Henning and Cheadle, Inc.

National Labor Relations Board - Board Decisions

Aug 8, 1974

212 N.L.R.B. 776 (N.L.R.B. 1974)

776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Henning and Cheadle , Inc. and Pat Barac, Case 7-
CA-10747
August 8, 1974 .
DECISION AND ORDER
By MEMBERS FANNING, KENNEDY. AND P1 NELLO
On April 12, 1974, Administrative Law Judge Paul
E. Weil issued the attached Decision in this proceed-
ing. Thereafter, Respondent and the General Counsel
filed exceptions and supporting briefs to portions of
the Administrative Law Judge's Decision. Respon-
dent further filed an answering brief to the General
Counsel's exceptions.
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 and to
adopt his recommended Order.
The Administrative Law Judge concluded that
Hammond, Respondent's supervisor in its data entry
department, discharged employees Barac and Sosa in
the belief that these employees were engaged in a
concerted work stoppage designed to demonstrate
their dissatisfaction with Respondent's supervisory
policies. The Administrative Law Judge further found
that such concerted activity, had it occurred, would
have constituted activity protected by Section 7 of the
Act in accordance with the Board 's decision in Dobbs
Houses, Inc.'
Respondent excepts to both conclusions, contend-
ing (a) that the discharges were motivated by
Hammond's belief that these employees were at-
tempting to undermine Respondent's production
deadlines and, therefore, the discharges were justified
and (b) assuming arguendo that Hammond believed
the work stoppage was related to an employee protest
over Respondent's supervisory policies, such concert-
ed activity does not fall within the parameters of em-
ployee rights under Section 7 of the Act.
It is undisputed that Hammond's predecessor,
Grant, was well liked by the employees of the data
entry department and, whatever Grant's motivation
in deciding to resign her position, it is equally clear
that many employees believed her resignation to have
been forced by Respondent's refusal to make various
concessions sought by Grant for the employees in-
1 135 NLRB 885, enforcement denied 325 F.2d 531 (C.A. 5, 1963).
valved herein. According to, Sosa, Grant, in a meeting
with all employees in her department, stated "she
didn't make up her mind, Tanner [the immediate su-
perior of Grant, and, subsequently, of Hammond]
had made up her mind . . . she asked for raises for us
and they wouldn't give it to her. She asked for a better
room and they wouldn't do it. She asked for them to
paint the room, they wouldn't do it. She asked for
carpeting on a floor, better machinery; they wouldn't
do it."
Dissatisfaction with Grant's "discharge" led several
employees, including Barac and Sosa, to discuss the
possibility of a walkout designed to force Respondent
to take whatever action might be necessary to retain
Grant as their supervisor? In an interview with a ma-
jority of the employees, including Sosa, Tanner was
told of this discontent and voiced the hope that the
employees would not engage in a walkout in support
of Grant. Hammond herself testified that several em-
ployees had similarly expressed their dissatisfaction
with Grant's leaving in the course of individual inter-
views she conducted with department employees soon
after taking over Grant's supervisory functions on
November 5, 1973.
Within less than 2 weeks after Hammond replaced
Grant, considerable changes had been made in the
working conditions of the employees in Hammond's
department. Under Grant, these employees were per-
mitted to maintain flexible working hours and to for-
go a company policy requiring the punching of
timeclocks and, generally speaking, production dead-
lines were not considered of crucial importance. Un-
der Hammond, these policies were changed. Thus the
inference by the Administrative Law Judge that Ham-
mond, during the critical events of November 14 and
15, was aware of the resentment her presence and
Grant's absence had caused is warranted.
On the evening of November 14, Barac and Sosa,
along with several other employees of Respondent,
attended a party in honor of Grant at an area cocktail
lounge. The party coincided with a production dead-
line date for which Hammond had requested several
employees to work overtime. During the course of the
evening, several employees had too much to drink.
Sosa indicated that it was unlikely she would be able
2 The dissent does not, in our view , properly characterize the nature and
extent of this employee discussion of a walkout . Both Sosa and employee
Kapanowski testified that all the employees initially discussed the possibility
of a walkout but, in Kapanowskt's words, "after awhile those discussions
were rather cooled off. There wasn' t quite enough support in the department
for a walkout but they decided that they wanted to make some kind of protest
to let management know that they were unhappy."
We also would not characterize these discussions as, in the dissent's words,
"meaningless , since Grant's resignation was not forced " As we noted in
Dobbs Houses, Inc, supra, the employees' assumption that a supervisor had
been discharged was the relevant consideration, as opposed to an actual
discharge, in determining whether subsequent employee action constitutes
protected concerted activity
212 NLRB No. 109
HENNING AND CHEADLE
to report to work the following day, whereupon sever-
al employees, including Barac, bet her she would
show up the next morning. Both Barac and Sosa failed
to report the following morning. Barac, who had a
different starting time than Sosa, initially called in to
find out whether Sosa had reported to work in order
to determine if she had won her bet. She was told that
Sosa was out, having called in sick. Later that morn-
ing Barac, still prior to her starting time, called in sick
and, this time, was informed by Hammond that she
was fired. Hammond testified that she told Barac she
was aware of the prior evening's bet and knew Barac
was not sick and that Barac was aware of the deadline.
Sosa called in sick again on the following morning,
November 16, and was terminated by Hammond for
the same reasons.
