Premco Forge, Inc.

National Labor Relations Board - Board Decisions

Jun 4, 1976

224 N.L.R.B. 371 (N.L.R.B. 1976)

PREMCO FORGE, INC 371
Premco Forge, Inc. and Joe Burnell Cases 21-CA-
13449 and 21-CA-13890
DECISION
STATEMENT OF THE CASE
June 4, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On February 25, 1976, Administrative Law Judge
Herman Corenman issued the attached Decision in
this proceeding Thereafter, the Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed cross-exceptions, a supporting brief,
and an answer to the exceptions filed by the Respon-
dent
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Premco Forge, Inc,
South Gate, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order
i The Respondent and the General Counsel have 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 resolu-
tions 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 revers-
ing his findings
We do not adopt the Administrative Law Judge ' s Conclusion of Law 4
wherein he found that Respondent violated Sec 8(a)(1), (3), and (4) of the
Act by excluding employee Burnell from the birthday party for Vice Presi-
dent Joshua on July 10 , 1975, for discriminatory reasons Evidence concern-
ing this incident was offered by the General Counsel solely for the purpose
of showing Respondent's animus towards Burnell because of his union and/
or protected activities The incident was neither alleged as a violation of the
Act in the complaint , nor argued as such before the Administrative Law
Judge Accordingly , in such circumstances , we do not believe that this con-
duct can be properly found to be violative of the Act
HERMAN CORENMAN, Administrative Law Judge This
case was heard on November 20, 1975, at Los Angeles,
California, on a consolidated amended complaint filed by
the General Counsel of the National Labor Relations
Board, herein called the Board, and an answer thereto filed
by Premco Forge, Inc, herein called the Respondent The
consolidated amended complaint, which was issued on Oc-
tober 9, 1975, is based on charges filed by Charging Party
Joe Burnell, an individual, in Case 21-CA-13449 on
March 10, 1975, and in Case 21-CA-13890 on August 11,
1975 The consolidated amended complaint alleges that the
Respondent violated Section 8(a)(1), (3), and (4) of the Act
by laying off Joe Burnell from March 7 to June 9, 1975, by
causing Burnell to lose 5 hours of pay on June 26, 1975,
and by issuing Burnell a written warning notice on August
6, 1975, all because he engaged in union or other protected
concerted activities for the purposes of collective bargain-
ing or other mutual aid or protection and because he filed
charges and gave testimony under the Act The
Respondent's answer admitted the layoff of Burnell from
March 7 to June 9, 1975, but alleged the layoff was for
economic reasons The answer denied that the Respondent
engaged in the unfair labor practices alleged in the amend-
ed consolidated complaint
At the hearing, the parties were afforded full opportunity
to be heard, to examine and cross-examine witnesses, to
introduce oral and documentary evidence relevant and ma-
terial to the issues, to argue orally and file briefs and pro-
posed findings of fact and conclusions of law Oral argu-
ment was made by counsel for the General Counsel and by
Respondent's president, and they filed timely briefs which
have been carefully considered
Upon the entire record in the case, my observations of
the witnesses and their demeanor, and in consideration of
the briefs, I hereby make the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The amended consolidated complaint alleges, the answer
admits, and I find that the Respondent is a corporation
engaged in the manufacture of aluminum forgings at its
plant at 5200 Tweedy Boulevard, South Gate, California
The Respondent, in the conduct of its business operations,
annually purchases and recei-ved goods, products, and ma-
terials valued in excess of $50,000 directly from suppliers
located outside the State of California Respondent is, and
has been at all times material herein, an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act
II THE LABOR ORGANIZATION
The pleadings establish , and I find , that United Steel-
workers of America , AFL-CIO , herein called the Union,
224 NLRB No 57
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is, and has been at all times material herein , a labor orgam-
zation within the meaning of Section 2 (5) of the Act
III THE UNFAIR LABOR PRACTICES
A Background
The Respondent has a history of discriminating against
Joe Burnell because of his leadership in union organiza-
tion He served as the Union's observer in a Board election
held on April 25, 1973, which the Union won and resulted
in its certification The Union and the Respondent, howev-
er, never entered into a collective-bargaining agreement
