Leonard W. Moore Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1979

242 N.L.R.B. 1188 (N.L.R.B. 1979)

I) DECISIONS OF NA II()NAI. I.ABOR RELATIONS BOARD
Leonard W. Moore Industries, Inc.' and Van Storage
Drivers, Packers, Warehousemen & Helpers, Local
389, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica. Case 31-CA-8084
June 15, 1979
DECISION AND ORDER
BY MEMBERS PNEI.IO(), MULRPIIY ANi) TRUI SIJAILL
On January 24. 1979, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Therefter, Respondent filed exceptions
and a supporting brief, and General Counsel filed
limited exceptions, and, thereafter, an addendum
thereto.
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 brief
and has decided to affirm the rulings, findings.2 and
conclusions of the Administrative l.aw Judge and to
adopt his recommended Order, as modified herein)
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 Or-
The name of Respondent appears as amended at the hearing.
2 Respondent has excepted to certain credibility findings made by the Ad-
ministrative l.aw 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 DOr Wall Products, In., 91 NLRB 544
(19501. enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings. We do note that in the
introductory paragraph to his Decision the Administrative L.aw Judge indi-
cated one of the issues in the case as the alleged unlawful discharge of
Roberta Scheckton on June 25, 1978. Again, at sec. II. par 2. the Adminis-
trative Law Judge referred to Respondent's written work rules as having
been promulgated on June 25. 1978. In fact, both Scheckton's discharge and
the work rule announcement occurred n May 25, 1978.
While the Administrative Law Judge correctly found that Respondent
violated Sec. 8(a)3) of the Act by discharging Roberta Scheckton, he failed
to add to his recommended Order a provision directing Respondent to cease
and desist from such activities. We hereby reise the recommended Order to
correct that omission. Further, we revise pal. 2(b) of the recommended Or-
der to the extent that it requires Respondent to reinstate Scheckton only
upon her application for a job. Inasmuch as we have found that Respondent
unlawfully discharged Scheckton it must be ordered to offer her reinstate-
ment immediately, without regard to an antecedent application by Scheck-
ton.
General Counsel has excepted to the Administrative Law Judge's failure
to recommend that interest on backpay should he computed at 9 percent per
annum. We find no merit in this contention. Se Florida Stee/ Corporaiion.
231 NLRB 651 (1977).
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Leonard
W. Moore Industries, Inc., Sepulveda, California, its
officers, agents, successors, and assigns. shall take the
action set forth in the said recommended Order, as so
modified:
I. Substitute the following for paragraph (b):
"(b) Promulgating work rules reflecting more strin-
gent working conditions in order to discourage its em-
ployees' union activities."
2. Insert the following as paragraph I(c) and re-
letter the subsequent paragraph accordingly:
"(c) Discharing or otherwise discriminating
against employees because of their union activities."
3. Substitute the following for both paragraphs
2(a) and (b), and reletter the subsequent paragraphs
accordi ngly:
"(a) Offer Roberta Scheckton immediate and full
reinstatement to her former job or, ift' that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or other rights and
privileges previously enjoyed. and make her whole for
any loss of earnings she might have suffered as a re-
sult of the discrimination practice against her in the
manner set forth in the section of this Decision enti-
tled 'The Remedy.'"
4. Substitute the attached notice for that of' the
Administrative Law Judge.
APPENDIX
NolII( To EMPI OYLES
Pos I 1) BY ORI)ER OF IHE
NAI()ONAI. LABOR RELATIONS BOARD
An Agency of the United States Government
WE vinl1 Nor tell employees that a fellow em-
ployee has been discharged because she at-
tempted to get the Union into the plant.
WE wlL.1 NOI promulgate work rules reflecting
more stringent working conditions in order to
discourage our employees' union activities.
We wlli. NOi discharge or otherwise discrimi-
nate against our employees because of their
union activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of their rights under Section 7 of the Act.
WE )WILL offer Roberta Scheckton immediate
and full reinstatement to her former job or. if
that job no longer exists, to a substantially equiv-
alent position, without prejudice to her seniority
or other rights and privileges previously enjoyed,
and wtI: nvi.L make her whole for any loss of
earnings she may have suffered by reason of our
242 NLRB No. 163
I 188
LEONARD W. MOORE INDUSTRIES
unlawful discrimination against her, together
with interest.
LE()NARDI W. MOORE INI)SIRIES. IN(.
