Hanover Industries, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1979

246 N.L.R.B. 656 (N.L.R.B. 1979)

DECISIONS OF NATIONAI. I.ABOR RELATIONS BOARD
Hanover Industries, Inc. and District 65, Distributive
Workers of America. Cases 4-CA-9041 and 4 CA
9076
November 30, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On July 27, 1979, Administrative Law Judge Rich-
ard L. Denison issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge recommended dis-
missal of the complaint allegations involving the cre-
ation of an impression of surveillance and the unlaw-
ful discharge of employee Topper. There were no
exceptions taken to these findings. The Administra-
tive Law Judge found, however, that Respondent vio-
lated Section 8(a)(3) and (I) of the Act by its dis-
charge of Marie Eltz. For the reasons given below, we
disagree with this latter finding.
Respondent manufactures mattress pads and
quilted products at its Hanover, Pennsylvania, plant,
where Marie Eltz was employed as a utility girl until
her discharge on November 10, 1977. On October 19,
1977, an organizing drive for the Union began at the
Hanover plant and, on October 21, 1977, Marie Eltz
signed an authorization card.
The incident which led to Eltz' discharge was Su-
pervisor Klinedinst's observation on November 10 of
Eltz, who at the time had not yet punched in, con-
versing with three other employees who were working
overtime. Although the Administrative Law Judge
found that Eltz had begun the conversation to talk
about the Union, he also found that Klinedinst did
not overhear what was said among the four. Approxi-
mately 2-1/2 hours after observing this incident.
Klinedinst called Eltz into her office to issue her a
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Producti, Inc., 91 NRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We hare carefully examined the
record and find no basis for reversing his findings.
written warning the first warning that Eltz had ever
received--for interfering with the work of the other
employees, a violation of company rule 16. Klinedinst
had not first interviewed the other employees about
the incident, nor had she issued warnings to them for
their possible infraction of a company rule against
neglecting work.2 Eltz refused to sign the warning
slip, although signing was customary, and she was
discharged by Klinedinst after consultation with
Martin Klein, the plant manager. Klinedinst testified
that she and Klein had intended only to give Eltz a
written warning for the incident, and that Eltz' re-
fusal to sign the warning slip was the determinative
factor in her discharge.
Although Klinedinst's testimony concerning the
content of the disciplinary interview conflicted with
that of Eltz, the Administrative Law Judge credited
Eltz' testimony that, when Eltz said in protest, "We
weren't talking about what you think we were,"
Klinedinst responded that Eltz had broken a rule, and
that, "Anyways, we know what you were talking
about." The Administrative Law Judge concluded
that this was a reference to the Union, although he
determined that the Union was never specifically
mentioned during this exchange between Klinedinst
and Eltz. This finding, in conjunction with the facts
that Eltz had never before received a warning and
that Respondent had failed to interview the three
other employees, taken together with the fact that the
record contained evidence that in certain other cases
Respondent had given more than one warning prior
to discharge, led the Administrative Law Judge to
conclude that Eltz' refusal to sign the warning slip
was a pretext for discharging her, and that the real
reason for the discharge was union related.
For the following reasons, we reverse the Adminis-
trative aw Judge's finding.
We note first that there is no evidence to support
the Administrative Law Judge's conclusion that Eltz
was the "chief employee organizer." To the contrary,
the only evidence of union activity on her part known
by Respondent before her discharge was that she was
seen with the Union's organizer on two occasions.3
Furthermore, there is no evidence that the reason for
her discharge was a pretext. Although the Adminis-
trative Law Judge referred to evidence that employ-
ees often received more than one warning prior to
being discharged, several exhibits were introduced to
show that certain employees had been discharged for
insubordination, Eltz' transgression, after only one
warning. More to the point, the only other employee
shown to have refused to have signed a disciplinary
('ompany rule 15 indicates that discipline may he meted out for "ln]e-
glecting job duties or refusing to perlform assigned tasks."
I Moreover, as noted above, :ltz' only other union activity before her
discharge was her signing of an authorization card.
