P. R. Mallory & Co., Inc.

National Labor Relations Board - Board Decisions

Mar 14, 1967

163 N.L.R.B. 383 (N.L.R.B. 1967)

MALLORY CAPACITOR CO.
Mallory Capacitor Company , a division of P.R.
Mallory & Co., Inc. and International
Union of Electrical , Radio and Machine
Workers, AFL-CIO. Case 9-CA-3953.
March 14,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On December 2, 1966, Trial Examiner Lloyd
Buchanan issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint, and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel and the Charging Party filed exceptions to
the Trial Examiner's Decision and briefs in support
of exceptions, and the Respondent filed a brief in
answer to the exceptions and in support of the Trial
Examiner's Decision.
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 briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner. I
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 and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
' We view the circumstances surrounding the discharge of
Lacey Evans with suspicion, particularly, when considered in
light of the findings made in Mallory Capacitor, 162 NLRB 1404
Nevertheless, a preponderance of the evidence does not support a
conclusion that the Respondent discharged Evans in violation of
Section 8(a)(1) or (3) and, as recommended by the Trial Examiner,
we shall dismiss the complaint
TRIAL EXAMINER'S DECISION
LLOYD BUCHANAN, Trial Examiner: The complaint
herein (issued July 25, 1966; charge filed June 13, 1966),
alleges that the Company has violated Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended, 73
Stat. 519, by discharging Lacey L. Evans on or about
June 6, 1966, and failing to reinstate her, because of her
163 NLRB No. 51
383
union sympathy, membership, and activities. The answer
denies the allegations of violation.
A hearing was held before me at Glasgow, Kentucky, on
October 20, 1966. Pursuant to leave granted to all parties,
briefs have been filed by the General Counsel and the
Company, the time to do so having been extended.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT (WITH REASONS THEREFORE) AND
CONCLUSIONS OF LAW
1. THE COMPANY' S BUSINESS AND THE LABOR
ORGANIZATION INVOLVED
The facts concerning the Company's status as a
Delaware corporation, the nature and extent of its
business, and its engagement in commerce within the
meaning of the Act are admitted; I find and conclude
accordingly. I also find and conclude that, as admitted, the
Union is a labor organization within the meaning of the
Act.
II. THE ALLEGED VIOLATION OF SECTION 8(a)(1) AND (3)
The Union's "active" organizational campaign at the
Company's plant in Glasgow commenced about
February 1, 1966. A Board-conducted election was held on
May 11. Evans had been hired on September 27, 1965; she
was discharged on June 3, 1966, after several days'
absence, and was so informed on June 6 before her shift
began.
Considering only the significant aspects of the
testimony adduced, it is clear that the Company was
opposed to organization of its employees by the Union, and
that the Company knew that Evans was an active
supporter of the Union and played a significant part in the
campaign. Not only was she one of the union observers at
the election and known to be a member of the 20-member
Organizing Committee and of an 8- then 9-member
committee, but aside from her introduction on a union TV
program which we need not detail, she alone challenged
the plant manager when he addressed the massed
employees during the campaign. The issue remains
whether the reason assigned for her discharge, insufficient
production, was valid (I do not question its sufficiency or
reasonableness), or a pretext. Was she discharged because
of her union activities?
Evans testified that before the election she had never
been warned about her production. She spoke of a written
warning on May 16 for negligence, an oral one for violating
a rule about wearing gloves off the job, and a second
written warning, 2 weeks before June 6, that she would be
terminated in 2 weeks if she did not bring her production
up to 100 percent. (The warning dated May 18 read,
"Within a maximum of two weeks.")
The record shows that Evans did not bring her
production up to 100 percent during the week ending
May 27; and while she claimed that she did make "more
than production" or 100 percent for 2 days in which she
worked during her last week, admittedly she worked only 1
day that week, absenting herself thereafter. (She testified
that she had worked 2 days that week. She was paid for 2,
but the first was a legal holiday, when she did not work.)
Considering Evans' production record and the 6
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scattered days' between March 17 and May 31 when she
attained 100 percent (she exceeded that 1 day during the
week ending May 27 or 29 and on the last day she worked,
May 31), one could almost attribute sarcasm to Foreman
Boring (no longer there), certainly an attempt to encourage
her, when according to her testimony he congratulated her
the first time she made 100 percent, which according to
the Company's records occurred on March 17.
Foreman Mayes, who discharged Evans, testified to
production warning notices, as they appeared in company
records, given to Evans on February 8 and 15 and May 18.
He further testified that a few days before Evans returned
on June 6 he decided to discharge her because of her
insufficient production.2 If a posted production chart did
not warn of discharge, Evans was given both "notice" and
"warning." She admitted that she knew of the
requirement of 100 percent within 6 months although she
maintained that she was not told of it by the Company.
According to Evans, Foreman Boring, who signed the
