Sinclair & Valentine Co.

National Labor Relations Board - Board Decisions

Apr 23, 1976

223 N.L.R.B. 1043 (N.L.R.B. 1976)

SINCLAIR & VALENTINE CO.
Sinclair & Valentine Company and Dayton Printing
Pressmen, Assistants ' and Offset Workers' Union
No. 54, International Printing and Graphic Commu-
nications Union , AFL-CIO. Case 9-CA-9070
April 23, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On January 19, 1976, Administrative Law Judge
Paul E. Weil issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and a supporting brief.
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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.'
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, as herein
modified, and hereby orders that the Respondent,
Sinclair & Valentine Company, Dayton, Ohio, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in said recommended Order, as mod-
ified below:
Substitute the following for paragraph 1(b) of the
recommended Order:
"(b) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act."
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear prepondernace of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 In par . 1(b) of his recommended Order, the Administrative Law Judge
uses the narrow cease and desist language, "like or related," rather than the
broad injunctive language , " in any other manner," which the Board tradi-
tionally provides in cases involving serious 8(a)(3) discriminatory conduct.
such as that found here . See N.L.R.B. v. Entwistle Manufacturing Co., 120
F.2d 532, 536 (C.A. 4, 1941). Accordingly , we shall modify the Order to
require Respondent to cease and desist from in any other manner infringing
upon employee rights.
DECISION
STATEMENT OF THE CASE
1043
PAUL E. WELL, Administrative Law Judge: On January
22, 1975, Dayton Printing Pressmen, Assistants' and Offset
Workers' Union No. 54, International Printing and Graph-
ic Communications Union, AFL-CIO, hereinafter called
the Union, filed with the Regional Director for Region 9
(Cincinnati, Ohio), of the National Labor Relations Board,
hereinafter called the Board, a charge alleging that Sinclair
& Valentine Company, hereinafter called Respondent, vio-
lated Section 8(a)(3) and (1) of the National Labor Rela-
tions Act, as amended, by the discharge of two employees,
Ray Oakes and Dan Croy, on or about January 20, 1975,
in order to discourage membership in the Union. On Sep-
tember 17, 1975, the Acting Regional Director of Region 9,
on behalf of the General Counsel of the Board, issued a
complaint alleging a violation of Section 8(a)(3) by Re-
spondent in the discharge of the two men, Oakes and Croy.
By telegram dated September 30, 1975, Respondent an-
swered the complaint denying the commission of any un-
fair labor practices. On the issues joined the matter came
on for hearing before me at Moraine, Ohio, on November
25, 1975. Respondent and the General Counsel, as well as
one of the alleged discriminatees, were represented by
counsel. The Union made no appearance. All parties had
an opportunity to call and examine witnesses and to ad-
duce relevant and material evidence.
Upon the entire record in this case, including my obser-
vation of the witnesses, and upon consideration of briefs
filed by the General Counsel and Respondent, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation, is engaged in the
manufacture of printing inks at its Dayton, Ohio, facility.
In the operation of its business, Respondent annually im-
ports in interstate commerce goods and services valued in
excess of $50,000, and annually ships from its Dayton,
Ohio, plant, in interstate commerce, goods valued in excess
of $50,000. Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is and at all times relevant hereto has been a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
In October or November 1974, the Union commenced
an organizing campaign at Respondent's Dayton facility
223 NLRB No. 160
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among the production employees , of which at that time
there were approximately 10, and 2 truckdrivers . In mid-
November, the Union informed Respondent by mail of the
existence of an in-plant organizing committee which in-
cluded a number of named employees and specifically
Daniel Croy and Ray Oakes , the alleged discriminatees in
the instant case.' A petition was ultimately filed and an
election conducted on January 10, 1975, which the Union
lost by a tie vote of 6 to 6 . A week later Oakes and Croy
were discharged under circumstances which will be de-
tailed below . These discharges were promptly alleged by
the Union to be violations of Section 8(aX3) and ( 1) of the
Act.
B. The Discharges
On January 17, 1975, Croy picked up Oakes at his home
to drive him to the factory because Oakes does not drive.
