M S Plastics of Ohio

National Labor Relations Board - Board Decisions

Mar 16, 1970

181 N.L.R.B. 705 (N.L.R.B. 1970)

M S PLASTICS OF OHIO 705
M S Plastics of Ohio and United Steelworkers of
America, AFL-CIO. Case 9-CA-5192
March 16, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On November 24, 1969, Trial Examiner George
A. Downing issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in a certain unfair
labor practice and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed
exceptions to the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, with the modification set forth
below.
aid or protection, or to refrain from any or all
such activities except to the extent authorized in
Section 8(a)(3) of the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE A DOWNING, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act
as amended was heard at Cincinnati, Ohio, on September
3, 1969,' pursuant to due notice. The complaint, which
was issued on June 27 on a charge filed May 26, alleged
in substance that Respondent engaged in unfair labor
practices proscribed by Section 8(a)(1) and (3) of the Act
by discriminatorily discharging Elizabeth M. Andres on
May 13 because of her union membership and activities
and/or because she engaged in protected concerted
activities for the purpose of collective bargaining or other
mutual aid or protection. Respondent answered on July 3
denying the unfair labor practices.
Upon the entire record in the case and from my
observation of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTIONAL FINDING; THE LABOR ORGANIZATION
INVOLVED
I find on admitted allegations of the complaint that
Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act' and that the charging
union is a labor organization within the meaning of
Section 2(5) of the Act
II THE UNFAIR LABOR PRACTICES
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
herein modified, and hereby orders that the
Respondent, M S Plastics of Ohio, Cincinnati,
Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified.
1. Delete the first three words of paragraph 1(b),
"In any manner," and substitute therefor the
following:
"In any like or related manner."
2. Delete the second paragraph of the "Notice"
and substitute therefor the following:
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization,
to form labor organizations, to join or assist any
labor organization, to bargain collectively through
representatives of their own choosing, or to
engage in other concerted activities for the
purpose of collective bargaining or other mutual
A. The Issue
The sole issue herein is whether Respondent discharged
Elizabeth M Andres on May 13 because of engaging in
protected concerted activities within the meaning of
Section 7 of the Act.' There is no question that Andres
was discharged because she constantly complained about
various conditions of employment, but Respondent
contends that her complaints represented only her
personal "gripings," disassociated from furthering group
welfare or invoking group action, and were in any case
not protected activities
All events herein occurred in 1969 unless otherwise noted
'Respondent , an Ohio corporation engaged at Cincinnati in the
manufacture of plastic products , purchases annually directly from
extrastate points goods valued in excess of $50,000 and sells and ships
annually directly to extrastate points products valued in excess of $50,000
'An alternative allegation that Andres was discharged because of her
activities on behalf of Steelworkers was dismissed at the hearing, on
Respondent 's motion, upon failure of the General Counsel to establish that
Respondent had knowledge of such activities Both General Counsel and
the Steelworkers ' representative conceded there was no direct evidence of
knowledge , but General Counsel now argues that knowledge may be
presumed because of the small size of the plant ( 115 employees) The
Board had held, however, that the small plant doctrine, standing alone,
does not afford sufficient basis for indulging a presumption of knowledge,
and I find nothing else of substance in the record which will support a
finding that Respondent was even aware that Steelworkers had begun an
organizational campaign
181 NLRB No 104
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Evidence
The facts which are of controlling significance herein
are virtually undisputed Respondent's plant was under
construction during the time of the events and the working
conditions were such that daily complaints were made by
a large number of employees, some of whom also felt that
conditions were not as Personnel Director Eugene Furr
had represented them to be during the hiring interviews.
Aside from "rustic" physical conditions (e g., outside
toilets, incomplete lunchroom, no drinking fountain,
unpaved parking lot, etc ), the complaints also included
such matters as the failure to pay for a half hour lunch
period while the machines were running and the failure to
pay overtime for the sixth day worked in a week.
Elizabeth Andres, whose employment began on March
7 after an interview by Furr on February 17, was known
by Respondent to be one of the most frequent and most
outspoken of the complainers, though Foreman Crawford
Hinkle conceded that almost 50 percent of the employees
also made complaints similar in character to those made
by Andres. Even the early complaints involved a degree of
concerted activity, for the employees discussed among
themselves their mutual dissatisfaction with conditions in
the plant and Hinkle admitted that most of the time the
complaints were made by a "couple" of employees
together
In early April the complaints became more formal.
Employees on the second shift prepared and circulated on
all shifts a petition which contained a list of grievances to
be presented for consideration by management,' and
signatures were obtained from some thirty-nine employees,
including Andres on the third shift.
