Dynatron Bondo Corp.

National Labor Relations Board - Board Decisions

Apr 12, 1991

302 N.L.R.B. 507 (N.L.R.B. 1991)

507
302 NLRB No. 82
DYNATRON BONDO CORP.
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
2 Contrary to the judge, we do not rely on the Respondent’s employee hand-
book or the statement of the Respondent’s counsel at the hearing that the Re-
spondent opposed the Union as evidence of union animus. Instead, we infer
animus from all the circumstances surrounding the discharge of employee
Baskin. Abbey’s Transportation Services, 284 NLRB 698 (1987), enfd. 837
F.2d 575 (2d Cir. 1988); Process & Pollution Control Co., 225 NLRB 1351,
1356 (1976), enf. denied on other grounds 588 F.2d 786 (10th Cir. 1978).
We find it unnecessary to pass on the judge’s finding as to the exact date
Personal Manager Tomkowicz resumed his review of attendance records or his
finding that Plant Manager Fragnoli was the highest ranking official in the
plant.
3 The judge inadvertently omitted the notification paragraph from his rec-
ommended Order. We shall modify the recommended Order accordingly.
Dynatron Bondo Corporation and Amalgamated
Clothing and Textile Workers Union, AFL–
CIO. Case 10–CA–24259
April 12, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On September 18, 1990, Administrative Law Judge
William N. Cates issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the Charging Party filed an answering brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Dyna-
tron Bondo Corporation, Atlanta, Georgia, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
Insert the following as paragraph 2(e).
‘‘(e) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.’’
Mary L. Bulls, Esq., for the General Counsel.
Walter O. Lambeth Jr., Esq. and R. Read Gignilliat, Esq., of
Atlanta, Georgia, for the Respondent.
Robert S. Giolito, Esq., Atlanta, Georgia, and Joan Carter,
of College Park, Georgia, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This case
was tried in Atlanta, Georgia, on May 18 and 21, 1990. The
charge was filed on July 20, 1989, and the complaint issued
on December 20, 1989.
The complaint alleges that Respondent discharged its em-
ployee Earnestine Baskin in violation of Section 8(a)(1) and
(3) of the National Labor Relations Act (the Act).
On the basis of the entire record, including my observation
of the witnesses and their demeanor, and after considering
briefs filed by counsels for the General Counsel, Respondent,
and the Charging Party, I make the following findings.
On June 19, 1990, Respondent moved to correct the
record. Respondent’s motion involved page 34 of the tran-
script. By letter dated June 18, 1990, the court reporter ad-
vised that the original transcript page 34 was inaccurate, and
she enclosed a corrected page 34. All parties were advised
of that correction. I hereby grant Respondent’s motion, re-
ceive the corrected page 34 and direct its substitution in the
transcript in place of the original transcript page 34.
On July 25, 1990, counsel for the General Counsel filed
a motion to strike and return Employer’s supplemental
posthearing brief. Respondent (the Employer) filed two
briefs. Its supplemental posthearing brief was not authorized.
I agree with the General Counsel. The General Counsel’s
motion is granted.
Respondent admitted that it is and has been at material
times, a Georgia corporation with a business located in At-
lanta, where it is engaged in the manufacture of automobile
filler and other automobile products; that, during the past cal-
endar year, a representative period, it sold and shipped from
its Atlanta facility, goods valued in excess of $50,000 di-
rectly to customers located outside the State of Georgia; and
that it is an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
Respondent admitted that the Charging Party (the Union)
is, and has been at material times, a labor organization within
the meaning of Section 2(5) of the Act.
Earnestine Baskin
The General Counsel and the Union contend that Respond-
ent discharged Earnestine Baskin on July 14, 1989, shortly
after it learned that she was engaged in helping the Union
organize its facility. Baskin was allegedly fired because of
work attendance problems. The General Counsel and the
Union contend that Baskin’s attendance problems had existed
for a long time, but it was not until Respondent learned of
her union activities, that she was discharged.
Respondent indicated during the hearing that it had op-
posed the Union. However, it contends that Baskin was not
discharged because of her union activities.
Baskin worked for Respondent as a packer II at the time
of her discharge. She was employed from April 15, 1987,
until July 14, 1989.
