Portable Electric Tools, Inc.

National Labor Relations Board - Board Decisions

Dec 28, 1961

134 N.L.R.B. 1641 (N.L.R.B. 1961)

PORTABLE ELECTRIC TOOLS, INC. 164f
Portable Electric Tools, Inc. and Yvonne Ballard . Case No.
13-CA-3980. December 28, 1961
DECISION AND ORDER
On October 10, 1961, Trial Examiner Samuel Ross issued his Inter-
mediate Report in the above-entitled proceeding, finding that Respond-
ent had engaged in and is engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the Intermediate Report attached
hereto. Thereafter, the General Counsel filed a brief in support of
the Intermediate Report and the Respondent filed exceptions to the-
Intermediate Report and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the National Labor-
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Fanning, and
Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Upon the entire record in this case , and pursuant to Section 10(c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent , Portable Electric
Tools, Inc., Geneva , Illinois, its officers, agents , successors , and assigns,
shall : -
1. Cease and desist from :
(a) Discouraging membership in and activities on behalf of Inter-
national Union of Electrical , Radio and Machine Workers, AFL-CIO,
or any other labor organization of its employees , by discharging or
refusing to reinstate any of its employees, or in any other manner dis-
criminating in regard to their hire or tenure of employment, or any
term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization , to form
labor organizations , to join or assist International Union of Electrical,
Radio and Machine Workers, AFL-CIO , or any other labor organi-
zation, to bargain collectively through representatives of their own
choosing , and to engage in other concerted activities for the purpose
i The Respondent 's request for oral argument is hereby denied as the record , exceptions,
and briefs adequately present the issues and the positions of the parties.
134 NLRB No. 164.
1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of collective bargaining or other mutual aid or protection, or to refrain
from engaging in such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized by Section
8 (a) (3) of the Act, as amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Yvonne Ballard 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 the discrimina-
tion against her, as provided in the section of the Intermediate Report
entitled "The Remedy."
(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 amount of backpay due under
the terms of this Order.
(c) Post at its plant at Geneva, Illinois, copies of the notice at-
tached hereto marked "Appendix." 2 Copies of said notice, to be
furnished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by an authorized representative of the Re-
spondent, be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places,, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
I In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in or activities on behalf
of International Union of Electrical, Radio and Machine Workers,
AFL-CIO, or any other labor organization, by discharging or
refusing to reinstate any of our employees, or in any other manner
PORTABLE ELECTRIC TOOLS, INC. 1643
discriminating against our employees in regard to their hire or
tenure of employment, or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-
organization, to join or assist International Union of Electrical,
Radio and Machine Workers, AFL-CIO, or any other labor or-
ganization, to bargain collectively through representatives of
their own choosing, and 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 that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of
employment, as authorized by Section 8(a) (3) of the Act, as
amended.
AVE WILL offer Yvonne Ballard, immediate and full reinstate-
ment to her former or substantially equivalent position, without
prejudice to any seniority or other rights and privileges pre-
viously enjoyed, and make her whole for any loss of pay suffered
as a result of the discrimination against her.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of the above-named Union, or any other
labor organization.
PORTABLE ELECTRIC TOOLS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted' for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge of unfair labor practices duly filed against the Respondent, Port-
able Electric Tools, Inc. (herein called the Company), the General Counsel of the
National Labor Relations Board issued a complaint dated February 17, 1961, al-
leging that the Company had engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the National Labor Relations
Act, as amended (61 Stat. 136, 73 Stat. 519), herein called the Act. In substance,
the complaint alleges that the Company discriminatorily discharged the Charging
Party, Yvonne Ballard, on December 15, 1960, because of her assistance to, and
activities on behalf of, International Union of Electrical, Radio and Machine Work-
ers, AFL-CIO, herein called the Union. The Respondent filed an answer denying
the substantive allegations of the complaint and the commission of unfair labor
practices.
Pursuant to due notice , a hearing was held before Samuel Ross , the duly desig-
nated Trial Examiner, in Chicago, Illinois, on March 22, 23, and 24, April 11, and
August 14, 1961. All parties were represented at the hearing by counsel and were
afforded full opportunity to be heard, to introduce evidence, to examine and cross-
examine witnesses , to present oral -argument , and to file briefs . A brief has been
filed by the General Counsel which -1 have carefully considered.
Upon the entire record in the case , and from my observation of the witnesses and
their demeanor , I make the following:
1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. COMMERCE
The Company, an Illinois corporation, maintains its principal place of business
at Geneva, Illinois, where it is engaged in the manufacture and sale of portable
electric tools and electronic devices. During the calendar year 1960, the Company
manufactured, sold, and shipped from the State of Illinois to places outside the said
State, products valued in excess of $1,000,000. Upon the foregoing admitted facts,
I find and conclude that the Company is engaged in interstate commerce within the
meaning of Section 2(6) and (7) oftthe Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits that International Union of Electrical , Radio and Ma-
chine Workers, AFL-CIO, is a labor organization within the meaning of Section
2(5) of the Act, and I so find.
