Standard Motor Products, Inc.

National Labor Relations Board - Board Decisions

Nov 2, 1979

246 N.L.R.B. 331 (N.L.R.B. 1979)

STANDARD MOTOR PRODUCTS. INC.
Standard Motor Products, Inc. and Claire Sylvan and
Amy Gladstein. Cases 29-CA-5805 and 29-CA-
5805-2
November 2, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On June 25, 1979, Administrative Law Judge Paul
Bisgyer issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief, Charging Party Gladstein filed a
brief in answer to Respondent's exceptions, the Gen-
eral Counsel and Charging Party Gladstein each filed
cross-exceptions and a supporting brief, and Respon-
dent filed a reply brief and a brief in answer to the
cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order,3 as modified herein.
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings. In sec. Ill, B. 2. of his
Decision. the Administrative Law Judge finds that copies of leaflets distrib-
uted to employees by Claire Sylvan on April 11 and 19 were placed in her
personnel file. While the record clearly establishes that a copy of a subse-
quent leaflet distnbuted to employees by Sylvan on May 6 was placed in her
personnel file, the record does not establish that the April II and 19 leaflets
were also included therein. Nevertheless, it is clear from the record that
Respondent had knowledge of the contents of the April I and 19 leaflets at
all times material herein, and the erroneous factual finding of the Adminis-
trative Law Judge as to the inclusion of these leaflets in Sylvan's personnel
file does not in any way affect the results which we reach in this case.
2 The Administrative Law Judge found that Respondent unlawfully dis-
charged Claire Sylvan because of its resentment of Sylvan's pointed criticism
of some of Respondent's allegedly unfair personnel practices. These cnti-
cisms were publicized by Sylvan in speeches made and in leaflets distributed
dunng and after her unsuccessful campaign for election as local delegate to
the Union's national convention. Respondent excepts to the Administrative
Law Judge's finding on the grounds. nter aha, that Sylvan's verbal and
written criticisms of Respondent were neither alleged nor litigated as a rea-
son for Sylvan's discharge. We find no ment in Respondent's exception
Thus, in the General Counsel's opening statement at the hearing he made
clear that Sylvan's crticism of Respondent was part of the General Counsel's
case and. indeed, Respondent acknowledged as much in agreeing with the
Administrative Law Judge that an issue in question was not whether Sylvan
was justified in making her accusations about Respondent's practices, but
instead. "The issue is, did she propagandize? Was this one of the reasons that
the company fired her? Or some such theory?" Also, on the final day of the
hearing Respondent's counsel stated he understood that the theory of the
complaint went beyond Sylvan's candidacy in a union election to include
"other concerted activity." Consequently, we find that Respondent was fully
aware, throughout the course of the hearing. that Sylvan's cnticisms of its
practices, and Respondent's reaction thereto, were issues squarely raised and
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent,
Standard Motor Products, Inc., Long Island City,
Queens, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, as so modified:4
Substitute the following for paragraph (b):
"(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights which are guaranteed them in Section 7 of
the Act."
litigated with respect to the allegation that Respondent had unlawfully dis-
charged Sylvan.
I Respondent has requested oral argument. This request is hereby denied
as the record, the exceptions, and the briefs adequately present the issues and
the positions of the parties.
' Although in the remedy section of his Decision, and in his proposed
notice, the Administrative Law Judge recommends a narrow cease-and-de-
sist order, he inadvertently set out a broad cease-and-desist order in his
recommended Order. We adopt the Administrative l.aw Judge's recommen-
dation of a narrow order under the circumstances of this case. and we hereby
modify his recommended Order accordingly See Hickmortt Foods. Inc., 242
NLRB 1357 (1979).
DECISION
SIArLEMINI OF IHE CASES
PAUI. BISCGYER. Administrative Law Judge: This proceed-
ing, with all the parties represented, was heard before me
on April 24-27. 1978. in Brooklyn, New York, on the con-
solidated complaint of the General Counsel issued on Octo-
ber 31, 1977.1 and the answer of Standard Motor Products,
Inc., herein called Respondent or the Company. In issue are
the questions whether Respondent, in violation of Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended,' discharged employee Claire Sylvan and assigned
employee Eric Bolding more arduous and less agreeable job
tasks than he was then performing because these employees
engaged in protected union and other concerted activities:
' The consolidated complaint s based on a charge filed in Case 29 CA
5805 on August 1, 1977. by Claire Sylvan, a copy of which was duly served
on Respondent by registered mail on the same date. and on a charge filed in
Case 29-CA-5805 2 on October 25. 1977, by Attorney Amy Gladstein. a
copy of which was similarly served on Respondent on October 27. 1977.