On their way to the factory to go to work, Croy's car was
disabled by the disintegration of its fan belt and they
stopped on the street. Oakes stayed with the car and Croy
went to a telephone where he called the plant . He spoke to
the office manager, Ruth Bell , telling her that the car was
disabled and that they would attempt to get into work if
they could do so. He also asked to speak to another em-
ployee and apparently asked Miss Bell to give the pay-
checks for the two men to an employee to take to a local
bar where most, if not all , of the employees of the Respon-
dent normally cashed their checks. When Croy spoke to
the other employee , he arranged for the checks to be
brought to the two men at the bar and stated that he would
try to get there during the lunch period in order to cash his
check. According to Croy's testimony, which is not contro-
verted, he then contacted an uncle who came and picked
up the two men, took them to the bar where they got their
checks, and returned them to the car, which they had
pushed off the road into a parking lot. According to both
Croy and Oakes, they were unable to purchase a new fan
belt until they had cashed their checks because they had no
money that morning. At 12:25, when the two men arrived
at the bar, their checks were there and one of the employ-
ees informed them of a rumor that they were going to be
discharged because someone had punched in their time-
cards. The two men did not go into work, but returned to
the repaired car and went home?
John Martz, the manufacturing manager of Respondent,
testified that he had been out of the plant all morning on
Friday, January 17. He returned after noon and learned
that the two men had not come to work . Because he was
concerned about making up the time they lost with over-
' Croy was named in the letter as "Gray"; nevertheless , it appears that he
was readily identified.
2 It is not clear whether the car was repaired before or after noon. Both
Oakes and Croy testified that it was not repaired until after noon when they
got their checks . However , Croy's affidavit indicates that their car had been
repaired before noon . In any event, the two men did not go to work that
day, and the following Monday, the next regularly scheduled workday when
they came to the plant, they found that their cards had been taken out of the
rack . They reported to the plant manager and were discharged , allegedly
because they had failed to come to work but had managed to get to the local
bar by noon.
time work on the following day, Saturday, Martz pulled
their timecards at which time he learned that they had been
punched in. He also learned from the office manager that
she had sent the checks to the two men at the bar and that
they had come to the bar and received their checks. Ac-
cording to his testimony he then consulted with Patrick
Turley, the branch manager, and determined to discharge
the men on the following workday. His testimony was sup-
ported by that of Ruth Bell, who testified that she first saw
Martz on January 17, when he came in to inquire about the
two men and that this took place while she was eating her
lunch during the luncheon break which extends from noon
until 12:30 p.m. Martz also testified that the sole reason the
men were discharged was because of their abuse of the
Respondent's attendance policy and that this reason was
the reason for most of the discharges that he had effected
in the 13 years that he had been in his present position. He
recounted specifically an example in 1970 when he dis-
charged a named employee for calling in sick and then
appearing at the plant at noon with a fish that he had just
caught. He testified that when employees did not show up
for work when they were supposed to, his policy normally
was to speak to the employees and attempt to change their
ways and make them realize the importance the Respon-
dent placed on their being at work since the Respondent is
a service-oriented concern and, with its low employee com-
plement, needed to be able to expect the employees to be at
work when they were scheduled to be. He also testified that
the situation was particularly bad on January 17 because
the plant was very busy and the employees had had to
work large amounts of overtime. However, it appears that
the large amounts of overtime that he was talking about
consisted of 4 hours a week per employee on the average or
perhaps less, and that normally the employees worked their
overtime on Saturday morning. Croy testified that he had
worked only about 15 minutes overtime in the week pre-
ceding his discharge.
Croy and Oakes both testified that the plant had a cus-
tom of paid absent days under which all employees were
permitted to take up to 4 days a year either on sick leave or
absence for personal reasons. If the employees were not
absent all or any of these 4 days prior to December 2 of
each year, they were given pay for the unused days. Oakes,
who had been employed since 1965, testified that he had
always used all 4 days each year and that on few occasions
had he been sick. Croy and Oakes both testified that the
only requirement was that they call in as soon as they
learned that they were to be absent but that no explanation
for their absence was required. They were supported in this
testimony by the testimony of Bubby Taylor, a foreman
who has been employed since 1962. Taylor testified that
the employees could take off for any reason but were re-
quired to call in. He also testified that the policy was vari-
ously known as sick leave, paid absences, or personal leave.
Croy had been employed only since 1973. He had been
paid for I unused day in 1973 but used all 4 in 1974, or
would have used all 4 if he had not been discharged for the
fourth one.
The testimony with regard to paid absent days was con-
tradicted by that of Ruth Bell and John Martz who both
testified that there was no such policy in existence but that
SINCLAIR & VALENTINE CO. 1045
Respondent had a policy of paying up to 4 days a year sick
leave , that this leave was granted only when a person called
in sick or had good personal reasons for not coming in and
that the personal reasons had to be approved by a supervi-
sor in the plant.