III. THE UNFAIR LABOR PRACTICES
The Charging Party, Yvonne Ballard , began to work for the Company as a drill
press operator on November 8, 1960. Around the first of December,' Mrs. Ballard
commenced distributing authorization cards for the Union to employees of Re-
spondent during coffee breaks and lunch periods. She engaged In this activity in her
department, the ladies room, and the corridor. On December 15, Mrs. Ballard
was called to the personnel office and advised by Personnel Director Oscar Y. Lund-
man that she was fired for excessive absenteeism and because her production was
the lowest in the department. Ballard testified that she then expressed to Lundman
her disbelief that she was being terminated for absenteeism because she had called
Respondent every time she was absent, each absence had been for a good reason, and
she had not been absent or late for 3 weeks. She testified that she asked Lundman,
"If they were going to fire me for that, why [had they waited] that long." In re-
spect to her production, Mrs. Ballard testified that she told Lundman that she had
never been warned regarding low production,2 that she had inquired several times as
to whether her production was sufficient and had been advised not to worry, and
that if it were insufficient, she would be told. According to Mrs. Ballard, Lundman
replied that she must have been warned, and that these were not the only reasons
for her discharge, but that there were others which he would not divulge. Ballard
testified that she then told Lundman, "I know that isn't the only reason. I know
better than that, and you know I was given no warning." Lundman then said, "All
right, between you and I [sic], you are a union organizer." Mrs. Ballard then
replied that her discharge would not "stop the union [from] snowballing in this,
shop," and left.
Lundman's version of the discharge interview was quite different from Mrs. Bal-
lard's. Landman denied that he told Mrs. Ballard that she was a union organizer,
and he affirmatively testified that there was no mention of union or union activity
during .the exit interview, and that he had no knowledge of any such activity at the
plant prior to Mrs. Ballard's discharge. According to Lundman, he told Mrs.
Ballard that the reasons for her discharge were: (1) excessive time away from,
her machine, (2) excessive time in the washroom, (3) that her production was
poor, and (4) that the Company had received many calls from her creditors, and,
also from Aid for Dependent Children, a welfare agency, inquiring as to her at-
tend'ance at work. Lundman also testified that a fifth reason for Mrs. Ballard's
discharge was her excessive tardiness. He admitted, however, that he did not tell
her of this reason during the exit interview. According to Lundman, Ballard "made
no comment" when told the reasons for her termination, but "became very angry"
and "flipped out" of the office.
Although as aforestated, Mrs. Ballard was notified of her discharge on Decem-
ber 15 by Personnel Director Lundman, the decision to fire her was made by her
foreman, Edward Durante. Durante -testified that he observed on December 15 that
Mrs. Ballard was out of the department four times, exclusive of the regular lunch
and coffee breaks. Durante further testified that on -the first occasion she was gone
10 minutes, and on the others she was away from her machine 15 minutes each
time. According to Durante, he had spoken to Mrs. Ballard three or four times
1 Unless otherwise noted, all dates herein refer to the year 1960.
a The Company's rules, which will be reported and discussed in greater detail herein-
after, provide that an employee will receive two warnings before discharge for unsatis-
factory work.
PORTABLE ELECTRIC TOOLS, INC. 1645
regarding this during the 2 weeks preceding her discharge. Durante deposed that
he had kept Mrs. Ballard under close scrutiny during this 2-week period because
of this propensity on her part. Accordingly, he testified, he called Lundman and
recommended her discharge for excessive time away from the machine and incom-
petency. On cross-examination, Durante testified that he also told Lundman that
Mrs. Ballard should be discharged for absenteeism and tardiness. Durante denied
knowledge of any union activity in the plant prior to Mrs. Ballard's discharge.
Other than the foregoing testimony of Mrs. Ballard, there is no other evidence
in the record, either of union animus on the part of Respondent or of company
knowledge of Mrs. Ballard's union activities. Essentially, therefore, the issue which
must be resolved in this case is one of credibility, since it is quite obvious that if I
credit Mrs. Ballard's testimony and conclude therefrom that she was discharged
because she was a "union organizer," a fortiori, Respondent would thereby have
committed an unfair labor practice within the meaning of Section 8 (a) (3) and (1)
of the Act. To resolve this question of credibility, it becomes necessary to examine
and analyze the record in respect to the alleged deficiencies of Mrs. Ballard which
are asserted by Respondent as the reasons for her discharge, and the Company's
rules in respect thereto.
1. The Company's rules
At the time Mrs. Ballard was hired, the Company had in effect various plant
rules for the conduct of its employees (General Counsel's Exhibit No. 3). These
rules set forth certain conduct of employees which would subject employees to "im-
mediate discharge," other conduct under the heading "Single Warning Rules," for
which employees would be subject to discharge for a "second offense" after written
warning on the first offense, and additional conduct under the heading "Double
Warning Rules" for which discharge was the penalty for the third offense, after oral
warning on the first offense and written warning for the second offense. In this
latter category -fell two of the offenses for which Mrs. Ballard was allegedly dis-
-charged, "Wasting time or loitering in toilets, on company property during working
hours," and "Failing to do the work assigned by supervision in an efficient, satis-
factory and acceptable manner as judged by the Company." The Company's rules
also provided, "Three wage assignments, or garnishments, in any one calendar year
will cause discharge." On or about November 28, these rules were amended to
,eliminate the requirement for written warnings, but in other respects the rules re-
mained,the same (Respondent's Exhibit No. 1). Both the original and the amended
rules provided that in cases of "extreme severity," the penalty of discharge could
be inflicted for violations of either "single warning" or "double warning" rules.
In addition to the foregoing rules, the record discloses that the Company also has
rules for its employees covering absenteeism and tardiness,3 but these were not
offered or produced by Respondent, and no explanation was offered for the failure
to do so.
2. Tardiness -
As aforestated, one of the reasons for which Foreman Durante allegedly recom-
mended Mrs. Ballard's discharge was her tardiness. The Respondent's record of
Ballard's attendance and tardiness show that she was tardy on only two occasions,
November 11 and 22.4 According to Plant Clerk Allijean Rogers, who made and
maintained the attendance and tardiness records, tardiness was noted whenever the
.employee arrived late, even if the tardiness was 1 minute. No evidence was offered
by Respondent and none appears in the record of the extent of Mrs. Ballard's tardiness
on these two occasions. Foreman Durante testified that he "thinks" he spoke to
Mrs. Ballard once about her tardiness and that she- was never late thereafter. Mrs.
