Maryland Cup Corp.

National Labor Relations Board - Board Decisions

Mar 19, 1974

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

776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sweetheart Plastics , Inc., Div . of Maryland Cup Corp.
and United Papenworkers International Union,
AFL-CIO. Case 1-CA-9018
March 19, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On October 30, 1973, Administrative Law Judge
Thomas F. Maher issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and Charging Party
filed an answering brief to Respondent's exceptions
and 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The complaint alleges and the Administrative Law
Judge found that Respondent violated Section
8(a)(3) and (1) of the Act by discharging Jack
Florence in March 1973. We do not agree.
Jack Florence began working for Respondent in
1968 as a maintenance mechanic. Florence actively
participated in Respondent's sports program and as a
result of his extreme interest in the program he began
to disturb employees during worktime to the detri-
ment of his own and the other employees' prod-
uction.
In December 1971, Supervisor Frank De Camillis,
instead of making his annual review of Florence for
1971, requested that Florence be discharged for his
belligerent attitude and because he was "holding
back" and taking twice as long as any other
employee to finish a job. Other supervisors agreed
with De Camillis' assessment and found that Flor-
ence was avoiding work, stopping other employees'
production, taking too long to finish his work, and
generally harassing the other employees. Respon-
dent's vice president refused De Camillis' request.
When De Camillis suffered a heart attack, Florence
remarked to other employees, "One guinea down,
two to go." Florence, in March 1972, again displayed
his animus towards Respondent when he told
Respondent's newly hired employee relations direc-
tor that the Company was "bad," that that was why
her predecessor left, and that she would leave when
she also discovered the truth. The employee relations
director credibly testified that her predecessor told
her that she thought highly of Respondent.
In April 1972, the United Paperworkers Interna-
tional Union, AFL-CIO-CLC, began its organizing
campaign which culminated in an election conducted
by the Board on November 16, 1972.1 Florence was
one of the principal union organizers and collected a
large number of authorization cards, distributed
leaflets, and held campaign meetings in his home.
During the union campaign, Florence's hostile
attitude toward Respondent and his disturbance of
other employees intensified. Florence admittedly
solicited for union authorization cards during work-
time; Respondent gave Florence a written warning
for disobeying its no-solicitation rule and for
interfering with production. Wick, an employee, was
so annoyed at Florence's perseverance in soliciting
that he had to be restrained from physically
assaulting Florence. And Florence, by attempting to
stuff union leaflets into the shirt pocket of Day,
another employee, against Day's wishes almost
precipitated a fist fight. During the summer of 1972,
Florence told another employee, Tom Sola, that if
Sola continued to wear his shirt with an antiunion
slogan printed boldly on it he would get his head
"beat in."
During 1971 and 1972, Florence was warned by
supervisors that he was breaking a company rule by
leaving work and spending several minutes in his car
without punching out. In October 1972, Florence
crossed a railroad crossing when the gate was down,
violating a company safety rule, and received a
written warning slip.
Respondent would have discharged Florence but
feared being accused of an unfair labor practice since
an election campaign was then being conducted.
In December 1972, Florence's new supervisor,
Allen Leston, gave him a generally unsatisfactory
annual review, and Florence did not receive a merit
increase.2 In February 1973, during a management
meeting called to discuss Florence's charges filed
with the Board's Region 1 the supervisors requested
that Florence be discharged. Respondent's vice
president refused the request since he hoped that
Florence's attitude might change.
On March 5, 1973, supervisors called another
management meeting to discuss Florence's activities
which they believed were still interfering with their
employees' work. Respondent's vice president again
1 Case 1-RC-12371 Of 519 eligible voters, 502 cast ballots, of which 53 2 Charges were filed in Case I-CA-8830, alleging that Florence did not
were for, and 449 against, the Union. No objections to conduct affecting the receive his merit increase because of his union activities . No complaint was
results of the election were filed and on November 27, 1972, the Regional issued.
Director issued a certification of the results of the election
209 NLRB No. 115
SWEETHEART PLASTICS, INC. 777
refused to discharge Florence because he feared
another unfair labor practice charge being filed
because of the election campaign and the denial of
the merit raise, but a promise was made to the
supervisors that if Florence continued to interfere
with the other employees their request would be
acted upon.