Significantly, Tanner, Hammond's immediate su-
perior, testified that it was not unusual for deadlines
to be extended and that, up until the time of the
hearing, the only terminations in the data entry de-
partment were those of November 15 and 16 and that,
in subsequently discussing the discharges with Ham-
mond, the latter expressed the view that the employ-
ees were trying to get her to quit. Employee
Kapanowski, similarly terminated,' testified that
Hammond told her she was "influencing the other
girls" and that she couldn't "tell me its coincidental
that the other girls didn't come into work."
Our dissenting colleague would overlook the proba-
tive value of this evidence by contending that it is
unclear whether Hammond thought the girls "had
deliberately gotten drunk . . . or that they weren't
incapacitated at all." We think it clear that Hammond
held the latter view. It would seem extremely logical
for Hammond to have indicated her view that the
employees were "drunk." Indeed to have dismissed
the employees for that reason alone would have been
altogether proper.4 Instead, Hammond consistently
offered the view that she "knew the employees were
not sick," that she "knew about the bet" and "couldn't
be told it was a coincidence" that the other girls at the
party didn't come to work. From this the dissent is,
forced to conclude that Hammond may well have
meant that she knew the employees were drunk but
did not consider that a "sickness." Even less persua-
sive is the alternative theory advanced by the dissent,
that Hammond may have felt the employees had ar-
ranged to get drunk in order to have an excuse for not
reporting to work. Why the employees would actually
have to get drunk, as opposed to calling in and saying
they were drunk is not entirely clear. What is clear is
3 Kapanowski , who had announced her intention to resign a day later,
November 16, 1973, was not named a discriminatee by the General Counsel,
apparently because the violation , as to her , was considered de minimis
d See In , 6, infra
777
that Hammond felt "harassed," could not "be scared
easily," and thought the girls were "making it rough
on her."
Apparently, our dissenting colleague would agree
that this evidence could "be said to show that Ham-
mond thought the conduct of the girls of November
14 and 15 was concerted." Thus, the major thrust of
the dissent is that such concerted activity, had it oc-
curred, does not enjoy the protection of the Act be-
cause of the absence of a "lawful purpose," a purpose,
in the dissent's words, "of harassing [Hammond] so as
to force her to quit."
The absence of any authority cited by the dissent
for the proposition offered is, no doubt, the result of
the Board's consistent holding that "any rule which
would base the determination of whether a strike was
protected upon its reasonableness in relation to the
subject matter of the "labor dispute" is a rule with
which we disagree.' Underpinning that view is the
realization that any employee protest has characteris-
tics of "harassment" from the vantagepoint of those
against whom the protest is directed. We have consis-
tently held that "concerted action by employees to
protest an employer's selection or termination of a su-
pervisory employee" (emphasis supplied) is protected
action where "the identity and capability of the super-
visor involved has a direct impact on the employees'
own job interests " 6 Thus, whether Hammond con-
sidered the protest an "harassment" is not so impor-
tant , in our view, as the evidence indicating she
considered it a protest directed at her supervisory poli-
cies.
In the same vein is Respondent's contention that
the discharges were justified insofar as Grant was an
inefficient supervisor and the new conditions-of em-
ployment instituted by Hammond were designed to
correct such inefficiency. But whether or not Grant
was inefficient or the changes in working conditions
instituted by Hammond redounded to the benefit of
Respondent or even its employees is not germane to
the present inquiry, for it is well settled that in the
determination of the existence of a labor dispute the
wisdom, necessity, justification, or reasonableness of
the employees' decision to take concerted action is
irrelevant.' Here, although it is uncontroverted that
these discriminatees did not, in fact, engage in con-
certed activity, in agreement with the Administrative
Law Judge, Respondent's belief that such concerted
activity had occurred is controlling.'
5 See Plastilue Corporation, 153 NLRB 180, 183 (1965), Kelso Marine, Inc,
Kel Stress Division , 199 NLRB 7 at In 20 (1972), Okla-Inn, d/b/a Holiday
Inn of Henryetta, 198 NLRB No 68 (1972)
6 Dobbs Houses , Inc, 135 NLRB at 888 See also Plastilite Corporation,
supra , Okla-Inn, supra , Kelso Marine, Inc, Kel Stress Division, supra
7 See N L R B v Washington Aluminum Co, Inc, 370 U S 9, 16 (1962);
N L R B v Mackay Radio & Telegraph Co, 304 U S 333 (1938)
8 See , e g. San Juan Lumber Company, 144 NLRB 108 ( 1963) In this case,
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We conclude, then, that employees Barac and Sosa
were terminated because of Hammond's erroneous
belief that they had engaged in a concerted work stop-
page in protest over Respondent's supervisor policies,
that the identity and capability of their supervisor had
a direct impact on their working conditions, and that
such a work stoppage, had it actually occurred, would
have constituted protected activity under Section 7 of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Henning & Cheadle, Inc.,
Detroit, Michigan, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
MEMBER KENNEDY, dissenting:
In the middle of October 1973, Valerie Grant, su-
pervisor of the data entry department, announced
that she was resigning effective November 1, 1973.
Several girls who worked under Grant's supervision
and with whom she was popular were under the im-
pression that Henry Tanner, data center manager,
had forced the resignation. These girls were upset and
at first talked about a possible walkout in support of
Grant, but, when sufficient support for this tactic did
not develop, the girls decided on a meeting with Tan-
ner to express their unhappiness. On October 16, the
girls met with Tanner, out of the presence of Grant,
and asked him to talk to Grant and try to persuade
her to remain . Tanner did talk to Grant who told him
that it was no use talking to her, and that she had
made up her mind to quit. Apparently Grant was
unhappy with the supervision exercised over her de-
partment.
