Spielberg Mfg. Co.

National Labor Relations Board - Board Decisions

Jun 19, 1981

256 N.L.R.B. 765 (N.L.R.B. 1981)

SPIELBERG MFG. CO. 765
Spielberg Mfg. Co. and Local No. 13, Office & Pro-
fessional Employees International Union, AFL-
CIO. Case 14-CA-14132
June 19, 1981
DECISION AND ORDER
On January 14, 1981, Administrative Law Judge
Almira Abbot Stevenson issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
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 her recommended Order.2
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, Spielberg Mfg.
Co., Antonia, Missouri, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order.
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Huall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951) e have
carefully examined the record and find no hasis for reversing her find-
ings.
2 In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on backpay due
based on the formula set forth therein.
DECISION
STATEMENT OF THE CASE
ALMIRA ABBOT STEVENSON, Administrative Law
Judge: This case was heard in St. Louis, Missouri, Sep-
tember 29, 1980. The charge was served on the Respond-
ent August 15, 1980. The complaint was issued Septem-
ber 11, 1980, and duly answered by the Respondent.
The issues are whether or not the Respondent violated
Section 8(a)(1) of the National Labor Relations Act, as
amended, by telling Carlotta Ducote she was discharged
because of her activities on behalf of the Charging Party
Union and whether or not the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by discharging Carlotta
Ducote for that reason.'
Upon the entire record including the demeanor of the
witnesses, and after due consideration of the briefs filed
l No issue is raised as to jurisdiction or labor organization status Based
on the allegations of the complaint and admissions of the answer, I ind
that the Respondent is an employer engaged in commerce and that it
meets the jurisdictional standards of the Board, and that the Charging
Party Union is a labor organization
256 NLRB No. 137
by the General Counsel and the Respondent, I make the
following:
FINDINGS OF FACT 2
I. UNFAIR LABOR PRACTICES
A. Background
The Respondent is engaged at Antonia, Missouri, in
the manufacture of handbags. At material times it em-
ployed 15 to 17 office clerical employees. Based on
record evidence and admissions in the answer I find that
the following individuals are supervisors and agents of
the Respondent:
Michael Spielberg presidents
Frank Spielberg vice president and sales
Marcella (Marcy) manager
Held Sutton personnel administrator
Harold Jennings comptroller
Howard Meadows office manager
Carlotta Ducote was hired October 6, 1978, as an
office clerical employee under the supervision of
Howard Meadows and as secretary to Vice President
Frank Spielberg. Her working hours were 8 a.m. until
4:30 p.m. In July 1979, Ducote contacted the Charging
Party Union about organizing the office clerical employ-
ees and became the key organizer in an ensuing cam-
paign. On July 10, 1979, the Union advised the Respond-
ent by letter that four employees-Carlotta Ducote,
Carol Murphy, Tina Sheppard, and Mary Wright-were
assisting the Union.
President Michael Spielberg told the employees, in a
preelection meeting, that "they were very shocked that
we wanted a union. And they felt as though . . . every-
body in the office was treated as family."
An NLRB election was conducted August 17, 1979, at
which Ducote served as an union observer. The Union
lost. Shortly after the election, Ducote overheard Vice
President Spielberg tell her then supervisor, Kay Vine-
yard, "that Michael would not let this union business
happen again."
On January 3, 1980, Harold Jennings was appointed
comptroller of the Respondent with management juris-
diction over virtually all the office clerical employees.
He found he had an extreme problem with absenteeism
and tardiness, it being not unusual for 25 percent of the
office work force to be missing on any given workday.
Jennings called several meetings with the employees, all
of which Ducote attended, at which he told them that if
the "absenteeism and tardiness, especially absenteeism"
did not discontinue, he would, on an individual basis,
take disciplinary action up to and including discharge.
Jennings invited feedback from the employees and sick
leave benefits were requested. He took the position that
no such additional benefits would be available until at-
tendance improved. Jennings also told the employees
i Except where credibility is specifically discussed, the fact-, are based
on undisputed evidcnce
:I In the absence of aln cotlitCntion or eidence to the conlrar'. I find
that Michael Spielberg. president of the Company, is a upcrslisor and
agent of the Respondent
SPILERG MFG. CO.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that printed absence-request forms would be made avail-
able, and asked the employees to use them if they knew
in advance they would be off work, but he did not make
use of the forms a prerequisite for excused absences.