The hostility of Respondent's president, Robert E Pier-
son, to the Union and his proclivity to discriminate against
Burnell because of his leadership in union organizational
activities is demonstrated in three cases In the first case, it
appeared that Pierson discharged Ollie T Smith, an em-
ployee whom he regarded as a supervisor 3 hours after the
April 25, 1973, election, admittedly because he believed
Smith had initiated the union organizational campaign
Upon a determination after an informal investigation that
Smith was not a supervisor, Respondent entered into an
informal settlement agreement in June 1973 providing for
Smith's reinstatement Pierson told him, among other
things, that he viewed anyone who sympathized with the
Union as "anti-Premco," and that he was going to get rid
of everyone who voted for organized labor At a joint
meeting by Pierson with Smith and Burnell he told them
that Burnell was a troublemaker and he urged both Smith
and Burnell to quit On this occasion, Burnell told Pierson
that it was he rather than Smith who initiated the union
campaign
Thereafter, Pierson, by harassment of Burnell, sought to
have him quit When this means proved unavailing, Bur-
nell was discharged on September 17, 1973, allegedly be-
cause of a poor attendance record Pursuant to a charge
filed by Burnell in Case 21-CA-12133, complaint issued
and a hearing was held December 12, 1973 On January 31,
1974, Administrative Law Judge Louis Penfield issued his
decision finding 8(a)(1) and (3) violations and recom-
mending Burnell's reinstatement with backpay No excep-
tions having been filed, the Board, under date of March 4,
1974, adopted the Administrative Law Judge's decision
The Board's decision was enforced by the Ninth Circuit on
June 25, 1974
Burnell was reinstated to his job with the Respondent in
February 1974 Thereafter, he asked for a raise, but it was
refused On November 4, 1974, Burnell filed a charge in
Case 21-CA-13130 alleging that the Respondent's refusal
to grant him a pay raise violated Section 8(a)(1), (3), and
(4) of the Act Complaint was issued by the General Coun-
sel of the Board January 23, 1975, and a hearing was held
before Administrative Law Judge Earldean V S Robbins
on February 25, 1975 Finding no merit in the
Respondent's contention that Burnell was denied a wage
increase because he was a poor employee, the Administra-
tive Law Judge found that Respondent violated Section
8(a)(1), (3), and (4) of the Act in retaliation for Burnell's
union activities and for initiating and testifying in the pre-
vious unfair labor practice proceeding which culminated in
his reinstatement with backpay
No exceptions were filed to Administrative Law Judge
Robbins' decision issued April 8, 1975, and it was adopted
by the Board The Board's order was enforced by the
Ninth Circuit on July 29, 1975
The Respondent complied with the affirmative provi-
sions of the Board's orders in Cases 21-CA-12133 and 21-
CA-13130, but the Board's Regional Office has not closed
the cases on compliance because of the instant pending
case
The Current Sequence of Events
The issues raised in the instant case are whether (1)
Respondent's laying off Burnell from March 7 to June 9,
1975, (2) causing Burnell to lose 5 hours' pay on June 26,
1975, and (3) issuing a written warning notice to Burnell on
August 6, 1975, violating Section 8(a)(1), (3), and (4) of the
Act
On February 26, 1975, the day after the hearing in Case
21-CA-13890, Respondent's superintendent, Fred Joshua,
requested Burnell to go to the top of the building and clean
the skylights, a job which Burnell had never performed
before When Burnell told Joshua he didn't like to be off
the ground that high, Joshua told Burnell that he "better go
and clean because management was waiting for me to re-
fuse to do one thing so they could fire me " Burnell obeyed
Joshua's order and went up to the skylights Fred Joshua
went up to the skylights and washed them down with a
hose while Burnell scraped them, until employee Robert
De Shazer came up and relieved Joshua The General
Counsel makes no contention that this incident constituted
an unfair labor practice, but points out that it demonstrat-
ed Respondent's continuing hostility to Burnell in Fred
Joshua's warning Burnell that Respondent was waiting for
him to refuse to do one thing so that it would have cause to
discharge him Fred Joshua testified he told Burnell that he
wouldn't ask anybody to do anything that he wouldn't do
himself, but did not deny that he warned Burnell that man-
agement was waiting for Burnell to refuse to do one thing
so they could fire him Although I do not find this remark
to be an unfair labor practice, it does to some extent mani-
fest Respondent's continuing hostility to Burnell
