Sherwin-Williams Co.

National Labor Relations Board - Board Decisions

Nov 23, 1993

313 N.L.R.B. 163 (N.L.R.B. 1993)

163
313 NLRB No. 16
SHERWIN-WILLIAMS CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 In his recommended Order, the judge provided that the Respond-
ent offer Ornelas immediate and full reinstatement to his former po-
sition of employment. The General Counsel excepts to the failure of
the judge to clarify that Ornelas be reinstated as a permanent em-
ployee, notwithstanding his probationary status at the time of his dis-
charge. Contrary to the General Counsel, we find that reinstatement
to probationary status provides Ornelas with an adequate remedy and
is in accord with the purposes and policies of the Act. Therefore,
Ornelas is to be reinstated as a probationary employee.
3 We agree with the judge that, in the absence of any other inter-
pretation, it may reasonably be inferred that the phrase refers to
Ornelas’ union activities at DeSoto.
4 For example, the real reason may be race or gender or some
other invidious reason which the Employer wishes to conceal.
5 Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir.
1966).
We recognize that the General Counsel may have failed to present
independent evidence of antiunion animus. However, the ultimate
issue to be decided is whether the discharge was motivated by union
activity. To be sure, where there is independent evidence of union
animus, such evidence can be an element of a showing that a dis-
charge was based on union activity. But such evidence is not a sine
qua non for establishing the violation. Rather, we look to all of the
circumstances of a case to determine whether a discharge was un-
lawfully motivated. In the instant case, these circumstances include
union activity by the dischargee, employer knowledge, timing, and
pretextual reasons give for the discharge.
Sherwin-Williams Company and Daniel Ornelas.
Case 32–CA–12396
November 23, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On April 29, 1993, Administrative Law Judge Ger-
ald A. Wacknov issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, an
answering brief to the General Counsel’s exception,
and a reply to the General Counsel’s answering brief.
The General Counsel filed an exception with a sup-
porting brief and an answering brief to the Respond-
ent’s exceptions.
The National Labor Relations Board has considered
the decision and record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,
findings,1 and conclusions and to adopt the rec-
ommended Order.2
We agree with the judge that the Respondent dis-
charged Ornelas because of his union activities at his
former place of employment (DeSoto). In this regard,
we note that Ornelas was a union steward at DeSoto
and the Respondent knew of this activity. The Re-
spondent’s knowledge was derived through its produc-
tion manager (Hamilton) who was a former plant man-
ager of DeSoto. Hamilton knew of Ornelas’ reputation,
at DeSoto, as a ‘‘shit disturber.’’3 We also note the
factor of timing. Ornelas was discharged on the second
day of his employment, on the heels of Hamilton’s
raising a concern about the wisdom of hiring Ornelas.
Finally, we agree with the judge that the reasons
given for the discharge were pretextual. The fact that
an employer gives a pretextual reason for a discharge
shows that the employer wishes to hide the real reason
for the discharge. Concededly, the pretext does not
necessarily establish that the real reason was union ac-
tivity.4 However, given the evidence discussed above,
we think it reasonable to infer that the concealed rea-
son in this case was union activity.5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Sherwin-Williams Com-
pany, Emeryville, California, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Daniel F. Altemus Jr., Esq., for the General Counsel.
Hazel M. Willacy, Director of Labor Relations, of Cleveland,
Ohio, for the Respondent.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursu-
ant to notice, a hearing in this matter was held before me
in Oakland, California, on January 19, 1993. The charge was
filed by Daniel Ornelas, an individual, on March 4, 1992.
Thereafter, on May 7, 1992, the Regional Director for Re-
gion 32 of the National Labor Relations Board (the Board)
issued a complaint and notice of hearing alleging a violation
by Sherwin-Williams Company (the Respondent) of Section
8(a)(1) and (3) of the National Labor Relations Act (the
Act). The Respondent’s answer to the complaint, duly filed,
denies the commission of any unfair labor practices.
The parties were afforded a full opportunity to be heard,
to call, examine and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of the hearing briefs
have been received from counsel for the General Counsel
and counsel for the Respondent.
On the entire record, and based on my observation of the
witnesses and the briefs submitted by counsel, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is an Ohio corporation with an office and
manufacturing facility located in Emeryville, California, and
is engaged in the manufacture of paint products. In the
course and conduct of its business operations the Respondent
164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates or time periods herein are within 1992, unless other-
wise specified.
annually sells and ships goods or provides services valued in
excess of $50,000 directly to customers located outside the
State of California, and annually purchases and receives
goods or services valued in excess of $50,000 directly from
suppliers located outside the State of California.
