General Box Co.

National Labor Relations Board - Board Decisions

Mar 24, 1971

189 N.L.R.B. 269 (N.L.R.B. 1971)

GENERAL BOX COMPANY 269
General Box Company and Suzzanne Thurman
Retail, Wholesale and Department Store Union , Local No.
491, AFL-CIO-CLC and Suzzanne Thurman Cases 17-
CA-4189 and 17-CB-767
March 24, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND
KENNEDY
On December 10, 1970, Trial Examiner Thomas F.
Maher issued his Decision in the above-entitled
proceeding, in which he granted the Respondents'
motion to dismiss the complaint on the ground that
upon the record made the General Counsel did not
satisfy his burden of proving a prima facie case of
discrimination. Thereafter, the Charging Party filed
exceptions to the Trial Examiner's Decision with a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner, and hereby orders
that the complaint herein be, and it hereby is,
dismissed in its entirety.
I In adopting the Trial Examiner's finding that the General Counsel
failed to establish a prima facie case of discrimination, we find it
unnecessary to determine the merits of the absenteeism charge
TRIAL EXAMINER'S DECISION
PRELIMINARY STATEMENT
THOMAS F. MAHER , Trial Examiner . Upon charges filed
by Suzzanne Thurman on January 21, 1970, against
General Box Company, and on March 31, 1970 , against
Retail , Wholesale and Department Store Union, Local No.
491, AFL-CIO-CLC, herein called the Union, both
Respondents herein , the Acting Regional Director of
Region 17 of the National Labor Relations Board, herein
called the Board , issued complaints against the respective
Respondents on June 19, 1970, alleging violations of
Sections 8(a)(1) and (3) and 8(b)(1)(A) and (2) of the
National Labor Relations Act, as amended, 29 U.S.C. Sec.
151, et seq. (herein called the Act). In duly filed answers the
Respondents, while admitting certain allegations of the
complaints, denied the commission of any unfair labor
practice. Thereafter, on June 22, 1970, the Acting Regional
Director issued his order consolidating the two cases
involved herein.
Pursuant to notice a trial was held before me on August
11, 1970, at Kansas City, Missouri, where all parties were
present, represented and afforded a full opportunity to be
heard. Counsel for the General Counsel presented his case
in chief, with full opportunity provided the Respondents to
cross-examine the witnesses. Upon the conclusion of
counsel for the General Counsel's case in chief, counsel for
Respondents moved for the dismissal of complaints herein
on the ground that upon the record made the evidence does
not support the allegations of unfair labor practices. Thus
with respect to the nature of the discharge of Suzzanne
Thurman and her treatment by the Union, the only issues
before me, it was claimed that the evidence in the record
supports the conclusion that she was in fact discharged for
excessive absenteeism and not for the discriminatory
reasons alleged.
Because, with respect to the alleged discriminatory
discharge and the other conduct alleged I entertain serious
doubt that counsel for the General Counsel had established
prima facie violations of the Act, and in deference to the
Respondents' respective rights in due process not to be
required to enter their defenses in the absence of such a
showing, I adjourned the hearing for an indefinite period to
provide an opportunity to study the record. I requested
briefs of the parties to assist mein the determination of the
issues raised by the Respondents' motion. Briefs have been
filed by counsel for the General Counsel and the
Respondents.
Upon consideration of the briefs submitted and the entire
record made in this case, in which I assumed the veracity of
all witnesses appearing before me, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF RESPONDENT EMPLOYER
General Box Company , Respondent herein , is a Dela-
ware corporation with plants located in several States of
the United States, including one in Kansas City , Missouri,
where it is engaged in the manufacture of shipping
containers . On an annual basis at its Kansas City plant
Respondent Company has gross sales in excess of
$500,000, direct sales to customers outside the State of
Missouri in excess of $50,000 , and purchases directly from
outside the State of Missouri in excess of $50 ,000. It is
admitted and I accordingly conclude and find that upon
the foregoing the Respondent Company is and at all times
material herein has been an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE STATUS OF THE RESPONDENT UNION
Retail , Wholesale and Department Store Union, Local
189 NLRB No. 42
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No. 491, AFL-CIO-CLC is admitted to be and I
accordingly conclude and find that it is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Contested Allegations of the Complaint
It is alleged in the complaint against the Respondent
Company that "on or about January 9, 1970, the Company,
acting by and through Ray C. McNeel, terminated the
employment of Suzzanne Thurman and has ever since
failed and refused to reinstate her to her former or
substantially equivalent position of employment," the
purpose of such conduct being "to encourage or discourage
membership in any labor organization." In its denial of this
allegation the Respondent Company affirmatively alleges
that Mrs. Thurman was terminated because of excessive
absenteeism.