Within a few days, supervisors again began
requesting that Florence be discharged and were
claiming that there was a double standard since other
employees, including an antiunion employee with 5
1/2 years of seniority, had been discharged for the
identical activities Florence was engaging in.
During March 1973, Florence was involved in
several incidents which convinced Respondent that
he had to be discharged. Florence was involved in an
argument with Sola, and a supervisor had to order
Florence away from Sola's area. Florence told an
employee, Bob Douglas, who had just returned from
sick leave, that Douglas would be made a janitor;
this upset Douglas who had to be calmed down by
management. And Florence was instructed not to
work overtime on March 10; 3 despite this order,
Florence showed up for work and clocked in. Leston
ordered Florence to leave, which he did. Florence
again showed up for work the next Saturday, March
17, 1973, despite being instructed not to and despite
his experience the preceding week.
On the following Monday, March 20, 1973,
Respondent terminated Florence.
The Administrative Law Judge found that Respon-
dent's discharge of Florence was motivated by his
union activities and was violative of Section 8(a)(3)
and (1) of the Act.
The Administrative Law Judge found that Respon-
dent had just cause for discharging Florence because
of his misconduct since 1970, but that Respondent
chose not to discharge him before the union
campaign, nor did Respondent discharge him be-
cause of his continued "misadventures" during the
campaign.
The Administrative Law Judge reasoned that
Respondent must have as good cause for discharging
Florence after the union campaign as it had before
and during the campaign; and that, since Respon-
dent discharged Florence for lesser offenses (the
March 1973 incidents) after the union campaign than
he had engaged in during and before the campaign,
Respondent's reasons for the discharge were pretex-
tual and the real reasons were to be found in the new
factor of his union activities.
The Administrative Law Judge misconstrues Res-
pondent's reasons for discharging Florence. Respon-
dent discharged Florence because of his hostile
attitude, harassing of other employees, and low
production during the preceding 2 years, with the
March 1973 incidents as the "final straws," and not,
as the Administrative Law Judge finds, simply for
the March 1973 incidents.
We are not satisfied that Respondent's decision to
discharge Florence was motivated by Florence's
union activities and that Florence's work record was
a pretext. Florence has exhibited a hostile attitude
towards Respondent and has interfered with other
employees' production for several years. Several of
Respondent's supervisors wanted Florence dis-
charged well before the union campaign began.
Respondent legally denied Florence a merit increase
just 4 months prior to his discharge because of
Florence's poor attitude and slow production. Other
employees have been discharged for conduct similar
to Florence's. Florence was discharged over 5
months after the Union's unsuccessful campaign;
and the Administrative Law Judge correctly found
that Respondent had just cause to discharge Flor-
ence since 1970.
Not one of these factors may in itself be determina-
tive, but in combination they convince us that the
General Counsel has not established a violation.
Accordingly, we shall dismiss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
3 Maintenance employees usually worked overtime each Saturday.
Respondent's procedure was to inform each employee if he was, or was not,
to work overtime that Saturday.
DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER, Administrative Law Judge: Upon a
charge filed on April 16, 1973, by United Paperworkers
International Union, AFL-CIO-CLC, herein called the
Union, against Sweetheart Plastics, Inc., Div. of Maryland
Cup Corp., Respondent herein, the Regional Director for
the Region 1 of the National Labor Relations Board,
herein called the Board, issued a complaint on June 1,
1973, on behalf of the General Counsel of the Board in
which were alleged violations of Section 8(aX3) and (1) of
the National Labor Relations Act, as amended (29 U.S.C.,
§ 151, et seq. ), herein called the Act . In its duly filed
answer the Respondent, while admitting certain allegations
of the complaint, denied the commission of any unfair
labor practices.
Pursuant to notice a trial was held before me in Boston,
Massachusetts, on July 24 and 25, 1973, whereat all parties
were present, represented, and provided full opportunity to
call and cross-examine witnesses, to present oral argument,
and to file briefs. Briefs were filed by Respondent and
counsel for the General Counsel.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon consideration of the entire record, including the
briefs filed with me, and upon my observation of the
witnesses appearing before me,' I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
not shared by other supervisory and managerial personnel.