On April 8 Respondent posted a notice to employees
which acknowledged receipt of the petition and which
stated that for the purpose of discussing and solving the
"problems" Respondent proposed to conduct a meeting
with each shift, to be later announced Separate meetings
were held on April 9 and 10 with the three regular shifts
and the swing shift in which each shift voiced its
complaints and made its requests Furr's "minutes" of
those meetings listed the first shift with two complaints,
the second shift with four, the third shift with three and
the swing shift with eight, though there was some
repetition and overlapping involved Concerning the third
shift, Furr appended the following note: "This group has a
very poor attitude. Much more demanding than first two
shifts. Had one man (Auer) go to sleep during
discussion."
On April 18 Respondent posted a further notice in
which it set forth its answers on the matters raised in the
meetings. Certain questions were listed as resolved by the
discussion, others were listed as still under examination
and on others Respondent stated its position or gave its
reason for rejecting the requests. In conclusion
Respondent stated that it would soon announce the names
of employees it would select on the "Suggestions and
Communications Committee" and would announce the
date of the first meeting with that committee
Respondent later posted the names of the employees
whom it selected to serve, listing two employee
representatives for each shift. Andres was chosen as one
of the representatives for the third shift despite
'Respondent was in possession of the petition but did not offer it and the
General Counsel made no motion to require its production It may be
assumed however that the petition listed the complaints which were later
aired in the meetings with management hereinafter referred to
Respondent's awareness that she was, in its words, a
chronic complainer and despite her outspoken attitude in
the earlier shift meeting. As Furr explained the choice,
though he and Gilbert thought that Andres was "unhappy,
disgruntled, not satisified," they felt that if they put her
on the committee she could express her dissatisfaction in
open meetings and they might be able to appease her or
pacify her to some extent and make a better employee of
her.
Following their selection as committee members, Jean
Neal and Andres checked with employees on their
respective shifts concerning complaints and grievances and
thereafter attended a meeting with management
representatives on May 5. According to Furr's minutes
there was discussion of some 18 different topics, many of
which had been raised in the prior shift meetings. Under
Furr's summary, management stated that it would have to
consider further some five of the subjects and would give
its answer later It represented that a personnel manual,
soon to be issued, would cover two subjects (vacations and
pregnancy leave) and that restroom lockers and clocks
would soon be furnished. It explained again why it could
not pay overtime for the 6th day of work and it
endeavored to allay employee concern over apparent lack
of safety features on the drill press and to allay
complaints concerning the foreman's treatment of
employee injuries.
Andres took an active part in the discussion, testifying
that she brought up all the matters the employees asked
her to Those included raising anew the matter of pay for
the 6th day of work, the matter of the foremen "playing
doctor" by "patching up" injured employees, the
dissatisfaction of the employees with the Company doctor,
and employee complaints about having to stay on one
machine for 6 consecutive days Andres and Neal testified
that Andres also mentioned a rumor among the employees
that anyone who spoke up in the meeting would be fired
Gilbert replied he had no idea how the rumor started, that
he had not fired anyone and had not fired Andres yet
(credited testimony of Neal)
Andres testified further that when she went back to
work at midnight on the next shift, the second shift
foreman, Dean, approached her in the presence of other
employees and said, "I've got the rope. Where can we
hang her?"
There were no further meetings with the committee and
no new developments prior to Andres' discharge Andres
simply continued, as she had before, to voice complaints
to Foreman Hinkle, who testified that Andres kept on
complaining at least once a day about the same matters as
before.
On May 13 Andres was called in by Furr and informed
the Company felt she was very unhappy and that she was
being terminated. Andres denied she was unhappy and
pointed to her perfect record of attendance Furr
commended her for that, agreed there was no complaint
concerning her work, but repeated his feeling that she
would be happier working elsewhere He denied that
Andres' termination was due to her comments in the open
meeting and reminded her the Company had solicited
those questions to learn what the problems were
Answering Andres' question concerning the reason he
would assign to the Unemployment Division, Furr stated
he did not need to give a reason. Andres later received,
however, a notice from that Division, mailed on May 23,
which contained the statement that she was "discharged
by M S Plastics of Ohio because she failed to perform her
M S PLASTICS OF OHIO 707
work to the satisfaction of the employer."
Testimony by Furr and Hinkle added further details.
Furr testified that on May 11 or 12 Plant Manager
Gilbert asked him to check with Hinkle concerning
Andres, and that Hinkle reported she was continually
complaining Thereupon Furr and Gilbert discussed the
fact that as Andres was still a probationary employees
they should terminate her rather than let her continue as
an employee Accordingly, they decided to make the
discharge without more, and Furr admitted that Andres
was given no warning and that he had not previously
discussed with her Respondent's dissatisfaction about her
complaining.