246 NLRB No. 105
656
HANOVER INDLSIRI S, IN(C.
warning had been discharged. Finally. while evidence
of union animus or other unfair labor practices is not
necessary to support a finding of an unlawful dis-
charge,4 we cannot help hut note that Respondent
was not found to have engaged in any other unfair
labor practices in this proceeding. Particularly, we
note that Respondent was not found to have unlaw-
fully terminated any other employees known to be
involved in the Union. This includes employee Brian
Colgan, who had been at least as active in the union
campaign as Eltz, and who had a record of several
disciplinary warnings. Colgan himself testified that
the same plant manager who ordered Eltz discharged
has stated to an assembly of employees during the
organizing campaign that he was not "encouraging or
discouraging" union participation. but only urging
that the employees "keep an open mind." In sum,
there is no showing of any union animus on Respon-
dent's part in this proceeding. Under all the circum-
stances, we cannot say that the General Counsel has
met his burden of establishing Eltz was discharged in
violation of Section 8(a)(1) and (3) of the Act. Ac-
cordingly, in light of the Administrative Law Judge's
other findings, we shall dismiss the complaint in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
'Ar,-Truck ideral (redir L'nmin. 232 NLRB 1024, 1027 11977): 7'rr
Industriei o lVirgmin, I, 164 NL.RB 872. 874 (1967). enfd. 403 1.2d 633
(4th (ir. 1968).
DECISION
S1AEMNr OF t1111 CASE
RlCtlARD L. DENISON, Administrative Law Judge: This
case was heard in York, Pennsylvania, on April 19, 20, and
25, 1978, based on charges filed in Cases 4 CA 9041 and 4
CA-9076 on November 14 and December 1, 1977, respec-
tively, by District 65, Distributive Workers of America.'
The complaint, issued on December 30, alleges that on or
about November 9 supervisors of Respondent created the
impression that employees' union activities were under sur-
veillance, and thereafter on November 10 and 21. respec-
tively, discharged employees Marie Eltz and William Top-
per because of their union activities in violation of Section
8(a)(I) and Section 8(a)(3) and (I) of the Act. Respondent's
answer denies the allegations of unfair labor practices al-
leged in the complaint.
Upon the entire record in the case, including my consid-
eration of the briefs and my observation of the witnesses, I
make the following:
I All dates are in 1977 unless otherwise specified
F:NlI)(is ()1i FA( I
1. JIt RISI)I IIO)N
s ;tadmitted in the answer. I find that at all times mate-
rial herein Respondent is and has been a Pennsylvania cor-
poration engaged in the manutcture of mattress pads and
quilted products at its Hanover, Pennsylvania. facility.
D)uring the past ear. in the course and conduct of its busi-
ness operations. Respondent sold and shipped products al-
ued in excess of S50.(X)0 directly to points located outside
the Commonwealth of Pennsylvania. Respondent is now.
and has been at all times material herein, an emplo1er en-
gaged in commerce within the meaning of Section 2(2). (6),
and (71 of the Act.
II. I ABOR OR(iANIZAII()N
District 65. I)istributi'e Workers of America, is a labor
organization within the meaning of Section 2(51 of the Act.
III. Ill1 NI AIR I A R PRA I( Is
Respondent manufactures mattress pads and quilted
products at its llanover. Pennsylvania. plant with a work
force of about 400 employees. The (Company's president is
Ephraim S. Young. who is frequently absent n business
trips to the Company's other unidentified locations and an
office in New York. Consequently, Respondent's Hanover
operation is managed hb Plant Manager Martin Klein. Re-
spondent's work rules are summarized in an employee
handbook distributed to all new employees. Among the
rules for which employees ma, be discharged are the fol-
lowk ing:
14. Refusing to tifollow the instructions of the super-
,visor.
15. Neglecting ob duties or refusing to perform as-
signed tasks.
16. Interfering with others in the performance of
their jobs.
On October 19 Larry Steele, an organizer for the Charg-
ing Party, began a drive to organize Respondent's Hanover
plant, contacting from 20 to 25 employees. On October 21
he met Marie Eltz as she ate lunch in her car. Eltz signed a
union card at that time and agreed to assist Steele. 2 At the
2 According to credited testimony by Plant Manager Klein, he received a
copy of a memo dated October 24 from Ephraim S. Young to Respondent's
labor counsel reporting that "someone" passed out the attached leaflet in the
company parking lot after work on Thursday, October 20. The material
attached is District 64 propaganda and a union authorization card. Since
Organizer Steele insisted that he was away from Hanover on October 20 and
that the first leaflet was handed out on November 15, I find that it was not
Steele who distributed the leaflet referred to in Young's memorandum. It is
also clear that the leaflet referred to in the memorandum was not distributed
by Marie Eltl. who first met Steele on October 21. or other members of the
employee organizing committee since Steele testified. without contradiction.