But when asked to provide the basis for Respondent's final
decision to discharge Florence, based upon three final
incidents, Tufenkjian stated:
I. THE NATURE OF RESPONDENT'S BUSINESS
Sweetheart Plastics. Inc., Div. of Maryland Cup Corp., is
a Delaware corporation maintaining an office and plant in
Wilmington, Massachusetts, where it is engaged in the
manufacture, sale, and distribution of plastic cups, plates,
and related products. During 1972, in the course and
conduct of its business, Respondent purchased raw
materials used in the manufacture of the aforementioned
products and caused them to be transported in interstate
commerce into the Commonwealth of Massachusetts from
other States of the United States, and during the same
period it sold and caused to be transported directly into
States of the United States other than the Commonwealth
of Massachusetts from its Wilmington plant manufactured
products valued in excess of $50,000. Upon the foregoing
admitted facts I conclude and find the Respondent to be
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I accordingly conclude and find
United Paperworkers International Union,
AFL-CIO-CLC, to be a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICE
A. Facts
1. Background
John R. Florence, employed by Respondent in Decem-
ber 1968 and engaged thereafter as a maintenance
mechanic, was discharged on March 21, 1973, allegedly for
cause, the basis for which appears to have extended back
several years into Florence's term of employment and
culminated in three incidents described by a number of
Respondent's officials as "the final straws that broke the
camel's back." Because of the extensive catalogue of
Florence's alleged transgressions, complicated by the
irritants of his active part in an unsuccessful union
organizing campaign, an exploration of his full term of
employment is essential to properly evaluate the allegation
that the discharge was motivated, not by the history of his
derelictions, but by his active participation in the Union's
campaign.
Based on the testimony of Respondent's vice president
for administration, Richard Tufenkjian, whose testimony I
credit unless specifically stated otherwise, Florence was a
source of constant irritation to supervisory personnel for
several previous years, long before the Union first entered
upon the scene in April 1972. Nevertheless there appears
always to have existed on Tufenkjian's part a friendly, and
frequently sympathetic attitude towards Florence that was
Actually, it was a compilation of things that had taken
place over a two to three year period and there were a
final two or three events, which precipitated it.
Illustrative of this was the request by Florence's immediate
supervisor, Frank De Camillis, in December 1971 that he
be discharged. De Camillis cited to Tufenkjian numerous
instances of Florence's belligerent attitude toward supervi-
sors and toward the Company, and insisted that he be
discharged because of the aggravation he was causing, and
De Camillis' inability to live with it. Frank De Camillis,
called as a witness by Respondent, confirmed this request
and Tufenkjian's unwillingness to discharge Florence at
the time. He credibly described Florence's attitude toward
his work from the time of his hiring until the advent of the
Union, stating that midway during this period he "held
back" and took twice as long as the other mechanics to do
any assigned job. During this period he was actively
participating in the Company's sports program, frequently,
according to De Camillis, to the detriment of his own and
other employees' work. Thus on two or three occasions De
Camillis found it necessary to talk to Florence about
bothering other people at their work. This, in fact, became
the occasion for De Camillis' advice to Florence that he
curtail his sports activity as being detrimental to his job.
And when it came time, in December 1971, for De Camillis
to make a work performance review on Florence, De
Camillis refused to do so for the stated reason that he
wanted him fired for his poor performance, bad attitude
toward the supervisors, and his constant bothering of other
workers. Confirming Tufenkjian in this and other matters
De Camillis testified that Tufenkjian refused to affect the
discharge.
During this same period De Camillis likewise received
complaints on Florence from other supervisors, including
Supervisors William Moore and Henry Stankiewiez and
Assistant Plant Manager Armins Ozolins, then the prod-
uction manager. Confirming this situation Supervisor
Moore credibly testified that as long ago as the winter of
1970, and for over a year thereafter, Florence, with whom
he was quite friendly, was constantly critical of the
maintenance foremen, using derogatory expressions to
describe them, such as the term "guinea." This, indeed,
became accentuated to the point where Moore finally
found it necessary to warn Florence that if he persisted in
his criticisms he would report it to Florence's foreman, De
Camillis. Moore eventually did report the situation to De
Camillis as the latter had so testified.