The complaint issued against the Respondent Union
alleges that since October 1, 1969, the Union, acting by
named officers and representatives, "caused or attempted
to cause the Company to discharge Suzzanne Thurman in
violation of Section 8(a)(3)" and that since on or about
January 9, 1970, through named officers and representa-
tives, "has failed and refused to fairly and equally process a
grievance of Suzzanne Thurman under the terms of
governing collective-bargaining agreement," thereby violat-
ing Section 8(b)(1)(A) of the Act. The Respondent Union
denies these allegations.
B. The Facts
Mrs. Suzzanne Thurman was employed by the Compa-
ny on three different occasions and was a member of the
Union. She began her last period of employment in May
1969 at which time she was assigned to operate a
semi-automatic taper, a machine used in the assembly of
cardboard boxes. This job was assigned to her "without
bid" at the rate of $2.17 per hour and she continued in it
until September 22, at which time she was assigned to other
duties. Meanwhile, in mid-August it was determined by the
Company that this position and others should be posted for
bid so that the rates assigned them could be made
permanent. When the job was posted it was required that
employees interested in bidding for it as a permanent job
should sign the posting. Employee Alma Raye Long signed
the posting. Employee Thurman refused to sign because she
knew Long to have greater seniority and, if Long qualified
as to her production quota, would be awarded the job.
Thurman was advised by Union President Joe Marchin and
Plant Superintendent Ray C. McNeel to sign the bid
nonetheless; there always being the possibility that Long
would not qualify. Thurman continued in her refusal to bid
for the job, Long was assigned it, and Thurman was
thereupon assigned to other duties at a lower rate.
Thurman sought out Union Steward Andy Babicki and
requested that a grievance be filed on her behalf. This was
I Thurman filed a charge with the Board (Case 17-CB-719) which
involved a reduction in pay allegedly as a result of the Union 's failure to
represent her. The charge was dismissed by the Regional Director on
November 12, 1969, stating that an investigation of the matter disclosed
done but upon the fact that Thurman had failed to bid for
the job, and that it was filled by Employee Long, who with
more seniority had qualified by production, the grievance
was rejected by the Company and this action was
acquiesced in by the Union.'
The testimony of Mrs. Thurman discloses that about the
same time this first grievance was in process she suffered
periods of illness requiring a physician's attention. Thus
presented for the record were receipted bills from the
company physician dated October 13, November 10, and
December 17, 1969, and she testified that during the days
immediately before and after visits covered by these bills
during the months of October and November she was
absent from work for reasons of health. On November 10,
Dr. Goldblatt, the company physician, put Mrs. Thurman
on extended sick leave, suggesting that she stay out for 5 or
6 weeks. On her visit to his office on December 27 he found
her in improved condition and set January 13 as the date
upon which she would be released to return to work.
Preparatory to returning to work on January 13, Mrs.
Thurman called Plant Superintendent McNeel on January
10 to tell him she had been released by the doctor.
McNeel's reply to Thurman, as quoted by her, was,
"Suzzanne, due to your past absenteeism, I don't believe I
will be able to use you. I have got a full work force."
Upon being advised by McNeel of her termination Mrs.
Thurman immediately called the Union's regional director,
John Capell, and told him of her troubles. On Capell's
advice she sought out Steward Babicki. The two of them
went to McNeel who repeated to Thurman what he had
earlier told her by phone. Whereupon Babicki and Mrs.
Thurman went to Union President Joe Marchin, a
maintenance employee, and obtained two grievance forms
which Mrs. Thurman filled out and returned to Babicki,
who in turn passed them on to Marchin. Several days
thereafter Marchin called Mrs. Thurman and reported on
the grievance. Mrs. Thurman's account of this report
follows
I think Joe Marchin called me and told me they
had a three-or four-hour committee meeting over the
grievance and that, as in the past, he always fought for
people on absenteeism, and he didn't want the
Company to be firing people for this reason. They had
done all they could for me and had voted not to fight
the grievance, it was too expensive. It would cost them
$ 500 or $600 to go through with this grievance and
there were too many cases that had been lost because
of absenteeism. He said besides that, they had seven or
eight other reasons they fired me for. He said, "we
didn't know this, the committee and myself didn't know
this until management was called in on the meeting."
