Pennco, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1977

233 N.L.R.B. 133 (N.L.R.B. 1977)

PENNCO, INC.
Pennco, Inc. and Communications Workers of Ameri-
ca, AFLCIO. Case 9-CA-10721
October 31, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On July 28, 1977, Administrative Law Judge John
M. Dyer issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
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
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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order,2 as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Pennco, Inc., Ashland, Kentucky, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
I. Substitute the following for paragraph I(c):
"(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed under Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 in par. l(c) of his recommended Order, the Administrative Law Judge
uses the narrow cease-and-desist language, "in the same or any similar
manner," rather than the broad injunctive language. "in any other manner,"
which the Board traditionally provides in cases involving serious 8(aX3)
discrimination conduct. See N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532,
536 (C.A. 4, 1941). Accordingly, we shall modify the Administrative Law
Judge's recommended Order and notice.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT issue warning notices to employ-
ees for engaging in union or concerted activities
with other employees for their mutual aid and
protection.
WE WILL NOT forbid the wearing of union
buttons or badges by our employees.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed under Section 7 of the Act.
WE WILL revoke and remove the warning
notices which we issued to Robert R. Castle and
Larry R. Henderson.
PENNCO, INC.
DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Administrative Law Judge: Communica-
tions Workers of America, AFL-CIO, herein called the
Union or Charging Party, filed a charge on October 15,
1976,' alleging that Pennco, Inc., herein called Respondent
or the Company, violated Section 8(aXI) and (3) of the
National Labor Relations Act, as amended, by giving
written warnings to Larry Ray Henderson and Robert Ray
Castle and otherwise interfered with employees' rights. The
Regional Director for Region 9 issued a complaint on
November 30 alleging that Respondent had issued written
disciplinary warnings to Castle and Henderson in violation
of the Act and that, in September, Plant Superintendent
Laird Hicks and Foreman James Sell had violated Section
8(a)(1) of the Act by their demands that employees remove
union insignia at work.
Respondent, in its answer as amended at the hearing,
admitted the jurisdictional and commerce allegations and
the issuance of the warnings but denied that it had in any
way violated the Act.
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue orally
at the hearing held in Ashland, Kentucky, on March 3,
1977. Briefs received from Respondent and the General
Counsel have been considered.
The principal question in this matter is whether the
warning notices to Henderson and Castle are legitimate or
were given to inhibit their union activities and the activities
of other employees during the Union's organizational
Unless specifically stated otherwise, the events herein took place during
the latter part of 1976.
233 NLRB No. 29
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
campaign. The evidence makes it clear that the purpose of
issuing the warning notices in the middle of the campaign
was to hinder Castle and Henderson who were the main
employee proponents of the Union. Respondent, in effect,
admitted that it warned Henderson to remove his union
buttons but places such action on the basis of a lack of
knowledge at the time and that it did not thereafter attempt
to enforce such regulation. I have concluded that Respon-
dent violated Section 8(a)(1) and (3) of the Act.
On the entire record in this case, including the exhibits
and testimony and including my evaluation of the
reliability of the witnesses based on the evidence they
produced and the contradictions they admitted, I make the
following:
FINDINGS OF FACT
I. COMMERCE FINDINGS AND UNION STATUS
Pennco, Inc., is a Kentucky corporation engaged in the
manufacture and sale of aluminum doors and windows at
its plant in Ashland, Kentucky. During the past year,
Respondent sold and shipped directly to points outside the
State of Kentucky goods and products valued in excess of
$50,000.
Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Respondent admits, and I find, that Communications
Workers of America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
According to the charge in this matter, the Company has
approximately 200 employees engaged in the manufactur-
ing of aluminum doors and windows at its plant. The
supervisory hierarchy relevant to this case includes Person-
nel Director Gary W. Layne, Plant Superintendent Laird
W. "Pete" Hicks, who has held that job for 3 years,
Foreman James Sell, production foreman in the door line,
and Dorvin Hineman, shipping department foreman.
James Sell had been a foreman for 2-1/2 years and
Hineman had been the shipping department foreman for
the last 4 of the 5 years he worked there. Larry Henderson
worked as a forklift or towmotor driver under Hineman
and had been with the Company for about 20 months on
two different occasions. Robert Castle had been with the
Company for about 3 years and was a valued employee as
a door glazier who, according to his own admission, had
some absentee problems because of his teeth and general
health during the first part of his employment but he had
improved his absentee record in latter 1976.
