Lignotock Corp.

National Labor Relations Board - Board Decisions

Apr 11, 1990

298 N.L.R.B. 209 (N.L.R.B. 1990)

LIGNOTOCK CORP. 209
Lignotock Corporation and International Union,
United Automobile, Aerospace & Agricultural
Implement Workers of America , and Gary
McCormick. Cases 4-CA-17325 and 4-CA-
17741
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
April 11, 1990
DECISION AND ORDER-
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On July 11, 1989, Administrative Law Judge
Richard H. Beddow Jr. issued the attached deci-
sion. The General Counsel filed exceptions and a
supporting brief, and the Respondent filed a brief
in opposition to the General Counsel's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended
Order.
1 The General Counsel has excepted of some of the judge's credibility
findings The Board 's established policy is not to overrule an admmistra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings. We note in this regard that the judge did not rely
primarily on demeanor in discrediting the testimony of former Supervisor
Marcel Blachowski . When the demeanor factor is diminished , the choice
between conflicting testimony rests not only on demeanor , but also on
the weight of the evidence, established or admitted facts, inherent prob-
abilities, and reasonable inferences drawn from the record as a whole. El
Rancho Market, 235 NLRB 468, 470 (1978), enfd 603 F.2d 223 (1979).
Based on our examination of the record in this case, we agree with the
judge that Blachowski 's testimony regarding the time and dates when he
claimed that important events occurred here was extremely vague, incon-
sistent, and often confusing . Thus, since we adopt the judge's finding that
this testimony was generally incredible , we find it unnecessary to rely on
his additional suggestion that a report to management of rumors of union
activities would not establish knowledge of such activities without evi-
dence that the report was "taken seriously."
In the section of his decision entitled "The Alleged Unfair Labor Prac-
tices," the judge, in the first paragraph , referred to employee "Elly
Chowdherry," whereas that person's correct name, as the judge stated
elsewhere in his decision, is Chowdherry Elly. We correct the judge's
inadvertent error in this regard.
2 In the , section of his decision entitled "Discussion," the judge stated
in the fifth paragraph that the General Counsel here did not meet the ini-
tial burden of Wright Line, 251 NLRB 1083 (1980), by "presenting a
prima facie showing, sufficient to support an inference that employees'
Union activities were the motivating factor in Respondent's decision to
terminate them ." (Emphasis added .) Although we agree with the judge
that the General Counsel failed to establish a prima facie case of unlawful
discharge as to any of the three discrimmatees, we stress that under the
Wright Line test, in order to make a prima facie case , the General Coun-
sel had to show only that the employees' union activities were a motivat-
ing factor in the Respondent's disciplinary decision. See, e.g., Fern Ter-
rance Lodge of Bowling Green, 297 NLRB 8, 9 fn. 11 (1989)
Margarita Navarron Rivera, Esq., for the General Coun-
sel.
Barry F Bevacqua, Esq. and Nancy Abrams, Esq., of
Philadelphia, Pennsylvania, for the Respondent.
Frank Hoefert, of Stanford, New Jersey, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
RICHARD H . BEDDOW JR., Administrative Law Judge.
This matter was heard in Philadelphia, Pennsylvania, on
January 23-27, 1989. The proceeding is based upon
charges filed April 26 and November 29, 1988,1 respec-
tively by International Union, United Automobile, Aero-
space & Agricultural Implement Workers of America
and Gary McCormick, an individual. The Regional Di-
rector's consolidated complaint dated January 11, 1989,
alleges that Respondent Lignotock Corporation, a Dela-
ware corporation, violated Section 8(a)(1) and (3) of the
National Labor Relations Act by discharging employees
Chowdherry Elly, Alan Dickinson, and Gary McCor-
mick because of their union activities and by changing
the working conditions of its employees by requiring em-
ployees to punch in and to punch out when leaving
during the regular workday. During the hearing, General
Counsel amended the consolidated complaint to, include
a new allegation that the Respondent interrogated em-
ployees about their union activities and created an im-
pression of surveillance.