that the first union organizational meeting took place on November 8 and
employee assistance in leaflet distrbution first occurred on November 15
Therefore. the (ktober 24 memorandum is worthless as esidence to establish
that Respondent knew Steele's identity or as evidence of knowledge of Eltz'
union activilies Furthermore. the memorandum is hearsay with respect to
estabhlishing October 20 a the earliest union activity knowsn to the Company
(Continued)
657
I)6 ('ISIONS OF NATIONAL I.ABOR REI.ATIONS BOARD
Union's first organizational meeting at the lHanover Hotel
on November 8 an employee organizing committee of ap-
proximately 15 workers was formed. iFltz attended this
meeting. Arrangements were made to have another meeting
on November 9 at Antonio's Restaurant for lunch in order
to meet two other people: but, on that date, when these two
persons failed to appear at Antonio's, the group. which in-
cluded Organizer Steele and employees Marie EIlt. Brain
Colgan. Harold Sheely. and Brent Smith. hurriedly stopped
into a McDonald's hamburger establishment, about a half'
mile from the plant. for a quick lunch before the employees
were due to return to work. Although Steele and Eltz de-
scribed their luncheon at McDonald's as a union meeting.
Sheely testified that "we didn't have time to discuss any-
thing: we just . .. grabbed some food." As the group came
out of the restaurant they saw Bonnie Mirrila, one of Re-
spondentl's supervisors, sitting in her car in the parking lot.
Mirrila eats lunch outside the plant almost ever? day in the
company of other employees. and b automobile they pro-
ceed to various restaurants in the area alternatively on a
once-a-week or once-every-2-weeks basis. On this particular
occasion Mirrila was sitting in her car eating her Mcl)on-
ald's sandwich while she waited for employee Vickie Masel
to return from the Dunkin Doughnuts establishment across
the street. She testified that she saw a number of employees
come out of Mcl)onald's and that she had no way of know-
ing that this particular group of employees would be there.
There is no evidence to establish that she recognized Larry
Steele. Upon returning to the plant after lunch, Ilarold
Sheely ran to the elevator. As he did so he encountered
Martin Klein who stopped Sheely, asked what he was
doing, and told him there would be no running in the plant.
Observing Sheely's hurry to return to work, he asked, "Ifow
was your lunch?" The General Counsel argues that there is
a connection between Mirrila's presence at McDonald's at
the time of the "union meeting" and Klein's remark to the
hurrying Sheely about his lunch. The complaint alleges that
these incidents considered together constitute giving em-
ployees the impression that their union activities were un-
der surveillance, in violation of Section 8(a)( I) of the Act. I
disagree. Although it is long established Board law that
knowledge of an employee's union activities by one supervi-
sor may be imputed to all since all are agents of the em-
ployer, there is no evidence that as of the time of the so-
called McDonald's meeting any of Respondent's supervi-
sors knew Larry Steele or associated him with the Charging
Party. Furthermore, it is clear that Mirrila would have had
no way of knowing that the employee group would eat
lunch at McDonald's, since the evidence shows they origi-
nally planned to meet elsewhere. In addition, Mirrila's ex-
planation for her presence at McDonald's that day is logi-
cal and undisputed. Finally, in the absence of evidence
showing a meaningful connection between Mirrila's pres-
ence at McDonald's and Klein's question to Sheely about
his lunch, there is simply nothing to show that these two
incidents amount to an attempt to surveil employees' union
activities. For example, it is more likely that Klein's remark
to Sheely was related to Sheely's hurried return to work
Since in his testimony Klein was uncertain about when union literature was
first distnbuted, all that is established by the memorandum is that by Oclo-
her 24 the Company had learned that District 65 literature had been distrib-
uted by some unknown person.
after lunch than it was to anything related to his union
activity. I find that the General Counsel has failed to prove
that Respondent violated Section 8(a)(1) of' the Act with
respect to this incident.
Marie lltz was discharged on November 10. As of that
time she worked as a utility girl substituting for others
where needed. She did not receive any warnings until the
day of her discharge. On a normal workday l:ltz arrived at
work very shortly before her 7 a.m. starting time, but on
November 10 she went in early in order to discuss the
'Union with employees performing overtime work between
6 and 7 a.m. Eitz arrived at work about 6:30 and spent
about 15 minutes in the break area, after which she pro-
ceeded to the receiving department, where she had been
assigned to work that day. and engaged D)eborah Shrader.