I)ECISI ON
S AII MEN1 (OF Itl- CASE
BERNARD J. Sit:f:, Administrative Law Judge: This mat-
ter was heard before me in Los Angeles, California, on Sep-
tember 25. 1978.1 The original charge was filed on May 30
by Van Storage Drivers, Packers. Warehousemen & Help-
ers, Local 389, International Brotherhood of Teamsters.
Chauffeurs, Warehousemen and Helpers of America (here-
inafter known as the Union). The complaint was issued on
July 18. The complaint alleges that Fred Fry. Respondent's
operation manager, informed an employee that another em-
ployee had been discharged because of their activities on
behalf of the Union. It is further alleged that on or about
June 25 Respondent discharged Roberta Scheckton because
of her union activities. By so doing it is alleged that Re-
spondent violated Section 8(a)(3) and (I ) of the Act.
All parties were given full opportunity to participate, to
introduce relevant evidence. to examine and cross-examine
witnesses. to argue orally, and to file briefs. Briefs. which
have been carefully considered. were filed on behalf of Gen-
eral Counsel and Respondent.
Upon the entire record of the case, and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing:
FINDINGS -OF A('
1. JURISI)( l(ON
Respondent is a corporation duly organized under and
existing by virtue of the laws of the State of California, with
an office and principal place of business located in Sepul-
veda, California, where it is engaged in the manufacture
and assembly of electronic components.
Respondent, in the course and conduct of its business
operations, annually sells and ships goods or services valued
in excess of $50,000 directly to customers located outside
the State of California. Respondent is an employer engaged
in commerce and in a business affecting commerce within
the meaning of Section 2(6) and (7) of the Act. I so find.
The Union is a labor organization within the meaning of
Section 2(5) of the Act and I so find.
11. THE ALLEGED UNFAIR L.ABOR PRACTICFS
At the hearing Respondent ame ded his answer to admit
that Madeline Ferreira is a supervisor, and that Fred Fry is
the operations manager.
On or about June 25. Respondent promulgated and has
maintained and enforced a written work rule for its employ-
ees which states as follows:
In recent months, productivity has become verv poor.
All dates are in 1978 unless otherwise specified
There are many reasons for this such as unsatisfactory
attendance and excessive tardiness. The major problem
is the ptoor attitude that is suddenly worsening. We
have observed that recently a lack of willingness to do
a good job exists. and resistance to authority and in-
subordination is becoming unacceptable.
You have placed us in a position that we now must
enforce our rules and regulations more rigidly. We be-
liexe that we are fair and these rules are in the best
interest of you, the employee, and us. Moore Indus-
tries.
Failure to adhere to our policies would result in imme-
diate disciplinary action up to and including dismissal.
The complaint alleges that Respondent in so maintaining
said written rules was motivated by a purpose to interfere
with employees' union activities, and to discourage them
from supporting the Union.
A. The W4ork Hlistory of Roherta Scheck ton
Scheckton began working for Respondent on February 1,
1977. as an assembler at the rate of $3 per hour. At the time
she was discharged, she was earning $3.70 per hour. Hler
immediate supervisors were Ferreira. the supervisor of the
assembly department, and Fred Fry. the operations man-
ager. Scheckton received three performance reviews while
being employed by Respondent. The last performance re-
view was dated January 31, at which time Scheckton re-
ceived a 25-cent-per-hour wage increase. This was the
maximum increase which Respondent gave to the assembly
employees at that time. In the review, FerreirM commented
that Scheckton "does good work." Although the report also
contains comments pertaining to improvement regarding
tardiness, absenteeism, talking, and the quantity of work
performed by her. erreira testified that Scheckton's work
performance was satisfactory at the time.
After the receipt of this most recent performance review,
the record shows that Scheckton's attendance improved
substantially. In January. Scheckton was tardy four times
and had three unexcused absences. In February, she was
tardy three times with four unexcused absences. In March.
Scheckton was tardy one time with one unexcused absence
for 3 hours. In April she was tardy one time, and in May
she was tardy on one occasion. There were no unexcused
absences in April or May.
It is to be noted that subsequent to the January 31 re-
view, Scheckton received no written warnings relating to
attendance, excessive talking, or productivity. No supervi-
sor ever called Scheckton aside or into an office to discuss
any problems concerned with excessive talking. Nor did she
receive an: oral warnings with respect to her attendance.
tardiness, or the amount of work she turned out.