Illustrative of Respondent's continuing hostility to Bur-
nell is an incident that occurred on July 10, 1975 The em-
ployees were celebrating Vice President Elmo Joshua's
birthday, and employee Larry Turner was circulating a
birthday card among the employees at lunch time to be
signed by them Larry Turner told Burnell that Mr Pierson
wanted all the employees except Burnell to sign the card,
and they all signed it, but Burnell did not That same day
all the employees except Burnell were invited to a party in
the office where pie was served Burnell testified, "I was the
only employee in the plant during the time they was in the
office eating pie " This incident without question saddened
and humiliated Burnell, who testified he was not being
treated as a "man " I would agree with counsel for the
General Counsel that this birthday party incident mani-
fested Respondent's continuing hostility and its proclivity
to discriminate against Burnell by denying to him the plea-
sures and amenities accorded to other employees during
working hours in the plant
PREMCO FORGE, INC 373
B The Layoff of Burnell
The Respondent laid off Burnell on March 10, 1975 The
question arises whether there was economic justification
for the layoff The evidence shows that Respondent's busi-
ness declined extensively in all months since January 1975
and became progressively worse in the period between Jan-
uary 1975 and November 1975 Whereas the employee
complement in the shop stood at 16 in September 1974, it
continued to drop during all of 1975 to the point that there
were 9 employees in April 1975 and only 5 employees in
November 1975 Whereas the number of pounds of prod-
ucts shipped by the Respondent from June 1974 to Febru-
ary 1975 averaged approximately 128,500 pounds per
month, in the months of March 1975 to November 1975
the Respondent's shipments averaged 37,600 pounds per
month In view of the decided drop in business to the point
that production dropped critically in March 1975 and the
following months in 1975 , it is clear , and I find , that there
was economic justification for a layoff The Respondent's
records show without dispute that two maintenance men
were laid off on January 22, 1975, a saw operator laid off
January 25, 1975, a saw and ship employee on March 6,
1975, and saw operator Joe Burnell on March 7, 1975
Counsel for the General Counsel contends, however,
that even though there may have been economic justifica-
tion for a layoff on March 7, 1975, the fact remains that
Burnell was discriminatorily selected for layoff , inasmuch
as six men with lesser seniority were retained on the day
Burnell was laid off
Burnell testified credibly that Plant Superintendent Fred
Joshua summoned him to his office on March 7 and told
him that he had been laid off because there wasn't any
work Burnell asked why they didn't lay off some of the
other employees since he was the third oldest employee in
the Company Joshua replied he was just doing what he
was told to do Burnell's testimony concerning those em-
ployees with greater and lesser length of service than him
with the Respondent was verified by a stipulation between
the parties as follows Toby Brown, hired August 3, 1970,
Willie Gaines, hired October 8, 1970, Joe Burnell, hired
January 4, 1972, Larry Turner, hired January 3, 1973, Paul
Lane, hired April 26, 1973, Eddie Rasbury, hired October
2, 1973, Mark Houston, hired October 15, 1973, Elmo
Joshua, Jr , hired June 10, 1974, and David Russel, hired
August 4, 1974
It thus appears , and I find , that at the time of Burnell's
layoff on March 7, 1975, six employees who were retained
had a shorter length of service varying from 1 year to 2-1/2
years shorter than Burnell's
Burnell testified credibly that at the time of his layoff he
was a saw operator , maintenance man, shipping depart-
ment employee , motor driver , and loader and unloader of
ovens He testified further that he had been on all the jobs
that are in the plant
Burnell testified credibly that at the time of his layoff,
Mark Houston and Eddie Rasbury were press operators, a
job he had operated at one time , Elmo Joshua , Jr, and
Paul Lane were saw operators, as was Burnell, Larry Turn-
er worked in the shipping department , as had Burnell prior
to his layoff and subsequent to his reinstatement in June
1975, and David Russel worked in the shipping and saw
department and also did welding, jobs which Burnell also
had performed at the Respondent's plant
Burnell was reinstated to his job on June 9 , 1975, 5 days
after complaint issued in Case 21-CA-13449, in a time pe-
nod when Respondent 's volume of shipments was compar-
atively low Inasmuch as business was definitely on the
downturn when Burnell was reinstated in June 1975, it is
not unreasonable to conclude that the Respondent was en-
deavoring to prevent further financial losses accruing from