Grant was succeeded as supervisor by Ginger Ham-
mond on November 1, 1973. On assuming supervi-
sion, Hammond met with the girls in her department
and outlined what she expected to accomplish, includ-
ing a tightening of discipline. Thus she told the em-
ployees that she expected them to punch in and out
at the beginning and end of their work periods and at
we further pointed out that it was within the employer's authority to dismiss
the discriminatees involved because of their failure to report to work-but
not because they had engaged in protected concerted activity Similarly, in
the instant proceeding, it was within Respondent's entitlement to dismiss
Barac and Sosa for failing to report on the evening of November 14 and on
November 15, however, as in San Juan Lumber, we conclude such failure to
report was not the motivating factor in Hammond's decision to terminate
them
lunch, to keep daily worksheets indicating the amount
of time they spent on a project and to improve their
attendance records. The 15th day of the month is an
important deadline date for the department. On this
date, all information relative to salesmen's commis-
sions must be entered if salesmen are to receive their
commissions on time. On November 14, the depart-
ment was behind in the processing of sales slips which
had to be completed by noon on November 15. Ac-
cordingly, on the afternoon of November 14, Ham-
mond asked for volunteers to work overtime that
evening. In response to this request, employee Pat
Barac, whose normal work period was from 12 noon
to 8 p.m., agreed to work till 12 p.m. that evening.
Another employee, Gloria Seats, had started on her
regular workshift from 5 p.m. to I a.m. Both Barac
and Seats left for a bite to eat at 8 p.m.
It seems that on the evening of November 14 a
number of girls in the department, including Barac,
Seats, and Pascuala Sosa, went to a nearby cocktail
lounge to attend a farewell party for Grant and to give
her a gift. The party was very successful and lasted
well into the following morning. Barac, Seats, and
Sosa all drank too much. As a result neither Barac nor
Seats returned to work that evening and did not tele-
phone to explain that they would not be back. During
the evening, Sosa said that she was drinking too much
and that she thought she would not be able to work
the next day; her working hours were from 8 a.m. to
4:30 p.m. Several of the other girls bet her that she
would go in. At about 8 a.m. on the following morn-
ing, Barac, who was according to her own testimony
still drunk, telephoned the office to inquire about
whether Sosa had reported for work. She explained to
the employee taking the call about the party and the
bet. She telephoned Hammond at 11:30 a.m., a half
hour before her regular reporting time, to say that she
was sick and wouldn't be in to work that day. Ham-
mond thereupon said she was fired. Barac testified
that she called Hammond back a few hours later and
asked why she had been fired. Hammond answered
that Barac was "undependable."9
Sosa, who was scheduled to start work at 8 a.m. on
November 15, telephoned to say that she was sick and
wouldn't be in to work that day. On November 16, she
called again and said she was still sick and wouldn't
come in. Hammond told her she was fired. Hammond
testified:
I told her that I knew that she was not sick. That
I had heard about the bet that she and Pat Barac
had had. I felt that she was just taking time off
9 According to Hammond 's account , in her 11 30 telephone conversation
with Barac , she told Barac that she was aware of the bet with Sosa and knew
that Barac wasn ' t sick and that Barac was "aware that there was a deadline
to be met in the department"
HENNING AND CHEADLE 779
to more or less keep the department from meet-
ing deadlines that had been set.
Gloria Seats had gone to dinner at 8 p.m. on No-
vember 14 and had not returned as expected to work
until I a.m. When she called the following day, Ham-
mond told her she was terminated for not returning to
work the night before. According to Hammond, Seats
"knew there was a deadline and there was jobs to be
done. You don't walk off of a job." However, Seats
was reinstated after she appealed to Tanner and ex-
plained that as a result of her drinking she had had an
asthma attack and had to go to a hospital.
The majority adopts the Administrative Law
Judge's finding that the employees' conduct on No-
vember 14 and 15 was not the result of concerted
activity on their part and therefore did not come with-
in the protection of Section 8(a)(1) of the Act. Howev-
er, the majority finds that Hammond believed, albeit
mistakenly, that the employees' absence from work
"on November 15 was part of a continuing protest
over Respondent's supervisory policies" and was
therefore unlawful. To prove a violation, the General
Counsel therefore has to establish by substantial evi-
dence that Hammond believed that the employees
were engaging in protected concerted activity by not
reporting back to work on November 14 and by not
reporting for work on November 15, and that but for
that belief the employees would not have been termi-
nated. This is a heavy burden and I do not believe that
the General Counsel has sustained it.10
The majority finds that Hammond believed that the
employees were engaged in a continuing protest over
Respondent's supervisory policies. Apparently, ac-
cording to the majority, the protest began in mid-
October when some of the employees discussed the
possibility of a walkout on first learning of Grant's
resignation. However, this talk took place 2 weeks
before Hammond assumed her position and a month
before the discharges. Not only did this talk among a
few employees fail to win the support of a majority of
the employees, it was also meaningless since Grant's
resignation was not forced; she was determined to
resign as she told the girls and Tanner and could not
be persuaded otherwise. Moreover, Hammond testi-
fied without contradiction that she was never in-
formed of Tanner's meeting with the girls at which
mention was made of a possible walkout. According-
ly, there is not only absence of any evidence of a
continuing policy of protest over Respondent's super-
10 "While it is unnecessary for the General Counsel to produce direct proof
of the employer 's actual state of mind . facts must be such as to uphold
an inference of the employer's discriminatory motivation " N LR B v Ford
Radio & Mica Corporation, 258 F 2d 457, 462 (C A 2, 1958)
visory policies, there is also an absence of any evi-
dence that Hammond believed that there was such a
policy. It is true that in conversations with girls some
of them told Hammond that they liked her predeces-
sor, Grant, liked the way she had supervised, and
disliked her leaving. But this is a far cry from suppor-
tive evidence of any inference that Hammond be-
lieved the girls were engaged in a policy of protesting
supervisory policies."