Hinkle testified that he discussed Andres with Gilbert
and Furr only when asked and that he reported to Gilbert
some 2 weeks before the discharge that she had "a very
negative attitude" about the Company and that her job
performance was good, with the ability to do better. His
only other report was made at Furr's request just prior to
the termination when he repeated to Furr what he told
Gilbert, stating that Andres' attitude was bad, that she
was a constant complainer, and that she had the ability to
do better if she would settle down
Concerning Andres' conduct generally, Hinkle admitted
that her complaints concerned the same matters as those
which he received daily from some 50 percent of the
employees, but he testified that Andres made the most
complaints, was more "belligerent," and sometimes used
profanity Hinkle testified that there was no difference in
Andres' complaints before and after she was put on the
committee and though Hinkle professed the view that
Andres was speaking only in her own behalf, his
testimony showed that was not the case, for he testified
that some of Andres' complaints were made along with
other employees. Furthermore, one of Andres' more
persistent complaints concerned the Company doctor,
where Andres was plainly acting in the interests of the
group for she had no contact with the doctor after her
hiring.
Hinkle's testimony showed further that he gave Andres
no warning about complaining and that his only remark
to her on one occasion was the mild statement, "You are
making a lot of noise," following which he discussed with
her the matters involved.
One of the matters which Hinkle reported to Furr was
the fact that Andres disliked to sweep up around her
machine and that she sometimes traded with other
employees, operating their machines while they did the
sweeping. Though Hinkle testified that Andres complained
to the other employees about the sweeping, he agreed that
there was a single occasion involved and that all that
Andres said was, "I do not like to sweep I'm glad you
got the job instead of me." In sum, Hinkle's testimony
did not conflict with Andres' that she got along with him
and that he expressed no animosity toward her in talking
over the conditions of the plant
Finally it may be noted that Furr admitted that Andres'
duty as the representative of her shift was to circulate
among the employees to ascertain what their problems
were so that they might be discussed in the meetings.
Though expressing management's desire that the
complaints be aired in the meetings, Furr admitted that
Andres was nonetheless free to discuss them with the
foreman
'I credit Furr's testimony that he informed Andres when hiring her that
there was a 90-day probationary period Neal testified she was so informed
and Andres ' affidavit to the Board showed that she assumed as much
C Concluding Findings
Section 7 guarantees, to employees the right to engage
in concerted activities for their mutual aid or protection
It is manifest from the entire evidence that Andres was
engaging in such activities and that Respondent was fully
aware of the fact. Indeed, any possible doubt regarding
the concerted nature of her activities was wholly removed
by Respondent's own act of choosing her to serve as the
representative of the third shift employees with the
admitted duty of ascertaining the complaints of the
employees and acting as their spokesman vis-a-vis
management. Her right to speak out in advancing the
interests and welfare of the group was not confined to the
meetings, despite management's hope that such be the
case, for Furr admitted that Andres was free between
meetings to discuss employee complaints with the
foreman That is what she continued to do and that is
what she was discharged for
If Respondent had removed Andres from the committee
it might have put her in the position of advancing only her
personal interests, disassociated from those of her fellow
workers (cf Schlumberger Well Services, 171 NLRB No.
148 (TXD) (re. Arthur J. LaBlanc); Cone Mills
Corporation, 169 NLRB No. 59 (re- Ralph Johnson), but
no such case is presented here for Respondent permitted
Andres to continue to serve as an employee representative,
and to present employee complaints to the foreman The
fact that the complaints concerned some of the same
matters as those discussed in previous meetings was of no
significance for it was plain from all the evidence,
including Furr's minutes, that management had given no
final answer to a number of employee requests and that
its answers to other demands were unsatisfactory.
Repetition or renewal of complaints was not only to be
expected under the circumstances but it tended to
emphasize Andres' stature as a leader in seeking
advancement of group welfare Employers would be
enabled, of course, effectively to suppress all leadership in
protected concerted activities were they free to discharge
the most forceful or outspoken proponents of group
interests.