a foreseeable backpay obligation to Burnell
Respondent's vice president and part owner, Elmo Josh-
ua, testified that the Respondent, at the time of Burnell's
layoff on March 7, retained employees Elmo Joshua, Jr,
and Mark Houston even though they had less seniority
than Burnell because they worked on the night shift The
record shows , however, that Burnell had worked the grave-
yard shift previously (ALJD, 224 NLRB 371), and there
is no evidence that Burnell was offered work on the night
shift or would not take it as an alternative to a layoff Vice
President Elmo Joshua also testified that Larry Turner and
Paul Lane were retained notwithstanding they had lesser
seniority than Burnell because Turner was the shipping
foreman and Lane was the saw foreman Elmo Joshua also
testified that Eddie Rasbury was retained because he was a
day pressman whereas Joe Burnell was considered a saw
operator and a shipping and receiving department employ-
ee Although Elmo Joshua conceded that Burnell also had
operated the press , he testified that Burnell was too slow A
similar contention that Burnell was too slow made by the
Respondent was rejected by the Administrative Law Judge
in his Decision in Case 21-CA-13130
It developed through Elmo Joshua's testimony on cross-
examination that neither Lane nor Turner, whom he classi-
fied as foremen , had any of the qualifications of a supervi-
sor within the meaning of the Act, and that at the time of
Burnell 's March 7 layoff neither Lane nor Turner had any-
one working under their supervision Indeed , Elmo Joshua
testified that it was Fred Joshua who directed the work of
the employees in the plant and assigned the work to the
employees Elmo Joshua further testified that David Russel
was retained longer than Burnell because he was a certified
welder needed in the repair of an oven which required
about 6 weeks of work He further testified that the Re-
spondent does not have a seniority system, but Respondent
produced no evidence to substantiate this conclusionary
statement by Joshua, Sr, and I place no reliance on this
unsupported conclusion , nor do I place any credence on
the conclusionary testimony that Burnell was a slow or
poor worker , especially when it is noted that a similar de-
fense in the two previous cases wa,. not credited by the
Administrative Law Judges Moreover , Respondent's re-
tention of Burnell in its employ since his hire in January
1972, except when he was discriminatorily discharged,
hardly supports a contention that he was a slow or poor
worker
I find that at the time of Burnell 's layoff on March 7,
1975, he was capable of performing and had performed the
vanous jobs being performed by the six retained employees
who had less seniority than Burnell Respondent 's continu-
ing hostility to Burnell, as disclosed by the incidents de-
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scribed in this case, when considered in conjunction with
Respondent's hostile background to unionism and its past
discnmmation against Burnell, and Respondent's disparate
treatment of Burnell on March 7 by laying him off while
six employees with lesser seniority were retained on jobs
which Burnell was capable of performing and had per-
formed, convinces me, and I find, that Burnell's discharge
violated Section 8(a)(1), (3), and (4) of the Act
C Burnell 's Loss of 5 Hours' Pay
Burnell testified that on June 19, 1975, 10 days after
Respondent reinstated Burnell to his job, he told Plant Su-
perintendent Fred Joshua that he wanted to leave early
June 24 on business Joshua said "Okay" and he left, but
he returned one-half hour later and asked Burnell what his
business concerned that required him to leave early on
June 24 Burnell asked why Joshua wanted to know the
nature of his personal business, and Joshua replied that
Pierson wanted to know Burnell told Joshua "to tell Mr
Pierson if I told him my personal business then I wouldn't
have no personal business " On the morning of June 24,
according to Burnell's testimony, he reminded Fred Joshua
that he was going to leave work early that day as he had
requested on June 19 Joshua replied, "Okay " Burnell left
at noon that day On the following morning, June 25, Bur-
nell testified, he called in about 6 30 a in and reported to
Fred Joshua that he would not be in to work that day
because he was ill Burnell returned to work at 6 30 a in on
June 26 Fred Joshua met him at the timeclock and asked if
Burnell had a slip from the doctor Burnell said no Joshua
told him not to punch in until Elmo Joshua and Pierson
arrived When Elmo Joshua and Pierson arrived at the
plant about 9 30 am, Burnell was called into Elmo
Joshua's office Elmo Joshua asked why Burnell had re-
fused to tell Fred Joshua the nature of his personal busi-
ness, and he also inquired if Burnell had a "slip from the