Hammond's own account of the reasons given to
the discharged employees for the discharges is as fol-
lows:
To Barac:
I told her that I was aware that there was a bet
on to whether Pascuala [Sosa] would come in
today to work and I knew she wasn't sick. That
she could come in and clean out her drawer be-
cause she was terminated, that she was aware
that there was a deadline to be met in the depart-
ment.
To Seats:
I told Gloria [Seats] that since she had left the
office at 8:00 o'clock the night before, never
came back in, never reported to anybody, that I
was going to terminate her. You know just for
leaving, she knew that there was a deadline and
there was jobs to be done. You don't walk off of
a job.
To Sosa:
I told her that I knew that she was not sick. That
I had heard about the bet'that she and Pat Barac
had had. I felt that she was just taking the time
off to more or less keep the department from
meeting deadlines that had been set. . . . That
she was terminated.
Tanner also testified that Hammond told him she felt
the girls were trying "to get her to quit and make it
rough on her."
Even if this testimony can be said to show that
Hammond thought the conduct of the girls on No-
vember 14 and 15 was concerted, I do not believe that
it constituted "concerted activities for the purpose of
. .. mutual aid or protection" within the meaning of
"According to Hammond 's further testimony , not all of the girls ap-
proved of Grant or were sorry that she had left She testified that the subject
of Grant's leaving was just a matter of "general conversation , there was no
heated battles or heated arguments on it In fact I heard it rarely discussed
among the employees"
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 7 of the Act. Hammond knew of the party on
the evening of November 14 before she fired the girls.
It is not clear whether she thought that the girls had
deliberately gotten drunk in order to have an excuse
for not reporting back to work, or that they weren't
incapacitated at all and had simply decided not to
work. It is true that Hammond told Barac and Sosa,
when they called to say that they wouldn't be in for
work on November 15, that she knew they weren't
sick. Indeed, she had the right to believe that they
were only suffering from hangovers, which is not gen-
erally considered a sickness.12 I am not aware of any
Board decision which holds that concerted drinking
to excess even for an otherwise lawful objective is a
form of concerted activity protected by the Act.
Moreover, even if she did believe that the girls were
engaging in some other form of concerted activity, I
do not consider that the concerted activity had a law-
ful object.
Tanner testified that Hammond told him she felt
that the girls were trying "to get her to quit and make
it rough on her." Hammond herself testified that in
conversation with Sosa after the discharge Sosa said
the bet did not mean anything. Hammond disputed
this. Whereupon Sosa said that if they had had a real
bet they "could make things so rough for me, that I
would leave." Hammond replied, "I don't scare easi-
ly." 13 Thus, the inference is warranted that, if Ham-
mond did believe that the girls were acting in concert
against her, she also believed it was for the purpose of
harassing her so as to force her to quit. I do not believe
that concerted activity for such a purpose enjoys the
protection of the Act.
Finally, in order to prove a violation the General
Counsel had to establish that, except for the belief
that the employees were engaged in concerted activi-
ty, Respondent would not have discharged them for
their derelictions on November 14 and 15. This is
extremely hard to assume and I do not believe that the
evidence supports such a supposition. The majority
members imply that meeting deadlines was not very
important. They refer to Tanner's testimony that it
was not unusual for deadlines to be extended, but they
omit his further statement that "it is important to have
the deadline met, the same as it would be to have your
pay check on time." If the midmonth deadline is not
met, salesmen do not receive their paychecks on time.
Hammond, in her first meeting with the girls in her
12 When Seats explained that she had become really sick as a result of her
drinking and had to go to a hospital, her discharge was rescinded and she
was reinstated to her former position although on probationary status.
11 Sosa's account of this conversation is that she belittled the bet as an
adequate reason for the discharge and that Hammond had then said- "I'm
sorry . . I don't scare easily " The scare statement doesn't make sense in
this context It is a reasonable statement if Hammond 's testimonial account
is accepted.
department, stressed the importance she placed on
deadlines. She testified, "When I have a deadline I do
everything that I possibly can to meet it." If there is
no evidence of other terminations for failure to meet
deadlines, there is also no evidence of any such fla-
grant misconduct on the part of employees as oc-
curred in this case. It should also be noted that
Hammond in November was a new supervisor who
was trying to impress upon the employees the necessi-
ty for improved discipline and tightening procedures
to get work out on time. Barac and Sosa were not the
only employees discharged by Hammond at this time.
Employee Kapanowski who also attended the party
for Grant called in sick on November 15 because she
too had a hangover. Hammond discharged her on
November 16 when she reported for what was to be
her last workday. This discharge is not alleged to be
unlawful. Hammond also discharged employee Tam-
ara Fischer on November 15 because Fischer left
work at 8 a.m. to keep a dental appointment without
first receiving Hammond's permission, and because
Fischer had harassed a new employee thereby causing
her to quit. Fischer had not attended the party for
Grant on November 14. The Administrative Law
Judge found that Fischer's discharge was not discrim-
inatory. The majority has adopted his finding. Thus,
of the four discharges at the very same time, only two
are found to have been discriminatorily motivated.