2 Sec. 8(a( I ) of the Act makes it an unfair labor practice for an employer
"to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7." Insofar as pertinent, Sec. 7 provides that "lelmploy-
ees shall have the right to self-organization, to form, join or assist labor
organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection . . ."
Sec. 8(a)3), with certain qualifications not matenal herein, prohibits an
employer "by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage member-
ship in any labor organization
246 NLRB No. 47
331
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and whether Respondent, in violation of Section 8(a)(l) of
the Act, made a threat to assign employees less agreeable
job tasks than they were doing if they opposed union-sup-
ported election candidates. At the close of the hearing, the
General Counsel and Respondent argued their positions
orally. Subsequently, Respondent and the Charging Parties
filed briefs with me.
Upon the entire record, and from my observation of the
demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation with its principal
office and place of business in Long Island City, Queens,
New York, is engaged in the manufacture, sale, and distri-
bution of automotive ignition and carburetor parts and re-
lated products at this and other plants located in various
States of the United States. The Long Island City plant is
the only one involved in this proceeding. Respondent, in the
regular course of its business operations, annually ships
from this plant finished products valued in excess of
$50,000 to points located outside New York State.
It is conceded, and I find, that Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
There is no question that Local 365, International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, herein called Local 365 or the
Union, is a labor organization wi:hin the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction, the Litigated Questions
Respondent manufactures and sells automotive replace-
ment parts in competition with the giants of the automobile
industry. Its employees at its Long Island City plant and its
Bronx distribution center, some 900 in number at the time
of the hearing, have been represented for many years by
Local 365 pursuant to successive collective-bargaining
agreements, the last one in effect at all material times being
for a term from October 2, 1974, through October 1, 1977,
with provision for renewal.' As will be fully discussed be-
low, the General Counsel and Charging Party Sylvan con-
tend that Sylvan was discharged on May 25, 1977, for op-
posing Salvatore Mieli, the chairman of the shop committee
and Local 365's assertedly favored candidate, in an intra-
union election for delegate to UAW's International conven-
I Local 365's International, herein referred to as UAW, is also party to this
agreement. This contract, as well as the one executed in 1965, was concluded
only after a relatively long strike called by the Union. In addition to Respon-
dent's employees, it appears that Local 365 represents employees of a num-
ber of other companies.
tion, and for her other protected union and concerted ac-
tivities as an aggressive shop steward and a union dissident
who accused the leadership of Local 365 of collaborating
with Respondent to the detriment of the employees' inter-
ests. Respondent, on the other hand, denies such motivation
insisting, instead, that Sylvan was terminated by her fore-
man, John Maraventano, for cause for falsifying her pro-
duction card in violation of rule 7 of the Company's rules
and regulations. That rule provides, "An employee falsify-
ing a time card, production card or any other company
documents will be discharged." 4 Also in issue are the ques-
tions whether employee Eric Bolding was threatened on
April 25, 1977, by Director of Labor Relations Boris Jody
with assignment of disagreeable job tasks if he campaigned
against or opposed in intraunion elections candidates who
were favored by Local 365 and whether Bolding was so
penalized on that date for supporting Sylvan's candidacy
for delegate to the UAW International convention. Here,
too, Respondent denies these allegations. We turn to the
evidence.
B. The Evidence
I. Claire Sylvan's employment: her shop stewardship
Sylvan was hired by Respondent on August 5, 1975, as
an assembler in the electronics department (department 33)
at its Long Island City plant. This department produces
electronic modules and voltage regulators which, according
to Respondent, are the latest developments in automobile
ignition systems and upon which the Company's future
business success depends. She worked in this department
until her termination by her immediate foreman, John
Maraventano' on May 25, 1977, under circumstances to be
presently discussed. Prior to her discharge, Respondent was
satisfied with Sylvan's work performance and her ability to
meet the production standards 6 required on the various jobs
to which she was assigned, periodically raising her hourly
wage rate from her starting rate of' $2.35 to the $3.87 she
earned at the time of her termination.