doctor " Elmo Joshua directed Burnell to go to a private
doctor Burnell replied he did not have the money Elmo
then directed Burnell to the Company's doctor Burnell
went to the Company's doctor and returned to the shop
about 5 hours later with the doctor's slip Elmo then per-
mitted him to return to work Elmo told Burnell he could
not pay him for the time he sat from 6 30 a in until around
11 20 a in waiting for the doctor
Superintendent Fred Joshua testified that he did not give
Burnell permission to leave June 24 but referred him to
Elmo Joshua Fred Joshua testified that on the following
day Burnell did not report to work so he phoned Burnell's
house about 7 20 a in and talked to Burnell Burnell told
him he was sick, that he had meant to call Joshua, but that
he was so sick that he had not had a chance to call in to the
office Joshua testified he called Burnell's house again
about 4 p in and talked to Mrs Burnell, who told him that
her husband was not at home Fred Joshua testified in
agreement with leading questions put to him by Pierson
that, because Burnell had called in sick, it was assumed in
a conversation with Elmo and Pierson that Burnell had
been to the doctor's when he was not at home at the time
Fred Joshua phoned him at 4 p in Pursuant to more lead-
ing questions put to him by Pierson, Fred Joshua testified
that in the phone conversation with Burnell's wife he told
her to tell Burnell to bring a slip from the doctor that
morning, and she said she would tell him, but she did not
know whether he would bring one or not When Burnell
did not bring in the slip from a doctor, he was required to
go to Respondent's doctor to be examined and bring in a
slip from the doctor
Called as an adverse witness by counsel for the General
Counsel, Pierson testified that the Respondent has a policy
regarding requiring employees to furnish doctors' slips as
follows
Well, we feel if a man's off, say if there's a new epi-
demic or we possibly he might have something that
could be contagious, we will request a doctor's certifi-
cate or we will send him to our doctor
Pierson further testified that it is not a hard and fast rule
that an employee who is off sick must have a doctor's slip
Asked by counsel for the General Counsel if it were not
true that a doctor's slip was required of Joe Burnell for
June 24 and 25 because he refused to say where he had
been on those days, Pierson answered, "That wasn't the
reason-I can't answer a qualified `yes' on that " Pierson
conceded, however, that in a previous affidavit given by
him to a Board agent he stated that, "We required one of
Joe Burnell because he refused to say where he had been
on the afternoon of June 24 and June 25 We felt the com-
pany had a right to know where he had been or if he was
sick "
Office Manager Evelyn Marie Glidewell testified credi-
bly that at a meeting held on June 26, 1975, with Elmo
Joshua, Fred Joshua, Joe Burnell, and herself present, she
prepared minutes of the meeting which was called "to dis-
cuss Joe Burnell's absence from work on Wednesday June
25 and the fact, that he left work without permission of his
immediate supervisor on Tuesday, June 24 at 12 10 p in "
Vice President Elmo Joshua testified he was present at
the June 26 meeting where Burnell was present along with
Fred Joshua and Marie Glidewell and which involved a
reprimand to Joe Burnell for leaving his work without per-
mission Elmo Joshua testified that he himself did not give
Burnell permission to leave nor did he authorize Fred Josh-
ua to give Burnell time off Responding to a leading ques-
tion put by Pierson at the hearing, Elmo agreed that he and
Fred Joshua "went together to Joe Burnell shortly before
noon and told him not to punch out " Joe replied he had to
go on some personal business and with that he punched
out
Elmo Joshua testified that Burnell's absence from work
after noon on June 24 and all day on June 25, 1975, result-
ed in the Respondent's failure to ship a rush order of heli-
copter parts to Bell Helicopter in Texas on time Elmo tes-
tified that the Respondent was 3 or 4 days late in shipping
this order because, in the absence of Burnell, the Respon-
dent did not have any other sawmen in the saw department
to cut the parts because the other saw operator was off at
the time Elmo testified that this was a new account and
that the Respondent has received no business since from
Bell Helicopter because of the late shipment and agreed
PREMCO FORGE, INC 375
with Pierson's leading question that the Respondent had
received a phone call from Bell Helicopter expressing their
displeasure in not getting the order on time This testimony
by Elmo Joshua concerning a telephone call was corrobo-
rated by Office Manager Marie Glidewell, who testified
she remembered the phone call because the buyer was up-