Union Activities
According to Earnestine Baskin, she became involved in
union activities in May 1989. She talked to other employees,
solicited about 12 authorization card signatures at work and
508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in the parking lot, and attended about a dozen union meet-
ings.
As noted above, Respondent admitted during the hearing
that it opposed the Union. Respondent’s handbook contains
a statement regarding union organizing at its facility:
WHAT ABOUT UNIONS
It is almost a certainty that one or more labor unions
will try to gain additional members by aggressively so-
liciting you and conducting organizing activities over
the months and years ahead. For this reason, it is appro-
priate that you understand Dynatron/Bondo’s position
concerning this matter.
You do not need a union to get fair treatment. It is a
company-wide policy to provide fair treatment in pay,
benefits and working conditions for all employees.
Signing a union card is a serious matter. Your signature
is valuable to the union and you should not sign any-
thing without knowing fully to what you are commit-
ting yourself. In any event, don’t sign a card just to
please someone else or get a union organizer to leave
you alone.
You do not need anyone else speaking for you. You
can do your own talking to your supervisor or any other
member of management in the organization.
Historically, most Dynatron/Bondo employees have not
felt the need for a union in their quest for job security
and satisfaction. Dynatron/Bondo hopes its employees
will continue to feel the same way and in turn expects
to continue its pledge to make company and employee
goals as similar as possible.
In summary, do not let yourself be persuaded that sign-
ing a union authorization card is ‘‘the thing to do.’’
Carefully consider the many benefits of your job that
are yours without the need to pay union dues, which
risk the loss of your pay through strikes, work stop-
pages, fines and other costs of union membership.
Baskin testified about an incident that occurred on Mon-
day of the week of July 14, 1989:
I was on break so I was up near the front, near ship-
ping. I was in the break room when two of the guys
came from shipping on the cars, so I came to them and
was talking to them about the Union. So I looked over
and seen the plant manager, Lee Fragnoli. So one guy
said, just go on and leave us alone because Lee is
gonna say something. I said, I’m on my break. I can
give you a card and you can sign it and give it back
to me later. Lee Fragnoli looked indifferent and went
on.
Baskin went on later in her testimony:
Q. Were you passing out cards when (Fragnoli) saw
you?
A. I had two cards. I gave one to Chris Shanna (pho-
netically). I gave the other one to Cecil Tyson. Cecil
said, you better go on. I said, I’m on break.
Q. How far away from Mr. Fragnoli were you when
you were passing out the cards to these employees?
A. About as far as from here to Joan (indicating).
Respondent’s counsel estimated the distance indicated by
Baskin to be 30 feet.
Earnestine Baskin testified about a conversation she had
with a person she identified as Quality Control Supervisor
Jim Plitt ‘‘on the day before July 13, 1989.’’
As to that testimony, it is not clear whether Baskin was
conveying that she had a conversation with Plitt on the day
before her discharge, which would be July 13, or, whether
the conversation was on the day before July 13. That issue
was discussed but was never clarified on the record.
Plitt came over to her machine,
. . . He complimented me on my work and we was
talking, you know, just talking. So I said, Jim, I said,
what’s your position? I was letting him know we had
discussed and talked to different ones about forming a
union and getting people to sign cards.
I said, we talked about you last night and I don’t
want to be misquoted. I said, I told them that you were
the supervisor over quality control. They are confused,
you know, because we don’t want to come to you if
you are under management and we want to form a
union. He laughed and I said, are you supervisor or
what? He said, yes, I’m supervisor of quality control.
They didn’t know whether he was Mr. Abdul’s right-
hand man or whether he was—
. . . .
Well, I told him—I don’t want him to know that I
was trying to get him in no trouble. I just asked him
if he could sign a card for me. He told me he was a
supervisor, and well, management can’t sign.
Baskin testified that another employee, Terry Frazier,
heard the last of her conversation with Plitt.
Earnestine Baskin was asked if she ever mentioned the
Union to her supervisor. She testified:
The day before, on that Wednesday because he
came—I was up at the machine and Jim (Ivy) came
over. You know, he likes to bull a lot. He came over
and he said Earnestine, Martha and Pat got your name
up there in a mess, you know. He used some foul lan-
guage. . . .