Sylvan joined the Union after completing her 25-day pro-
bationary period. Apparently she was not active in union
affairs until the beginning of March 1977, although it ap-
pears that before that time she occasionally gave several
friends at the plant pieces of literature critical of certain
conditions of employment and the Union's ready accept-
ance of those conditions. There is no evidence of Respon-
dent's awareness of these earlier activities of Sylvan, what-
ever they amounted to.
In the beginning of March 1977,7 while Shop Committee
Chairman Mieli was discussing with several employees in
4 Not involved in this case is rule 6, which provides: "An employee is to
punch in and out his or her own time card only. Any employee found to be
punching in or punching out any time card other than their own will be
discharged."
Maraventano was responsible for the P.C. (printed circuit or the older
generation of electronics) side of the department, while Ernie London, the
general foreman and his superior, was in charge of the "hybrid side" or the
micro circuits.
6 Employees are normally expected to produce at 100-percent efficiency,
which means meeting the minimum standards determined by the Company
for a particular job.
'Unless otherwise indicated, all dates refer to 1977.
332
STANDARD MOTOR PRODUCTS INC.
the electronics department, including Sylvan. Respondent's
prohibition against drinking coffee in the locker room, the
employees raised the subject of the need for a shop steward
to represent the employees in their department and for the
holding of an election for such purpose and proposed Syl-
van's designation as shop steward. Disparaging Sylvan's de-
sire to become a shop steward, Mieli vowed that Sylvan
would never achieve that position. In response. Sylvan
stated that she was simply interested in having a democratic
election, to which the employees in the department were
entitled.8 A few hours later Mieli returned and, despite his
prior declaration, offered Sylvan an appointment as shop
steward. Sylvan rejected the offer, asserting that an election
should be held. Thereafter, during the lunch period, the
employees drew up a petition urging Sylvan to accept the
proffered appointment and handed it to her. Persuaded by
this appeal, Sylvan later in the day accepted the temporary
appointment from Mieli, who, in a memo to Respondent's
personnel department, notified it of Sylvan's appointment
for 30 days.9 Subsequently, an election was held on or about
March 22, which Sylvan won, and the Company was ac-
cordingly notified that Sylvan was the new permanent stew-
ard for the electronics department as of the date.
During her short tenure as shop steward,' 0 Sylvan han-
dled two grievances for employee Everida Pachay and one
for employee Hermila Begazo and attended the company-
union grievance meetings when these grievances were con-
sidered. One of Pachay's grievances involved a verbal warn-
ing for missing Saturday overtime, which was canceled on
the presentation of a reasonable excuse. The second one,
which concerned a warning for lateness and absenteeism,
was resolved against Pachay. As for the Begazo grievance,
which involved her discharge for alleged violation of a com-
pany rule, Respondent adhered to its decision." Sylvan also
protested to Foreman Maraventano, on behalf of employee
Jay Coates, that, as a production worker on the wave solder
machine, Coates was performing higher rated maintenance
work on his machine without being paid the higher rate.
This protest did not result in the filing of a formal grievance
but instead, in a discussion in which Mieli, Committeeper-
8 Art. I., sec. 7, of the parties' collective-bargaining agreement provides, in
pertinent part, that "[tlhere shall be a steward for every department of ten
(10) employees or more on each shift." However, since no steward was pre-
viously elected or appointed, it appears that a shop committeeperson han-
dled grievances and complaints which electronics department employ)ees
might have had before Sylvan's appointment as steward.
9 It appears that, under the Union's rules. an election fir shop steward
must be held within 30 days of a temporary appointment.
'° Under the grievance procedure set forth in art. VI of the parties' collec-
tive-bargaining agreement, the shop steward's responsibility is to discuss an
employee's grievance with the foreman as a first step in the procedure. If the
matter is not resolved in the oral discussions, the steward reduces the griev-
ance to writing, which is signed by the steward and the aggrieved employee
and presented to the foreman for his answer. This is step 2 in the grievance
procedure. It appears that the steward is present at grievance meetings of
company and union representatives when the grievance he or she initiated is
under consideration.