Procedural Matters
Provisions were made for the late filing of a joint ex-
hibit based upon indications that relevant matters could
be reflected in audio tapes of telephone calls made to the
Burlington Township New Jersey police station on Janu-
ary 6, 1989. After listening to that tape the parties filed a
stipulation stating that no conversations between Detec-
tive Richard Whelan and any Board agent were heard
during that time. I hereby receive that stipulation as
Joint Exhibit 1.
On March 9, 1989, the General Counsel also moved to
correct the transcript. The request is granted and it is re-
ceived into evidence as General Counsel's Exhibit 19.
On March 17, 1989, the Respondent filed a request to
file a reply brief (and a tendered brief). This was fol-
lowed on April 10, 1989, by General Counsel's motion to
strike portions of Respondent's brief and on April 11,
1989, by a motion in opposition to Respondent's request.
First, I will deny the Respondent's request inasmuch
as my review of the record and my observations during
the course of the hearing provided a sufficient and
proper basis for my decision independent of any addi-
1 All following dates will be in 1988, unless otherwise indicated.
298 NLRB No. 21
210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tional arguments and I find no persuasive reason to fur-
ther burden the proceeding with additional matter.
Next, I will also deny the General Counsel 's motion,
although the Respondent 's argument relative to its per-
ception of certain conduct attributed to a Board agent's
dealings with several of the witnesses are forceful, I find
that they are not so unrelated to the credibility of the
testimony of the witnesses as to be clearly irrelevant or
improper . Accordingly, I do not find that good cause has
been shown to warrant a grant of the relief requested.
On a review of the entire record in this case and from
my observation of the witnesses and their demeanor, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a multinational corporation engaged in
the manufacture , distribution, and sale of automotive
parts at a facility in Mt. Holly , New Jersey, which em-
ploys approximately 105 production employees . It annu-
ally ships goods valued in excess of $50,000 from its lo-
cation to points outside New Jersey and it admits that at
all times material it is and has been an employer engaged
in operations affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act . It also admits that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
On March 4 employee Elly Chowdherry contacted
Union Representative Frank Hoefert about organizing
Respondent's Mt. Holly facility . After a meeting with
Hoefert, Elly invited select employees to a "party" at his
home on March 26. Hoefert and four employees attended
and, after discussing the Union , the employees signed au-
thorization cards . Nine employees attended a second
meeting with Hoefert at Elly's house , including Alan
Dickinson, who signed an authorization card . Subse-
quently, both Elly and Dickinson covertly passed out au-
thorization cards at work . Some time near the "end of
May, beginning of June," McCormick attended a meet-
ing at Elly 's home and he asserts that he then solicited
authorization signatures in the maintenance department.
Detlev Bartels, the Company's general manager, drove
past the plant during a second shift lunchbreak in March
1988 , and observed that the company parking lot was
nearly empty but later that evening saw a number of cars
in the parking lot. The next day he had a stern discussion
with Assistant General Manager Bernie Scibienski about
the incident and told Scibienski, who is responsible for
production, maintenance , and enforcement of rules, to
make sure that all employees complied with the
punchout rule.
In response to Bartels ' reprimand, Scibienski reissued
the punchout rule with an announcement at a previously
scheduled employee meeting on March 31. At that meet-
ing, Scibienski discussed a number of topics, including
the importance of complying with the punchout rule. In
addition , he told employees that , if they left company
property and did not punch out, they would be fired.
When the Mount Holly facility began operating in
1986, Respondent issued various written rules that were
posted on the employees bulletin board . These rules in-
cluded provisions about falsifying timecards (#4) and
leaving the premises without permission (#6). These
rules were supplemented by a well-recognized unwritten
interpretation which required employees to punch out
and back in if they leave the Company 's premises on per-
sonal business during their shift.
On April 5 , 1988 , less than 1 week after he reissued
the punchout rule, Scibienski walked out of the plant at
the lunchbreak to have a cigarette . He saw Elly and
Dickinson leave the company parking lot in Elly 's vehi-
cle and observed it continue down the public highway to
the next intersection.
When he returned to his office he asked Assembly
Manager Lance Csanady to check Elly 's and Dickinson's
timecards and learned that neither Elly nor Dickinson
had punched out.