It is admitted, and I find, that the Respondent has been at
all times material herein an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that Paint Makers and Allied
Trades Local Union No. 1975, International Brotherhood of
Painters and Allied Trades, AFL–CIO, CLC (the Union), is
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issue raised by the pleadings is whether the
Respondent discharged employee Daniel Ornelas because of
his union activity while formerly in the employ of another
employer, in violation of Section 8(a)(3) and (1) of the Act.
B. The Facts
Daniel Ornelas began working for the Respondent on
March 2, 1992.1 He was discharged the following day. It is
admitted that his discharge was unrelated to any work that
he performed for the Respondent during his 2-day tenure.
Rather, it is the Respondent’s position that he was discharged
because of attendance problems while working for a previous
employer, DeSoto Paint Company (DeSoto). The General
Counsel maintains that the Respondent’s avowed reason for
discharging Ornelas is pretextual, and that the true motiva-
tion for the discharge is because of Ornelas’ activity as a
union steward while working for DeSoto.
The approximately 50 to 60 warehouse and manufacturing
employees of DeSoto were represented by the Union and
there was a collective-bargaining agreement in effect.
Ornelas worked in DeSoto’s warehouse department for ap-
proximately 4-1/2 years. During the last 2 years of his em-
ployment, he was one of two union stewards in the ware-
house. On some occasions the manufacturing employees
would select Ornelas as their spokesman to handle union-re-
lated matters with management, even though they could have
elected to be represented by two other stewards who worked
in the manufacturing facility across the street from the ware-
house.
The DeSoto plant manager was Larry Johnson, the plant
superintendent was Mark Hamilton, and Scott Wright was
warehouse manager. George Lyon was DeSoto’s personnel
manager.
Ornelas testified that as a union steward at DeSoto his re-
sponsibilities included efforts to resolve employee complaints
with an aggrieved employee’s immediate supervisor, and, in
the absence of a satisfactory resolution of the matter, the
processing of a formal grievance. In this event, Ornelas
would participate in the presentation of the grievance. In ad-
dition, Ornelas was involved in contract negotiations. In the
aforementioned endeavors, Ornelas had occasion to speak
with Plant Superintendent Hamilton ‘‘over a dozen times’’
regarding union-related matters. On some of these occasions
he would just step into Hamilton’s office and discuss dif-
ferent employee complaints which had not yet reached the
grievance stage. During formal grievances he would meet
with several company representatives, including supervisors,
the personnel manager, and Hamilton. In 1990 Ornelas was
on the Union’s negotiating committee and assisted in nego-
tiating a contract with DeSoto’s negotiating team, which in-
cluded Hamilton. During contract negotiations, according to
Ornelas, there was ‘‘a little hollering and stuff,’’ but ‘‘it
wasn’t like we were going to kill each other or anything like
that.’’
Ornelas recalled a specific situation regarding the dis-
cipline of an employee. During this meeting Hamilton told
the employee to either straighten up or, apparently, face ter-
mination. Ornelas testified that although he, as union stew-
ard, ‘‘sensed’’ hostility or animosity during this occasion,
Hamilton did not exhibit any overt hostility toward him as
the employee’s union representative.
There was virtually no contact between Ornelas and Ham-
ilton on a daily work-related basis, and, according to
Ornelas, Hamilton did not monitor his attendance or his will-
ingness to work overtime.
In about October 1990, DeSoto’s operations were sold to
two separate entities, one of which happened to be the Re-
spondent herein. In preparation for this change in ownership
approximately 25 employees, including Ornelas, were laid
off in December 1990, in order of seniority.
Sometime in 1991, DeSoto Plant Superintendent Hamilton
was hired by the Respondent as production manager. Dale
Hitchcock was the Respondent’s personnel manager. The em-
ployees at the Respondent’s plant were also represented by
the Union herein, and were covered under the terms of a col-
lective-bargaining agreement that was similar in all material
respects with the aforementioned DeSoto contract.