Ballard denied that she was ever warned about tardiness .5 As aforestated, Personnel
Director Lundman admitted that he did not mention tardiness to Mrs. Ballard when
he told her the reasons for which she was being discharged. Similarly, Respondent's
record of Mrs. Ballard's termination (Respondent's Exhibit No. 8), although listing
,other reasons for her discharge, does not assign tardiness as one of them.
The failure of Respondent to produce any evidence to show that Mrs. Ballard's
tardiness on two occasions was either excessive, contrary to its rules, or greater
than average for the period of her employment, the failure of Foreman Durante
to refer to tardiness as a ground for her discharge until cross-examination, the
absence of any reference by Lundman to excessive tardiness-during the exit interview
3 See Respondent's Exhibit No. 1, article 1, section 1.
' Respondent's Exhibit No. 11.
In view of Durante's lack of certainty in regard,to speaking to Mrs. Ballard regarding
her tardiness, I credit Mrs. Ballard's denial that she was ever warned,,aboutdt.
1646 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
with Mrs. Ballard, the absence of tardiness as a ground for her discharge in Respond-
ent's record of her termination, and finally, but most significantly, the fact that Mrs.
Ballard had not been tardy even once during the last 3 weeks of her employment, all
persuade me that tardiness was not a reason for which Respondent reasonably could
have or did discharge Mrs. Ballard. On the contrary, I am satisfied by the foregoing
and find that the assignment of this reason for her discharge is a transparent and base-
less afterthought on the part of Respondent.
3. "Chronic" absenteeism
As aforestated, another reason assigned by Respondent for Mrs. Ballard's dis-
charge was "chronic" absenteeism. Respondent's record of Mrs. Ballard's attend-
ance at work discloses that she was absent on November 14, 18, and 23 through
26,6 and that in connection with each absence and the commencement of the last
absence period, she "called in." Foreman Durante testified that after her last
absence on November 26, Mrs. Ballard explained to him that "someone was sick,"
and he told her that he "could understand that, but she should try to do better."
Durante admitted that Mrs. Ballard was never absent after that. As aforestated,
although Respondent has rules in effect in respect to absenteeism, they were not
produced by Respondent, and I am therefore, not able to assess to what extent, if at
all, Mrs. Ballard's absences were in excess of that which the Company permitted.?
On the foregoing record, I find that the assignment by Respondent of chronic
absenteeism as a ground for Mrs. Ballard's discharge is incredible for the following
reasons: (1) Durante's testimony on direct examination that he recommended Bal-
lard's discharge only for incompetency and excessive time away from her machine,
and his failure, until cross-examination, to testify that absenteeism was also a ground
for which he recommended her discharge, suggest to me that the latter ground was
not really the reason on which Durante's recommendation was based; (2) the
lack of any evidence that the number of absences of Mrs. Ballard was in excess of
that permitted by or otherwise in contravention of Respondent's rules in respect to
absenteeism, and the failure to produce any documentary or other credible evidence
that Ballard's absenteeism was greater than average for the period of her employ-
ment; 8 (3) the fact that Mrs. Ballard was not discharged at the time the absences
occurred, but, on the contrary, her last absence was excused by Durante's statement
that he "could understand" the necessity for'it, and that she "try to do better"; and
(4) by the fact that Mrs. Ballard was never absent after that. All of these factors
persuade me that Respondent's assignment of "chronic absenteeism" as a ground for
Mrs. Ballard's discharge is unsupported by the record and is an obvious afterthought.
4. The nuisance of-inquiries concerning Mrs. Ballard
As previously stated, Personnel Director Lundman testified that at the .time, he
discharged Mrs. Ballard, he told her that-among the reasons for her termination were
"many calls from outside creditors," and inquiries from Aid for Dependent Children
regarding her attendance ; at work. Cross-examination of Lundman developed,
however, that the "many calls from outside creditors" were only two telephone
calls, both from the same collection agency, which requested that Mrs. Ballard be
warned to make arrangements for the liquidation of her debts or they would garnish
her wages.9 On November 30, Assistant Personnel Director Martha Clifford sug=
gested to Mrs. Ballard "that she get in touch with them [the collection agency]
immediately before there was a garnishment," and warned her that if she received
three garnishments she would be automatically terminated. Mrs. Ballard replied
9 The latter period includes Thanksgiving Day, a nonwork holiday, and Saturday,
November 26, which apparently is only a partial workday
z Although Plant Clerk Rogers testified that Mrs. Ballard's absences were in excess of
other employees during the period of her employment, I do not credit her conclusionary
testimony in this respect, because it was unsupported by the Company's attendance records
which were available to establish this conclusion, if it were true, and because, for reasons
hereinafter explicated, I regard her testimony as unreliable and not worthy of credence.
8 The failure of the Respondent to produce or offer, either the attendance records of the
other employees in the department in which Mrs. Ballard worked, or the Respondent's
rules in respect to absenteeism and tardiness, impels the inference, which I make, that
such records and rules would not support the conclusion that Mrs. Ballard's absences were
in excess of that permitted by Respondent. See 2 Wigmore, Evidence, 1 285 (3d ed
see also Whitin Machine Works, 100 NLRB 279, 285
9 A copy of a letter from this collection agency to Mrs. Ballard to the same effect was
received by Respondent about November 29.