This casts further doubt on the majority's conclusion
that the failure of employees Barac and Sosa to report
for work on November 15 "was not the motivating
factor in Hammond's decision to terminate them."
In San Juan Lumber Company, 144 NLRB 108, re-
lied on by the Administrative Law Judge and by the
majority, it was clear that the reason for the discharge
of the employees was the employer's mistaken belief
that the employees had concertedly decided to stay
away from work in protest against the failure to re-
ceive their paychecks on time. There was no question
of employee misconduct. Similarly, in System Analyz-
er Corp., 171 NLRB 45 (1968), the employer dis-
charged several employees because of a suspicion that
the employees had collaborated in writing an anony-
mous letter to the company president complaining
about working conditions. Again, it was clear that but
for the employer's mistaken suspicion the employees
would not have been discharged. Here, in contrast,
employees had gotten drunk during mealtime and had
failed to report back for work either that day or the
day following because of their inebriated condition.
Before imbibing, the employees knew that their super-
visor was concerned about meeting a deadline and
that if they failed to report back for work as expected
disruption would occur. It seems to me unrealistic
speculation to say, as the majority does, in effect, that
HENNING AND CHEADLE
but for Respondent's belief that the girls were acting
in concert to protest Respondent's supervisory poli-
cies they would not have been discharged for getting
drunk and not reporting to work. I think most em-
ployers confronted with a similar situation would fire
the employees. Before I would be prepared to affirm
the majority's finding, I would have to see some evi-
dence that Respondent previously tolerated such mis-
conduct by its employees. I know of no such evidence
in this case. Accordingly, I dissent.
DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Administrative Law Judge: On November
20, 1973, Pat Barac filed with the Regional Director of
Region 7 of the National Labor Relations Board, hereinaf-
ter called the Board, a charge alleging that Automated Mar-
keting Services, Computer Division, violated Section 8(a)(I)
and (3) of the Act by terminating the employment of Pat
Barac and two other employees because they engaged in
concerted activities. On January 3, 1974, the Regional Di-
rector for Region 7 issued a complaint and notice of hearing
alleging that Henning & Cheadle, Inc., hereinafter called
Respondent, violated Section 8(a)(l) by the discharge of the
three employees named in the charge because they engaged
in concerted activites protected by Section 7 of the Act.
Respondent timely filed an answer denying the commission
of any unfair labor practices but admitting the termination
of the three named employees on or about November 15,
1973. On the issues thus joined the matter came on for
hearing before me on February I I and 12, 1974, at Detroit,
Michigan. All parties were present and represented by
counsel and had an opportunity to call and examine wit-
nesses and cross-examine them and to adduce relevant and
material evidence. At the close of the hearing the parties had
an opportunity to argue orally on the record and Mr. Walsh
on behalf of the Respondent took this opportunity. The
General Counsel waived oral argument. Briefs have been
received from the General Counsel and Respondent. On the
entire record in this case I and in consideration of the argu-
ment and briefs, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Henning & Cheadle, Inc., is admittedly the Employer
involved in this matter. The charge alleges the name of
Respondent as Automated Marketing Services, Inc., Com-
puter Division. The record reveals that Respondent's name
at the present time is Computers Services Division of Hen-
ning & Cheadle and documents from Respondent's records
name Respondent as AMS, Computer Services Division. In
the absence of any issue raised in the pleadings I presume
that AMS was a predecessor, at least in name, to Henning
1 General Counsel's unopposed motion to correct the transcript is granted
781
& Cheadle. Respondent is engaged in the service of provid-
ing marketing and communications services to other em-
ployers located in the Detroit area. It has various places of
business in Detroit; that involved in the instant proceeding
is located at 10000 Greenfield Street. Respondent annually
performs services valued in excess of $500,000 of which
services valued in excess of $50,000 are performed for vari-
ous enterprises located in States other than the State of
Michigan. Respondent annually also receives at its Michi-
gan facility goods and materials valued in excess of $50,000
from points located outside the State of Michigan. I find
that Respondent is an employer engaged in commerce with-
in the meaning of Section 2(2), (6) and (7) of the Act.
11 THE UNFAIR LABOR PRACTICES
Background
At the facility with which we are concerned, Respondent
operates a data entry department where the matters alleged
herein all took place.
Prior to November 1 2 the data entry department was
supervised by a Mrs. Valerie Grant. Mrs. Grant was very
permissive with her employees in matters of time and atten-
dance and appears to have been quite protective of them.
She was popular with most of the girls who worked for her.
It appears that on at least two occasions prior to November
Mrs. Grant had achieved raises or other benefits for her girls
by threatening to quit. Late in October she met with Opera-
tions Manager Tanner and again told him that she was
quitting. This followed what appears to have been a stormy
period of time resulting from the fact that some deadlines
had been missed by the employees working under Mrs.
Grant.'
When the girls learned that Mrs. Grant was going to quit
because of her differences with management they consid-
ered walking out in protest of her quitting but then agreed
that they would ask Tanner and higher members of manage-
ment to meet with them to discuss the matter Tanner met
with them the same day.4 The girls let Tanner know that
they wanted to retain Mrs. Grant as their supervisor but it
is not clear that at this time any mention was made of a
threat to walk off the job if Mrs. Grant was not retained.
Tanner took no action responsive to the meeting. On
November 1 a new supervisor, Mrs. Ginger Hammond, was
employed. Over the ensuing weekend, she worked at clean-
ing up the room in which the data entry employees worked
and on November 5 was introduced to her employees as
their new supervisor. She called a meeting of the employees
in Respondent's conference room, introduced herself to the
employees and told them that she wanted improvement in
their attendance and that her goal was to help them become
satisfactory keypunch operators so that they could move
into a better job. She also stated that she would have indi-
vidual meetings with the various girls at a later time.