Jim came back to the machine. He was telling me
that they had stirred my name up in the front. I said
what, the Union? He said, oh, you know what I’m talk-
ing about, and he walked off.
The above testimony followed Baskin’s testimony about
her conversation with Jim Plitt. The Wednesday before July
13 was July 12, 1989.
Disciplinary Action
Earnestine Baskin was awarded three notices of discipli-
nary action in 1989.
On June 29, 1989, Baskin received a notice of disciplinary
action.
Baskin testified that she talked with her supervisor, Jim
Ivy, about that disciplinary notice:
He explained to me that he was gonna have to sus-
pend me for being out. Even though I had given him
509DYNATRON BONDO CORP.
paperwork stating why I was out, he told me that he
was gonna have to suspend me.
The June 29 notice included among others, the following
comments:
Earnestine has been absent from work 7 times in less
than a calendar year 2–7, 4–10, 4–19, 5–3, 5–11, 6–19
and 6–27–89.
This is Earnestine’s 3rd disciplinary action notice. She
is being suspended for 1 day with out pay the suspen-
sion day is Fri 6–30–89. She has also been told if her
absenteeism and tardiness continues she will be termi-
nated.
Baskin testified that when Ivy gave her the warning,
he said, Earnestine, if you be late or if you’ve got to
leave early for anything else—I don’t care what it is—
they’re gonna suspend you. Now this is to keep me
here. I said, okay, Jim, the only thing I can do is bring
a subpoena. He said if I can get it okayed through
Fragnoli on the 19th, I got it cleared.
Okay. I went to court. When I came back on the
27th with the same problem he suspended me. So he
told me if he suspended me—If you be late one more
time or leave early one more time you’re fired.
On June 10, 1989, Baskin received a notice of disciplinary
action. She testified about her conversation with Supervisor
Ivy about that notice:
On the 8th he was explaining to me because I had
talked to him about some things as to why I was get-
ting off early and he accepted it. I had given him pa-
pers. He said, Earnestine, I’ve got to be honest with
you. You’re gonna have to stop getting off early be-
cause they’re giving me hell up in the front office.
I said, well, Jim, I bring you my subpoenas and
things. He said, Earnestine, I know it. He said, we re-
viewed your attendance records and everything with
you leaving early, and you know, even though I ap-
prove it they reviewed it and I hadn’t been writing you
up like I should. By the record you should have been
fired, but by it being a goof on my behalf, my boss is
done got on my ass. He said, that’s why you are not
fired. It’s a mistake of mine.
The June 10 notice included comments including:
Earnestine was given a verbal warning for tardiness on
3–20–89. She had been tardy 7 times, she has been
tardy or left early times (sic) since her verbal warning.
3–31, 4–4, 4–27, 5–15, 6–5, & 6–8–89.
Earnestine is being given a written warning for tardi-
ness and told if she is tardy or leaves early again in this
calendar year she will be suspended for excessive tardi-
ness.
On March 20, 1989, Baskin received a notice of discipli-
nary action and the comments included:
Earnestine has 7 tardy’s from Jan 1st until now. 1–3–
89, 1–10–89, 1–18–89, 1–26–89, 3–8–89, 3–13–89, 3–
14–89.
Earnestine is being given an oral warning for excessive
tardiness.
Discharge
According to Baskin, she was not absent or tardy, nor did
she leave work early, from the time she was suspended on
June 30, 1989, until she was discharged on July 14.
Baskin testified about her discharge,
About fifteen minutes before we was getting ready to
get off Jim came up to the machine. He said,
Earnestine, you and I have got to go up to see Fragnoli
and Abdul. I said, for what? He said, Earnestine, I have
no idea.
We went on upstairs. So when we got up there Lee
Fragnoli had my attendance records in front of him. He
asked me, he said, Earnestine, upon reviewing you at-
tendance records and seeing how many times you’ve
done been late and been leaving early, you’ve exceeded
over the Company time, you know, minimums that you
can be allowed.
I said, but Lee Fragnoli it was my understanding that
that paper I signed after I was suspended for leaving
early for going to court that as long as I didn’t be late
no more or leave early or be out I was safe. He said,
Earnestine, you go on because you already done been
over the amount that the Company required.