PORTABLE ELECTRIC TOOLS, INC. 1647
that she would start at once to make monthly installment payments . No garnish-
ment of Mrs . Ballard 's wages was ever received by Respondent . Personnel Director
Lundman admitted that he never had discharged any employee because of telephone
calls from the employee 's creditors . Respondent 's rules contain no provision for
discharge of an employee because of calls from creditors , but do contain a provision
for discharge of an employee for three garnishments in 1 calendar year.
In respect to the calls from Aurora Township Aid for Dependent Children, Mrs.
Ballard testified that on three occasions during her period of employment with
Respondent she received aid in the form of grocery orders, each of which entitled
her to purchase groceries valued at $28.22. She also testified that she received this
aid during weeks in which she was not absent from work.10 Assistant Personnel
Director Martha Clifford testified that she received two telephone calls from the
welfare agency inquiring about Mrs. Ballard 's attendance at work.ii
As indicated above, Mrs. Ballard denied that any reference was made during
her exit interview with Personnel Director Lundman either to calls from creditors or
from the welfare agency. I credit her denial . 12 As hereinbefore also noted, Re-
spondent 's official record of her termination ( Respondent 's Exhibit No. 8) likewise
contains no reference to calls from creditors or the welfare agency as a contributing
factor to Mrs. Ballard 's discharge.
In the light of the failure to refer to this subject matter at the time Mrs. Ballard
was terminated , the absence of this reason for her discharge from any record of
Respondent , the nonexistence of any company rule making calls from creditors
a ground for discipline , the fact that Ballard had no garnishments on her salary,
although Respondent permitted two without penalty, and Lundman's exaggerated
testimony which equated two telephone calls from the same collection agency with
"many calls from outside creditors ," I regard the assignment of this reason for
Ballard 's discharge as another afterthought of Respondent . Indeed, since Respond-
ent's rules permitted two garnishments but not three in each calendar year without
penalty, I find it hard to believe that Respondent was much, if at all , concerned
with mere telephone calls or inquiries regarding its employees , and I therefore do
not believe that Mrs. Ballard 's discharge was in any manner based on the two calls
from the collection agency and /or the two calls from the welfare agency.
5. Mrs: -Ballard 's production
Another reason for which Respondent ' allegedly fired Mrs . Ballard was her poor
production . As aforestated ,, Respondent 's rules provide that an employee may be
discharged for "failing to do the work assigned by supervision in an efficient , satis-
factory and acceptable manner as judged by the Company;" after warnings for the
first two "offenses ." Mrs. Ballard testified that she had never been warned by any of
her supervisors that her production was insufficient , and that , although • she in-
quired, she was never advised what standard of production was expected of her.
On behalf of Respondent,'only_Foreman Durante gave testimony that he warned
Mrs. Ballard about poor production. However, his testimony was not persuasive.
Thus, when first questioned as, to such a wafning , Durante denied that he did so.
Instead, he testified that he "spoke to her not specifically about her work production.
That was done by someone else ." Later, Durante contradicted this testimony by
asserting that he did warn Mrs. Ballard that she was not producing sufficiently.
Durante was then asked 'when he did so, and replied evasively, "that was handled'
mostly by my foreman." 13 Asked again to fix the date , Durante finally testified' that
it was about a week before Mr. Ballard 's discharge . Durante then testified , "I told
her her production was down at the time because of time away from the machine "'
Still later, Durante testified that on this occasion , he "told her that her production
10 This testimony was received by way of cross -examination of Mrs Ballard because
Respondent contended that she had been -deliberately absent in order to qualify for this
relief However , Respondent produced no proof to sustain this contention
11 Respondent sought to elicit from Clifford testimony to the effect that during one of
these two conversations , the representative of the welfare agency characterized the
"Ballards" as prone to "misrepresentation ," but I rejected it as obviously hearsay Re-
spondent did not thereafter call the welfare agency representative to pursue this line of
inquiry
12 I do not credit Personnel Director Lundman's contrary testimony, particularly because
his allegedly concurrent memorandum of the exit interview (Respondent ' s Exhibit No. 9)
contains no reference to this alleged ground for Ballard 's discharge
13 By the term "my foreman ," Durante was referring to his assistant foreman, Zilius.
Although Zilius testified for Respondent , he gave no ' testimony that lie ever warned'
Mrs Ballard for low production.
1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was below the standard, below what was expected." 14 I do not credit Durante's
testimony which I find is contradictory, evasive, and shifting. Moreover, in view
of the absence of any testimony by Assistant Foreman Zilius, who allegedly "mostly
handled" such warnings, that he warned Mrs. Ballard for low production, I conclude
that Mrs. Ballard was never warned in this respect.
Respondent also introduced into evidence a summary prepared especially for the
hearing in this case, purporting to show that Mrs. Ballard was the lowest producer in
the department. According to Foreman Durante, this summary (Respondent's Ex-
hibit No. 5) listed all of the jobs on which Mrs. Ballard worked during her entire
period of employment by Respondent, except for 3 days,15 the number of hours and
the date on which she worked on each of these jobs, the number of pieces produced by
her on each such occasion, and the same information for all the other employees who
worked on the same jobs during the same period. The exhibit also purported to
show the number of pieces which, according to the Company's production standards,
should have been produced during the time spent on each job, and the percentage
of efficiency of each employee on each job, computed by dividing the actual pro-
duction by the number of pieces which should have been produced.16 According to
Durante, the summary was prepared from the original production timecards which
the employees turn in to the Company with each job. However, the original pro-
duction timecards 17 disclose that, contrary to Durante's testimony, the exhibit did
not list all of the jobs on which Mrs. Ballard worked. In addition, the exhibit also
omitted many of the jobs of other employees who worked on the same operations
as Mrs. Ballard, and listed many jobs for Mrs. Ballard and other employees for
which Respondent produced no original production timecards. No explanation
was offered by Respondent for the inaccuracies of the exhibit. I find Durante's
testimony regarding the completeness of this exhibit as another indication of the
lack of reliability of his testimony.