On November 14 it became apparent to Mrs. Hammond
that she would have to have overtime hours worked in order
Z All dates hereinafter are in the year 1973 unless otherwise specified.
Operations Manager Tanner had been employed at this time only for
about a month
Tanner's immediate superior, Mr Taylor, declined tojoin in the meeting
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to meet a deadline forthcoming the following day and she
asked for volunteers to work that night. A number of girls
volunteered to work for various hours during the course of
the evening. At this time the data entry division was working
two shifts ranging from 8 in the morning until midnight and,
because there was a lot of overtime, frequently after mid-
night.
Also on the evening of November 14 several of the em-
ployees, having purchased a gift for Mrs. Grant, proposed
to have dinner with her in a nearby restaurant and give her
the gift. Among those present at the dinner were Vikki
Kapanowski, Pascuala Sosa, Pat Barac the Charging Party
and Gloria Seats.
The party apparently was a huge success. Kapanowski,
Barac and Seats all had too much to drink. During the
course of the party, Pascuala Sosa realized that she was
drinking too much and said that she thought she would not
be able to go in to work the next day. The other girls told
her that they did not believe her because her husband was
unemployed and she needed the money. The discussion
ended up with three of the employees each betting her $2
that she would be in the following day.
Pat Barac stayed with Gloria Seats until 4:30 in the morn-
ing and went home. Some friends awakened her at 8.30 5
and she called up the office to find out whether Sosa had
come to work. When she learned that Sosa had not come in,
she commented to the employee to whom she was talking
that she had won the bet and explained to her what the bet
was about. Barac called back at 11:30 and told Mrs Ham-
mond that she would not be in because she was sick. Mrs.
Hammond told her that she was fired. Mrs. Hammond
testified that she told Mrs. Barac that she was aware there
was a bet on whether Sosa would come in and that she knew
Mrs. Barac was not sick and that Mrs. Barac also knew that
there was a deadline to be met in the department that day.
Sosa called in on the 15th and told a fellow employee to
tell Mrs. Hammond that she would not be in because she
was sick. When she awakened on the 16th and again felt sick
she called Mrs. Hammond. Mrs. Hammond, according to
her testimony, told her that she knew Mrs. Sosa was not sick
and that she had heard about the bet between Sosa and Pat
Barac. Mrs. Hammond said she felt that Mrs Sosa was just
taking the time off to "more or less keep the department
from meeting deadlines that had been set and that she could
come in and clean up her drawer, she was terminated."
The timesheet provided by Respondent for Mrs. Sosa
bears the statement "terminated 11/15/73" which is
scratched out and below it is written "termination-quit
11/16/73."
Vikki Kapanowski called in sick on the 15th because she
too had a hangover. On the 16th she went in to work for
what was to have been her last day but before she com-
menced working she was informed by Mrs. Hammond that
she had been terminated effective the day before because
she had not come to work.
Gloria Seats called in on November 15 and told Mrs.
Hammond that she would be in the office at 2 o'clock to
start work. Her normal starting time was 5 o'clock but be-
5 She was not due at work until noon
cause she had left at 8 p.m. the preceding evening to go to
the party she planned to start work 3 hours before her
normal starting time on the 15th. This was consistent with
the custom under Mrs. Grant Mrs. Hammond told Miss
Seats to come in at 2 o'clock and they would have a discus-
sion. At 2 o'clock Mrs. Hammond told Gloria Seats that
since she had left the office at 8 the night before and never
came back she was terminated because she knew there was
a deadline and she dust could not walk off the job. Miss
Seats went to Operations Manager Tanner and talked him
into intervening on her behalf and the following day she was
permitted to return to work on a probationary status.
Tamara Fischer did not attend the party on the night of
the 14th. While she was nominally employed to work from
8 a.m. to 3.30 p.m., under another special arrangement with
Mrs. Grant she had been coming in between 6 and 6:30
most days and leaving earlier in the afternoon. On Monday
of the critical week, Mrs. Fischer had gone to the dentist
with a toothache and missed Tuesday because of the dental
work she was having done. She testified without contradic-
tion that she was excused by Mrs. Hammond for this pur-
pose. She came in on the morning of the 15th between 6 and
6:30 and worked until about 8 o'clock. When she arrived the
second shift supervisor was still present and awaiting the
arrival of Mrs. Hammond to tell her the status of the work;
instead she told Mrs. Fischer to pass on the information to
Mrs. Hammond. When Mrs. Hammond did not appear at
8 o'clock, Mrs. Fischer wrote her a note giving her the
message from the second shift supervisor and telling her
that she had to go to the dentist but would be back shortly.
As she was leaving at or about 8:10 she ran into Mrs. Ham-
mond who was dust arriving. She told Mrs. Hammond she
was late for her dental appointment and left hurriedly.
When she returned some time between 9:30 (Mrs. Fischer's
testimony) and 11 a in. (Mrs. Hammond's testimony), Mrs.
Hammond told her that she was fired because she had not
let her know earlier that she had an 8 o'clock dentist ap-
pointment and because Mrs. Fischer knew that she had a
deadline to meet at noon on the 15th.