Following his layoff from DeSoto, Ornelas obtained var-
ious jobs through the Union’s hiring hall, and in early 1992
he applied for a job with the Respondent. The hiring process
consisted of an interview with a production or warehouse su-
pervisor, a drug test, and a physical examination. He began
working for the Respondent on March 2. On March 3, at the
end of his second day of employment, Ornelas was sum-
moned to the office of Personnel Manager Dale Hitchcock,
who advised Ornelas that he was being terminated. Ornelas
asked why, and Hitchcock said that there were two reasons:
lack of work and Ornelas’ attendance record with a former
employer. Ornelas denied that he had had any attendance
problems at DeSoto and asked for an explanation. Hitchcock,
according to Ornelas, replied that the current collective-bar-
gaining agreement between the Respondent and the Union
permitted summary termination of an employee during the
probationary period, and did not explain further.
Hitchcock testified that he terminated Ornelas on March 3
as a result of Production Manager Hamilton’s complaint, on
learning that Ornelas had been hired, that it had been a mis-
take to hire Ornelas because he had ‘‘an attendance prob-
lem’’ at DeSoto and would not be a favorable employee.
During this conversation, according to Hitchcock, Hamilton
did not mention an ‘‘overtime’’ problem, discussed infra. Ex-
plaining that as a result of past experience he was particu-
165SHERWIN-WILLIAMS CO.
larly sensitive to the possibility of employees in legally pro-
tected groups (Ornelas is Hispanic) seeking recourse with the
Equal Employment Opportunity Commission, Hitchcock tes-
tified that he was reluctant to take any immediate action
prior to investigation of Hamilton’s claim, and that he in-
structed Hamilton to provide him with some corroboration of
Ornelas’ poor attendance at DeSoto. Hamilton did not do so,
however, and Ornelas was terminated prior to Hamilton’s re-
porting back to Hitchcock that day.
Ornelas filed the Charge in the instant matter on March 4,
the day following his termination. Several days following the
discharge, Hitchcock phoned the former DeSoto personnel
manager, George Lyon, and asked him if he would testify re-
garding Ornelas’ attendance problem while working for
DeSoto. Lyon stated that Ornelas did not have an attendance
problem.
Hamilton testified that he spoke with Hitchcock imme-
diately on learning that Ornelas had been hired and told him
that Ornelas had an attendance problem at DeSoto and
should not have been hired by the Respondent. Hamilton ac-
knowledged that Ornelas had never worked under his super-
vision at DeSoto and that he became aware of Ornelas’ at-
tendance problems at DeSoto solely as a result of casual dis-
cussions or scheduled meetings among DeSoto managers and
supervisors, during which, according to Hamilton’s March 19
affidavit, ‘‘[Ornelas’] name often came up with regard to oc-
currences under the Attendance Program.’’ While Hamilton
testified that Ornelas’ name was mentioned in this regard
about a ‘‘half a dozen’’ times in 1990, he had no specific
recollection of any particular discussions.
Hamilton testified that the problem with Ornelas’ attend-
ance did not arise during the regular Monday through Friday
workweek, but rather concerned Ornelas’ reluctance to work
overtime on Saturdays. The overtime policy under the union
contract at DeSoto and, similarly, at the Respondent’s facil-
ity, permitted the scheduling by management of mandatory
overtime work. Employees were then required to work over-
time, but could request to be excused from such work for
specific reasons, and the managers or supervisors could grant
or deny the requests according to scheduling needs. Hamilton
acknowledged that the mere fact that on several occasions an
employee may have requested and been granted permission
not to work overtime would not be construed as an attend-
ance problem. While Hamilton admitted that, in causing
Hitchcock to terminate Ornelas, he did not mention any over-
time problem, nevertheless Hamilton stated that in his opin-
ion Ornelas’ alleged requests to be excused from overtime
work was attendance related, even though the procedure for
being excused from overtime was sanctioned under the union
contract and was in accordance with customary practice.
There is significant discrepancy between Hamilton’s testi-
mony, his March 19 affidavit given to the Board, and the po-
sition letter of the Respondent which sets forth Hamilton’s
alleged account of his contacts with former DeSoto managers
and supervisors. Thus, Hamilton phoned former DeSoto Per-
sonnel Manager Lyon, former DeSoto Warehouse Manager
Scott Wright, and former DeSoto Plant Manager Larry John-
son. Hamilton’s March 19 affidavit to the Board states that
each of the three individuals refused to provide him with any
information which would corroborate his recollection of
Ornelas’ attendance problem.
In a position letter to the Board dated April 10, however,
the Respondent represented that on the morning of March 3,
Hamilton advised Hitchcock of Ornelas’ undesirability as an
employee, that he ‘‘immediately thereafter’’ phoned Lyon,
Wright, and Johnson; that upon mentioning Ornelas’ name to
Lyon, Lyon allegedly replied, ‘‘You didn’t hire that guy did
you,’’ and added, ‘‘shoot him, he doesn’t have his 110
days’’; that Hamilton replied that ‘‘we want to make it
clean,’’ and requested that Lyon confirm that Ornelas had an
attendance problem and would not work overtime; and that
Lyon acknowledged this, and said, ‘‘You really shouldn’t
have hired him.’’