Concerning the manner in which Respondent set its production standards shown
on said exhibit, Assistant Works Manager Walter Sundberg testified that the rate
for each job was the average obtained by dividing the number of pieces produced
by all of the employees who worked thereon during a fixed -period, such as a week
,or a month, by the total number of hours consumed in such production, after elimi-
nating from consideration production runs of less than 4 hours' duration and those
of new and inexperienced employees. Although specifically asked on several occa-
sions, Sundberg evaded and did not explain why production runs of less than 4 hours
were not considered in setting the Company's production standard rate for each job.
Later, contradicting his prior testimony, Sundberg averred that on some jobs pro-,
duction runs of 2 hours' duration were considered in setting such rates. However,
neither he nor any other witness for Respondent specified on which of the jobs listed
,on Respondent's Exhibit No. 5, if any, the, standard rates were fixed by considering
runs of 2 hours and more, and which on runs of 4 hours and more.18 Sundberg also
testified that "a good percentage of the employees ought to be able to produce 100
percent of the production standards." Yet, on the face of Respondent's Exhibit No. 5,
100 percent of production was achieved on only 20 percent of the jobs listed. In
view of allthe foregoing, I am impelled to the conclusion that I cannot place much
reliance on Respondent's Exhibit No. 5 in determining Mrs. Ballard's relative pro-
duction efficiency as compared with other employees, with her limited experience.
Moreover, even Respondent's original production timecards cannot be completely
relied on for this purpose, in view of obvious errors in the length of time in which the
production was accomplished, and the absence of any testimony regarding the con-
trols, if any, that Respondent exercised to assure the accuracy of the time specified on
the cards. For example, on job No. 6-419-4, where Respondent's production stand-
'* Durante's earlier version of this conversation with Mrs Ballard contained no refer-
ence to company standards or expectations Durante admitted that he never told any of
the employees "how many pieces they have to do." .
15 The 3 days not covered by the summary were November 28, 29, and 30. No explana-
tion was offered as to why these dates were omitted.
16 The manner in which the Company's production standards was determined will be
reported hereinafter.
19 All of such original cards had been subpenaed by the General Counsel and purportedly
all were produced.
18 Since 39 percent of all the jobs listed on the exhibit were runs of less than 2 hours'
duration, and another 23 percent were runs of from 2 up to but not including 4 hours, it
is quite obvious that the absence of this information makes it difficult, if not wholly im-
possible, to properly evaluate the relative production efficiency of the employees on the
listed jobs which took less than 4 hours to complete.
PORTABLE ELECTRIC TOOLS, INC.- 1649
and is 250 per hour, Mrs. Ballard, according to the production timecard, produced
521 pieces in' 0.7 of an.hour on December 14, the day before her discharge. If
correct, this would be 297 percent, practically 3 times Respondent's production rate.
Similarly,, according to Respondent's production timecard, employee Vera Weishirt,
clock No. 1610, produced 142 pieces on job No. 6-500-6 19 in 0.2 of an hour, or at the
rate of 710 pieces per hour,. more than double that of the next highest production
of any employee who worked on this job. In view of these obvious errors, the ex-
tent of other less apparent errors is impossible to ascertain . In addition, the pro-
duction timecards do not disclose the extent of downtime, when the employees could
not produce because the machines were nonoperative as a result of temporary repairs,
replacements of broken drills and taps, or waiting for materials. As a consequence,
the production rates of employees who worked on the same job more than once fre-
quently varied widely, according to the production timecards, for reasons wholly
unrelated to the relative efficiency of such employees. For all the foregoing reasons,
I do not regard- the production timecards as an accurate gauge of the comparative
production of Respondent's employees.
Notwithstanding the foregoing, on the assumption that Foreman Durante utilized
the production timecards in judging the employees under his supervision, I have care-
fully studied the cards in evidence, and have computed the hourly production rates
of the various employees who worked on the same jobs as Mrs. Ballard, as shown by
the cards. My study of the cards discloses that Mrs. Ballard's production rate was
slower on some jobs than that of other employees, and was faster than other em=
ployees on other . jobs 20 My analysis of the timecards leads me to conclude that
rather than sustaining Durante's testimony that Mrs. Ballard was the slowest pro-
ducer in the department, she was producing during the period of at least a week
before her discharge, at a rate which Respondent regarded as satisfactory,21 and,
moreover, that her production was improving daily.
Aside from the production records, there is other testimony in the record which
negates Respondent's assertion that Mrs. Ballard was discharged because of poor
production. Thus, her immediate supervisor, Assistant Foreman Zilius, who testi-
fied for Respondent, admitted that, although Mrs. Ballard was "not the fastest," she
"was a fair worker." Later he explicated that by the foregoing, he meant that
"she was fair in the way of production." 22 In addition, after evading a direct
response, Foreman Durante admitted, on cross-examination , that he told Mrs. Ballard
she would receive a length-of-service increase in wages . Plainly, such an admission
is inconsistent with her allegedly poor production.
In view of all the foregoing, including (1) the absence of any warning to Mrs.