Jennings testified that the attendance of some employ-
ees did improve but that of others did not, and he and
Personnel Administrator Sutton said that warnings were
given to three employees. A warning was also given to
employee William Childs on April 29 for being absent
five times during the period January through April but,
although he was absent thereafter three times in July, he
was not discharged. Jennings and Sutton disagreed as to
whether anybody was discharged for absenteeism. Jen-
nings said none was and Sutton said an employee named
Marge Cameron was discharged for absenteeism F-'ebru-
ary 5, 1980.
Jennings testified that Ducote's 1979 record was one
of a regular pattern of leaving early, coming in late, and
not being there at all. Ducote admitted her attendance
was poor that year and the Respondent's personnel
record shows she was absent 5 times, arrived late 18
times, and left early 34 times. The Respondent's record
shows some improvement, however, in Ducote's attend-
ance during the first 5 months of 1980. 4 Thus, it shows
that she was absent 3 days, February 18, April 24 (sick),
and May 22 (sick); that she left early four times in Janu-
ary, four times in February, once in March, twice in
April, and once in May; and that she arrived late once in
February and once in March. According to her time-
cards, which she filled in herself, Ducote worked less
than her scheduled 8 hours on 6 days in January 1980, 4
days in February, 4 days in March, 2 days in April, 2
days in June (left early, 4:15 p.m., June 3, and arrived
late 11:30 a.m., June 19), and 2 days in July. Ducote was
not interviewed individually during this period and was
not given any written warnings.5
B. Events Leading to Discharge
On May 21, 1980, Comptroller Jennings and Personnel
Administrator Sutton called Ducote and another employ-
ee, Robert Weiler, separately to the office to discuss
their attitude problems. Jennings and Sutton testified that
the reason for the interviews was that there was a bad
atmosphere in the office, with employees antagonistic to-
wards management, employees being set against each
other, and a high turnover rate; and they were con-
vinced that Ducote and Weiler caused it by demeaning
4 Personnel Administrator Sutton explained that the Company's per-
sonnel record contained no information for Ducote's last 2 months of em-
ployment. June and July, because there was sometimes a delay in trans-
posing such information from employees' timecards. There is nlo explana-
tion for the discrepancies between the Respondent's personnel record ad
Ducote's timecards.
I do not credit Jennings' testimony, which Ducote denied, that he
did interview Ducote in March, April, or May about "consistently
coming in 5 or 10 minutes late." His testimony that he personally ob-
served this and that Personnel Administrator Sutton aid another supersi-
sor also reported it to him, as well as Sutton's testimony that she person-
ally observed Ducote arriving 2 to 10 minutes late an aerage of' three or
four times a week throughout 1980, is ot reflected on the Respondent's
personnel record of Ducote's attendance or on the timecards which
Ducote filled in. If, therefore. Jennings aid Sutton were telling the truth,
it seems that Ducote was falsifying her tirnecards, arid yet Sutton conced-
ed that Ducote was lcever cotnfronted with such a charge.
the Company and its supervision, policies, and proce-
dures. The interviews seem to have been triggered by
the recent resignation of two new employees who re-
vealed in their termination letters a bad attitude toward
the Company and Jennings in particular. According to
Jennings and Sutton, Weiler responded affirmatively to
his interview by agreeing he had been in fault in this re-
spect and promising to mend his ways. As far as they
knew, they said, he had kept his promise and was still
employed.
Ducote, however, strongly denied the charge. Jen-
nings retorted that if she did not change her attitude he
would "build a case on absenteeism" for terminating
her. 6
Jennings and Sutton summoned Ducote to the office
again on Tuesday, July 15.7 Jennings and Sutton claimed
that the reason for this interview was that all the other
employees were solving their attendance problems
except Ducote who was the only one still coming to
work late and leaving early. When so charged, Ducote
responded that she was unaware of any problem and
claimed that she stayed late to make up the time when-
ever she arrived late. Jennings said he expected her to be
present for her scheduled hours 8 a.m. to 4:30 p.m. 8
Ducote was on time every day the rest of the week.9
On July 16, Ducote complained to Vice President Spiel-
berg about the July 15 interview. Spielberg, who had
conferred with Jennings before seeing Ducote, told
Ducote that Jennings said the problem with her was
"some of the same old stuff'--talking to people about
the Company. Ducote retorted that Jennings had spoken
this time only about tardiness, adding:
I'm not going to work like this every other week.