Supervisor Henry Stankiewiez credibly testified to
incidents involving Florence which he thereafter reported
to Plant Manager Ozolins, and through him, to Vice
President Tufenkjian. When asked of his experiences with
Florence since his hiring in December 1968, Stankiewiez
replied as follows:
1 See Bishop and Malco, Inc, d/b/a Walker's, 159 NLRB 1159, 1161
SWEETHEART PLASTICS, INC.
The only thing I can say is that I have gone to his
supervisors, telling them that he has been dogging
work, bothering people in my area, stopping them from
getting their work done, and taking twice as long to do
a job as it should have been done. I've gone to Frank
DeCamillis, when he was the maintenance supervisor,
several times. I've come very angry to Frank about it,
because this man has stopped production. He's har-
assed the people in there.
And I've gone to Al Leston, when Frank was sick and
Al was in charge, taking over for Frank. I've gone to Al
Leston about his man several times.
It's been going on every since he's been there. I never
realized how the man got away with what he did for so
long.
Thereafter, on cross-examination, Stankiewiez restated his
belief that Florence was "getting away with things that
others could not." When asked when he first got such an
impression, he testified as follows:
Shortly after he started working there. And so do a lot
of other people. Many operators complained when he
came out to a job because it took him twice as long to
get that line fixed, and they could get it back into
production. And they hated to see him come out and
do a job, because they knew if another maintenance
man came out it would be done in half the time and
their line would be going.
Specifically, Stankiewiez referred to a statement attribut-
ed to Florence by several other witnesses, including
Supervisor William Moore, and actually made by Florence
to Stankiewiez himself; the statement, on the occasion of
Supervisor De Camillis' heart attack, to the effect that that
was "one guinea down, two to go," referring to the three
maintenance foremen, all of Italian extraction. This he
reported to Plant Manager Ozolins who thereafter assured
him he had talked to Florence about it.2 The incident
eventually came to Vice President Tufenkjian's attention.
During this same period, approximately in March 1972,
Florence manifest his same antipathy toward the Company
and the supervisors to Elizabeth Howe, the Respondent's
newly employed employee relations director. Florence,
Howe credibly testified, sought her out in her office and
had a long conversation with her, telling her how bad the
Company was, asking her if she knew why her predecessor
had left, and suggesting that once she had a chance to see
things for herself she too would leave. Howe testified that
during this same period of time she had met her
predecessor on numerous occasions and found that she still
had a keen interest in and displayed a positive attitude
2 I do not credit Florence's denial of this nor his subsequent garbled
effort to explain it.
Upon a review of Florence's testimony, generally, I find it to be contrary
to the testimony of every other witness called to testify on subjects covered
by him. Thus, were I to credit him I would be forced to discredit everyone
else testifying . This I cannot do . Indeed , quite apart from this disparity I
have considered Florence's demeanor as a witness as I observed it I have
also considered his contradictory statements, and his efforts at hedging and
779
toward the Company. Howe's testimony in this respect
comports with Tufenkjian's earlier account of her report of
this incident to him when it occurred.
During the next period of Florence's employment, the
duration of the union campaign, between April and
November 1972, his attitude toward the Company and
particularly the maintenance supervisors persisted, and his
so-called "bothering" of employees appears to have
increased.
Supervisor William Moore credibly testified to having
received complaints from warehouse employees to the
effect that Florence was "talking Union" to them on their
working time. And Vice President Tufenkjian credibly
testified to two or three instances reported to him during
the campaign by other supervisors where Florence was
alleged to have interfered with other employees at their
work. In one instance involving an employee identified as
William Wick, Wick became so distraught at Florence's
persistence that he went after him with a pipe and had to
be restrained. Wick was given a written reprimand for his
part in the affair. Another instance reported to Tufenkjian
was by an employee named Day to whom Florence was
trying to give a union pamphlet while he was at work. Day
swung at Florence and knocked all of the pamphlets to the
floor.3 For his part Florence admitted to soliciting union
membership cards on company time and to having
received a written warning from Vice President Tufenkjian
for soliciting on company time.
One other incident during the period incompassing the
union campaign warrants consideration-Florence's fail-
ure to observe the safety regulations relating to driving
across the plant railroad tracks.