Ballard regarding her low production, (2) the failure of Respondent to follow its
rules in respect to double warnings ,23 (3) the submission by Respondent of un-
ra This was a job on which Mrs . Ballard worked once which was -completely omitted
from Respondent 's Exhibit No. 5. The record does not show Respondent 's standard rate
for this job. -
20 The following are a few examples : On November 16, on job No 6-222-6, Mrs . Ballard
produced 607 pieces in 18 hours , or at a rate of 337 per hour , whereas Ann Serbian, clock
No. 669, whose employment with the Respondent commenced 2 years before Mrs. Ballard,
produced 236 pieces in 1.2 hours , or at a rate of 196 per hour . Respondent 's standard
rate for this job was 250 per hour. Significantly this was one of the jobs of Mrs . Ballard
which Respondent omitted from its exhibit No. 5, while at the same time it listed her
lower production when she worked at this job for the first time and produced only 126
pieces in 0.8 hour or at the rate of 157 per hour . On job No. 6-222-7, Mrs. Ballard
worked only once for 0 .6 hour and produced at a rate of 178 per hour , faster than
clock ' No. 1427 who worked on the job for 2.4 hours at a rate of 140 per hour , but slower
than other employees who worked at rates which varied from as low as 186 to as high
as 298 per hour . On jobs Nos . 6-234-4 and 6-234-10, Mrs. ' Ballard 's production rate
was faster than two other employees who worked on these ' jobs and slower only than one
On job No. 6-306-2, Mrs. Ballard 's production rate was 346 per hour ,' higher than clock
Nd. 1560, whose lower rate of 329 per hour was omitted by Respondent from its exhibit
No. 5, but slower - than that of two' other employees whose production was listed thereon
zi Durante testified that 90 percent of the Company's production standards was ex-
pected of employees-who had been with the Company 6 weeks. Mrs Ballard was fired
before she completed 6 weeks of employment with Respondent
121 regard this testimony as an admission against interest on the part of Respondent.
In contradiction to this testimony , Zilius later testified that she was " the slowest worker"
lie'had I do not credit this latter testimony.
22 Even if I credited Durante's testimony regarding his alleged warning to Mrs Ballard
regarding low production , the company rules called for two warnings before discharge
630849-62-vol 1 34-105 • , • . _
1650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reliable production records, (4) my analysis of Respondent's original production time-
cards from which I have concluded that during the week prior to her,discharge Mrs.
Ballard's production was not below that regarded acceptable by-Respoin'dent,and was
constantly improving, (5) the admission by Assistant Foreman Zilius that Mrs. Bal-
lard "was fair in the way of production," and (6) Foreman Durante's admission that
he told Mrs. Ballard that she would receive a length-of-service increase in wages, I
am persuaded and find that low production was not the reason for Mrs. Ballard's
discharge, and that its assertion as such, is a mere pretextual device by which Re-
spondent seeks to conceal the true motivation for her summary dismissal.
6. Excessive use of washroom and time away from machine
The last two reasons asserted by Respondent for the discharge of Mrs. Ballard
were (1) "too much time away from her machine," and (2) excessive use of the
washroom. As aforestated, Personnel Director Lundman testified that he advised
Mrs. Ballard of these reasons for her discharge, and Mrs. Ballard denied that he did so.
Since Lundman regarded these as separate grounds for her discharge, I shall so
consider them.
a. Time away from the machine
According to Lundman, Durante's recommendation to discharge Mrs. Ballard for
excessive time away from her machine was based on her alleged propensity for
turning off her machine and speaking to other employees in the department. If
true, this would be a violation of Respondent's "double warning" rule against
"wasting time."
Foreman Durante gave no testimony regarding this specific failing on the part of
Mrs. Ballard, or that he warned her for this alleged offense. Respondent's witness,
Alice Herman, an employee who occasionally worked near Mrs. Ballard, testified
that she never saw Mrs. Ballard leave her machine to speak to other employees.
Mrs. Ballard's immediate supervisor, Zilius, testified that, although he observed Mrs.
Ballard away from her machine talking to other employees on five or six occasions,
he never reprimanded Mrs. Ballard for it because he did not consider such conduct
"an offense" or "against the rules." When asked by Respondent's counsel whether
employees were permitted to do that, Zilius replied that "they are not permitted to
overdo it," and that the number of times which Mrs. Ballard "did it, . . . was
reasonable."
In view of the foregoing testimony, there is obviously no validity to the con-
tention that Mrs. Ballard was spending too much time away from her machine talking
to other employees. The conclusion is therefore inescapable that this could not have
been a reason for Mrs. Ballard's discharge, and therefore, must have been interposed
as a pretext to conceal the real reason.
b. Excessive use of the washroom
There remains for consideration the Respondent's final asserted reason for Mrs.
Ballard's discharge, that she "used [the] washroom excessively.," 24 The sum and
substance of Foreman Durante's testimony in respect to this offense 'is that Mrs.
Ballard went to the washroom too often and stayed there too long. .
According to,Durante, as a consequence of complaints from Assistant Foreman
Zilius that Mrs. Ballard was away from her machine "too much," he watched her
closely for 2 weeks prior to her discharge, and warned her three or four times about
the duration of her washroom visits. Specifically, Durante testified that he first
warned Mrs. Ballard about this approximately 2 weeks before she was discharged.
On this occasion, he told her that she was away from the machine too long and asked
her to try not to do so. He further testified that later that same week he again
warned Mrs. Ballard that "she was spending too much time in the washroom," and
that he "would not tolerate it too much longer." Durante also testified that he
administered a third warning about 3 days before Ballard's discharge. At that time,
Durante testified he told her that "she wouldn't be warned any more." According to
Durante, Mrs. Ballard replied that she was not taking "longer than any other girls
[sic]," and he told her that she was. Durante further testified that Mrs. Ballard
normally took four washroom breaks each day,, that he timed her during the "week
previous to her discharge, and that she took from 10 to 20 -minutes each break."
According to Durante, on December 15, Mrs. Ballard took four washroom breaks.