Hamilton testified that he had a similar conversation with
Wright, who exclaimed, ‘‘Oh, my goodness, you didn’t hire
[Ornelas] did you,’’ and also confirmed that Ornelas had an
attendance problem, would not work overtime, and should
not have been hired.
Hamilton testified that Lyon and Wright did indeed make
the foregoing statements attributed to them in the Respond-
ent’s position letter, but that he did not include such state-
ments in his March 19 affidavit to the Board because he did
not feel the conversations contained sufficient corroborative
information. Rather, he simply stated in his affidavit that the
aforementioned individuals refused to furnish him with any
substantiation of Ornelas’ alleged deficiencies. Asked to ex-
plain this apparent discrepancy, Hamilton stated that although
Lyon and Wright acknowledged Ornelas’ attendance prob-
lem, they refused to cooperate further by providing any writ-
ten documentation of Ornelas’ deficient attendance and told
Hamilton that they were speaking to him ‘‘off the record.’’
While Hamilton testified that he reported the aforementioned
conversations with Lyon and Wright to Personnel Manager
Hitchcock prior to Ornelas’ discharge, I discredit this asser-
tion, infra.
Hamilton acknowledged that Ornelas had been a union
steward at DeSoto, that on occasion he dealt directly with
Ornelas on grievances concerning employees in the manufac-
turing facility, and that Ornelas was on the union negotiating
team. Other than such matters, Hamilton had only occasional
contact with Ornelas. Hamilton said that he had ‘‘very few’’
dealings with Ornelas regarding union-related matters, and
would not consider him to be an aggressive union steward.
However, according to Hamilton, both Wright and Lyon and
several DeSoto manufacturing or warehouse employees may
have possibly referred to Ornelas as a ‘‘shit disturber.’’
Asked what specific information caused him to tell Hitch-
cock to terminate Ornelas, Hamilton testified:
I based it on conversations with different managers,
possibly one at a time or collectively with my super-
visors, and maintaining consistency with the corrective
action program with attendance. During the change of
the attendance policy, again, his name may have come
up in there, I cannot specifically say that.
Further, Hamilton admitted that he did not could not recol-
lect anything specific about Ornelas’ attendance problems,
that he never heard about any specific attendance problems
or occurrences regarding Ornelas from Warehouse Manager
Wright, and that he subsequently learned about the alleged
overtime problem after talking to three former DeSoto man-
agers, infra.
166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Hamilton testified that the overtime policy and the manner in
which it was enforced at the Respondent’s facility is identical with
the aforementioned DeSoto overtime policy and procedures and both
are governed by the same contractual provisions with the Union.
However, the Respondent works considerably more Saturday over-
time than was the case at DeSoto.
Asked why Ornelas was not given a chance to demonstrate
his reliability and proficiency as a new employee, Hamilton
stated that he simply did not want to take a chance with an
employee who might not make it through the probationary
period, as the Respondent would be expending the time and
expense of training a new hire who was unlikely to become
a permanent employee; further, there were ample applicants
for the available positions.
Larry Johnson was formerly plant manager at the DeSoto
plant. Hamilton reported to him. Johnson testified that some-
time in March he received a phone call from Hamilton, who
said that Ornelas had been hired and then terminated by the
Respondent. Hamilton asked if Johnson would be willing to
forward records substantiating that Ornelas had an attendance
problem and ‘‘was not eligible for rehire’’ at DeSoto. John-
son replied that the DeSoto records were at the Company’s
headquarters in Des Plaines, Illinois, and referred Hamilton
to that entity. Further, he told Hamilton that he did not recall
that Ornelas had an attendance problem at DeSoto.
Johnson testified that he considered Ornelas to be an ‘‘as-
sertive’’ rather than an ‘‘aggressive’’ union steward, who
‘‘knew what he wanted when he had a problem with people.
And he wanted the people to get some kind of a break, or
get the situation explained to him to the fullest extent . . .
I think he wanted an answer.’’ Johnson recalled that while
working with Ornelas on grievance matters, Ornelas told him
on several occasions that he did not like to work overtime;
according to Johnson, Ornelas made this very clear.