In describing the number and nature of written warnings
given to Florence this one stands out for obvious
reason-he was reprimanded for driving across a railroad
track while the crossing gates were down, contrary to a
standing rule of the Company. Difficult as this feat appears
at first blush, in actuality it can be and frequently is
accomplished by employing a zig-zag path through the
barrier gates. This Florence and approximately 10 other
drivers did on one occasion in October 1972. The incident
was observed by Supervisor Mangano who issued Florence
a warning slip and immediately reported the incident to
Vice President Tufenkjian. Mangano further advised
Tufenkjian that he observed others at the same time
crossing the tracks in this fashion but Florence was the
only 1 of the 10 whom he recognized and reported. This
account by Tufenkjian confirms the testimony of Florence
and of employee Roland Fletcher, one of the unwarned track
crossers known to Mangano, that a total of 10 cars did
cross the tracks illegally at this one occurence.
Quite apart from Tufenkjian's assigned reasons for not
discharging Florence any time prior to April 1972-his
faith in Florence's basic talents and understanding and his
evasion, for example, his explanation of his withdrawal from the Company's
sports program, the identity of the "three gulenas," and his insistence, in the
face of overwhelming testimony to the contrary, that he always had a good
attitude All of these persuade me that he cannot be relied on as a credible
witness, and I do not do so.
3 Florence denied the instance involving Wick's attack with the pipe. He
does, however, admit to a later argument with both Wick and Day, as
recounted by Tufenkjian.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hope for improvement-the reasons for withholding
discharge thereafter during the campaign were entirely
different and admittedly self-serving. Thus, when asked
why Florence was not discharged in 1972 Tufenkjian
replied:
We were in the midst of a union campaign and we were
extremely cautious in the campaign not to do anything
that we felt would be an unfair labor practice charge.
We tried to run a very clean campaign and we frankly
felt, knowing that Jack [Florence] was one of the prime
factors in the campaign, if we had made such a move
we would have been hit with an unfair labor practice
charge and we didn't want that.
2. Florence's discharge
On March 21, 1973, Supervisor Alan Leston, who had
recently succeeded Frank De Camillis, sought out Florence
at approximately 3:30 p.m. and informed him that as of
then he was no longer employed. Florence requested that
his discharge and the reason for it be put in writing. It
appears that several days thereafter the usual discharge
form was prepared and a copy sent to Florence. He told
Leston that he understood that the decision came from
higher authority and was beyond Leston. Leston agreed
that this was so, saying "Well, it's unfortunate, but its over
a year overdue."
As related heretofore Vice President Tufenkjian and
other officials testified extensively, and to the extent
summarized herein credibly, as to the background which
lead to Respondent's final decision to discharge Florence.
Tufenkjian specifically referred to a contemporaneous
conversation between himself and Vice President Stewart
at which the problem was considered and the decision was
made. This decision, according to Tufenkjian, was the
result of a full consideration of Florence's background of
poor attitude and active criticism of management and
supervision, as summarized herein, but was specifically
generated by three recent incidents, which, it is claimed,
were "the final straws." These, for purposes of identifica-
tion will be referred to as the Sola incident, the Douglas
incident, and the overtime incident.
As described by Vice President Tufenkjian he learned
from Supervisor Leston early in March 1973 that Florence
wished to see him. He then met with Florence who told
him he felt that his life and the lives of his family members
had been threatened by a warehouse employee, Thomas
Sola, with whom Florence had had previous differences
over the Union. In fact, on several occasions during the
campaign Sola had reported Florence to supervision for
"bothering him." The subject matter of the most recent
dispute, however, was not given by Tufenkjian. Florence,
in his testimony, indicated that Sola accused him "of
turning him in" to management for conducting a selling
business "on the side," in addition to his regular duties in
the warehouse, an accusation which Florence denied both
to Sola at the time and thereafter at the trial. Armed with
Florence's account of the threat upon him and his family,
an account which Florence provided in detail at the trial,
Tufenkjian confronted Sola and received an entirely
different story. Sola's version to Tufenkjian4 placed
Florence as approaching Sola to speak to him, Sola telling
him to get away and stop bothering him, Florence then
asking Sola if he was threatening him, and thereafter
following Sola out of the warehouse continuing to badger
him. Whereupon Sola sought out Supervisor Moore and
asked him to get Florence "off his back." Moore "thumbed
Florence away" and within the hour reported the incident
to management .5 Florence insisted at the time and in his
testimony that his version, namely, the threat by Sola,
could be verified by employee Roland Fletcher. When
called as a witness, however, Fletcher's account merely
attested to the dispute itself. And although he had been
quoted by Florence and others as saying he overheard
Sola's threat, he testified only to Florence's question to
Sola-"Are you threatening me?" The story, then, remains
substantially as described by Tufenkjian, with no threat by
either combatant ever having been solidly established.