I just sit there and I was paranoid—I just—So he
asked me if I would just go on and leave and he said,
the security guard will escort you out. He told my su-
pervisor to go with me and he said, Earnestine, could
you just leave. I got on up and come out.
The interoffice memorandum dealing with Baskin’s July
14 discharge read:
On January 1, 1989, Dynatron/Bondo’s Attendance
Policies and Procedures was revised (Policy #400.08).
This policy breakdowns the action to be taken for fail-
ure to follow this procedure.
In 1989 alone, you had fourteen (14) tardies (combina-
tion of tardies and left early). Additionally, there are
three (3) absences.
In 1988 you had four (4) tardies (combination of tardies
and left early). Additionally, there were seven (7) ab-
sences.
This is unacceptable and according to the policy, is dis-
chargeable. Effective end of shift Friday, July 14, 1989,
you are being terminated for failure to comply with
Policy #400.08.
The revised Attendance Policies and Procedures of January
1, 1989, defines absences and tardiness, and provides, among
other things:
I. Attendance/Tardiness Policy
. . . .
510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Attendance/Tardiness disciplinary actions can be com-
bined with other warnings to result in termination if an
employee receives five (5) disciplinary actions in a
year.
Number of Absences
per Calendar Year
Number of
Tardinesses
per Cal-
endar Year
Action Taken
1–4 1–6 None
5 7–9 Verbal Warning
6 10 Written Warning
7 11 Probation/Suspension
8 12 Termination
Earnestine Baskin testified that she was told by her super-
visor, Jim Ivy, that some absences could be excused:
(On June 8, 1989, Ivy ) sit me down and explained
to me that leaving early was just as bad as being late.
I said, even with a court subpoena, Jim? He said, I can
get you off, you know, by that because he said he have
the privilege of writing ‘‘excused’’ or ‘‘unexcused’’ on
my time card. So I said, well, Jim, I got a subpoena.
He said, you got to go to court if you got a subpoena.
I said, because you right or they’re gonna lock me up.
I never been to jail so I didn’t want to go. My super-
visor had the authority to excuse and unexcuse me. He
said this to me himself.
Baskin explained her June 8 conversation with Ivy:
He explained that during—He wanted me to go and
drop some charges from a girl because we was gonna
go to court about some problems we had. He came to
me. Him and Margaret asked me to go down and drop
some charges off the girl I had taken a warrant off of.
I said, Jim, that’s gonna be just as bad because I’m
gonna still be leaving early. He said, I have the author-
ity to excuse you so it won’t be held against you.
But he excused me for that, but when we went to
court, because I couldn’t drop the charges he didn’t ex-
cuse that. That’s on the 4th. So he told me that’s the
reasons as to why he could do it.
Q. So on June 8th did you learn—Let me ask you
this way; How was your leaving early on April 4th
treated on June 8th; do you recall?
A. That’s when he explained to me. He used that as
an example to explain to me how he can use his own
discretion as being the supervisor to honor excused and
unexcused.
Credibility
Earnestine Baskin
Earnestine Baskin’s testimony did not contain any obvious
conflicts. She was questioned at length on cross-examination
regarding when she learned that leaving early constituted a
tardy under Respondent’s attendance rules. Baskin persisted
in testifying that she did not know that was the rule until it
was explained to her on June 8, 1989. In that regard she ac-
knowledged that the attendance policy and procedure notice
which was posted from January 1, 1989, stated that leaving
early would qualify as a tardy. However, she testified that re-
gardless of that fact, she did not realize that was the practice
until it was explained to her on June 8.
Baskin admitted that her August 2, 1989 affidavit did not
mentioned an incident where Plant Manager Fragnoli was in
the area where she passed union authorization cards to other
employees, nor did it include her testimony that Supervisor
Jim Ivy told her he had not been doing his paperwork re-
garding her absences. She testified that the Board agent tak-
ing her affidavit failed to include several matters that she had
told him.
I see nothing in that record itself which makes Baskin’s
testimony unbelievable. The fact that Baskin did not under-
stand a posted notice or that she failed to include in her pre-
hearing affidavit, everything included in her live testimony,
does not, in and of itself, show that she is not a credible wit-
ness.