Mrs. Hammond testified that she discharged Tamara
Fischer because of her failure to inform her in advance
about her dentist appointment on the morning of the 15th,
because of her bad attendance record in the past, and be-
cause she had "hassled" a new employee, a protegee of
operations manager Tanner, who had thereupon quit .6
Discussion and Conclusions
The General Counsel contends that the four girls, Fisch-
er, Kapanowski, Sosa and Barac were all terminated be-
cause Mrs. Hammond believed that they were engaged in
a concerted work stoppage on November 15 to embarrass
her and to cause Respondent to miss the November 15
6 It appears that the employee in question had been put to work for the
first time on a machine alongside Pat Barac, who was a very fast operator,
to learn the job During the morning Tamara Fischer made some comment
to her that she (Fischer) had spent $300 to be taught the keypunching, lob
and she did not think it was fair that the Company was paying the new
employee to learn it According to the testimony of Pat Barac the employee
subsequently cried in frustration and left the job about noon because she
could not perform to her own satisfaction It appears that it takes 2 or 3
months to become competent at the keypunching, lob at Respondent 's plant.
HENNING AND CHEADLE
deadline about which Mrs. Hammond was concerned.
From the testimony of Mrs. Hammond, which is not partic-
ularly inconsistent with that of the employees concerned, I
conclude and find that in fact Mrs. Hammond was aware
that the employees resented her firmness as a supervisor
after the laxity of the supervision of Mrs. Grant and on the
morning of the 15th believed that the employees were en-
gaging in a concerted work stoppage. I conclude and find
that for this reason every employee who was off on the 15th
was summarily discharged by Mrs; Hammond. The General
Counsel makes no contention with regard to Vikki Kapa-
nowski, who suffered only to the extent that her quit was
made effective a day sooner, or Gloria Seats, who also lost
only I day after the intervention of Operations Manager
Tanner, but he contends that the termination of Fischer,
Sosa and Barac violates Section 8(a)(1) of the Act. Respon-
dent contends that if Sosa and Barac were discharged be-
cause they were engaged in a concerted walkout, the
activity, while concerted, was not protected.
Respondent relies on the court decisions in Dobbs Houses
Inc., v. N.L.R B., 325 F.2d 531 (C.A. 5, 1963). Cleaver-
Brooks Mfg. Corporation v. N.L.R.B., 264 F.2d 637 (C.A. 7,
1959), and similar cases holding that employees may be
discharged for their failure or refusal to follow their employ-
ers' instructions or for their resistance to a change in super-
visors where the change was effectuated for the benefit of
the employer in order to improve production. The rule com-
monly used by the Board however is that recited in the
Dobbs Houses case, the appeal to which is cited by Respon-
dent. In the Board Decision at 135 NLRB 888 the Board
held:
... under well-established precedent, concerted ac-
tion by employees to protest an employer's selection or
termination of a supervisory employee is not automati-
cally removed from the protection of the Act. Each
case must turn on its facts. Where, as here, such facts
establish that the identity and capability of the supervi-
sor involved has a direct impact on the employees' own
job interests and on their performance of work they are
hired to do, they are legitimately concerned with his
identity.
In the instant case the identity of the supervisor certainly
has a direct impact on the employees' own job interests and
on their performance of work they are hired to do, in that
the former supervisor, Mrs. Grant, was very permissive, and
was prepared to go along with the employees' somewhat
casual attitude toward the Employer's established working
hours and with Mrs. Grant's easygoing attitude toward
meeting "deadlines."
Under the circumstances that this was a legitimate em-
ployee concern, although perhaps it could be considered
misguided, the action of the employees in concertedly pro-
testing Mrs. Grant's quit and the hire of Mrs. Hammond,
if indeed they took such action, appears to be protected
activity. However testimony of Vikki Kapanowski, Pascua-
la Sosa and Pat Barac is all consistent in that the three
employees concerned denied that their absence from work
on (November 15 was related to their protest against what
783
they appear to believe was the forced resignation of Mrs.
Grant. Each of the employees testified without contradic-
tion that they, and Gloria Seats with them, drank too much
on the night of November 14 and they were accordingly
unable to work on the 15th because of their ensuing hang-
overs. Respondent contends that for this reason the com-
plaint must be dismissed inasmuch as it is clear that the
employees were not engaged in protected concerted activity
or indeed in concerted activity at all. I conclude as I have
stated above that the employees were discharged because of
their failure to come to work on November 15. I conclude
further in agreement with Respondent that their failure to
come to work on November 15 was not due in any way to
their participation in concerted activity. However at this
point I must part company with Respondent. As the Gener-
al Counsel points out if the discriminatees were unlawfully
terminated because the Respondent believed that they en-
gaged in concerted protected activity the violation still ex-
ists.
For example, in San Juan Lumber Company, 144 NLRB
108, five employees, whom the Trial Examiner had found
failed to report to work because their car would not start,
were discharged because the foreman believed they had
remained away from work in a concerted protest against a
delay in paying them. The Board found that by discharging
them for this reason the respondent violated Section 8(a)(1)
of the Act, particularly since the respondent communicated
this rationale to its employees and thereby served notice
that concerted activity would not be tolerated in its plant.
Here Respondent served notice on its employees by the
reinstatement of Gloria Seats under probation after she had
successfully appealed her discharge to the production man-
ager. Similarly in System Analyzer Corp., 171 NLRB 45, the
Board found that the discharge of employees because the
employer erroneously believed that they had engaged in a
protected concerted act of writing a letter to the employer
which the employer took to be a threat of a slowdown
constituted a violation of Section 8(a)(3) and (1) of the Act.7
I find that by the discharge of Pascuala Sosa and Pat Barac
because Respondent believed that they had engaged in a
concerted work stoppage, Respondent violated Section
8(a)(1) of the Act.