set and she "referred the call to Mr Pierson" Ms Glide-
well also testified in corroboration of Elmo Joshua's testi-
mony that Respondent has not had one inquiry from Bell
Helicopter since i
Counsel for the General Counsel contends that the con-
duct of the Respondent in not compensating Burnell for
the 5 hours he spent in procuring a slip from Respondent's
doctor before he was permitted to return to work on June
26, 1975, constituted discrimination against Burnell be-
cause (1) he filed charges and gave testimony under the
Act, and (2) he engaged in union or other protected con-
certed activities I am not persuaded that the General
Counsel has satisfied the burden of proof to establish his
contention The weight of the evidence establishes that the
Respondent was in the process of filling a rush order for
Bell Helicopter on June 24 when Burnell took off without
permission while refusing to divulge to management why
he wanted off Under the circumstances, namely the need
for Burnell's services as a saw operator to cut the parts for
the Bell Helicopter order, Respondent was entitled to know
the urgency of Burnell's request to leave his work His re-
fusal to divulge the reason and his departure from work at
noon on June 24 amounted to insubordination which, in-
deed, merited some form of discipline Burnell's telephone
report on June 25 that he was too sick to come to work and
his absence from home at 4 p in on June 25 when Fred
Joshua tried to reach him did not help matters At the
disciplinary meeting in the Respondent's office on the
morning of June 26, Elmo Joshua reprimanded Burnell for
leaving work without permission and directed him to get a
slip from Respondent's doctor The evidence shows that
other employees, namely, Kelvin Joshua and Albert De
Shazer, were more severely disciplined for similar conduct,
Kelvin Joshua was terminated for 3 days' absenteeism and
De Shazer was given a 3-day disciplinary layoff for absen-
teeism I agree with Pierson's remarks during the course of
the hearing indicating that it would be intolerable to re-
quire an employer to operate a business where employees
could leave the job at any time at their own pleasure with-
out any explanation for their leaving
I am of the opinion, and I conclude, that the Re-
spondent's conduct in depriving Burnell of the 5 hours'
pay for the time he spent in the doctor's office getting the
doctor's slip was a form of discipline not inspired by
Burnell's past union or concerted activity, but because of
his insubordination and misconduct on June 24 in leaving
the plant without permission and at the same time refusing
Fred Joshua s testimony concerning the June 26 disciplinary meeting
between Burnell and management is as follows
Well, Elmo gave Joe a warning about the reason why he had taken off
without permission So Joe told him that he had asked, which he had
asked me, and I told him I preferred [sic] him to Elmo because I didn t
want any part of it because before I give permission so I preferred
[sic] him to Elmo
to give a reason for his leaving Intertwined with this con-
duct was Burnell's failure to come to work the next day,
June 25, allegedly because he was sick I have concluded
that with respect to this issue the weight of the evidence
supplied by Pierson, Fred Joshua, Elmo Joshua, and Eve-
lyn Marie Glidewell preponderates in favor of the Respon-
dent I do not credit Burnell's testimony that he was grant-
ed permission to leave on June 24 Moreover, his testimony
that he was sick at home on June 25 is not impressive when
it is noted that he was not home when Fred Joshua called
I would dismiss this allegation in the General Counsel's
complaint
D The August 6, 1975, Warning Notice
Burnell testified that at least 2 days before Friday, Au-
gust 1, 1975, he asked permission of Plant Superintendent
Fred Joshua to leave early on August 1, as he had some
business to attend to Joshua said, "Okay " On August 1,
Burnell reminded Fred Joshua that he would be leaving at
noon and Joshua said "Okay " Burnell returned to work
the next workday, Monday, August 4 Burnell was called to
the office by Elmo Joshua Present were Fred Joshua and
Office Manager Marie Glidewell Elmo told Burnell that
he had left the premises early Friday without permission
and wanted to know his business for leaving early Burnell
told Elmo he had received permission from Fred Joshua
Elmo told Burnell that he should not have left the premises
without permission On August 6, 1975, Elmo Joshua sent
a letter by certified mail to Burnell as follows
Confirming our meeting at 11 00 a in, August 5, 1975
attended by you, Elmo Joshua, Marie Glidewell and
Fred Joshua, we wish to reiterate our position of un-
authorized early departures from your job
Your leaving at 12 00 noon on Friday, August 1st