George Lyon was personnel manager at DeSoto. Lyon tes-
tified that he had dealt with Ornelas in his capacity as a shop
steward. In March he received a phone call from Hamilton
who said that Ornelas had been hired and terminated by the
Respondent. Hamilton inquired whether Ornelas had an at-
tendance problem. Lyon replied, apparently in response to
questions from Hamilton, that Ornelas did not have a prob-
lem with attendance at DeSoto, and that Ornelas was laid off
due to business considerations and did not lose his job at
DeSoto because of an attendance problem.
Several days later, Lyon received a phone call from Per-
sonnel Manager Hitchcock, who asked whether, if it became
necessary, he would attest to the fact that Ornelas had an at-
tendance problem at DeSoto. Lyon repeated what he had pre-
viously told Hamilton, namely, that Ornelas had no attend-
ance problem, and was terminated by DeSoto only because
of the sale of the business. Lyon, at the hearing herein, was
shown the position paper of the Respondent containing Ham-
ilton’s aforementioned alleged account of the phone con-
versation. Lyon denied that such a conversation with Hamil-
ton had occurred. Regarding his recollection of Ornelas’ em-
ployment at DeSoto, Lyon did recall that Ornelas had stated
he did not like to work overtime.
Scott Wright was the warehouse manager for DeSoto and
supervised Ornelas. Wright testified that he received a phone
call from Hamilton on March 5 or 6. Hamilton advised
Wright that Ornelas had been hired and then terminated by
the Respondent, and that he was ‘‘looking for good reason-
ing,’’ and ‘‘suspected’’ that Ornelas had an attendance prob-
lem while working for DeSoto. Lyon told Hamilton that ‘‘we
did have problems with [Ornelas] always needing to leave
our shift at regular time instead of working overtime, not al-
ways, but frequently. During the week and on Saturdays.’’
Reluctance to work overtime, however, was not considered
to reflect adversely upon an employee and was not an ‘‘oc-
currence’’ under the formal ‘‘Attendance Policy.’’
Finally, Wright testified that there were meetings with the
managers and supervisors at DeSoto regarding the applica-
tion of the attendance policy, and that Ornelas’ name was
never mentioned as an example of an employee who had an
attendance problem.
Regarding the overtime policy, Wright explained that over-
time during the regular workweek was very rarely voluntary,
and employees would customarily not be able to be excused
from such overtime. However, overtime on Saturdays was
usually on a voluntary basis and employees were requested
to volunteer for such work in accordance with seniority.2
Since Ornelas was close to the bottom of the seniority list,
he usually would not be excused from overtime work.
Ornelas never volunteered for overtime work, but he never
refused to work mandatory overtime; he did complain about
the overtime that was required, however, apparently believ-
ing that it was unnecessary.
Wright was asked whether he would have recalled Ornelas
after the layoff at DeSoto if there were positions available.
He replied that he did not know whether he would want
Ornelas back if he had to chose between Ornelas and another
equally qualified applicant. Wright explained that he and
Ornelas did not agree on the way the work should be done
and had ‘‘totally different personalities.’’ According to
Wright, Ornelas was ‘‘assertive to the protection of himself
and his employees and as opposed to open-mindedness to-
wards employees and company combined. So we simply
didn’t see eye to eye on a lot of things.’’ According to
Wright, however, his differences with Ornelas had nothing to
do with Ornelas’ conduct as a shop steward at DeSoto.
Hitchcock testified that on being hired employees are ad-
vised of the Respondent’s attendance and overtime policies
and are told that they are expected to adhere to such rules
or face termination. The Respondent introduced record evi-
dence establishing that the 110-day probationary period, dur-
ing which the attendance policy and apparently other com-
pany rules are stringently applied, is designed to assess the
adequacy of the employees’ work performance and their
compliance with the requisite company rules and procedures.
It is not uncommon for employees to be discharged during
the probationary period for deficient attendance. Further, the
Respondent has terminated probationary employees after on-
going reference checks have resulted in unfavorable histories.
No such evidence presented by the Respondent, however, is
specifically analogous to the instant matter.
Hitchcock testified that if Ornelas would have exhibited
the same reluctance to work overtime as he did at DeSoto,
this would have presented a problem for the Respondent. Ac-
cording to Hitchcock, the Respondent’s employees customar-
ily work an ‘‘excessive’’ amount of overtime, and an em-
ployee’s reluctance to work overtime would present a burden
for the Respondent even though the individual would not be
violating any policy or contractual provision. Hitchcock did
not explain, however, how any such burden would be placed
167SHERWIN-WILLIAMS CO.
on the Respondent. Thus, the Respondent may always re-
quire overtime in the event there are insufficient volunteers,
and as the more senior employees are given preference in
electing to work overtime, newer hires, such as Ornelas, for
example, would be given no opportunity to refuse overtime.