B. Respondent's Knowledge of Union Campaign
The record shows that on or about May 18. Scheckton
telephoned the union business hall and spoke to Business
Representative Sten Thordarsen. Scheckton told Thor-
darsen that approximately 50 percent of the employees
were interested in joining the Union because the Company
did not have a uniform wage policy and new hires were
1189
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being paid more than senior employees. Thordarsen pro-
vided Scheckton with union pamphlets and authorization
cards. Scheckton's husband, who has an executive position
on the Union's Board of Trustees, delivered to her the ma-
terial that Thordarsen said he would provide.
On May 23 Scheckton distributed the union pamphlets
and authorization cards to approximately 11 employees.
For the most part, the materials were distributed during
nonworking hours. Two employees were given this material
during working hours.
During the week just prior to Scheckton's discharge, the
union campaign was a major topic of discussion which em-
ployees discussed among themselves and with Supervisors
Fry and Ferreira. The record shows that Ferreira testified
that she first learned about the union campaign about 2 or
3 days before Scheckton was fired. She said that some of the
girls mentioned this fact to her. She also testified that one
employee told her the Union had a majority of cards or
enough cards to get in. Fry testified that during the week
before Scheckton's discharge, he had two or three conversa-
tions with employees about the union campaign.
On or about May 24, employee Marion Hoffman asked
Ferreira if the employees would get off the Monday before
an upcoming holiday-the Fourth of July. Ferreira told
Hoffman that it all depended on how the union matter
went. Ferreira did not deny this conversation. There is no
doubt, based on the above-referred-to testimony that Re-
spondent's major supervisors, Ferreira and Fry, both knew
that a union campaign was in progress and that Scheckton
was the major instigator of this effort.
C. Scheckton' Discharge
On May 25, Ferreira told Scheckton that she was wanted
in Fry's office. Fry told Scheckton that she was fired. When
Scheckton asked why, Fry said because of tardiness. Fry
also told Scheckton that she was fired for poor production.
Scheckton's copy of the payroll change notice states as the
reason for her discharge: "Productivity unacceptable, tardi-
ness excessive, conducting other business during working
hours causing loss in production."
Subsequently, in a conversation that Fry had with em-
ployee Sandoval, Fry told her that Scheckton was fired "be-
cause she was trying to put the Union in."
Sandoval testified in a straightforward and direct man-
ner, and I was impressed with her demeanor and the fact
that her testimony was reasonable and I credit it.
While one of the explanations for Scheckton's discharge
was the fact that her production had allegedly fallen off, the
explanation with respect to the fall off in production was
supposedly tied in as the reason for the May 25 notice to
the employees. However, it is significant that Fry said he no
longer had information or records to substantiate the fall
off in production, and he went on to say that he was not
certain of the percentage drop in production. Contrary to
his contention about a fall off in production, the evidence
shows that in the month of May, a bonus in the form of a
check pool was given to eight employees whose timecards
are drawn at random and given when the plant meets its
monthly production quota. Fry testified that the bonus was
given when employees "do good." Fry's testimony is punc-
tuated with inconsistency. When interrogated about the
production bonus, at first Fry stated that he doubted the
Company gave a bonus based on production and that he
knew nothing about a bonus based on production. Finally,
Fry "recalled" that Respondent did give a bonus, based on
production when a certain dollar amount was shipped per
month.
May 2 45 units (with "gang")
May 2 6 units (with one other
employee)
May 9 8 units
May 10 1 unit
May 12 3 units (with one other
employee)
May 16 7 units (with one other
employee)
May 16 40 units (with four other
employees)
May 17 1 unit
May 18 2 units
May 19 2 units
May 23 1 unit
May 24 2 units
Based on these figures and in view of the fact that
Scheckton worked only 16 days in May, her output is ap-
proximately 2.4 units per day (38.6 units divided by 16
days.) The General Counsel's brief points out that this fig-
ure is well within Ferreira's quota or standard and is equal
to Scheckton's production during February to April, which
Ferreira considered satisfactory.