It is also to be noted that Andres was given no warning
of discharge nor informed of the nature of management's
dissatisfaction with her. Furthermore, nothing occurred
after the meeting of May 5 to bring matters to a head
What moved Furr and Gilbert to take action was their
desire to remove her as an employee before her
probationary period expired But probationary status does
not dilute the right of employees to engage in concerted
activities as guaranteed in Section 7 of the Act nor
diminish the protection against employer restraint
afforded by Section 8 Indeed, the more uncertain the
tenure, the more valuable to the employee may be the
right to seek with fellow workers the mutual aid of which
the statute speaks
Respondent also assigns Hinkle's testimony that Andres
complained to other employees, thereby presumably
engendering trouble and unrest over the working
conditions However, "It is obvious that concerted
activities which are protected by the Act often create a
disturbance in the sense that they create dissatisfaction
with the status quo. Such a fact without more can hardly
justify discharge." Salt River Valley Water Users'
Association v. N L R B, 206 F 2d 325 329 (C A. 9) The
merit or lack of merit in the complaints or grievances is
also irrelevant (id ) as is the "wisdom or unwisdom" of
the employees, "their justification or lack of it," to the
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question of whether the employees were engaging in
protected concerted activities N.L R B. v. Washington
Aluminum Company, 370 U.S 9, 16; Cusano d/b/a
American Shuffleboard Co., v. N L R. B, 190 F . 2d 898,
902 (C. A. 3); Mushroom Transportation Co, Inc, 142
NLRB 1150, 1158; Top Notch Mfg Company, Inc., 145
NLRB 429, 432.
I therefore conclude and find that by discharging
Andres because she engaged in concerted activities for the
purpose of mutual aid or protection , Respondent
interfered with, restrained , and coerced employees in the
exercise of rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case I make the following:
CONCLUSIONS OF LAW
1. By discharging Elizabeth M. Andres because of
engaging in concerted activities for the purpose of mutual
aid or protection, Respondent engaged in unfair labor
practices proscribed by Section 8(a)(1).
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
as outlined below, which I find to be necessary to remedy
and to remove the effects of the unfair labor practices and
to effectuate the policies of the Act. For reasons which are
stated in Consolidated Industries, Inc., 108 NLRB 60, 61,
and cases there cited, I shall recommend a broad cease
and desist order.
Upon the basis of the above findings of fact and
conclusions of law and the entire record and pursuant to
Section 10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
M S Plastics of Ohio, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discharging employees, or in any other manner
discriminating against them, because of engaging in
concerted activities for their mutual aid or protection.
(b) In any manner interfering with, restraining, or
coercing employees in the exercise of their right to
self-organization, to form labor organizations, to join or
assist any labor organization, to bargain collectively
through representatives of their own choosing, or to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities except to the
extent authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action:
(a) Offer to Elizabeth M. Andres reinstatement to her
former or substantially equivalent position, without
prejudice to her seniority or other rights and privileges,
and make her whole for any loss of earnings she may have
suffered by payment to her a sum of money equal to that
which she would have earned from the date of her
discharge to the date of the offer of reinstatement, less her
net earnings during said period (Crossett Lumber
Company, 8 NLRB 240), said backpay to be computed on
a quarterly basis in the manner established by the Board
in F. W Woolworth Company, 90 NLRB 289, together
with interest thereon at the rate of 6 percent per annum.
Isis Plumbing & Heating Company, 130 NLRB 716.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying all
payroll records, social security payment records,
timecards, personnel records and reports and all other
records necessary to analyze the amounts of backpay due
under these recommendations.
(c) Post at its plant and offices at Cincinnati, Ohio,
copies of the attached notice marked "Appendix."' Copies
of said notice on forms provided by the Regional Director
for Region 9, shall, after being duly signed by
Respondent's representative, be posted 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 to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 9, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.'
'In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 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 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 be changed to read "Posted
pursuant to Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 9, in writing within 10 days from the date of this Order what steps
it has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT discharge employees or in any other
manner discriminate against them because of engaging
in concerted activities for their mutual aid or
protection
WE WILL NOT in any manner interfere with, restrain
or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to jojn
or assist any labor organization, to bargain collectively
through representatives of their own choosing or to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities except to
the extent authorized in Section 8(a)(3) of the Act.
WE WILL offer to Elizabeth M. Andres immediate
and full reinstatement to her former or substantially
equivalent position, without prejudice to her seniority or
other rights and privileges, and make her whole for any
loss of earnings she may have suffered as a result of
our discrimination against her in the manner provided
in the Trial Examiner's decision.
M S PLASTICS OF OHIO 709
M S PLASTICS OF OHIO from the date of posting and must not be altered, defaced,
(Employer) or covered by any other material.
Dated Representative Any questions concerning this notice or compliance
This is an official notice and must not be defaced by with its provisions , may be directed to the Board 's Office,
anyone. Room 2407, Federal Office Building, 550 Main Street
This notice must remain posted for 60 consecutive days Cincinnati, Ohio 45202, Telephone 684-3686.