Hamilton testified that he recalled several managers’ meet-
ings at DeSoto in 1990 during which staffing levels of the
various departments were discussed. He recalled that some
employees with greater seniority or bumping rights were
considered to be less desirable than employees with lesser se-
niority, and in this context there was discussion of whether
‘‘we can go further to get a particular employee’’ who would
otherwise be protected from layoff. According to Hamilton,
Ornelas’ name was mentioned during this discussion, al-
though Hamilton did not know why other managers were tar-
geting Ornelas; there was no specific discussion of Ornelas’
attendance. Hamilton testified that in his opinion, perform-
ance, attendance, and overtime are interchangeable, and it is
his impression that Ornelas simply had a problem in this
area.
C. Analysis and Conclusions
The testimony of Johnson, Lyon, and Wright, which I
credit, clearly shows that the Respondent’s investigation of
Ornelas’ alleged ‘‘attendance problem’’ took place subse-
quent to Ornelas’ discharge. Thus, Hamilton began the phone
conversation with each of these individuals by advising them
that Ornelas had previously been terminated, and that he was
seeking confirmation of his opinion that Ornelas’ past em-
ployment history with DeSoto was unsatisfactory.
Hamilton never directly supervised Ornelas at DeSoto and,
except for union-related matters, had only casual contact with
him. Nor was his limited knowledge of Ornelas’ work based
on any direct working relationship or dealings with him. Ad-
ditionally, some 15 months had elapsed between Ornelas’
layoff at DeSoto and his employment by the Respondent. As-
suming arguendo that in fact Hamilton was legitimately con-
cerned about Ornelas’ past attendance problems at DeSoto,
his recollection of such problems was vague and indefinite,
having been allegedly gleaned and interpolated from various
comments by DeSoto supervisors or managers; Hamilton
simply did not know much about Ornelas’ past work per-
formance in general or his attendance problems in particular.
Further, Ornelas had been hired after successfully completing
the Respondent’s interview and medical testing process, and
had barely commenced his 110-day probationary period.
Under these circumstances, it is unlikely that a responsible
manager would feel compelled to summarily bring about the
discharge of a newly hired employee prior to obtaining any
specific corroboration of his past employment history. Yet
this is what Hamilton sought to do.
Further, Personnel Manager Hitchcock, having been sen-
sitized to the need to properly document discharges of minor-
ity employees, specifically instructed Hamilton to obtain cor-
roboration of Ornelas’ alleged past attendance problems in
order to protect the Respondent from anticipated charges of
discrimination. Inexplicably, Hitchcock then dismissed
Ornelas, I find, before Hamilton had even begun to obtain
such corroboration. Clearly, the undue haste with which both
Hitchcock and Hamilton felt constrained to act is indicative,
under the circumstances, of an ulterior motive, as the Re-
spondent has presented no convincing business rationale for
failing to postpone Ornelas’ discharge until it had obtained
sufficient information to justify the discharge.
The credible record evidence is abundantly clear, and I
find, that in fact Ornelas had no attendance problem or any
other type of work-related problem while working at DeSoto.
In this regard, I do not credit Hamilton’s testimony to the
extent that it is inconsistent with the testimony of Johnson,
Lyon, or Wright. Specifically, I find that Ornelas had abso-
lutely no problem with what is commonly understood by the
term ‘‘attendance.’’ To the extent that an outright refusal to
work overtime may be characterized as an attendance related
problem, the record is clear that while Ornelas had expressed
his preference not to work overtime, he never refused to do
so when mandatory overtime was required; and in seeking
permission to be excused from overtime and/or refusing to
volunteer for overtime work, he was conforming with the
language and intent of the collective-bargaining agreement
and the work rules then in effect. The Respondent has not
shown that this admittedly proper and permissible adherence
to the established rules was deemed to be a ‘‘problem’’ of
any sort which would warrant the refusal to hire an em-
ployee.
Clearly, Hamilton harbored a negative perception of
Ornelas at DeSoto. The only firsthand recollection that Ham-
ilton had of Ornelas’ DeSoto employment was that he was
a shop steward; indeed, virtually the entire extent of Hamil-
ton’s direct contact with Ornelas was in his capacity as a
duly designated representative of the Union. In this regard,
it is significant that Hamilton’s testimony demonstrates that
he recalled Ornelas being referred to as a ‘‘shit disturber.’’