Respondent’s Defense
In defense of the allegations Respondent presented the tes-
timony of Personnel Manager Fred Tomkowicz.
Tomkowicz testified that he was hired by Respondent on
July 10, 1989. In his interview for his current position, it was
emphasized to Tomkowicz that Respondent had an absentee-
ism problem.
On July 14 Tomkowicz began viewing the employees’ at-
tendance cards in alphabetical order. According to
Tomkowicz, when he came to Earnestine Baskin’s card he
saw that she should have been discharged before that time
due to her tardy and absence record during 1989. He then
insisted to Plant Manager Fragnoli that Baskin be discharged.
Fragnoli offered no objection and Baskin was discharged.
Tomkowicz testified that after Baskin’s discharge, he did
not return to his review of attendance records until about a
week later at which time he completed his review.
Tomkowicz decided to clean the slate from July 1989, as to
all employees’ attendance records, except for Baskin, who
had already been discharged. Tomkowicz took that action be-
cause he had no way of knowing which employees were in-
volved with the Union and he did not want to unknowingly
discipline any employee that was involved in supporting the
Union. In that regard Tomkowicz testified as follows:
I chose to throw out as though you were hired in July
so that there would not be any inference that it could
be in lieu of a unionization campaign. So if you hap-
pened to have a union persuasion and happened to have
gotten fired that next week, come back and say, oh, I’m
fired because of unionization. I chose not to give any
appearance of that, and that was the way that I could
do that.
Tomkowicz did not mention, but the record shows, that
the unfair labor practice charge alleging Baskin’s discharge
was filed on July 20 and served on Respondent on July 21,
1989. July 21 is 1 week after Baskin’s discharge—the day
when, according to Tomkowicz, he was able to resume his
review of the employees’ attendance records.
511DYNATRON BONDO CORP.
Therefore, on the basis of attendance records through July
14, no one other than Earnestine Baskin was discharged.
Since that date, Tomkowicz has to date discharged some 19
other employees.
Tomkowicz admitted that he had heard rumors before he
discharged Baskin on July 14 that she had been involved in
a fight with another employee. However, he denied that he
had heard rumors about Baskin’s union activities.
According to Tomkowicz, he did not talk to Baskin’s su-
pervisor regarding her termination. He only talked with Plant
Manager Fragnoli even though he admitted that he does from
time to time discuss an employee with the employee’s super-
visor before terminating that employee.
Supervisory Issue
Respondent offered testimony which called into question
the supervisory authority of James Plitt. Personnel Manager
Tomkowicz testified that Plitt was employed by Respondent
as a quality control chemist from May 16, 1989, until July
21, 1989. Tomkowicz testified that Plitt did not have author-
ity to hire, fire, discipline, lay off, or to effectively rec-
ommend any of those things.
The only evidence offered by the General Counsel con-
cerning the supervisory authority of Plitt involved a con-
versation between Plitt and Earnestine Baskin:
. . . (James Plitt came to my machine and he) com-
plimented me on my work and we was talking, you
know, just talking. So I said, Jim, I said, what’s your
position? I was letting him know we had discussed and
talked to different ones about forming a union and get-
ting people to sign cards.
I said, we talked about you last night and I don’t
want to be misquoted. I said, I told them that you were
the supervisor over quality control. They are confused,
you know, because we don’t want to come to you if
you are under management and we want to form a
union. He laughed and I said, are you supervisor or
what? He said, yes, I’m supervisor of quality control.
Baskin’s testimony, standing alone, is not competent to il-
lustrate whether Plitt was a supervisor. To that question, the
comment by Plitt to the effect that he was a supervisor is
hearsay. Moreover, there was no evidence illustrating that
Plitt possessed authority to hire, fire, discipline, lay off or ef-
fectively recommend hiring, firing, disciplining, or laying off
employees.
I find that the record evidence fails to show that James
Plitt was a supervisor at material times.
Findings
The evidence which tends to support the General Counsel
includes evidence of knowledge, opposition to union activity,
timing, and disparity.