On January 21, 1974, Respondent published its general
rules of conduct for all employees. They supposedly were
distributed to employees when they became employees and
were also posted on the bulletin board. The rules contained
an explanation of the terms "W" and "T" which meant
warning or termination and were to be given in accordance
with the seriousness of the offense. Most of the rules
provide for two warnings before a termination, whereas
some rules provide for immediate termination. The
"Absentee Control Policy," after reminding employees that
their attendance at work was important, states that
employees should get prior approval or authorization from
the foreman and that, if they are not able to report for
work, should notify the plant of their absence as early as
possible. Thereafter, rule I states,
Three (3) unexcused absences in any ninety (90)
calendar days will result in the following disciplinary
action. A doctor's slip will be accepted for absence. I-w
2-w 3-t
Respondent's explanation of this rule was that, when the
third unexcused absence in a 90-day period occurs, a
warning would be given. If three more absences occur
within the same 90-day period, a second warning would be
given. If three more absences occur in that same 90-day
period, the person is subject to being terminated.
According to Respondent, attempts at organization had
been made in prior years, the last one occurring approxi-
mately 2 years ago. In the late summer of 1976, Castle and
Henderson went to the union headquarters and there
talked to the local representative of the Union. They each
signed union authorization cards and were given other
union authorization cards to distribute to employees.
According to their uncontradicted testimony, Henderson
and Castle passed out union authorization cards to other
employees, received signed cards, and returned them to the
Union. The Union thereafter filed a petition which was
docketed as Case 9-RC-11659; a hearing was set and held
on September 17, 1976. Both Castle and Henderson
received subpenas issued at the request of the Union and
both showed their subpenas to their supervisors the day
before they attended the NLRB hearing. They, along with
one other employee, testified for the Union at the hearing
and Personnel Manager Layne was present when they
testified.
Plant Superintendent Hicks testified that Castle showed
him his subpena and said he told Castle it was a subpena
and that Castle had to go to the hearing. Hicks indicated
that this was the first he had learned of any possible union
connection between Castle and the Union.
Around September 25 or 26, while Henderson was
punching in, Hicks remarked on the large CWA union
button Henderson was wearing and told Henderson to take
it off, that he did not want to see it around the plant.
Henderson took the badge off then. Hicks admitted that he
saw a badge on Henderson and told him that was
campaigning and that he did not want that done in the
plant and Henderson took the badge off. Later that day,
Hicks said he saw Henderson with the badge on again but
said nothing to Henderson about it since in the meantime
he had learned from higher authority at the plant that
wearing a union badge was permissible.
About 3 or 4 days later, Foreman Sell spoke to
Henderson about the CWA union badge Henderson was
wearing. According to Henderson, Sell told him to take the
badge off, that he did not want any campaigning in the
plant; he took the badge off and left it off for 2 or 3 days
before resuming wearing it. Sell testified that he merely
questioned Henderson on whether Henderson was allowed
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PENNCO, INC.
to wear a CWA badge in the plant and told him that, if he
were not allowed to do so, to put it in his pocket. He stated
that Henderson replied that it was his right to wear it and
he did so.
While there might be a question as to the second
occasion, it seems clear that on the first occasion the plant
superintendent did order Henderson to remove a union
badge when he had no right to do so and thereby infringed
on employees' rights. Therefore, this violation is in effect
admitted and I find Respondent, by demanding employees
remove union buttons or badges, violated Section 8(a)(1) of
the Act.
The representation case decision issued on September 24
and the election was scheduled for October 21. In the 4-
week period between the decision and the election, both
parties issued campaign propaganda.
It is clear from the Company's leaflets that it did not
want a union in its plant and sought to dissuade the
employees from voting for it. The Union sought to counter
by handbilling employees, usually in the afternoon as they
were leaving the plant. Among those who assisted in the
handbilling, besides local union representatives, were
employees Robert Castle and Larry Henderson. Castle
stated that he remembered handbilling about 1 week before
he received a warning notice and Henderson testified that
he assisted in handbilling on approximately 12 occasions in
the 4 weeks prior to the election.
Castle stated that Plant Foreman Ken Kelly saw him
passing out handbills when he did so around October 1.
Henderson testified that both Plant Superintendent Hicks
and his foreman, Dorvin Hineman, saw him passing out
handbills, and that Hineman was 2 or 3 feet away as he was
giving out handbills to employees leaving the plant in their
cars. Henderson said that Personnel Director Gary Layne
and some others, who seemed to be taking pictures, were
watching the handbilling from a window in the plant.