It should be noted that the manner in which the notice
was distributed by Ferreira to employees individually and
the timing of the distribution which took place only minutes
before the discharge of the leading union adherent, raises
the inference that the notice was promulgated in order to
discourage union activity and to provide a justification for
discharging Scheckton. When these facts are taken into
consideration, contrasted with the laxity of Respondent's
policy with respect to attendance, tardiness, and production
quotas, and the absence of evidence of a business need or
justification for the announcement or the notice, the severe
penalty of dismissal for infraction of these rules seems to
have been predicated on reasons other than those given by
Respondent. The conclusion is inescapable that the notice
was promulgated in order to discourage union activities on
the part of Respondent's employees and constitutes inter-
ference with employees' Section 7 rights.
D. Respondent Violated Section 8(a)(1) by Telling an
Employee that Scheckton was Discharged Because of Her
UInion Activities
Vickie Sandoval credibly testified that Fry told her on or
about May 26 that Scheckton was fired because she was
trying to put the Union in. The General Counsel calls atten-
tion to the fact that Sandoval is a disinterested witness,
having voluntarily terminated her employment around
June 1, and she's not personally friendly with Scheckton.
She therefore had no motivation to disparage Respondent
or to manufacture testimony. I have previously found San-
doval to be a credible witness, and I am persuaded that her
testimony is truthful.
1190
LEONARD W. MOORE INDUSTRIES
E. Respondent Discharged Scheckton Because o Her
Union A4 critities in Violation of Section 8(a)(3) of the Act
The record shows that Scheckton distributed union lit-
erature and authorization cards to fellow employees on
May 23. The evidence further establishes that Respondent
had knowledge of Scheckton's activities on behalf of the
Union. Employee Marion Hoffman testified without con-
tradiction that she had several conversations with Ferreira
about Scheckton's role in the union campaign. It is signifi-
cant that neither Fry nor Ferreira denied that they had
knowledge of Scheckton's union activities prior to her dis-
charge.
The proof that Respondent's motivation in the discharge
of Scheckton was discriminatory can be found in the fact
that her alleged infractions of work rules never resulted in
any warning or an opportunity to correct the alleged defi-
ciencies in her job performance. Added to these facts, it
should be noted that the timing of Scheckton's discharge.
two days after she had secured and distributed union au-
thorization cards, represents convincing evidence that Re-
spondent's actions were motivated by antiunion animus.
The fact that Scheckton was not given any warnings re-
garding the asserted deficiencies in her work performance.
and the fact that the asserted grounds for her discharge do
not bear scrutiny, together represent circumstantial evi-
dence of unlawful motivation. In this connection, the Gen-
eral Counsel's brief cites the case of Emer s I.G.A. Store of
Florence Inc., 219 NLRB 121 (1975), wherein the Adminis-
trative Law Judge stated:
If the Employer had really been disturbed by the cir-
cumstances it assigned as reasons for this discharge.
and had no other circumstance in mind. some word of
admonition, some caution that the offending lapse be
not repeated, or some opportunity for correction of the
objectionable practice. would be almost inevitable.
[Citing E. Anthony and Sons v. '. L. RB. 163 F.2d 22.
26 27 (C.A.D.C.).]
The General Counsel also calls attention to the fact that
once a prima facie case of discrimination has been estab-
lished, the burden is on the Respondent to prove that the
discharge was not based on discriminatory motives. When
the Respondent set forth that Scheckton's work was inter-
fered with because she was "conducting other business"
and that this referred to excessive talking. this position of
the Respondent does not explain the fact that employees
regularly collected money for gifts: passed greeting cards
among themselves for signature; sold shoes. Avon. and
Tupperware products: and took orders and circulated cata-
logs for such products. In addition, the employees con-
ducted a baseball pool during working hours without disci-
pline or reprisal. Ferreira was not only aware of these
activities but personally participated in them and certainly
condoned such actions by the employees. Furthermore. dis-
ciplining Scheckton for talking or "conducting other busi-
ness during working hours." while the same conduct was
engaged in by other employees is disparate treatment and
discriminatory. With respect to Respondent's contention
that Scheckton's production had fallen off and was below
par, it should be pointed out that she was never warned or
criticized about her productivity.
(oncluding Findings and .4 ltltltsi
The discharge of Scheckton presents a classic example of
a discriminatorily motivated discharge. As the General
Counsel sets forth in her brief. "A previously satisfactory
employee ho is suddenly discharged in mid-workweek.
without prior warning or notice, hard upon the discovery
that the employee is a supporter of a union which is trsing
to become the bargaining representative of the employees."
all add up to the fact that the stated reasons for the dis-
charge were a pretext and that the true reason for the dis-
charge is the Respondent's desire to rid itself of a supporter
of the Union.