And I told him then everybody was upset with Mr.
Jennings and that if he didn't do something with
Mr. Jennings, they were going to have the same
thing they had a year ago with the union.
Spielberg promised to "take care of the situation" and
get back.
Ducote left an hour early that day (Wednesday) for an
appointment with the oral permission of Supervisor
Meadows.
Jennings testified that he decided on Thursday night,
July 17, to discharge Ducote. On Friday morning he dis-
cussed the matter with Personnel Administrator Sutton
and she concurred. Although the matter was settled, Jen-
I credit Ducote that Jennings made a statement to this effect rather
than Jenninlgs' and Sutton's versions because this was substantially the
way the matter turned out in the end
7 Although inot particularly material except for the light it sheds on the
credibility of Supervisor Howard Meadows, I find that he accompanied
Dlucote to this interview at her request as testified by Ducote and Sutton.
Meadows' denial that he as present, along with his demeanor and the
unimpressiveness of his testimolt i general. convinces me that he was
not a reliable vwitness
B Hased on the most likely aspects of the accounts given by all three
participants.
I do not credit Jennings and Sutton that Ducote was late the next
morning after this interview (this was not reflected on Ducote's timecard
for July 10) for the reasons given above in connection with similar con-
flicts. and because Jennings and Sutton were inconsistent and contradic-
tory )on the matter
SPIELBERG MFG. CO. 767
nings was unable to communicate the decision to Ducote
because he was tied up in meetings all day and she left at
2:30 p.m. (having submitted a permission form to Super-
visor Meadows) to make preparations for her vacation
which was to begin on Monday. So Jennings telephoned
Ducote late Friday afternoon and informed her that she
was terminated for "absenteeism and tardiness." Jennings
followed up with a letter of termination giving the same
reasons. Immediately after receiving Jennings' call
Ducote telephoned Supervisor Meadows. She told him
she had been terminated and he informed her he had
learned that morning she would be discharged and "that
the reason I was fired was because of the union activi-
ties." o
Jennings and Sutton denied that prior union activity
was a factor in the decision to discharge Ducote. On the
contrary, Sutton said, Jennings was ready to fire Ducote
a month before he did but she had persuaded him to
hold off because they knew about Ducote's previous
union activity and, although that was not involved in the
decision, she knew there might be a charge by the
NLRB relating to Ducote's termination. Jennings and
Sutton agreed that, although absenteeism was a problem,
the basic underlying reason they discharged her was her
attitude which, instead of improving after the May 21
counseling session, had worsened and was continuing to
cause low morale and turnover among the office staff.
Sutton explained that Ducote was not given this as a
reason because she has "found, over the past twelve
years, it is very hard to discharge someone for an atti-
tude problem."
C. Conclusions
The General Counsel has established by credible evi-
dence that Carlotta Ducote was the chief advocate in the
Union's attempt to organize the Respondent's office em-
ployees during the summer of 1979; that management
was aware of her role in the union drive; that during the
drive President Michael Spielberg told the office em-
ployees he was "very shocked" at this development; that
shortly after the election President Spielberg said he
"would not let this union business happen again"; that on
July 16, 1980, Ducote predicted to Vice President Frank
Spielberg that, if he did not "do something" about Jen-
nings, there would be another union drive; that Ducote
was terminated 2 days later; that the reason given at the
time was admittedly not the chief reason for the decision
to terminate her; and that Supervisor Meadows acknowl-
edged that the reason was Ducote's union activity.
By contrast, the Respondent's contentions lack the
support of established fact. Thus, its absenteeism conten-
tion has all the characteristics of having been contrived,
as Jennings had revealed his intention of doing. Al-
though Ducote had a poor attendance record during
1979, her record improved after Jennings took office and
mounted his attack on absenteeism, and, although other
employees were given warnings, Ducote received no
warning. By July 15, when Ducote was called on the
"' Based on the credited testinlonr of Ducote elcadoss erstimon
about this conversation suffered from extreme uncertainI hut h finialkl
admitted that he "agreed sympalheically that Duce's ullill actlilt5
"may hase been a reason" fi r her dicharge
carpet, she had not missed a day since May 22 when she
was out sick, had not left early since June 3, and had not
been tardy since June 19, almost a month before the in-
terview. Moreover, Jennings did not even mention ab-
senteeism in reporting the interview to Vice President
Spielberg, telling him, untruthfully, that the subject of
the interview was, again, Ducote's attitude. She was not
absent or tardy thereafter and left early only once, with
permission, before Jennings decided to fire her. Another
employee who, unlike Ducote, had been warned in writ-
ing, had a poorer attendance record in July than Ducote
and was not discharged; and Jennings admittedly dissem-
bled in telling Ducote this was the reason for her termi-
nation. I find therefore that Ducote's attendance was not
a factor in her discharge.