B. The Written Warnings to Castle and Henderson
On October 7, Castle was given a written warning, dated
that day, which stated he had violated rule I dealing with
excessive unexcused absences of the absentee control
policy and it was signed by L. W. Hicks. That rule is
quoted above. In regard to Castle's unexcused absences,
Respondent stated that Castle's record for 1976 showed he
had five unexcused absences in January, one in February,
one in March, two in April, one in May, four in June (June
7, 10, 11, and 28), and none in July or August, and
absences on September 15 and 17 and October 4. In regard
to the latter three, since they would be the only three
absences within the 90-day period prior to the October 7
warning, Castle stated that he called the Company and
spoke to Assistant Plant Superintendent Miller and told
him that he would be absent on September 15, since he had
to go to the hospital and pick up his wife and their new
baby. He states that Miller said that was okay and no
contradictory testimony was offered. The September 17
absence was Castle's attendance at the representation case
hearing where he appeared under subpena and, according
to Hicks, Castle had shown him the subpena prior to the
date of the hearing and had been told by Hicks that it was
a subpena that he had to obey, and that he had to go to
that hearing. There was no evidence elicited concerning the
October 4 absence. If the 90-day period encompasses the
June 28 date, the October 4 date is dropped and no
evidence was offered concerning June 28. In either event,
the September 15 and 17 dates are part of the 90-day
period.
Under any criteria, certainly the September 17 absence
in response to a Board subpena should not be in a category
of unexcused absence. Further, it would seem that the
absence of September 15, where Castle called and spoke to
the assistant superintendent about his projected absence of
that day to bring his wife and baby home from the hospital,
would seem to be an excused absence rather than an
unexcused absence. Whether the September 15 absence is
considered excused or unexcused, with the September 17
absence in response to a Board subpena, it is clear that
there were not three unexcused absences within a 90-day
period or at least the 90-day period which preceded the
warning of October. If this warning were given for June or
January absences or for any others, the reason, as to its
being given at the time that the individual was in the
middle of a union campaign and not at the time that such
absences occurred, would raise a rebuttable presumption it
was done for the unlawful purpose of intimidating a union
proponent in his activities. Respondent did not attempt to
say what unexcused absences the warning applied to, so
under these circumstances I must presume it applied to the
three unexcused absences which immediately preceded the
date of the warning. Applying it to those three dates, it is
clear that it is invalid under the terms of the rule and
therefore was unlawfully given to Castle. When we add to
this that Castle had never been given a warning prior to
this time, when his absentee record was worse, it is possible
to come to only one conclusion and that is that it was given
to Castle at this particular time to inhibit his union
activities and the activities of other employees in the plant.
Respondent also produced evidence concerning Castle's
tardiness record but he was not given a warning for
tardiness which comes under a separate rule and therefore
any evidence in regard to this is irrelevant to consideration
of the warning given.
Henderson was given a written warning on the following
day, October 8. His warning was signed both by Hicks and
Foreman John Sells, and stated it was for violation of plant
rule number 5, "Attention to Work." On the written
warning, the explanation was "loafing and attention to
work. Spending to [sic] much time visiting around plant,
not getting finished products to the dock." Henderson
refused to sign the warning on the basis that he had not
broken the rule.
Hicks stated that he saw Henderson at one time talking
to two glasscutters, and waved his arm to Henderson to
move the towmotor and he did. He stated that the loading
dock supervisor, Hineman, told him that Henderson was
not doing all the work that he should. During his direct
testimony, Hicks stated he told Hineman to observe
Henderson's performance for a few days and, if the poor
performance continued, to let him know. According to
Hicks, Hineman thereafter gave him a note with figures on
the relative performance of the three towmotor operators
which indicated that the other two were doing twice as
135
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
much work as Henderson; he said this represented 2 days'
performance. When he was thereafter confronted with his
affidavit which indicated that he only talked to Hineman
once and had received figures for I day from Miller, Hicks
stated that he did not really remember the specifics.
Questioned as to what happened to the paper, Hicks said
he threw it in the wastebasket and did not keep it after
talking to Henderson and issuing the warning. Hicks'
acknowledged affidavit, however, claimed that, when
giving the warning to Henderson, he showed Henderson
the figures on which the disproportionate amount of work
and the warning slip were based and gave Henderson a
copy of the original. Henderson denied being shown any
such figures.
Hicks also testified that he offered to give Henderson a
verbal warning but that Henderson said that, if he deserved
a warning, to make it a written one. In some contradiction
of that, we have the fact that the written warning had been
prepared prior to the time that Henderson went in the
office.
In about the same manner, Foreman Dorvin Hineman
testified that, for a period of I to 1-1/2 weeks, Henderson
was gone for units to be pulled to the dock longer than
usual and that he did not want to get involved, realizing
that there was a union campaign going on. He stated that
he was told to see Hicks if there was a disciplinary problem
and he saw him regarding Henderson. He said that at one
time he saw Henderson talking to the people on the glass
line for almost 15 minutes and that he did nothing about it.