Sherri Iless, and D)awn Altland in conversation about the
Union as thev worked. The talk ceased immediately at or
about 6:45 a.m. when Supervisor Bonnie Klinedinst entered
the area and saw them talking. Klinedinst did not overhear
the conversation. About 9:30 a.m. Klinedinst summoned
[lItz to her office where ltz was presented with a written
warning to sign for interfering with the work of other em-
ployees. When Eltz refused to sign, Klinedinst consulted
Klein by telephone concerning what to do. Then, pursuant
to Klein's instructions, Eltz was terminated for refusing to
sign the warning. Eltz testified that during her interview
with Klinedinst. and before her termination. Fltz remarked,
"We were not talking about what you think we were." to
wxhich Klinedinst answered that iltz had broken a rule and
"anyways we know what you were talking about." Kline-
dinst denied making this remark. Instead, she testified that
she told Eltz that she had broken a rule and that it did not
make any difference what she was talking about. Both Eltz
and Klinedinst agree that there was no mention of the
Union at all during the interview I credit Eltz' testimony
and discredit Klinedinst's denial. Klinedinst admitted that
she knew who Larry Steele was at the time Eltz was dis-
charged and that she had seen Eltz in his company prior to
that time, although she was not certain if the occasion on
which she saw them together was outside of the plant the
day before)' The General Counsel contends that Eltz was
discharged because of her union activities. Respondent ar-
gues that Eltz was fired only after she refused to sign a
warning slip, which was all the Company originally in-
tended to give her for a clear violation of the Company's
rule against interfering with the work of others. Respondent
points to evidence it adduced at the hearing which proves
that other employees who refused to sign warning slips were
discharged in the past. Although the issue with respect to
Eltz' discharge is not free from doubt, I am persuaded after
lengthy consideration that she was in fact discharged be-
cause of her union activities in violation of Section 8(a)(3)
and (I) of the Act. It is clear that Klinedinst observed Eltz
and Union Organizer Steele together prior to Eltz' dis-
charge. Eltz' credited testimony about her termination in-
terview shows that Klinedinst had reason to suspect that
'As counsel for the General Counsel's questmoning about Eltz' association
with Steele became more persistent, in an effort to establish precisely the
time Eltz was seen with Seele. Klinedinst realized the importance of the
questions and hen said she could not remember. I am persuaded that her
original answers, which were precise and followed the quesions without
hesitation, were truthful.
658
HANOVER INDI)IUSRII-S. INC
Eltz was discussing the Union with her three lellow workers
that morning. None of these emplo\ees mVas interviewed
about the incident, nor did any receive warnings. Evidence
introduced hb Respondent shows that employees frequentl)
receive more than one warning prior to being discharged.
Under all these circumstances, I am persuaded that Klein
seized upon Eitz' refusal to sign her warning slip as a pre-
text tor eliminating the Union's chief emplosee organizer
when he quickly ordered Klinedinst to terminate iltz nim-
mediately upon learning that ElIz had refused to sign the
warning. I find that Respondent violated Section (a) I) )
and (3) of the Act in discharging Marie litz on Novsember
10.
William opper worked las a utilit man in the garnet
department removing rolls from the garnet machine and
placing them on skids. When opper first went to Vsork in
the department his supervisor was Buster llare. fie also
took directions from a nonsupervisor leadinan; namIed
Fred Wolf: wlhoin he obviousl\ respected. nder llarvec
each departmental worker had one job to perform. hut
when Robert Sosna replaced Iarve as supervisor in earl!
November he announced to the employees. individuall\
and in small groups, that he intended to cross-train them to
perform all the johbs in the department. in order to maintain
production by using employees where needed in the event
of absences. I'his new system was strongly disliked bh the
workers in Sosna's department. including lopper. who was
quite vocal about it. Topper was openly contemptuous of
his new supervisor, said he would not cooperate with Sos-
na's new program, and stated to other emploNees that the,
did not have to obev Sosna. In his testimony Topper made
it clear that he thought Fred W'olf knew more about how to
run the job than did Sosna. In Topper's words. "... wh
listen to somebody who don't know the job."
Topper became active in the Uinion when Harold Sheel
asked him to sign a union card around October 20. I'here-
after, Topper passed out a few cards and transmitted ('B
radio announcements relating to union meetings and sign-
ing cards into the plant's public address system from his
vehicle's CB radio parked beside the plant.4 Topper also
attended the November 8 and 15 union meetings. He as-
sisted the Union in distributing organizational literature on
November 15 outside the plant gate, at which time he was
observed by Company President Ephraim Young in the
company of Larry Steele, District 65 International Repre-
sentative William Scott, District 65 Vice President Jim Bri-
gagliano. and Marie Etz. It is undisputed that Scott knew
Young in the past as an officer of another company in Mis-
sissippi with which Scott had negotiated a contract. Thus,
as Young passed by while the employees were handbilling,
the two men acknowledged one another. Eltz, who had
been discharged 5 days before, also talked to Young as
Topper stood next to her. I therefore find that Respondent
knew of William Topper's union activities.