As shown above, Earnestine Baskin testified that Plant
Manager Fragnoli watched from 30 feet away while she
passed union authorization cards to two employees on Mon-
day, July 10, 1989. Baskin was in Respondent’s facility at
that time on her break. Baskin also testified that she had a
conversation with her supervisor on Wednesday, July 12,
1989, in which she and Supervisor Jim Ivy discussed other
employees linking Baskin’s name with the Union.
As to Fragnoli, Respondent argues that it can safely be as-
sumed that Fragnoli was consumed with his task of escorting
visitors and was not aware of what Baskin’s card solicitation
was; that judicial notice may be taken that Fragnoli could not
read the print on the cards from 25 or 30 feet away; that the
incident does not appear in Baskin’s prehearing affidavit; and
that Baskin’s testimony that Fragnoli looked indifferent
shows that Fragnoli was unaware of what was occurring.
I disagree with the above points. Fragnoli did not testify
and there was no showing of why he did not testify. Plant
Manager Fragnoli was the highest ranking official material to
the incidents involved in these proceedings. Under those cir-
cumstances, I am unable to make any assumptions to the ef-
fect that Fragnoli would testify in a manner which would
support Respondent’s position. I must do the opposite. I must
assume that Fragnoli’s failure to testify illustrates that his
testimony, if given, would have been harmful to Respond-
ent’s position.
An adverse inference is properly drawn regarding any
matter about which a witness is likely to have knowl-
edge if a party fails to call that witness to support its
position and the witness may reasonably be assumed to
be favorably disposed to the party. McCormick, Evi-
dence at 272 (3d ed. 1984); 2 Wigmore, Evidence at
286 (2d ed. 1940); Pur O Sil, Inc., 211 NLRB 333, 337
(1974). . . . [Property Resources Corp., 285 NLRB
1105 fn. 2 (in part) (1987).]
Therefore, I cannot assume that Fragnoli was consumed
with his task of escorting visitors; or that he was unaware
of the nature of the cards Baskin was distributing; or that
Fragnoli was unaware of what was occurring. If such was the
case Fragnoli should have appeared and said as much.
As to Jim Ivy, Respondent argues, in essence, that the tes-
timony regarding the Ivy-Baskin conversation on July 12
fails to show that Baskin’s union activities were discussed.
Jim Ivy did not testify. The credited testimony of Earnestine
Baskin, included the following:
The day before, on that Wednesday because he
came—I was up at the machine and Jim (Ivy) came
over. You know, he likes to bull a lot. He came over
and he said Earnestine, Martha and Pat got your name
up there in a mess, you know. He used some foul lan-
guage. . . .
He was telling me that they had stirred my name up in
the front. I said what, the Union? He said, oh, you
know what I’m talking about, and he walked off.
Again, I disagree with Respondent’s argument, the above
testimony shows that Jim Ivy learned that Baskin’s name
was being associated with the Union.
As to animus, Respondent’s counsel admitted that Re-
spondent opposed unionization. Moreover, as shown above,
Respondent’s handbook contains a statement in opposition to
unionization.
Regarding timing, the first knowledge Respondent had of
Baskin’s union activities occurred on Monday, July 10. On
Wednesday, July 12, Respondent, through Supervisor Ivy,
512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
heard more about Baskin’s union activities and her involve-
ment was confirmed during a conversation between Ivy and
Baskin.
As to disparity, the evidence shows that Respondent did
not follow the letter of its attendance policy in discharging
Baskin.
That policy reads (in part):
I. Attendance/Tardiness Policy
. . . .
Attendance/Tardiness disciplinary actions can be com-
bined with other warnings to result in termination if an
employee receives five (5) disciplinary actions in a
year.
During 1989, before her July 14 discharge, Earnestine
Baskin received only three disciplinary actions. Baskin was
suspended by notice dated June 29. She received a written
warning dated June 10 and an oral warning on March 20.
Baskin did not qualify for discharge under the above-
quoted standard.
It is true, as Respondent argues in its brief, that Baskin ex-
ceeded the number of tardies which constitute grounds for
discharge under the above-quoted attendance/tardiness policy.
However, as shown above, that same attendance/tardiness
policy provides for a progressive discipline system. Respond-
ent did not show why it decided to circumvent that progres-
sive system in the case of Baskin. After Baskin’s suspension,
she was not absent or tardy during the remainder of her em-
ployment. Respondent did not show that it has at any other
time, regarding any other employee, circumvented the pro-
gressive disciplinary procedure in the manner used against
Baskin.