Tufenkjian, for his part in the incident, told Sola not to get
involved in such problems in the future. Although he
initially told Florence that he would look into the matter
when it was reported to him by Florence, Tufenkjian did
not go back to Florence thereafter when he received the
contrary version. This, in effect, constituted what is
referred to as the Sola incident.
The Douglas incident, as described by Tufenkjian,
involved an employee, Robert Douglas, a member of the
building maintenance crew who had but recently been
incapacitated due to a kidney operation. Several days prior
to his return to work Douglas visited the plant and in the
course of his visit had a conversation with Florence.
Immediately upon his commencing work on the following
Monday, Douglas, in a distraught condition, sought out his
supervisor, Fred Santo, and reported his conversation with
Florence wherein Florence had stated to him "they are
going to do the same thing they have done to other people,
they are going to make you a janitor." Supervisor Santo
assured Douglas that this would not be the case and
reported the incident to Tufenkjian. The latter did not
discuss the matter with either Douglas or with Florence.
Neither Douglas nor Santo testified at the trial. Florence
admits to a brief meeting with Douglas a week or two
before he was fired, presumably the same meeting referred
to by Tufenkjian in his testimony. But on this occasion, he
insists, he only exchanged a greeting with Douglas. The
other meeting with Douglas, he testified, was some time in
January or February, before Douglas went to the hospital.
He came upon Douglas in the restroom as he was having a
seizure and in the course of what was claimed to have been
a concerned conversation Florence suggested that Douglas
"take a job on light duty, or a janitor's job, something easy
on you until you feel better."
This conflict of Florence's testimony with Tufenkjian's
nevertheless highlights several items. First, there was a
conversation between Florence and Douglas, and second,
it did relate a change of Douglas' duties. Tufenkjian's
testimony of the report given him places the conversation
just before Florence's discharge and Florence has limited
4 Sola was not called as a witness.
5 The testimony of Moore, confirming the incident as described by
Tufenkpan.
SWEETHEART PLASTICS, INC. 781
that incident to a friendly greeting. Furthermore, Tufenkji-
an confirms that the conversation did take place and what
was said; when it was said remains in dispute. I cannot
resolve the first-what was said-because Tufenkjian's
report was mere' ly hearsay, nor do I credit Florence's
version of it. It remains, therefore susceptible to several
interpretations. I do, however, credit Tufenkjian's state-
ment that the incident was reported to him as having
occurred immediately before the discharge. All of which, in
summary, confirms that Respondent's official, Tufenkjian,
was told of a disturbing and misleading statement by
Florence to Douglas. And as previously noted Tufenkjian
admittedly never confronted Florence with the report he
had received. Garbled and basically ludicrous as it appears
to be, this is the substance of the Douglas incident.
The third incident relied on by Respondent in justifica-
tion of its decision to discharge Florence was the so-called
overtime incident.
For a number of years Florence was busily engaged in
the reconstruction of his home, necessitating the use of all
his available time over the weekends. By arrangement with
and the apparent approval of his supervisors, including
Frank De Camillis, Florence was relieved from the
overtime assignments usually given to the maintenance
mechanics. Since the beginning of 1973, however, when
Florence felt the need for additional income, and after
checking with Foreman De Camillis, he commenced
working overtime with the other members of the mainte-
nance crew.6
At this point a full understanding of the implementation
of the overtime system would be in order. Vice President
Tufenkjian credibly described the operations of the
mechanical maintenance department as an organization of
24 employees engaged in maintaining the production
machinery of the plant, and by virtue of their specific
duties, requiring that much of their work be done when the
rest of the plant was not operating. Accordingly, Saturday
overtime was inevitable, and was available to everyone in
the department. It was not mandatory. Of the 24 employed
in the department it was estimated that 18 or 20 regularly
work Saturday overtime, the remaining 4 or 6 being
excused from such assignments by personal choice.