The first consumed approximately 10 minutes, and the other three about 15 minutes
each. Durante admitted that he never made any written record of the number of
Mrs. Ballard's breaks, or of the time when they began or ended. He was unable to
u See Respondent 's Exhibit No. S.
PORTABLE ELECTRIC TOOLS, IN C. 1651
state how much time Mrs. Ballard took on any specific break, except for the last
day, December 15, when, "I [Durante] even had someone go to the washroom to
see if she was there." Durante explained that he did this because "I intended to
discharge-her for excessive time in the washroom." He explicated that on that day
he sent Plant Clerk Alhjean Rogers to the washroom to check on Mrs. Ballard each
tune that the latter went there. He later changed his testimony and said, "I may have
been mistaken. It may have been only twice or three times."
Concerning the number of washroom breaks permitted to employees, Durante
testified that employees may go to the washroom as many times as necessary, and
that some employees go to the washroom two, three, and some four times a day.
However, according to the testimony of Mrs. Ballard, whom I find is a credible
witness, Foreman Durante told her at the time she was hired, that employees were
permitted to go to the washroom four times a day, once before and once after the
regular coffee break in mid-morning, and the same number of times in afternoon.
Mrs. Ballard's testimony regarding the number of the "washroom breaks" was
corroborated by Respondent's witness, employee Alice Herman.
Notwithstanding that on December 15, Plant Clerk Rogers went to the washroom
and checked on Mrs. Ballard's visits thereto, Respondent adduced no testimony that
such visits were not necessary, or that Mrs. Ballard was "wasting time," or "loiter-
ing" in the washroom. Accordingly, even if I were to credit Durante's version of
the rule in respect to the number of washroom visits permitted, which I do not, the
record fails to show that Mrs. Ballard in any way violated the rule by making four
trips to the washroom on December 15. Moreover, since Durante notified Personnel
Director Lundman to discharge Mrs. Ballard about noon on December 15, at which
time Mrs. Ballard had gone to the washroom only twice that day, it is obvious that
Durante could not have based his action on the fact that she later went two more
times. Finally, again assuming that I credit Durante's testimony regarding the
warnings to Mrs. Ballard about her washroom visits, which I do not, such warnings
were directed to the alleged excessive length and not to the number of such visits.
For all the foregoing reasons, Respondent's contention that it discharged Mrs. Ballard
because she "used [the] washroom excessively," obviously could not reasonably
have been based on the number of her visits to the washroom.
Respondent has no specific written rule regarding the length of time which an
employee may take when she visits the washroom. It does have a rule which pro-
scribes "wasting time or loitering in toilets, on company property during working
hours." According to Foreman Durante, "we try to hold that [the length of the
visit to the washroom] to . . . seven minutes at the most." He further testified,
"The average girl takes five or seven minutes," and that, "a few will take more,
occasionally, if they are ill-something like that." There is little, if any, dispute in
the record regarding the length of time permitted for washroom breaks. Mrs. Bal-
lard and Respondent's witness, Alice Herman, both testified that such breaks were
-limited to 5 minutes. -'Whether this included the time consumed in going to and re-
turning from the toilet is not clear from their testimony. Assistant Foreman Zilius
testified that the average time spent by employees "in the washroom" is "about five
or 6 minutes." I therefore, conclude that this is what is permitted, exclusive of the
time spent in going and coming. Foreman Durante testified that the washroom is
from 150 to 300 feet from the department, depending on where the employee is
-working, and that it is located on a balcony, which requires climbing a flight of
stairs. He estimated that it takes 1 to 1i/2 minutes to make the trip each way.25
Accordingly, I conclude that the elapsed time permitted employees by Respondent
for washroom breaks was 9 to 10 minutes, inclusive of the time required for going
to, and coming from, the washroom.
As aforestated, Foreman Durante testified that because of complaints from As-
sistant Foreman Zilius, he warned Mrs. Ballard about the excessive length of her
washroom breaks on three or four occasions, the first of which was about 2 weeks
before her discharge. However, Zilius testified that he first observed that Mrs. Bal-
lard was staying too long in the toilet about the second day of her employment, but
did not warn her, about this until the last week of her employment, when he warned
her twice. Later, Zilius changed his testimony and said he warned her once before,
about 3 weeks before her discharge. He further testified that he "timed her some
after that," but that "she did not overstay," and that he found no fault with her in
this respect until the last week of her employment.' Thus, Durante's alleged warn-
ings to Mrs. Ballard about overstaying in the washroom occurred at a time 2 weeks
before her discharge when, according to her immediate' Supervisor Zilius, she' was
'a Mrs. Ballard 's estimate was 2 minutes, unless she was working "in the back of the
department," in which event, she estimated it would take 3 minutes
1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not committing this offense,, and thus, would not likely have complained to Durante
as the latter testified 26 Moreover,` notwithstanding that both Durante and Zilius
allegedly timed Mrs. Ballard's visits to the washroom, rieithei 'made any written
record' of the time consumed, and both were unable to give anything but approxima-
tions of their duration, and could'nof specify precisely when or how long she took
,on any particular occasion.
Mrs. Ballard denied thaf' either Durante or Zilius ever warned her regarding
taking too long in the washroom. She also testified that on December 15 she
spent about 9, to 10 minutes 'on each of her washroom breaks. If I am to believe
them, rather than her, I' must thereby conclude that Mrs. Ballard -brazenly and
defiantly ignored six or seven warnings from her supervisors, including two in which
she was allegedly advised that this would not be tolerated' and that she would
not be warned again, the latter obviously implying that discharge would result.