was unauthorized and done without any explanation
This is in violation of our Company rules and is your
second violation of this rule within the last month
Any further violations will subject you to dismissal
A carbon copy of the letter indicates that a blind carbon
copy was mailed to Michael L Wolfram, attorney at law,
who filed an answer to the consolidated amended com-
plaint in this matter, but who made no appearance at the
hearing
Fred Joshua testified that when Burnell asked him for
permission to leave at noon on Friday, August 1, he re-
ferred him to Elmo Fred Joshua testified he did not give
Burnell permission to leave early that day because he was
the only sawman that was left, as the other sawman, Paul
Lane, already had been "granted to be off " Fred Joshua
also testified that Burnell refused to give a reason why he
wanted off 2
Elmo Joshua testified that Burnell was called in on Au-
gust 5 at which time he was asked why he left the premises
without permission and Burnell would not give a reason
2 Burnell filed a charge August 11, 1975, in Case 21-CA-13890 making
general allegations concerning discrimination without reference to any par-
ticular events
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He told him "it was personal business and refused to tell
us ff
Respondent contends that its August 6 warning notice to
Burnell that his leaving the premises at noon on August 1
was his second violation of the rule within the last month
and any further violation would subject him to dismissal
does not constitute disparate treatment of Burnell Respon-
dent points to the occasions where it discharged Albert De
Shazer, Jr, on October 8, 1974, for "excessive absenteeism
and leavingjob in middle of the shift," and after rehire laid
him off for 3 days on January 9, 1975, when he called up at
9 a in and said he would be in, but did not show Respon-
dent also points to its discharge of Kelvin T Joshua on
September 5, 1974 Elmo testified that Fred Joshua fired
Kelvin Joshua because he had been late seven times, and
because he didn't show up for 3 days after Fred had called
Kelvin and he had promised to come in 3
Again I find that the General Counsel has not estab-
lished by a preponderance of the evidence that Burnell was
permitted by Fred Joshua to leave the premises at noon on
August 1, 1975, particularly in view of his refusal to give a
reason for leaving, as well as the testimony of Fred and
Elmo to the contrary I appreciate that the warning notice
mailed by Respondent to Burnell must be scrutinized with
care, because of Respondent's past history of discrimina-
tion against Burnell for his union activity and his filing of
charges and giving testimony against the Respondent
However, I have concluded that Respondent was justified
in refusing permission in a situation where Burnell's ser-
vices were needed because the other sawman, Lane, was
gone However, I am persuaded, and I find, largely because
of Respondent's past history of discrimination against Bur-
nell, as well as the fact that the derelictions of De Shazer
and Kelvin Joshua were greater than Burnell's, that there
was no warrant for the warning in the August 6, 1975,
letter that "Any further violations will subject you to dis-
missal " I would therefore find that Respondent's August 6
warning letter to Burnell discriminated against him and
coerced and restrained him in the exercise of his rights
guaranteed by Section 7 of the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth above, occurring
in connection with the operations described in section I,
above, 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 obstruct-
ing commerce and the free flow of commerce
V THE REMEDY
The recommended Order will contain the conventional
provisions for cases involving findings of interference, re-
straint, and coercion and unlawful discharge in violation of
Section 8(a)(1), (3), and (4) of the Act This will require
Respondent to cease and desist from the unfair labor prac-
tices found and to take certain affirmative action including
the posting of an appropriate notice The Respondent will
be directed to make whole Joe Burnell for any loss of earn-
ings he may have suffered by reason of the discrimination
against him by payment to him of a sum of money equal to
that which he would have earned from the date of his un-
lawful separation on March 7, 1975, to his reinstatement
on June 9, 1975, less net earnings, if any, during such peri-
od to be computed in the manner set forth in F W Wool-
worth Company, 90 NLRB 289 (1950), with 6-percent inter-
est thereon as prescribed in Isis Plumbing & Heating Co,
138 NLRB 716 (1962)
CONCLUSIONS OF LAW
1 Respondent is an employer within the meaning of
Section 2(2) of the Act, engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the meaning
of Section 2(5) of the Act