Moreover, Personnel Manager Fred Tomkowicz admitted
that Baskin was treated differently than other employees. Re-
spondent admittedly did not discharge anyone else on the
basis of attendance/tardiness before Baskin. Moreover, after
her discharge, according to Tomkowicz, he decided to wipe
the attendance slate clear for all employees other than
Baskin, after he completed reviewing the attendance records
around July 21, 1989.
In view of the above, I find that the General Counsel
proved, prima facie, that Baskin’s union activities were a
contributing factor in her discharge. Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982).
Additionally, the General Counsel argued in her brief that
exhibits in the record illustrate that other employees also had
attendance records which, if the same standard was applied
as in Baskin’s case, would have justified disciplinary action.
According to Personnel Manager Tomkowicz his consider-
ation of those records was curtailed when he decided to fore-
go further action due to the union campaign.
In view of my finding above, I shall consider whether Re-
spondent proved that Baskin would have been discharged in
the absence of protected activities. In that regard Respondent
offered the testimony of Fred Tomkowicz. Tomkowicz testi-
fied that he was not aware of Baskin’s union activities when
he recommended her discharge on July 14.
Respondent argued that in fact the event which precip-
itated events that led to Baskin’s discharge was the employ-
ment of Tomkowicz on July 10, 1989.
Respondent argues that Tomkowicz was the moving offi-
cial in Baskin’s discharge.
However, the uncontested record shows that the discharg-
ing official was Plant Manager Leigh Fragnoli. Respondent
acknowledged with the following footnote that even though
Tomkowicz made a recommendation to Fragnoli the termi-
nation document was prepared by Fragnoli:
The notice of termination prepared by Fragnoli sets
forth Baskin’s attendance infractions in both 1988 and
1989. GCX No. 3. Tomkowicz, however, based his de-
cision to terminate Baskin’s employment solely on her
1989 infractions. Tr. 202–203. The 1988 infractions
were inserted by Fragnoli without input by Tomkowicz.
Tr. 203. In directing Fragnoli to tend to Baskin’s dis-
charge, Tomkowicz provided him with Baskin’s person-
nel file, thereby making the 1988 information available
to him. Id. (R. Br. p. 4, fn. 2.)
While the above comment illustrates that Fragnoli was in
full control of the termination of Baskin, some portions of
the above quote are not supported by the record or are mis-
leading. For example, according to Tomkowicz it was not
Baskin’s personnel file which he reviewed but her attendance
record. Moreover, Tomkowicz was the personnel manager.
Fragnoli was the plant manager. The record testimony by
Tomkowicz indicates that he insisted that Baskin be dis-
charged. The record does not support, and their respective
positions belie, the contention that Tomkowicz did, or could,
direct Fragnoli to discharge Baskin.
I find that the record does not support Respondent. The
evidence does not show that Baskin would have been dis-
charged in the absence of protected activities. The evidence
does show that no other employee was treated like Baskin.
At the time of her discharge Respondent had discharged no
one else for similar attendance problems. Baskin was denied
the application of Respondent’s stated progressive discipline
system and Respondent failed to show that it has ever denied
application of that system to any other employee.
In regard to Respondent’s contention that it was the em-
ployment of Tomkowicz and his July 14 review of Baskin’s
attendance record that caused the discharge on July 14, the
record shows that in fact Respondent learned nothing through
Tomkowicz’ review that it had not known since early June.
The uncontested testimony of Baskin illustrated that Re-
spondent was aware on June 8, 1989, that her
attendance/tardy numbers could justify discharge. On that
date Baskin’s supervisor, Jim Ivy, told Baskin,
we reviewed your attendance records and everything
with you leaving early, and you know, even though I
approve it they reviewed it and I hadn’t been writing
you up like I should. By the record you should have
been fired, but by it being a goof on my behalf, my
boss is done got on my ass. He said, that’s why you
are not fired. It’s a mistake of mine.