Plant supervision apparently consisted of Branch Man-
ager Turley , Manufacturing Manager Martz , Production
Superintendent Dick Cole, and an assistant to Cole, who
until December had been Charlie Jackson , the foreman of
the shipping department . In addition , about half of the em-
ployees were denominated "foremen ," apparently a nonsu-
pervisory position akin to the position of leadmen in other
plants. Bubby Taylor was one of these foremen and Char-
lie Jackson had been demoted to the position of foreman in
December. Oakes too had been a foreman for a period of
months in 1973 or 1974 when he had worked on the night
shift. Taylor also testified that he himself did not normally
take all of his sick leave or personal leave and accepted the
pay for it in December , but that , as foreman, when he
received calls from employees that they were taking a day
off, he did not question the reason therefor in accordance
with his understanding of the policy.
John Martz testified that this employer policy was to be
found in a policy book but that it was not published to the
employees. The policy book was not produced nor was
there any explanation for the fact that it was not produced.
Finally, Croy testified that he was the observer of the
Union at the election a week before his discharge and that,
while he was in the room after the election had been com-
pleted and the Board agent had departed , he overheard a
man, whom he did not know but who had been identified
to him as an official of the Company from Des Moines,
Iowa, tell Martz and Turley to get rid of Croy, indicating
Croy with a gesture . Martz testified that a man named
Steve Arnold was present on the day of the election. He
could not identify where Arnold was from , what his title
was, or who he worked for, but he assumed that he was a
personnel manager or worked in a corporate personnel
function . He also testified that he could not identify the
parent corporation other than Wheelaborator-Frye, but he
did not know whether Arnold was connected with Wheela-
borator or Sinclair & Valentine . Finally Respondent, in
order to prove that there were no unfair labor practices
currently on file against the Company at the Dayton facili-
ty, called Daniel Towers of Des Moines , Iowa , director of
industrial relations for Sinclair & Valentine and Frye In-
corporated. Towers testified that Steve Arnold was his pre-
decessor until February 1975, and that he had worked di-
rectly for Arnold.
Analysis and Conclusions
Obviously decision of this case depends on credibility
resolutions , for if Respondent's sick leave policy is indeed
as described by Martz , the discharges could normally be
expected ; whereas , on the other hand, if it is as described
by Croy and Oakes , the discharges are equally obviously
pretextual . I was by no means satisfied with the credibility
of Oakes , Croy, or Martz . The differences between the tes-
timony of Croy and his affidavit are not adequately ex-
plained by his alleged inability to read the handwriting in
which they were taken. On the other hand, I specifically
disbelieve Martz on several matters. First, he had no
knowledge of the letter from the Union naming the organ-
izers, had not seen it, and had no knowledge of the names
mentioned in it. Martz is the second ranking man in the
plant and obviously Ruth Bell, subordinate to him, knew
of the contents of the letter and presumably Turley, who
did not take the witness stand, knew of the contents of the
letter. Second, Martz testified that he was not present in
the plant on the morning of the discharge, but came in only
after noon. This testimony, while it is internally consistent,
is inconsistent with the testimony of Bubby Taylor that he
saw Martz at 9 a.m. pull the timecards of the two discrimi-
natees and that he waited with another employee to see
what would happen with them. I should say at this point
that I credit Taylor's testimony throughout, based partical-
ly on its intrinsic character but mostly on the impression I
formed that he was testifying honestly and carefully on
both occasions he was called to the witness stand.
The only support in the record for Martz' testimony
about the "sick leave policy" is to be found in the testimo-
ny of Ruth Bell and, based upon her demeanor entirely, I
discredit her testimony with regard to the so-called sick
leave policy. I found that Miss Bell was noticeably dis-
turbed when she was called upon to testify with regard to
the sick leave policy and I had no doubt then, and I have
none now, that she was deliberately falsifying her testimo-
ny to support that of her boss, Mr. Martz.
Accordingly, inasmuch as Taylor's testimony which I
credit supported that of Oakes and Croy with regard to the
sick leave policy, and Martz, whom I find difficulty in
crediting, is supported only by the testimony of Bell whom
I specifically discredit in this regard, I find that the policy
that Respondent's plant in Dayton had been that the em-
ployees may take off up to 4 days a year for personal rea-
sons or sickness , that they have not been required in the
past to explain their reasons, and that they are paid for any
of the 4 days they do not take. My conclusion in this re-
gard is supported by the failure of Respondent to adduce
the written policy which is known only to management.
Having found that under Respondent's policy no ques-
tion is necessarily raised by the failure of Oakes and Croy
to come to work, it remains to determine why they were
treated differently on this occasion from the way they had
been in the past and differently from other employees in
the past. Respondent attempts to meet this question with
the explanation that their discharge was occasioned by the
fact that they were able to get to the bar although they
were not able to get to the plant, which was less than a mile
away. Respondent made no investigation of the circum-
stances surrounding the men's attendance at the bar and
gave them no opportunity to explain what had happened,
although Martz testified that normally such an opportunity
would be given and indeed normally his reaction would
have been to speak to the men and attempt to get them to
mend their ways. Martz testified that nothing was to be
gained by this with these men because they were old em-
ployees and knew the Company's ways but, as I have
found, the Company's ways did not include discharge for
taking one of the personal days off. In addition, while
Oakes had been employed since 1965, Croy had been em-
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployed less than 2 years at the time of his discharge.