Florence, it will be recalled, was among those so excused
during 1971 and 1972 because of his home construction
work. He elected in early 1973 to resume working overtime.
This he continued until March.
Each employee scheduled to work overtime was so
notified on the Friday before, and as a matter of general
practice all the staff, with the exceptions I have noted, were
thus notified. On March 9, however, Florence, according to
Tufenkjian, was specifically instructed by Foreman Alan
Leston not to come in for overtime on the following day,
March 10.7 Despite the fact that all in the department were
expected to work overtime on Saturdays, excepting only
those excused, Florence was singled out and instructed not
to work. And this, according to Tufenkjian, was pursuant
6 Florence's undenied testimony . De Camillis did not testify concerning
this matter
7 Leston was not questioned concerning his part in this matter
8 It has not been established on the record that Florence ever demanded
4 hours' call-in pay for this as was suggested at one point in the trial.
to a specific decision by a company official whom he could
not identify.
In the context set forth above, having been told he would
not work, Florence appeared at the plant ready for work
on Saturday, March 10. When Leston noted that he had
punched in he informed him he was not scheduled to work.
Florence left the premises immediately.8 Leston reported
the incident to management on the following Monday.
Florence again appeared for overtime work on the
following Saturday, March 17, and was again told that he
was not scheduled to work. He again left without further
ado. On the following Monday Leston again reported
Florence's appearance, this time to Vice President Tufenk-
jian. When he heard of this second appearance Tufenkjian
then decided, he testified, to discharge Florence. Whereup-
on he then conferred with Vice President David Stewart
and the decision was finally made, with Stewart issuing the
order to effect the discharge.
Tufenkjian repeatedly testified that it was the foregoing
three incidents that provided the immediate cause for
Florence's discharge. When asked if "but for these three
reasons he still would have been working there," Tufenkji-
an replied, "If nothing else had occurred, yes sir." Thus,
upon consideration of all the background Respondent
concedes that the crucial determent was the gravity of the
final incidents which were recorded above.
B. Analysis and Conclusions
Certainly no principle is more firmly established in the
law of labor relations than the right of an employer to
discharge an employee for any cause, or for no cause
whatever, as long as it is not done for reasons proscribed
by the Act. And if any employer had just cause to
discharge an employee the catalogue of Florence's miscon-
duct since 1970 would provide it to this Respondent.
However, for reasons best known and understood to top
management, and Vice President Tufenkjian particularly,
and never understood by any of the consistently complain-
ing supervisors and employees, Respondent never chose to
effect his discharge. Nor is a review or summary of all the
incidents and statements essential at this point to explain
this. Tufenkjian freely admitted that a personal attachment
for Florence, a recognition of some hidden virtues not
evident on the record, and a sincere hope of improvement
were the motivating factors in Florence's retention. But
none of this is of any concern to this decision except that it
indicates the degree of tolerance traditionally extended to
this one employee.
Nor did Florence's continuing misadventures during the
union campaign in which he was the known leader prompt
Respondent to dispose of him. At this time, for a different
motive, or perhaps an additional one, Respondent withheld
action lest it be misunderstood as antiunion activity, and
Tufenkjian so stated.9
We come, then, to Respondent's determination to finally
9 Supra In this context of previously excused conduct it would be
difficult to prejudge the legal implications of a discharge during the union
campaign . Accordingly, since such a discharge did not then occur I would
not speculate on nor do I find it necessary to draw any inferences from
Respondent 's forebearance during that period.
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dispose of Florence, well after the end of the Union's
unsuccessful campaign.10 Respondent, of course, denies
that Florence's previous union leadership had anything to
do with the discharge. Instead it now points to the proven
history of misconduct-misconduct which it has tolerated
for 3 years-and enumerates three very recent incidents as
what can best be described as "eye openers." Thus, after
the complete nusiance, to say the least, that Florence
appears to have been making of himself for years, three so-
call significant incidents occur. In succession, he (1)
indulges in a dubious harangue with a fellow worker (Sola),
(2) supposedly passes on to another fellow worker a
fabricated rumor (Douglas), and (3) shows up to work
overtime after he alone was selected not to be given
overtime. These three peccadillos suddenly vitiate all of the
misfeasance of the past and become grounds for discharge.