On November 21, because of absences in the garnet de-
partment, Topper was assigned by Sosna to the job of' hal-
ing which consists of putting scrap materials into a baler
machine, tying them into bundles. and storing them. He
4 Harold Sheely estified hat he heard such an announcement concerning
a union meeting and that he recognized l opper's ice There is no es idence
that any supervisors heard or recognized it.
also told Topper to burn some trash and to remove some
skids from the storage area downstairs while he was waiting
for the baler to complete his operation. Topper protested
that operating the baler was not his job, but finall agreed
to do as instructed, although he never told his supervisor
that he did not know how to operate the baler or the incin-
erator. In any event, Sosna sent employee Randy Little
along with Topper to show him what to do. Later, Sosna
checked and found Topper sitting at the baler while the
other employee was performing the work. Sosna told Top-
per that he had until noon to finish the job. As Sosna went
back inside the plant, Topper followed and asked if he
could use the forklift truck to move the skids, but Sosna
refused the request because he did not think the forklift
could be maneuvered through the aisles. He specifically in-
structed Topper to use the handtruck. Topper did not do as
instructed because, as he started to move the skids. Fred
Wolf, whom Topper thought knew more about the job than
Sosna. told Topper to leave the skids iot Wolf to move with
the forklift. Therefore, Topper ignored Sosna's instructions.
Wolf had no authority to countermand Sosna's orders.
Sosna remained temporarily unaware of these circum-
stances, and around I I a.m.. in accordance with a long-
standing departmental practice, assigned Topper as one of
three employees to relieve the employees in the bonding
department during the lunch hour. This period was also the
lunch hour for the relief employees and thus this assign-
ment was distributed on a rotation basis. However, occa-
sionalli when an employee had a reason why he could not
perform relief work that day. Sosna would locate a replace-
ment. Topper went to lunch instead of performing the relief
work. He did not consult Sosna before leaving. After 12
noon Sosna checked after Topper and found unburned
trash in the incinerator, the skids had not been moved. and
that Topper had gone to lunch while the other two employ-
ees performed the relief work. Upon Topper's return, Sosna
presented him with a warning for his refusal to move the
skids. another for his failing to report to the bonding de-
partment, and a termination notice, which Topper refused
to sign. Topper asked Sosna if he were fired. Sosna replied.
"It looks that way." Topper left the plant stating, "The
Company hasn't heard the last of me yet."
Although the General Counsel has proved that the Com-
pany knew of Topper's union activities prior to his dis-
charge, there is nothing else to indicate that his termination
stemmed from those activities. Topper made no secret of his
hostility towards his supervisor, that he vehemently disliked
the idea of performing more than one job, or that he pre-
ferred to follow the instructions of Fred Wolf, whose super-
visory status was not proved and who had no authority to
countermand one of Sosna's specific instructions. The evi-
dence in the record is crystal clear that on the day of Top-
per's discharge he failed and refused to perform three as-
signed tasks as instructed. No company supervisor ever said
anything to Topper about the Union either before or on the
day of his discharge. In my view, the evidence is over-
whelming that Topper was discharged for cause, and I so
find. I find that Respondent has not violated Section 8(a)(1)
and (3) of the Act in discharging William Topper on No-
vember 21.
659
DECISIONS OF NATIONAl. ILABOR REL.ATIONS BOARD
CoN(I tLUsIONS (oi lAw
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(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. By discharging Marie Eltz on November 10. 1977. be-
cause of her union activities. Respondent violated Section
8(a)(l) and (31 of the Act.
4. Respondent has not violated the Act in any respect
other than that specifically found.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RI MI it
tlHaving found that Respondent is engaged in certain un-
fair labor practices, I find it necessary to order that Respon-
dent cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having discriminatorily discharged Marie Eltz because
of her union activities, I find it necessary to order that Re-
spondent offer her full reinstatement, with backpay com-
puted on a quarterly basis with interest as prescribed in
F W. Woolworth (omnpat,. 90 NLRB 289 (1950), and Flor-
ida Stec'/ Co (rporation, 231 N RB 651 (1977),5 from date of
discharge to the date of proper offer of reinstatement. I
shall also order Respondent to post an appropriate notice
with respect to the violations of Section 8(a)( 1 ) and (3) of
the Act found to have occurred.
[Recommended Order omitted from publication.]
See. general. Ilr, Plm,,bhlg t Heainrry (,. 138 NlRR 716 (1962.
660