At Scibienski 's request Csanady looked to see if
anyone else was in the parking lot. He found employee
Ramona Heller who then gave Csanady a statement
saying that she saw Elly and Dickinson leave the parking
lot. Another employee, Virginia Ruiz , came forward
later and described the circumstance under which she
also had also seen Elly and Dickinson leave the parking
lot during the lunch period . The next day Csanady met
with Elly in the presence of Carl Lainson, a production
supervisor. Elly acknowledged he knew about the
punchout rule, but denied leaving the parking lot , saying
he only drove around the parking area to check out a
problem with his car. At the conclusion of that meeting,
Csanady suspended Elly pending investigation of the in-
cident. Later that morning and again the same evening
Elly called Scibienski and explained his reasons for not
eating lunch and his car problems but did not admit to
leaving the premises.
Dickinson called in sick on April 6. When Scibienski
and Csanady met with him the next day Dickinson also
acknowledged knowing about the punchout rule and
riding in the car but he denied leaving the parking lot.
At the hearing , both Elly and Dickinson elaborated on
how and why they drove around the building and denied
leaving the premises, however, until Scibienski testified,
both were unaware that it was Scibienski who had per-
sonally observed them and initiated the investigation into
their conduct.
Scibienski personally made the decision to discharge
both Elly and Dickinson on April 13, the first day he re-
turned to the plant after April 7 and a business trip to
Detroit, Michigan . Both Elly and Dickinson were called
in and again repeated their denials but were told they
were discharged because they left company property
without punching out. No other reason was ever given
for their termination.
The Union filed a representation petition on April 20.
An election was scheduled for June 24, but the election
was never conducted because the Union withdrew its pe-
tition shortly before that date. The Regional Director ap-
proved the withdrawal of the petition on June 27.
LIGNOTOCK CORP. 211
In May, employee Gary McCormick requested a hard-
ship withdrawal from his 401K account. The Respondent
promptly acted to facilitate his request by cutting a com-
pany check for the amount of his savings rather than
making McCormick wait for the insurance company to
process his request. During the early summer of 1988,
McCormick experienced an absenteeism problem. In
July, subsequent to the Union's withdrawal of its peti-
tion, Respondent granted McCormick's request to trans-
fer to the second shift in order to help resolve his prob-
lem and it structured a special shift for McCormick until
he could be transferred to the second shift.
McCormick was working on the second shift on
August 18 when he asked for and received permission to
leave the Company's premises that evening at 7:30 p.m.
to go to the bank. It is undisputed that he lied to Super-
visor Joseph Lambert about the reason he needed to
leave and that he "forgot" to punch out before he left.
Lambert paged McCormick after a problem arose
around 8:30 p.m. but got no response. Two more subse-
quent pages for additional problems also were not an-
swered. Between 9 and 10 p.m. a major problem arose
when a generator "blewup" and caught fire. Lambert
paged McCormick without result. He put out the fire
with the assistance of another supervisor and again un-
successfully paged McCormick. He then notified Mainte-
nance Supervisor James Heslin at home. When Heslin
learned that McCormick could not be found, he came to
the plant to access the damage. At 10:45 p.m. McCor-
mick came up to Lambert and explained his "problems"
about returning.
After observing the damaged generator Heslin walked
the plant several times and, as he started to leave shortly
before 11 p.m., he saw McCormick getting out of a
pickup truck driven by another person. Heslin followed
him inside and saw him talking to Lambert. When Heslin
asked where he had been, McCormick said he had been
gone for a couple of minutes and then gave a "rambling"
explanation of his asserted problems that evening. Heslin
told him they would have to talk about it the next day.
He prepared a statement of what shad occurred the next
morning and gave it to Scibienski. Both Heslin and Lam-
bert testified that they smelled alcohol when they spoke
with McCormick and neither of them had used alcohol
that evening.
Scibienski personally interviewed McCormick the next
evening at work and (after he admitted that he lied to
Lambert) McCormick gave another explanation and
signed a statement. McCormick was suspended on
August 19 until Scibienski could investigate the matter
further. When Scibienski received police information in-
dicating that McCormick also had lied to him about the
circumstances surrounding his absence, McCormick was
called in and terminated on August 23 for violating com-
pany rules.