In the absence of any other explanation for such an epithet,
and the Respondent has provided none, it may be reasonably
presumed that Hamilton attached significance to this term as
descriptive of Ornelas’ role as a union steward. Further,
former DeSoto Plant Manager Johnson characterized Ornelas
as an assertive union steward who was persistent in his ef-
forts on behalf of the employees. Similarly, former DeSoto
Warehouse Manager Wright testified that Ornelas was ‘‘as-
sertive to the protection of himself and his employees . . . .
So we simply didn’t see eye-to-eye on a lot of things.’’ Such
portrayals of Ornelas by Hamilton, Johnson, and Wright are
not disparaging of his work performance; rather, they are
pointedly indicative of Ornelas’ reputation as a staunch advo-
cate of employees’ concerns.
The General Counsel has established a prima facie case by
presenting abundant credible record evidence showing that
Hamilton was well aware that Ornelas was an assertive union
steward and employee advocate, that, contrary to the Re-
spondent’s assertions, he was a good worker with no history
of attendance or performance problems at DeSoto, and that
he was precipitously discharged prior any verbal or docu-
mented confirmation that his employment at DeSoto was
somehow deficient.
On the General Counsel’s presentation of a prima facie
showing sufficient to support the inference that protected
conduct was a motivating factor in the decision to discharge
an employee, it is incumbent on the Respondent to establish
that the same action would have taken place even absent the
168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
4 Obviously, an employee who does not have a legitimate excuse
will be required to perform mandatory overtime work; and a general
aversion to overtime work would not be considered a legitimate ex-
cuse.
5 Although there is no direct evidence of animus or hostility to-
ward the Union or toward Ornelas in his capacity as a union stew-
ard, such motivation may be inferred from a pretextual discharge, as
found herein. Whitesville Mill Service Co., 307 NLRB 937 (1992).
protected conduct.3 The Respondent has failed to satisfy this
burden. Thus, as I have found above, the record evidence
shows that the discharge of Ornelas was not occasioned by
any performance problem, real or, in good faith, imagined.
The Respondent has proffered no evidence showing that it
has either a policy or practice of discharging probationary
employees based on vague recollections or unsubstantiated
suspicions of past performance problems with other employ-
ers. Rather, the Respondent has amply demonstrated that it
has a practice of discharging probationary employees only
after receiving well-substantiated negative information, as a
result of formal reference and background checks, sufficient
to deem an employee unsuitable for employment.
While speaking with the former DeSoto managers follow-
ing Ornelas’ discharge, Hamilton was unable to obtain ver-
ification that Ornelas had any performance problems or at-
tendance problems at DeSoto; to the contrary, he was told
that he was mistaken. During the course of these phone con-
versations, however, he admittedly learned that Ornelas pre-
ferred not to work overtime. Significantly, in his March 19
affidavit to the Board, Hamilton failed to assert this as a rea-
son for discharging Ornelas. Thus it appears that Hamilton
initially regarded the overtime matter as unimportant. The
Respondent now advances Ornelas’ attitude toward overtime
work as being a matter of singular significance, and asserts
that this provided the Respondent with justification for his
discharge.
However, as noted above, the Respondent has failed to
demonstrate that a mere reluctance to work overtime, without
more, is a valid reason for discharge. There is no evidence
that any employee, whether in the employ of the Respondent
or of DeSoto, had ever been discharged, disciplined, rep-
rimanded, warned, or even given an ‘‘occurrence’’ demerit in
accordance with the Respondent’s formal Attendance Policy,
for simply preferring not to work overtime or requesting to
be excused from overtime work. Thus, Hamilton testified
that working overtime on a voluntary basis was entirely up
to the employee: ‘‘We have a lot of people including myself
with families. And I like to think that they can choose to
come in and work on Saturday to make the money, or be
home with their families.’’
The simple overtime policy may be succinctly stated as
follows: the Respondent, in its sole discretion, may require
an employee to work mandatory overtime or may excuse the
employee from working such overtime;4 regarding voluntary
(Saturday) overtime, the more senior employee is given pref-
erence in electing either to perform or not perform such
work, and if there are insufficient volunteers, the least senior
employees do not have the option of not volunteering. There-
fore it seems clear that an employee’s preference for or
against overtime work is simply inconsequential to the
scheduling of either mandatory or voluntary overtime, and
would present the Respondent with no staffing or production
problem. Indeed, as Ornelas was a new hire, it appears that
he would be given virtually no opportunity to be excused
from overtime work in either event.