As exemplified by the material reported in detail supra. it
is clear that the Company engaged in independent 8(a)( I
activit. when it told an employee that Scheckton was dis-
charged because she was trying to get the Union in and that
b3 the promulgation of a new set of rules, hard on the heels
of the commencement of a union organialtional campaign.
taken together with the discharge of Scheckton tor obhvi-
ousl, pretextual reasons establish that Scheckton was dis-
charged in violation of Section 8(a)(3) and I) of the Act.
It. II F IF-FI('I OF tLL rNFAIR ABOR 'RA 11( I t' P(N
( 0%S1 RCIF
The activities of Respondent set forth in Section 11
above, occurring in connection with the operations of Re-
spondent as described in the said section. have a close, inti-
mate and substantial relation to trade. traffic. and com-
merce among the several States. and tend to lead to labor
disputes burdening. and obstructing commerce. and the free
flow of commerce.
\. lil RlI:MtI)
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a}{3) and (I)
of the Act. it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action de-
signed. and found necessar. to effectuate the policies of the
Act.
It will he recommended that Respondent reinstate Ro-
berta Scheckton and pa\ her interest computed thereon in
the manner prescribed in F. I. 1 oolworth ('Conpatl. 90
NLRB 289 (1950). and lorida Steel (orporaion. 231
NLRB 651 (1977).2
Upon the basis of the above findings of fact and upon the
entire record in the case. I make the following:
( oSN(I I SI()Ns o I.A\\
1. Moore Industries is, and at all times material herein
has been. an employer engaged in commerce and in .a busl-
ness affecting commerce. within the meaning of Section
2(2). (6). and (7) of the Act.
2. Van Storaee rivers. Packers. Warehousemen and
Helpers. I.ocal 389. International Brotherhood of ealm-
sters. Chauffeurs. Warehousemen and Helpers of America,
2 See. generalls. Is Plumbinh g & ll,,zng ( .I 3 N RH ' 1( (1 I)2
1191
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is, and at all times material herein has been, a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. The promulgation of a new set of rules and regula-
tions immediately after the commencement of the union's
organizational campaign was in, and of itself, a violation of
Section 8(a)(1) of the Act since it was designed to inhibit
the employees from exercising rights guaranteed to them
under Section 7 of the Act.
4. When the operations manager, Fred Fry, told a fellow
employee that Scheckton had been discharged for trying to
get the Union in, this is an additional independent violation
of Section 8(a)(1) and I so find.
5. The discharge of Roberta Scheckton under the facts
and circumstances detailed. supra, represents a violation of
Section 8(a)(3) and (1) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER'
The Respondent, Moore Industries, New Orleans, Louisi-
ana, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Telling employees that a fellow employee had been
discharged because of her efforts to get the Union into the
plant.
(b) Promulgating a new set of rules immediately after the
commencement of a union organizational campaign-cau-
tioning employees that they would be discharged if they
engaged in too much talk, a failure to obey orders, a dim-
inution of production, and being excessively tardy or ab-
sent-all coming as it did immediately after the commence-
ment of the union organizational campaign was itself an
J In the event no exceptions are filed as provided by Sec. 102.46 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.
effort to inhibit the employees from engaging in actions
guaranteed to them by Section 7 of the Act.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the purposes of the Act:
(a) Make whole as described in "The Remedy" section
hereof, Roberta Scheckton all pay which she was denied as
the result of her discriminatory discharge and return to her
all rights of seniority and any other rights and privileges
which she enjoyed prior to her discriminatory, discharge.
(b) Upon application, reinstate Roberta Scheckton after
she has been made whole for any loss of earnings she may
have incurred, in the manner set forth in "The Remedy"
section of the Decision.
(c) Post at its principal place of business in Los Angeles,
California, copies of the attached notice marked "Appen-
dix."4 Copies of said notice, on forms provided by the Re-
gional Director for Region 31, after being duly signed by
Respondent's representative, 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 custom-
arily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(d) Preserve and, upon request, make available to autho-
rized agents of the Board, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records and
documents necessary to analyze the amount of payment
due under the terms of this recommended Order.
(e) Notify the Regional Director for Region 31, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
In the event that this Order is enforced by a judgment of a United States
Court of Appeals. the words in the notice reading "Posted by order of the
National Labor 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."
1192