Employee Kim Harper testified that she learned about
the union campaign when she went to the "party" at
Elly's house. She did not attend other meetings but was
aware of other meetings as a result of conversations at
the plant with "Henry" or Elly. On one occasion Henry
"screamed" at her in the parking lot "are you going to
Elly's house?" at a time when Supervisor Lambert was
also in the parking lot. She said she always talks to Lam-
bert when performing her usual task and that when she
did so the next day he asked her if she knew "what was
going on over at Elly's house?" and she replied, "no."
She also testified that Lambert did not say anything
about the Union.
Marcel Blachowski was employed by the Respondent
as a production supervisor during the time that Elly,
Dickinson, and McCormick were employed. Blachows-
ki's duties included ensuring that the production line ran
properly and he spent much of his time in areas Where
the employees worked. He previously had been absent
for medical reasons and he was placed on medical leave
in May and no longer works for Respondent. He testified
that he heard rumors as early as December 1987 that a
union was trying to get in but said he did not think any-
thing of it because the previous year the same talk had
been going around the plant and nothing came of it. He
said that rumors reoccurred in March and April and that
other floor, supervisors also were aware of the talk. He
also said that at some unspecified time at the end of
March the rumors mentioned names, including Elly and
Dickinson, as being involved with the Union and that he
heard about the meeting at Elly's house.
At some unspecified point he told Lance Csanady, Re-
spondent's assembly manager (who is no longer em-
ployed by Respondent), about what he had overheard
and Csanady responded with laughter and indicated that
he already knew about it.
Subsequent to the time he was placed on medical leave
he attended two management training meetings. He testi-
fied that at the end of May or beginning of June at one
of the meetings the Union was mentioned and Lambert
said that McCormick had been involved in the Union the
year before, was a strong union supporter, and eventual-
ly "would be history." This was refuted by Lambert.
III. DISCUSSION
In a discharge case of this nature, applicable law re-
quires that the General Counsel meet an initial burden of
presenting sufficient evidence to support an inference
that the employees' union or other protected concerted
activities were the motivating factor in the employer's
decision to terminate them. Here, the record fails to
show that any of the three alleged discriminatees en-
gaged in open union activity. Moreover, there is no per-
suasive showing that the Employer knew about the iden-
tities of specific persons or any resurgence of union orga-
nizational activity, at the time Elly and Dickinson were
charged with improper conduct and discharged.
In contrast to the common practice whereby some
unions promptly notify management of the identity of
employees who will be engaged in organizing activity,
here, each of the discharged employees specifically testi-
fied that they sought to hide their involvement. Elly
called his meetings "parties" and McCormick actually or
deceptively sought to portray himself as being antiunion.
The record lacks credible, probative evidence that would
otherwise be sufficient to support any inference that the
Employer associated these individuals with any union ac-
tivities. The discharges were not made precipitously but
212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were made only after investigation and interviews and
were based upon valid business reasons, as otherwise dis-
cussed below. In this connection, I find Scibienski's testi-
mony that he personally observed Elly and Dickinson
leave company property to be highly credible and cor-
roborated. I also fmd that he is shown to have given
them more than one opportunity to admit their error and
that both employees repeatedly lied in regard to the cir-
cumstances of their actual conduct.
The record does show that there was some unpursued
talk about organizing a union in early 1987 but this was
prior to the time Scibienski came to the facility as assist-
ant general manager. Moreover, there is no indication of
prior antiunion animus and there is no showing of other
actions violative of employee rights under Section 7 of
the Act. There is nothing to indicate that Scibienski was
aware of any union activity by any of these individuals
when he made his decision regarding their discharge nor
is there anything that would support an inference to this
effect. There also is no probative evidence to show that
any supervisors were even aware of shop "rumors" prior
to the discipline against Elly and Dickinson. I do not
credit former Supervisor Blachowski's testimony in this
regard nor is it related to Lambert's alleged remark
about McCormick inasmuch as it was extremely vague
and inconsistent regarding dates, it often related to
"common knowledge" of persons other than himself, and
it is not corroborated by any other testimony, Moreover,
to the extent he indicated that he informed his supervisor
of the rumors it appears that his report was not taken se-
riously (apparently because of the past unsuccessful orga-
nizational attempt). The credible testimony by employee
Harper also fails to support a finding of supervisory
knowledge of union activities as otherwise discussed
below.