The record shows that from at least June 8, 1989, Re-
spondent knew that the attendance/tardy record of Baskin,
standing alone, could be used to justify her discharge. On
June 29 Respondent had another occasion to consider dis-
charge. Instead, and in accord with its written progressive
disciplinary system, Baskin was suspended for 1 day.
513DYNATRON BONDO CORP.
1 Under New Horizons, interest is computed at the ‘‘short-term Federal rate’’
for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C.
§ 6621. Interest accrued before January 1, 1987 (the effective date of the
amendment) shall be computed as in Florida Steel Corp., 231 NLRB 651
(1977).
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
3 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
Regardless of what Personnel Manager Tomkowicz
learned on July 14, the official that discharged Baskin, Plant
Manager Fragnoli, was aware of her attendance record from
well before his knowledge of Baskin’s union activities.
After her suspension Baskin did nothing to trigger further
disciplinary action. She had no absences or tardies after her
suspension. There was nothing, other than her union activi-
ties which became apparent to Respondent, which occurred
at a date proximate to her discharge.
I find that Respondent failed to proved that Earnestine
Baskin would have been discharged in the absence of her
union activities. D & D Distributing Co., 277 NLRB 909 fn.
1 (1985); Ann’s Laundry, 276 NLRB 269 (1985); NLRB v.
General Warehouse Corp., 643 F.2d 965 (3d Cir. 1981).
CONCLUSIONS OF LAW
1. Respondent Dynatron Bondo Corporation is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Amalgamated Clothing and Textile Workers Union,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. Respondent, by discharging and refusing to reinstate
Earnestine Baskin, violated Section 8(a)(1) and (3) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act. As I have found
that Respondent unlawfully discharged Earnestine Baskin, I
shall recommend that Respondent be ordered to offer Baskin
immediate and full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to her seniority or other rights and privi-
leges.
Respondent must expunge all references to the discharge
of Baskin from her record and notify her that those records
have been expunged and that her July 14, 1989 discharge
will not be used against her. Additionally, in view of the fact
that Respondent cleaned the slate of all references to ab-
sences and tardies for all employees during July, 1989, that
same action must be taken regarding the record of Earnestine
Baskin. I recommend that Respondent be ordered not to use
any of Baskin’s 1989 absences and tardies against her in any
way.
I shall further recommend that Respondent be ordered to
make Baskin whole for any loss of earnings she suffered as
a result of the discrimination against her. Backpay shall be
computed in the manner described in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).1
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The National Labor Relations orders that the Respondent,
Dynatron Bondo Corporation, Atlanta, Georgia, its officers,
agents, successors, and assigns shall
1. Cease and desist from
(a) Discharging, refusing to reinstate, and otherwise dis-
criminating against employees because of their union or
other protected concerted activities.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Earnestine Baskin immediate and full reinstate-
ment to her former job or, if that job no longer exists, to a
substantially equivalent job without prejudice to her seniority
or other rights or privileges previously enjoyed, and make
Baskin whole for any loss of earnings, plus interest, suffered
because of its illegal action.
(b) Remove from its files any reference to the termination
of Baskin and notify Baskin in writing that this has been
done and that evidence of her unlawful suspension or termi-
nation will not be used against her in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, and timecards, personnel
records, reports, and all other records necessary to analyze
the amount of backpay due under the terms of this Order.
(d) Post at its facility in Atlanta, Georgia, copies of the
attached notice marked ‘‘Appendix.’’3 Copies of the notice,
on forms provided by the Regional Director for Region 10,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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, de-
faced, or covered by any other material.
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 vio-
lated 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.
514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge our employees because of their
activities on behalf of Amalgamated Clothing and Textile
Workers Union, AFL–CIO, or any other labor organization.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of rights
guaranteed them by Section 7 of the Act.
WE WILL offer immediate and full employment to
Earnestine Baskin to the position she formerly held or, if that
position no longer exists, to a substantially equivalent posi-
tion without prejudice to her seniority or other rights and
privileges.
WE WILL make Earnestine Baskin whole for all losses of
earnings she suffered by reason of our discrimination against
her.
WE WILL expunge from our records any reference to our
discharge of Earnestine Baskin and all references to absences
and tardies of Baskin during 1989, and WE WILL notify
Baskin in writing of our action in that regard.
DYNATRON BONDO CORPORATION