In agreement with the contention of the General Counsel,
I find that the Respondent’s ‘‘overtime’’ rationale for dis-
charging Ornelas is pretextual, and was seized on as an after-
thought in an effort to give validity to an otherwise untenable
position. Unlawful motivation may be inferred from the ad-
vancement of pretextual reasons for a course of conduct.
Limestone Apparel, 255 NLRB 722 (1981); Springfield
Manor, 295 NLRB 17 fn. 2 (1989).
Lastly, I have found that Hamilton simply was not truthful
in recounting his conversations with the three former DeSoto
managers. In the Respondent’s April 10 position letter, and
again at the hearing, Hamilton maintains that he contacted
the managers prior to Ornelas’ termination. This was not the
case, as it is clear that the phone conversations occurred sub-
sequent to Ornelas’ termination. Moreover, in crediting the
testimony of Lyon and Johnson, I find that, contrary to Ham-
ilton’s assertion, neither manager expressed surprise or, in ef-
fect, chastised Hamilton for hiring Ornelas because of a past
attendance or overtime problem or for any other reason. Such
proffered evidence, having been discredited, is indicative of
an unlawful motivation. Shattuck Denn Mining Corp. v.
NLRB, 362 F.3d 466 (9th Cir. 1966); Active Transportation,
296 NLRB 431, 432 fn. 8 (1989); Weco Cleaning Specialists,
308 NLRB 310 (1992).
On the basis of the foregoing, I conclude that the dis-
charge of Ornelas was motivated by unlawful considerations,
namely, the past union activity of Ornelas as an assertive
union steward at DeSoto, and, as the same Union represents
the Respondent’s employees, the likelihood that he would as-
sume a similar union position as an employee of the Re-
spondent.5 By such conduct, the Respondent has violated
Section 8(a)(3) and (1) of the Act as alleged.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(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. The Respondent has violated Section 8(a)(3) and (1) of
the Act by discharging employee Daniel Ornelas on March
3, 1992, because of his activity on behalf of the Union.
THE REMEDY
Having found that the Respondent has violated Section
8(a)(3) and (1) of the Act, I recommend that it be required
to cease and desist therefrom and from in any other manner
interfering with, restraining, or coercing its employees in the
exercise of their rights under Section 7 of the Act. Moreover,
the Respondent shall be required to post an appropriate no-
tice, attached hereto as an appendix.
Having found that the Respondent unlawfully discharged
employee Daniel Ornelas, I recommend that it offer him im-
mediate and full reinstatement, without prejudice to his se-
niority or other rights and privileges previously enjoyed, and
make him whole for any loss of earnings and benefits he
169SHERWIN-WILLIAMS CO.
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
7 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
may have suffered by reason of the Respondent’s discrimina-
tion against him. Backpay is to be computed in accordance
with the Board’s decision in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as prescribed in New Hori-
zons for the Retarded, 283 NLRB 181 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Sherwin-Williams Company, Emeryville,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because of their prior activity
or probable future activity as union stewards or active union
supporters.
(b) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of rights guaranteed to them
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to employee Daniel Ornelas immediate and full
reinstatement to his former position of employment, without
prejudice to his seniority or other rights and privileges pre-
viously enjoyed, and make him whole for any loss of pay
or benefits suffered by reason of the discrimination against
him, in the manner described above in the remedy section.
(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 ana-
lyze the amount of backpay due under the terms of this rec-
ommended Order.
(c) Post at the Respondent’s Emeryville, California facility
copies of the attached notice marked ‘‘Appendix.’’7 Copies
of said notice, on forms provided by the Regional Director
for Region 19, after being signed by the Respondent’s rep-
resentative, shall be posted by it immediately on receipt and
maintained by the Respondent for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order, what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has ordered us
to post this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge employees because of their past
union activity with a prior employer as union stewards or or
their probable future activity with this Company as union
stewards or active union supporters.
WE WILL NOT in any other manner interfere with, restrain,
or coerce employees in the exercise of their rights guaranteed
them by Section 7 of the Act.
WE WILL offer to Daniel Ornelas immediate and full rein-
statement to his former position of employment, without
prejudice to his seniority or other rights and privileges pre-
viously enjoyed, and WE WILL make him whole, with inter-
est, for any loss of earnings he may have suffered as a result
of our discrimination against him.
SHERWIN-WILLIAMS COMPANY