productivity warnings , had never critized her work or
threatened to discharge her for lack of production. It does
not appear that the early warnings, which I find were
issued to her, were unwarranted or prompted by a desire
to provide a basis for discriminatory discharge. The
instance of negligence was not cited nor is it now relied on
by the Company to justify the discharge. As much (or little)
can be said concerning the verbal warning about the
gloves. The issue revolves around her failure to make a
"sufficient rate in 6 mo.," as noted on her Status Record
and previously cited to her.
Although comparison with other employees' production
would be in order on the issue of disparate and
discriminatory treatment, no comparison was made or
sought by the General Counsel at the hearing;3 and
although company counsel disclaimed any comparison,4 it
does appear that another employee, Stephens, was also
discharged on June 6 for poor production.
Mayes' explanation for not discharging Evans earlier is
quite credible: She was active in the Union, and he did not
want to give her "a pretty good reason" to go to the Board.
Certainly antiunion motivation , not to mention unlawful
interference with the election, could as readily have been
suspected and charged had the discharge (even if
"understood" by Evans, infra) occurred while the election
was pending. Evans's union activity may have created a
problem in connection with discharge, and this would
thereafter have aroused suspicion . But such activity is no
substitute for proper work performance, and it cannot
immunize her against discharge. The necessary element of
greater production, which would have completely met an
ostensibly valid complaint based on any suspected intent
to remove her, was within her power or at least her
responsibility to provide. This she did not do. There is no
sufficient basis for finding that her discharge was wholly
or in part discriminatory.
As for Evans' complaint that she could more readily
have understood a discharge at the end of 6 months than
after 8, when her production had as she claimed improved,
her production record does not show improvement and
certainly not sufficient. She had at least heard from other
employees about the need for stepped-up production, and
whether or not she had received warning slips from
Foreman Boring, who was now not available (there is basis
for finding that the slips were in normal course delivered
to her), she knew of the production requirements and their
gradual rising to 100 percent; and the Company's
enforcement of such requirements has not been shown to
have been discriminatory. This finding is made with full
awareness of the admitted opposition to organization of the
employees, noted above. With no interference or other
violation charged against the Company, whether or not it
be found to have violated the Act previously,5 it can here
be said, borrowing the Board's language in another and
different situation , "There is nothing in the record to
refute the Respondent's contention or to support that of
the General Counsel. 916
I find and conclude that Evans was discharged for
cause, and not because of her union sympathy,
membership, or activities.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I recommend that the complaint be dismissed in its
entirety.
' At the very close of the hearing, by which time counsel and
the Trial Examiner should have been able to recognize what was
essential as proof in the case, I reluctantly received in evidence 23
weekly timecards which listed Evans' daily record from January 2
to June 5, 1966 Evans' record by weeks was already before us,
the daily record is cited by counsel only to show the number of
days on which she attained 100 percent production (this was now
specifically requested by the Trial Examiner), an item which the
General Counsel stated that he was willing to stipulate The
record is no more complete by inclusion of unnecessary questions
or documents which could be covered by stipulation, and
certainly no more impressive
It is a truism that counsel , without neglecting any necessary or
material aspect of their case , can cooperate with each other and
with the Trial Examiner by seeking and accepting stipulations and
omitting available items to the extent that these do not reflect on
the case and its outcome
2 The "maximum" of 2 weeks had not elapsed, neither had
Evans' production rate approached 100 percent over the period
after May 18
9 The General Counsel in his brief refers to the weekly
production sheet for comparisons, which are noted herein Were
the sheet rejected , he would have no basis for comparison.
" The Company in its brief refers to "the minimum level of
productivity required of all other [sic] employees doing the same
job " If this does not suggest comparison , it is clear that a 100-
percent rate is not consistently required It seems from the
weekly production sheet submitted that only Stephens'
production rate was poorer , or as poor as, Evans' We were told
that only these two failed before the discharge date to qualify for a
10-cent raise by attaining 100 percent for 3 days in 1 week . If other
employees failed to make 100 percent consistently , it appears
from the weekly averages that they approximated it and at times
attained it for an entire week
5 While the Company 's animus and its recent discrimination as
found by a Trial Examiner in a case now pending before the Board
(Case 9-CA-3869), if found by the Board , would be revelant on
the issue of discrimination here (cf N L.R B v Erie Resistor
Corp , 373 U S 221 , 227), they are not sufficient to overcome the
evidence directly received concerning Evans' job performance
and her discharge
6 Continental Woven Label Company, Incorporated , 160 NLRB
1430