ( 1981), the employer sought to justify the employee's discharge on the basis of the employee's poor performance rather than on the basis of a progressive disciplinary system . In Frostburg Village of Allegany County Nursing Home (Tressler), 263 NLRB 651 (1982), the rules made discipline progressive and mandatory and the administrative law judge found that some of the un- derlying warnings had not been warranted by the true facts. In the present case, the facts warranting discipline of the employees are clearly established , the employees were not disciplined pursuant to a mandatory progressive disciplinary system , and Respondent placed no reliance upon the warnings contained in the personnel records in imposing discipline. CONCLUSIONS OF LAW The Respondent did not engage in any unfair labor practices other than those which, in my decision herein issued on September 23, 1983, I found Respondent had committed. [Recommended Order for dismissal omitted from pub- lication.]