While Respondent cannot be denied the right to
discharge an employee in such a fashion, nevertheless
commonsense suggests that there is more here than appears
on the surface. My observation of all of Respondent's
officials testifying at the trial reveals no such a propensity
for bumbling as this course of conduct would suggest. On
the contrary, upon consideration of all Florence's miscon-
duct I am persuaded and I accordingly conclude and find
that the three incidents considered here and alleged by
Respondent to be the final reasons for discharging him
were not, in fact, the true reasons for his discharge. To
conclude otherwise would constitute a degree of naivete
inconsistent with commonsense.
In the consideration of employee discharge for reasons
considered to be pretextual the U. S. Court of Appeals for
the Fifth Circuit many years ago capsulized the controlling
principle. Thus, speaking of a dischargee, it stated that "the
difficulties inherent in his case only became unsupportable
to his employer when he became secretary to his union and
that his discharge . . . was directed more at his unionism
than at his peculiarities."" Florence's difficulties appear to
have suffered the same fate.
I am fully aware that unlike most discharges found to
have been pretextual Florence's did not occur at either the
height, the beginning, or the end of the Union's campaign
in which he was known to have had a leading part. It
occurred 4 months later. That is not to say, however, that it
could not still have been motivated by his union promi-
nence. Respondent admittedly was opposed to the unioni-
zation of its employees and took every legitimate means to
oppose it-and it succeeded. Such being its predisposition
toward the Union, it is completely consistent to infer that it
1 In the election held on November 16, 1972, pursuant to a stipulation
for a content-election agreement . 449 votes were cast against representation
by the Union and 53 votes were cast in favor of the Union . No objection
was interposed to the election and the results were certified by the Board on
opposed the part that Florence was playing in the
campaign. Up to the time of the union campaign its
troubles with Florence were quite apart from any union
considerations . However, the campaign and the part he
played in it added a new and significant factor. And by
withholding his discharge then (supra ) it recognized the
significance of this factor . It is this added factor, I am
persuaded, that has discolored all which follows.
All of this is not to say that the infusion of the union
considerations has "locked in" the Respondent, forcing it
to retain Florence in perpetuity . What it does suggest is
that it must have the same good cause for discharging
Florence after the union campaign as it had during and
before it. A consideration of the three elements of cause
used by Respondent to justify the discharge just do not,
upon comparison , measure up in gravity , probity, or
significance to those many items of misconduct it had
consistently condoned in the past . Thus it was never
established on the record that Respondent had adequately
investigated either the Sola incident or the Douglas
incident, if indeed either had occurred. And insofar as
Florence's reporting for overtime work is a factor in the
discharge I am persuaded that it was a situation contrived
for the purpose of justifying the discharge.
Upon all of the foregoing, therefore, and upon consider-
ation of the different treatment afforded Florence for
lesser offenses after his participation in the Union's
campaign, I conclude and find that the reasons assigned by
Respondent for his discharge were wholly transparent and
but pretexts for the true reason which I find to be his
participation in union activities . This I find to constitute
discrimination in violation of Section 8(a)(3) of the Act
and interference , restraint , and coercion in violation of
Section 8(a)(1).
IV. THE REMEDY
I have found that Respondent has discriminatorily
discharged John Florence thereby unlawfully interfering
with, restraining, and coercing its employees. I shall
recommend that Respondent cease and desist from this
conduct. Affirmatively, I shall recommend that it reinstate
Florence with backpay computed in the customary
fashion 12 with interest at the rate of 6 percent per
annum,13 and that it post appropriate notice of compliance
with such order as the Board issues.
[Recommended Order omitted from publication.]
November 27, 1972.
11 Agwehnes v. N L R.B , 87 F.2d 146, 154 (C A 5, 1936)
12 F W Woolworth Company, 90 NLRB 289
13 Lars Plumbing & Healing Co, 138 NLRB 716.