Under all the facts and circumstances herein, and especially in view of Mrs. Ballard's
need for employment, as evidenced by her debts and reliance on relief, I cannot
draw such a conclusion. Instead, I find, contrary to Durante's and Zilius' testimony,
that Mrs. Ballard did not spend excessive time on washroom breaks, and that she
was never warned for doing so.
Finally, I also do not credit Plant Clerk Allijean Rogers' testimony regarding the
duration of Mrs. Ballard's washroom visits on December 15. Rogers first testified
that she was asked by Foreman Durante "to check on her [Mrs. Ballard]" after
Mrs. Ballard returned to her machine from her first washroom break. She then
testified that pursuant to that instruction, she followed Mrs. Ballard to the washroom
whenever Ballard went there, that the latter did so "around" 11, 1:30, and" 3:30, and
that on each such,occasion Ballard took "around 15 minutes." Rogers also testified
that she did not observe Mrs. Ballard when the latter made her first visit to the
washroom that day around 9:10 a.m. She later contradicted this testimony and
testified that she saw Mrs. Ballard go there four times. Then she contradicted the
latter answer by averring she did not see Mrs. Ballard go the first time. Then in
contradiction of her earlier testimony , she testified that she checked on Mrs. Ballard
four times, not three, that she was asked by Durante to check while Mrs. Ballard
was in the washroom on her first visit, and that she "went up there" while "she was
still there." In view of the many contradictions in her testimony, and the fact that,
although Rogers' assignment was ostensibly to check on the duration of Ballard's
washroom visits, Rogers made no record and could only approximate their length, I
regard her testimony as unreliable and do not credit it. Moreover, since Rogers
could see Ballard's machine from her desk, it was obviously unnecessary to follow
Ballard to the washroom to check on how long Mrs. Ballard was away from her ma-
chine , unless Rogers' purpose was to engage in surveillance of Ballard's suspected
union activities .27 Notwithstanding such surveillance , Rogers gave no testimony
either that the length of Mrs. Ballard's visits to the washroom was unnecessary, or
that Mrs. Ballard was guilty of "wasting time or loitering" in the toilet , as pro-
scribed by Respondent 's written rule.
Accordingly , for, all the foregoing reasons, including lack of prior warnings of
violation of any company rule in respect to the washroom breaks, and my belief in
Mrs. Ballard's testimony that her visits to the washroom were no longer or more
frequent than permitted , I am convinced that this , like the other reasons assigned
by Respondent for her discharge , was another pretext utilized by Respondent to
conceal the real reason therefor.
Concluding Findings
I have concluded and found that all of'the reasons asserted by the Respondent for
Mrs. Ballard's discharge were afterthoughts and pretexts to conceal the Respondent's
true motivation. -As previously discussed, such motivation is,indicated by Mrs.
Ballard 's testimony, which I credit, that at the time of her dismissal , Personnel Di-
rector, Lundman , in the privacy of his office , alluded .to her activities as a "union
organizer .28 The undisputed evidence shows that before her discharge and on her
ze Zilius did not testify that he complained to Durante about Mrs Ballard , I do snot
credit Durante's testimony that he did complain -
- n Rogers testified,thaf she paid no attention to the nature of the conversation-between
Mrs Ballard and other employees who were in the washroom at the, same time
,'28 In addition to discrediting the pretextual reasons- assigned by Lundman for Mrs
Ballard's discharge, I do not credit Lundman's denial of het testimony concerning her
PORTABLE ELECTRIC TOOLS, INC. 1653
own time, Mrs. Ballard solicited employees to join the Union by passing out mem-
bership application cards. Considering Respondent's unsubstantiated reasons for
Mrs. Ballard's discharge, her activities on behalf of the Union, and Personnel Director
Lundman's reference to them during Mrs. Ballard's exit interview, I find that the
Respondent discharged her because of her union activities and thereby violated
Section 8(a) (3) and (1) of the Act.29
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade,. traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Yvonne Ballard was discriminated against in respect to her hire
and tenure of employment, I shall recommend that the Respondent be ordered to
offer her immediate and full reinstatement to her former or substantially equivalent
position, without prejudice to her seniority and other rights and privileges, and make
her whole for any loss of earnings she may have suffered because of the discrimina-
tion against her, by payment of a sum of money equal to the amounts she normally
would have earned as wages from the date of her discharge to the date of the offer
of reinstatement, less her net earnings during said period, with backpay computed
on a quarterly basis in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289, 291-294. I shall also recommend that the Respondent
make available to the Board, upon request, payroll and other records to facilitate
the determination of the amounts due under this recommended remedy.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices reasonably may be anticipated. I shall
therefore recommend that the Respondent be ordered to cease and desist from in
any manner infringing upon rights guaranteed to its employees by 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. International Union of Electrical, Radio and Machine Workers, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Yvonne
Ballard, thereby discouraging membership in International Union of Electrical, Radio
and Machine Workers, AFL-CIO, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(3) of the Act.
3. By the foregoing conduct, Respondent has also interfered with, restrained, and
coerced employees in the exercise of rights guaranteed in Section 7 of the Act, and
thereby has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce.
[Recommendations omitted from publication.]
exit interview, inter alien, because of his exaggerated testimony about "many calls" from
Mrs. Ballard's creditors, which on cross-examination proved to be two calls from one
collection agency, and because of the variance between his version of the discharge inter-
view and his self-serving memorandum, which allegedly was prepared immediately upon
Mrs. Ballard's discharge Specifically, although Lundman testified that he told Mrs Ballard
that one of the reasons for her discharge was the nuisance of calls from her creditors and
the relief agency, that reason is not reflected in his written memorandum
29 In reaching this conclusion, I have not considered or relied upon the testimony of the
witnesses to whom Mrs. Ballard related the details of the discharge interview with
Lundman shortly after it occurred