It is axiomatic that a party giving a false reason for an
action gives rise to an inference that the undisclosed reason
for that action is unlawful . As the General Counsel points
out, it is very unusual for a respondent to admit the com-
mission of an unfair labor practice that he is contesting
and accordingly normally a finding that an action is an
unfair labor practice depends upon the drawing of an in-
ference . Here I am prepared to infer that inasmuch as the
real reason for the discharge is not disclosed although the
alleged reason is shown to be pretextual, the real reason
was the fact that these two men were the foremost leaders
in the union organization . I rely to no extent on Croy's
testimony with regard to the statement attributed to Ar-
nold, although I consider that it is a very suspicious cir-
cumstance that no witness presented by Respondent made
any attempt to identify Arnold, preferring apparently to
leave the incident in the record attributable to an unidenti-
fied person and accordingly not to Respondent . It was only
on question addressed from the bench that identification of
Arnold was finally achieved. The incident may very well
have taken place , but I do not find it necessary to reach it.
Respondent contends that no union animus has been
shown by General Counsel and accordingly an inference of
illegality should not be drawn. Respondent , however,
failed to meet the evidence adduced by the General Coun-
sel with regard to Jackson , the former assistant to Produc-
tion Superintendent Cole who, at the time he was Cole's
assistant and clearly a supervisor ,3 when he was asked to
sign a union card by Oakes, told Oakes that he could not
sign a card because he was a member of management. He
also told Oakes at that time that Oakes should not attempt
to get the Union into the plant because the Company
would move or do away with the employee benefits if it
was organized . Such statements by a supervisor are attrib-
utable to the Employer even though subsequently the su-
pervisor is demoted to the ranks . Respondent made no at-
tempt to produce Jackson, who is apparently still employed
at its plant, or to deny Jackson's supervisory status. There
is no allegation that Jackson 's remarks violated Section
8(a)(l) of the Act as they unquestionably do, but that does
not prevent me from considering them as background to
determine Respondent's animus.
Under all the circumstances of this case , I am convinced
that Oakes and Croy were discharged because they were
the leaders in the union organization.
CONCLUSIONS OF LAW
1. Respondent is an employer 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 discharging Daniel Croy and Ray Oakes on or
about January 17, 1975 , Respondent has violated Section
8(aX3) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
3 Respondent did not contradict testimony that Charles Jackson had
hired one of the employees presently working at Respondent's plant.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies and purposes of the Act.
Among other things, the recommended Order shall require
Respondent to reinstate and make whole Daniel Croy and
Ray Oakes in accordance with the manner proscribed in
F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings and the entire record, and
pursuant to Section 10(c) of the Act , I issue the following
recommended:
ORDER4
Respondent, Sinclair & Valentine Company, Dayton,
Ohio , its officers , agents , successors, and assigns , shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against em-
ployees for engaging in union or other protected concerted
activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer to Daniel Croy and Ray Oakes immediate and
full reinstatement to their former jobs or , if these jobs no
longer exist, to substantially equivalent positions without
prejudice to their seniority or other rights and privileges
and make them whole for any loss of pay they may have
suffered by reason of the discrimination against them, in
the manner set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all pay-
roll and other records necessary to analyze the amount of
backpay due under the terms of this recommended Order.
(c) Post at Respondent's plant in Dayton, Ohio, copies
of the attached notice marked "Appendix." 5 Copies of
said notice , on forms provided by the Regional Director
for Region 9, after being duly signed by Respondent, shall
be posted immediately upon receipt thereof and be main-
tained for 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 ensure that said notices are not altered, de-
faced, or covered over by any other material.
(d) Notify the Regional Director for Region 9, in writ-
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall , as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes.
5 In 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."
SINCLAIR & VALENTINE CO.
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice and we intend to carry out
the Order of the Board and abide by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representatives of
1047
their choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with, re-
strains, or coerces employees with respect to these
rights.
WE WILL NOT discharge or otherwise discriminate
against employees for engaging in activities on behalf
of Dayton Printing Pressmen, Assistants' and Offset
Workers' Union No. 54, or any other labor organiza-
tion.
WE WILL offer Daniel Croy and Ray Oakes immedi-
ate and full reinstatement to their jobs or, if those jobs
no longer exist, to substantially equivalent jobs, and
make them whole for any pay they lost because of our
discrimination against them.
SINCLAIR & VALENTINE COMPANY