He stated that Henderson was pulling about half the
amount of units to the trailers that the other two towmotor
drivers were pulling and that he talked to Miller and Hicks
about Henderson's performance and was told to watch
Henderson for 2 days and then to report. Hineman said he
made up a comparison of the work done for the 2 days as
to what was pulled. On cross-examination, Hineman stated
in accordance with his affidavit that the figures he gave
were just for I day but said he gave Miller some verbal
figures for a different day. Hineman admitted that, in his 4
years as foreman, this was the first written warning that he
was ever responsible for and that he had taken care of all
other disciplinary problems within his department prior to
that time without involving higher management but that on
this occasion he never spoke to Henderson, did not warn
him about what he was doing, did not say anything to him
about it, just reported it to higher management, and let
them take care of it.
Hineman admitted that units were of different sizes, that
a unit could consist of an aluminum patio door or a small
window, and that each of those items was considered as
one unit. These items are stacked on pallets in numbers
ranging from 3 to 50 and, in moving units to the trailer, a
forklift driver lifts whatever number of units are on the
pallet to get the required number and runs it to the loading
dock. Thus, there can be some discrepancy in the number
of units as to what type of units are being taken to the
dock. Hineman stated that, over the long haul, the number
of different units average out and the men do about the
same amount of work.
Hineman stated that, after the warning, Henderson's
work performance improved. Henderson testified that he
did nothing more after the warning than he did before, and
that he worked at the same speed all the time; he denied
ever loafing on the job and, for that reason, said he had
refused to sign the warning slip.
The contradictions between the affidavits and the
testimony of both Hicks and Hineman make it appear that
their verbal testimony was designed to make what they did
appear more reasonable. Such embellishments and contra-
dictions do not engender confidence in their testimony. In
addition to the above, the warning was supposed to be
based on the number of units pulled and there is no
description of the units which were pulled; some units
would be less than half the size of others and, further, there
was no disclosure to Henderson as to what the comparison
was. When these are added to the fact that the warning to
Henderson followed by I day the warning to Castle, when
both of them were vigorously engaged in the union
campaign, a pungency about the warnings arises to signal
that validity is absent here. The clear invalidity of the
warning to Castle, added to the doubtful credibility of the
warning to Henderson where Henderson and Castle were
the chief union proponents, and the timing of these
warnings during the middle of the union campaign when
they were handbilling employees, lead me to discredit
Respondent's asserted reasons for the warnings and to
ascribe to them the reason that Respondent was trying to
interfere with the union activities of both Castle and
Henderson and of its other employees by demonstrating
that written warnings would be given for invalid reasons or
for no reason at all to persons who engaged in union
activities.
I therefore conclude and find that the warnings given by
Respondent to Castle and Henderson were invalid and
were designed to interfere with their rights and violated
Section 8(a)(1) and (3) of the Act; I will direct that
Respondent rescind and remove those warnings.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II and
therein found to constitute unfair labor practices in
violation of Section 8(aX1) and (3) of the Act, occurring in
connection with Respondent's business operations as set
forth in section I, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
IV. THE REMEDY
Having found that Respondent engaged in the unfair
labor practices set forth above, I recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act as follows:
Having found that Respondent unlawfully issued warn-
ing notices to Castle and Henderson, it is recommended
that Respondent rescind its warning notices to them and
remove said memoranda from Castle's and Henderson's
personnel files.
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PENNCO, INC.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Communications Workers of America, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (3) of the
Act by the issuance of invalid and unlawful warning slips
to Castle and Henderson because they engaged in union
and concerted activities with other employees for the
purposes of mutual aid and protection.
4. Respondent violated Section 8(a)(l) of the Act by
forbidding the wearing of union buttons and badges by its
employees.
Upon the basis of the foregoing 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 2
The Respondent, Pennco, Inc., Ashland, Kentucky, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Unlawfully issuing warning notices to employees
because they engage in union or concerted activities with
other employees for their mutual aid and protection.
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and the recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
(b) Forbidding employees to wear union buttons or
badges.
(c) In the same or any similar manner interfering with,
restraining, or coercing employees in the exercise of rights
under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Revoke and rescind its unlawful written warnings to
Robert R. Castle and Larry R. Henderson and remove said
warnings or memoranda from Castle's and Henderson's
personnel file in accordance with the recommendations set
forth in the section of this Decision entitled "The
Remedy."
(b) Post at all of its plants, warehouses, and offices,
copies of the attached notice marked "Appendix." 3 Copies
of said notices, on forms provided by the Regional Director
for Region 9, after being duly signed by an authorized
representative of Respondent, shall be posted by Respon-
dent 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 by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
3 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
137