With regard to Tamara Fischer, she was not one of those
who failed to work on November 15 because of the party;
she was discharged after she had already come to work, left
and returned, because of failure to inform Mrs. Hammond
in advance that she had a dental appointment, because she
had been blamed for "hassling" a new employee who subse-
quently quit and because she set her own working hours.
The General Counsel attempts to read into the language on
her employment security form "instigated friction among
coworkers" an acknowledgement by Respondent that she
was discharged in part because she had allied herself with
those employees who were protesting Mrs. Grant' s resigna-
tion . However I find equally inferrable the conclusion that
r Respondent contends that System Analyzer Corp is "not factually rele-
vant " The distinction it makes , i e , the nature of the suspected concerted
activities, is not valid I rely on the rule therein that the mere fact that the
employees had not engaged in the activities for which they were discharged
constitutes no defense to the employer who discharged them
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the quoted language referred to her alleged harassment of
the new employee and I believe that the General Counsel
has failed to establish his case with a preponderance of the
evidence . Accordingly I shall recommend that the com-
plaint , insofar as it alleges that the discharge of Tamara
Fischer violated the Act, be dismissed.
CONCLUSIONS OF LAW
1. Respondent Henning & Cheadle, Inc., is an employer
within the meaning of Section 2(2), (6) and (7) of the Act.
2. By unlawfully discharging Pascuala Sosa and Pat Ba-
rac on November 15, 1973, Respondent violated Section
8(a)(1) of the Act
3. The aforesaid unfair labor practices are unfair labor
practices burdening and obstructing commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
I find that it is necessary that Respondent be ordered to
cease and desist from the unfair labor practices found and
that it take certain affirmative action in order to effectuate
the purposes of the Act.
I shall recommend that Pascuala Sosa be reinstated to her
former job or, if that job no longer exists, to a substantially
equivalent job and that she be made whole for any loss of
pay she may have suffered by reason of the discrimination
against her by the payment to her of a sum of money equal
to that she would have earned but for the discrimination, in
accordance with the principles enunciated by the Board in
F W. Woolworth Company, 90 NLRB 289, and Isis Plumb-
ing & Heating Co., 138 NLRB 716.
With regard to Pat Barac the record reveals that on No-
vember 16 Operations Manager Tanner asked her to return
the following Monday and talk to Mrs. Hammond after
Mrs. Hammond had cooled off. While there is no evidence
that if Pat Barac had returned on the following Monday,
November 19, she would have gone back to work, the infer-
ence is fair that she would have done so, under the same
circumstances as Gloria Seats returned to work on Novem-
ber 16 after the intervention of Tanner. However, Gloria
Seats went back to work as a new probationary employee
and I believe the inference carries over to this point too. The
most I can infer is that if Pat Barac had come to work on
the following Monday, she would have returned to work as
a new probationary employee. While this evidence may
affect the computation of backpay, Tanner's suggestion
does not constitute an offer of reinstatement sufficient to
toll Respondent's liability to Mrs. Barac. Accordingly Re-
spondent should offer her reinstatement to the same or a
substantially equivalent job with backpay to the extent that
she has suffered a loss of income by reason of the discrimi-
nation against her.
Upon the basis of the foregoing findings of fact and con-
clusions of law and the entire record in this proceeding and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER'
Respondent Henning& Cheadle, Inc., its officers , agents,
successors, and assigns, shall:
1. Cease and desist from interfering with, restraining or
coercing its employees in the exercise of their Section 7
rights by discharging them because of its belief that they
had engaged in a concerted work stoppage to protest the
resignation of their supervisor
2. Take the following affirmative action:
(a) Offer Pascuala Sosa and Pat Barac full reinstatement
to their former Jobs or, if such former Jobs no longer exist,
reinstate them to substantially equivalent Jobs without prej-
udice to their seniority and other rights and privileges and
make them whole for any earnings they lost as a result of
their discharge. in the manner set forth above in the section
of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records and reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
recommended Order
(c) Post at its place of business at 10000 Greenfield Ave-
nue, Detroit, Michigan, copies of the attached notice
marked "Appendix." 9 Copies of said notice, on forms pro-
vided by the Regional Director for Region 7, after being
duly signed by an authorized representative of Respondent,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
(d) Notify the Regional Director for Region 7 in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
8In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board, the findings
conclusions and recommended Order herein shall, as provided in Sec 102 48
of the Rules and Regulations , be adopted by the Board and become its
findings , conclusions , and order, and all objections thereto shall be deemed
waived for all purposes
9 In the event that the Board's 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 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
After a trial at which all sides had the opportunity to present
their evidence, an Administrative Law Judge of the Nation-
al Labor Relations Board has found that we violated the
National Labor Relations Act, and has ordered us to post
HENNING AND CHEADLE
this notice and to keep our word about what we say in this
notice.
The Act gives all employees these rights:
To form, join or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
mutual aid or protection; and
To refrain from any and all these things.
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT discharge our employees because we
believe them to have engaged in a concerted work stop-
page for their mutual aid or protection.
WE WILL reinstate Pascuala Sosa and Pat Barac to
their same jobs or, if those jobs no longer exist, to
substantially equivalent jobs and we will make them
785
whole for any earnings lost because of our discharge of
them.
Dated By
HENNING & CHEADLE, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 500
Book Building, 1249 Washington Boulevard, Detroit, Mich-
igan 48226, Telephone 313-226-3200.