He said, "It all stands up too high against you, so we
voted not to fight for you."
Marchin, Babicki, and McNeel testified concerning this
matter and their testimony substantially supports Mrs.
Thurman's account of what she was told. Thus McNeel
testified that after the grievance was filed with the Union he
that the Union had considered her grievance and had not failed to fairly
and equally represent her, and that there was no evidence of other factors
that would suggest the contrary
GENERAL BOX COMPANY 271
met personally with Union President Marchin and the
company plant manager, R. E. Welch, concerning it, at
which time he explained the Company's position that they
would not take Mrs. Thurman back because of her absentee
record. And McNeel further testified that he thereafter was
in attendance at the Union's board meeting on January 17,
when the subject of Thurman's discharge grievance was
under consideration.
Union Steward Babicki likewise corroborates the Union's
activity on behalf of Mrs. Thurman, stating that
... we had a board meeting for about three hours
and discussed it and we called McNeel and asked him if
he still insisted and he said yes. On her absenteeism and
other things, absenteeism was one of them, and we
discussed it further. McNeel didn't stay in on the
meeting, just when he was called in and we would ask
him the question that he would answer.
And finally as to this same transaction Union President
Marchin identified and verified the accuracy of union
meeting minutes relating to it, which minutes comprised
documents introduced into the record. Therein it is stated:
President Marchin called the meeting and read to the
Board Suzzanne Thurman's grievance and also Ray
McNeel's dispostion. President Marchin tried to
contact Suzzanne by phone to notify her of McNeel's
disposition, but could get no answer.
A long discussion was had pro & con about the
disposition. The committee voted not to pursue the
disposition because of Suzzanne's past record and
absenteeism.
President Marchin called Ray McNeel into the meeting
to explain in more details his disposition and what was
the big factor in firing Suzzanne, was it her bad record
or absenteeism?
Ray McNeel said his firing her on absenteeism.
President Martin asked McNeel if he would reconsider,
he said no. A discussion on future absenteeism and how
the best way to help the membership. McNeel said all
cards would be marked when an employee calls in. The
committee agreed with this.
While the foregoing, based upon the testimony of Mrs.
Thurman and the corroboration of representatives of both
management and Union, established the fact that she was
terminated for excessive absenteeism and that efforts had
been made in her behalf, there appears to be one
questionable thread running through all of the testimony,
namely, the suggestion that Mrs. Thurman could have been
terminated for other reasons as well. Any doubts that may
have been created in this area, however, are resolved by the
following excerpts of Mrs Thurman's own testimony on
cross-examination,
Now, you said on your direct examination that in
talking to Marchin after they had fired you that they
had seven or eight reasons for firing you. What did you
have in mind?
A. That is what he told me.
Q. That is what he said9
A That is what Marchin told me. He said that they
would have fought it if this was all it was, but they piled
up seven or eight reasons.
Q Didn't you tell Marchin that they had a good
many other reasons for firing you, but absenteeism
shouldn't be the reason for firing you.
A. I told him they had plenty of chances to fire me.
Why didn't they do it then? Why wait until I had a sick
leave?
Q. Chances because of your absenteeism?
A. No, I said they-
Q. (Interruption) What other chances would they have
for firing you?
A. Horseplay for one . Who doesn't do that, and
you can sure get fired for it.
Q. (By Mr. Manning) In your statement to Mr.
Pribble on March 2, 1970, you out-lined the fact that
you were talking to Joe Marchin and that Joe said, "If it
had been for absenteeism, I may have been able to save
your job, but when they," the company, "stacked
everything else up, it was just lost." Then you said,
"But, Joe, they have had so many opportunities to fire
me outright but they didn't. As far as reasons they have
stacked up against me, they have happened so long ago
I figured I was forgiven."
A. That is right, I said that.
Q. According to you, the company must have had
some other reason which you thought -
A. (Interrupting) I mean different opportunities.
Q. Well, they don't forgive you for opportunities.
They forgive you for reasons for things you do, don't
they?
A. I didn't quite follow you then.
Q. You said in your statement you figured you were
forgiven. Now, you had to have been guilty of some
wrong to be forgiven.
A. I gave you a for instance . I have been caught in
horseplay where he could have fired me on the spot, but
he did not do so.
C. Analysis and Conclusions
A review of the foregoing findings, based as they are
upon the corroborated testimony of Employee Thurman,
makes it abundantly clear that she was terminated for
excessive absenteeism and that the Union represented her
as best it could in an effort to salvage her employment.