3 By laying off Joe Burnell from employment and de-
nying him employment from March 7, 1975, to June 9,
1975, Respondent discriminated with respect to his tenure
of employment in violation of Section 8(a)(1), (3), and (4)
of the Act
4 By excluding Joe Burnell from the birthday party for
Vice President Elmo Joshua on July 10, 1975, because of
his union and concerted activity, the Respondent discrimi-
nated against Burnell and restrained and coerced employ-
ee in violation of Section 8(a)(1), (3), and (4) of the Act
5 By its letter of August 6, 1975, to Joe Burnell warning
him that any further violation would subject him to dis-
missal, the Respondent discriminated against him and
coerced and restrained employee in the exercise of rights
guaranteed in Section 7 of the Act, and the Respondent
thereby engaged in unfair labor practices within the mean-
mg of Section 8(a)(1), (3), and (4) of the Act
6 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
Upon 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
ORDER4
The Respondent, Premco Forge, Inc, South Gate, Cali-
fornia, its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Discharging, laying off from employment, or other-
wise discriminating with respect to the tenure of employ-
ment of Joe Burnell or any other employee because he has
engaged in union activity, filed charges with, or given testi-
4 In the event no exceptions are filed as provided by Sec 102 46 of the
3 Explaining the reason for Kelvin's discharge on September 5, 1974, the Rules and Regulations of the National Labor Relations Board, the findings
Respondent, under date of March 3, 1975, reported in writing to the State of conclusions, and recommended Order herein shall, as provided in Sec
California Department of Human Resources Development, pursuant to 102 48 of the Rules and Regulations, be adopted by the Board and become
their request, that Kelvin Joshua "was fired for not showing up for work its findings, conclusions, and Order, and all objections thereto shall be
Three warnings were given ' deemed waived for all purposes
PREMCO FORGE, INC 377
mony before the Board, or has otherwise engaged in con-
certed activity for his mutual aid or protection as guaran-
teed by Section 7 of the Act
(b) Issuing warning notices to Joe Burnell because he
engaged in union and concerted activity within the protec-
tion of Section 7 of the Act
(c) In any other manner coercing and restraining em-
ployees in the exercise of rights guaranteed in Section 7 of
the Act
2 Take the following affirmative action which, it is
found, will effectuate the policies of the Act
(a) Make whole Joe Burnell for any loss of earnings he
suffered between March 7, 1975, and June 9, 1975, in the
manner set forth in the section of this Decision entitled
"The Remedy "
(b) Preserve and make available to the Board or its
agents, upon request, all payroll records, social security
payment records, timecards, personnel records and reports,
and all other records necessary and useful to determine the
amount of backpay due under the terms of this recom-
mended Order
(c) Post at its plant at South Gate, California, copies of
the attached notice marked "Appendix " 5 Copies of said
notice, on forms to be provided by the Regional Director
for Region 21, after being signed by Respondent's duly
authorized representative, shall be posted by it immedi-
ately 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
5In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading ` Posted by
Order of the National Labor Relations Board" shall read `Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board"
Respondent to ensure that said notices are not altered, de-
faced, or covered by any other material
(d) Notify the Regional Director for Region 21, in writ-
ing, within 20 days from the date of the receipt of this
Order what steps Respondent has taken to comply here-
with
IT IS FURTHER ORDERED that allegations of violations not
found herein shall be dismissed
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing in which the Company and the
General Counsel of the National Labor Relations Board
participated and offered evidence, it has been found that
we violated the Act We have been ordered to post this
notice and to abide by what we say in this notice
WE WILL NOT lay off or fire employees for engaging
in union or concerted activities with other employees
for their mutual aid and protection, or filing charges
with or giving testimony in Board proceedings
WE WILL reimburse Joe Burnell the pay he lost as a
result of our action in laying him off from March 7 to
June 9, 1975
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, including the
right to file charges with the National Labor Relations
Board or to give testimony to that governmental agen-
cy
PREMCO FORGE, INC