With regard to Ducote's attitude, remarks she made on
the witness stand indicate that she had little regard for
Jennings. And although there seems no doubt that office
relationships were poor and morale was low, neither Jen-
nings nor Sutton advanced any solid justification for con-
cluding that Ducote had ever shared responsibility for it
or that it continued after Weiler promised to reform. Du-
cote's attitude seems so unsubstantiated a basis for dis-
charge as to be unbelievable and I cannot accept it.
Although there is no contention that the Respondent
had discriminated against the two office workers remain-
ing on the payroll who were listed by the Union along
with Ducote as assisting in its 1979 organizational effort,
it is well recognized that general intimidation is the pre-
dictable result of choosing one of many union advocates
for discipline as an example to all. It is also true that the
lapse of a year between an employee's union activity and
her discipline is sometimes an important element in the
dismissal of a discrimination allegation. Here, however,
the components of the General Counsel's case account
for and outweigh that element and therefore distinguish
such cases.
Accordingly, I conclude that Supervisor Howard
Meadows' statement to Carlotta Ducote that she was
fired because of union activities constituted a violation of
Section 8(a)(l) of the Act by the Respondent. In addi-
tion, I find, in all the circumstances, that the reasons ad-
vanced by the Respondent are pretexts, and that a pre-
ponderance of the credible evidence establishes that the
real reason the Respondent discharged Carlotta Ducote
on July 18, 1980, was to discourage union activity, and I
conclude that the Respondent thereby violated Section
8(a)(3) and (1) of the Act.
TH RMI.tD
In order to effectuate the policies of the Act, I recom-
mend that the Respondent be ordered to cease and desist
from the unfair labor practices found and from infringing
in any like or related manner on its employees' rights
guaranteed by the Act.
Having found that the Respondent discriminatorily dis-
charged Carlotta Ducote on July 18, 1980, I also recom-
mend that it be ordered to offer her immediate and full
reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to her seniority and other rights and privileges pre-
SPIELBERG MFG. CO 67
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
viously enjoyed, and make her whole for any loss of
earnings suffered by reason of the discrimination against
her, plus interest. Backpay shall be computed in accord-
ance with F. W. Woolworth Company, 90 NLRB 289
(1950); interest shall be computed in accord with Florida
Steel Corporation, 231 NLRB 651 (1977), and Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962).
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:
ORDER"
The Respondent, Spielberg Mfg. Co., Antonia, Mis-
souri, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
any employee to discourage membership in or support of
Local No. 13, Office and Professional Employees Inter-
national Union, AFL-CIO, or any other Union.
(b) Telling employees they are discharged because of
their union activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them under Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Carlotta Ducote immediate and full reinstate-
ment to her former job or, if her job no longer exists, to
a substantially equivalent position, without prejudice to
her seniority or other rights and privileges previously en-
joyed, and make her whole for lost earnings 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
payroll records, social security payment records, time-
cards, personnel records and reports, and all records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
II In the event no exceptions are filed as provided by Sec. 102.4 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 Hoard and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(c) Post at its plant in Antonia, Missouri, copies of the
attached notice marked "Appendix."12 Copies of said
notice, on forms provided by the Regional Director for
Region 14, after being duly signed by an authorized rep-
resentative of the Respondent, shall be posted by the Re-
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that the 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 Re-
spondent has taken to comply herewith.
1 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against any employee to discourage member-
ship in or support of Local No. 13, Office and Pro-
fessional Employees International Union, AFL-
CIO, or any other Union.
WE WILL NOT tell employees they are discharged
because of their union activities.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the National Labor Relations Act.
WE WILL offer Carlotta Ducote immediate and
full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or other
rights and privileges previously enjoyed, and make
her whole for lost earnings, plus interest.
SPIEL BERG MFG. CO.