The findings not only establish the reason given for the
termination, but in Mrs. Thurman's own words there is
established a reasonable justification for the reason itself.
Thus she testified that during her most recent employment,
after employees had been warned at union meetings that
they should be sure to call in when they are absent, she
called in on absences and spoke to Plant Manager Welch
two or three times and to Becky Myers, a clerical assistant
in the office, four or five times. In addition to this she asked
Employee Long to report her as absent two or three times
and Employee Dorothy Carpenter four or five times. Thus,
apart from occasions when she admittedly had failed to call
in, absences were reported directly or indirectly on between
12 and 16 occasions from May to November. In her
testimony she recalled at the hearing an occasion where she
took a number of days off to make a family trip to
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dogpatch, Arkansas, and another occasion where she took
off a number of days to entertain a sister visiting her from
California.
In light of such a record established by her own testimony
it is unnecessary to consider in detail the time and payroll
materials in the record which support the findings that Mrs.
Thurman had amassed an abundance of absences within a
short space of time. On such testimony it is difficult to
conceive, therefore, that the Company's determination not
to take her back at the end of an extended sick leave could
have been motivated by union considerations, rather than
by her many absences.
Throughout General Counsel's case in chief there is a
recurring suggestion of animosity between Mrs. Thurman
and the Union's President, Marchin. Be this as it may, I am
satisfied that the Union and its officers and representatives
have been shown to have made an extended effort on Mrs.
Thurman's behalf on what I find to be a very weak case.
Not only had she incurred the absences with which she was
charged but she admitted to indulging in conduct for which
the Company had referred to as the "other reasons" for
which it could also have terminated her. Added to that it is
also quite apparent that Mrs. Thurman's two earlier terms
of employment and her previous employment elsewhere
were equally as turbulent as the one before us, she having
admittedly walked off the job on both prior occasions and
been terminated by her earlier employer.
There is a suggestion in both the pleadings and counsel's
remarks at the hearing that there was evidence of collusion
between Company and union representatives. This must
not be confused with the Union's several conferences with
management on Mrs. Thurman's grievance and its
grudging concession that having done all it could do it
would have to acquiesce in the unfortunate consequences.
This argument misconceives in two respects the basic
nature of labor relations and collective bargaining. In the
first place the very essence of effective representation
requires constant rapport between the employer and his
employees' representative. Whereas a failure of communi-
2 United Steelworkers of America, AFL-CIO, and Local Union No
2140 (United States Pipe and Foundry Co), 129 NLRB 357 enfd 298 F 2d
cation in this area frequently results in the representative's
replacement, certainly a pattern of frequent periodic
consultation, absent evidence of discrimination or other
illegality, cannot be branded as collusion. I find the
amicable relationship between Company and Union here to
illustrate this very concept of effective representation. And
secondly it is to be noted that a union is not necessarily
inefficient, insensitive, or unfair merely because its
judgment and sense of proprieties suggest the member for
whom it speaks just happens to be wrong and has been, as
here, justifiably disciplined. On the contrary, it suggests a
degree of responsibility much to be desired.
Upon consideration of all the facts found herein,
therefore, and in particular upon testimony of employee
Thurman, I conclude that she was terminated for excessive
absenteeism as stated to her, and not for any discriminatory
reason. Furthermore, and upon the same findings I find no
evidence of collusion between any of the Union's and
Company's representatives nor any causing or attempt to
cause the Company to discharge employee Thurman. On
the contrary I find that the Union and its officers and
representatives involved in this matter exerted their best
efforts in effectively representing Mrs. Thurman and
seeking her reinstatement. Accordingly, I find no evidence
in the record to support violations of Section 8(a)(1) or (3)
by the Respondent Company, nor of violations of Section
8(b)(1)(A) or (2) by the Respondent Union.
IT IS HEREBY ORDERED, pursuant to Section 102.25 and
102.35(h) 2 of the Board's Rules and Regulations, Series 8,
as amended, that Respondent's motion to dismiss the
complaint be granted, and that the consolidated complaint
against both Respondents be accordingly dismissed in its
entirety.
IT IS FURTHER ORDERED that unless , pursuant to Section
102.27 of the aforesaid Rules and Regulations, counsel for
the General Counsel files with the National Labor
Relations Board a request for a review of the action taken
herein within 10 days from the date of this Order the case
shall be closed.
873 (C A 5), Cherry Rivet Co , 97 NLRB 1303 at In 1