The record shows that McCormick has offered at least
five different and inconsistent accounts of the events sur-
rounding his lengthy absence from work-one to Lam-
bert, one to Heslin, one to Scibienski, one to the Board
agent, and one or more at the hearing. His accounts are
not substantiated by any independent evidence and in
fact are refuted by police records and the testimony of a
police officer who was a childhood friend. The evidence
and McCormick's demeanor reveal that he was persona-
ble and skilled at his job but that he used these attributes
in a deceptive manner to rationalize his behavior or
problems, regardless of the truth. His testimony, where it
is not adverse to his own interest, is unreliable and often
inherently implausible and, accordingly, I find no proba-
tive or credible testimony on his part that would substan-
tiate his allegations that he engaged in open prounion
conduct or otherwise performed his job duties in a
manner that would be inconsistent with those relied upon
by Respondent to justify his discharge.
Based upon the complete record, which essentially re-
futes the credibility of much of the testimony relied upon
in the General Counsel's prima facie presentation, I find
that the General Counsel has not met her initial burden
by presenting a prima facie showing, sufficient to support
an inference that employees' union activities were the
motivating factor in Respondent's decision to terminate
them, Accordingly, the record need not be evaluated in
keeping with the criteria set forth in Wright Line, 251
NLRB 1083 (1983), see NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393 (1983), to consider Respond-
ent's defense. It is clear, however, that the Respondent
has shown that the alleged discriminatees engaged in ac-
tions in violations of plant rules and standards of con-
duct, that it investigated the circumstances in a fair and
nondiscriminatory manner and imposed the penalty of
disciplinary discharge only after the employees persisted
in lying about their involvement in the incidents. Re-
spondent is shown to have had valid business reasons not
inconsistent with company rules and practices for dis-
charging these three employees and it otherwise did not
engage in any acts consistent with the illegal motivation
asserted by the General Counsel. Accordingly, I fmd
that Respondent's conduct refutes, rather than supports,
the allegations against it and, under all these circum-
stances, I conclude that the General Counsel has failed
to prove that the Respondent violated Section 8(a)(1)
and (3) of the Act in these respects, as alleged.
Turning to the separate allegations regarding interro-
gation and changes in working conditions, I also con-
clude that the record fails to support the General Coun-
sel's contentions.
The purported "evidence" regarding interrogation re-
lates to employee Harper's testimony that Supervisor
Lambert apparently overheard her being asked if she
was going to Elly's house and his subsequent inquiry
next as to what was going on at Elly's house. There was
no mention of the union except its use by a Board agent
in a draft of a statement (G. C. Exh. 12, which was with-
drawn). Harper specifically declined to sign the state-
ment because of its inaccuracies and she and Lambert
otherwise both testified that they did not talk about any
Union.
No evidence exists that any interrogation took place,
let alone any coercive circumstances, see Rossmore
House, 269 NLRB 1176 (1984). Accordingly, I fmd that
the record fails to support the amended allegation of the
complaint and I conclude that Respondent is not shown
to have violated the Act in this respect as alleged.
It is clear that Respondent's punchout rule was estab-
lished when the plant opened in 1986, that employees
(including the alleged discriminatees) were aware of the
rule, and that it previously had been enforced through
warning notices to employees. The rule was reissued and
discussed with the employees on March 31 (prior to
Elly's second party), for specific business reasons. Only
Elly and the four persons at his first party, were shown
to have, been aware of the Union's organizational effort
at this time and there is no evidence that could show or
support an inference that the Company knew of this
union activity when it reissued the rule. The rule is not
shown to hinder the employees' ability or right to
engage in organizational or other protected activity and
there is nothing to show or support an inference that
union activity or antiunion animus was a, motivating
factor in the Respondent's decision to reissue and pro-
vide for more strict enforcement of the rule, compare La
Reina, Inc., 279 NLRB 791 (1986), and, accordingly, I
LIGNOTOCK CORP. 213
conclude that Respondent is not shown to have violated On these findings of fact and conclusions of law and
the Act in this respect, as alleged, on the entire record, I issue the following recommend-
ed2
CONCLUSIONS O]F LAW
1. Lignotock Corporation is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Respondent has not violated Section 8(a)(1) and
(3) of the Act as alleged in the complaint.
ORDER
The complaint is dismissed in its entirety.
2 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.