" Sylvan assertedly believed that Begazo was discharged because she had
nominated Sylvan for shop steward. For this reason Sylvan included Begazo
in the unfair labor practice charge Sylvan filed in the instant case on August
I, 1977. However, Begazo's discharge was not included in the consolidated
complaint issued herein by the General Counsel. Sylvan also filed on the
same date a charge against the Union which alleged, among other things,
that the Union caused the Company discriminatorily to discharge Begazo.
Here, too, no complaint issues on such charge.
son Lena McNeil, and Carlos Zayas, another committee-
man, participated: Coates was persuaded to continue doing
the disputed work on McNeil's advice that his job might be
upgraded. While Sylvan views her steward activities as one
of the reasons for her discharge, it is pertinent to note that
other shop stewards and committeepersons have for years
processed grievances for employees throughout the plant
without any evidence of resentment by Respondent or a
disposition on its part to penalize these stewards or commit-
teepersons for their activity. Indeed, any of those grievances
not adjusted in the initial steps of the grievance procedure
have been ultimately resolved at regularly held Wednesday
grievance meetings between company and union represen-
tatives or by arbitration.
2. Sylvan's campaign for delegate to the UAW
International convention
Shortly after becoming shop steward Sylvan nominated
herself to run against Shop Committee Chairman Mieli as
plant delegate to the UAW International conventions
scheduled to be held on May 15 in Los Angeles, California.
The election was conducted on April 20, after being post-
poned on Sylvan's protest that insufficient time was allowed
for campaigning. Sylvan lost the election by a vote of some
200 to Mieli's 400.
In her campaign, Sylvan was severely critical of Respon-
dent's policies and their acceptance by Local 365's incum-
bent leadership. Among other things, she pointed out to
employees her opposition to forced overtime and discrimi-
nation practiced by Respondent against Spanish-speaking
and black workers, charging that the Union collaborated
with the Company in maintaining those working condi-
tions. On April 11 she distributed among the employees a
leaflet outside the plant and posted one on the entrance
door to the factory. The same leaflet was distributed by her
husband at the ('ompany's Bronx facility. In this leaflet,
which Sylvan prepared with her husband's assistance in
English and Spanish. she appealed to the employees to
"Drive Out The Bureaucrats" and elect her as convention
delegate in order to "turn the UAW into a union of class
struggle." The leaflet then proceeded to attach Mieli
... along with the rest of the UAW leadership [because
hel supports forced overtime and helps the company to
enforce it. They defend the company's right to make
any rule and they help the company to enforce them.
They support high and rising production rates. They
refuse to translate the contract and other union infor-
mation and to force the company to translate its no-
tices. They support the company's policy of excluding
black people from certain departments, and giving
women and minorities the worst paying jobs.
After continuing with an attack on UAW's discriminatory
policies, imperialism, and United States foreign policy and
2 An International convention is held by the UAW every 3 years for the
purpose of electing International officers, receiving reports of the condition
of the organization, and determining collective-bargaining policy and objec-
ties on a national scale. The convention is not concerned with individual
plant problems. Both Respondent's and the Union's officials den) that there
was any collaboration between them concerning the delegate election Nor is
there any evidence that Respondent ever intruded into prior intraunion elec-
lions.
333
DECISIONS OF NATIONAL ABOR RELATIONS BOARD
asserting that Sylvan stood "for the working class having
political power, that is socialism," the leaflet concluded
with the following demands:
End forced overtime and higher production quotas.
Strengthen health and safety provisions.
End discrimination against minorities and women
stop deportations.
Organize the unorganized.
Auto companies Out of South Africa. Support liber-
ation movements.
On April 13, Sylvan attended a grievance meeting of
company and union representatives at which one of em-
ployee Pachay's grievances was considered. At the conclu-
sion of the meeting Director of Labor Relations Jody re-
quested Sylvan to remain to hear his discussion with the
union members of the grievance committee, consisting of
Mieli, Lena McNeil, and others. After making some re-
marks about the theft problem in the plant, Jody expressed
his displeasure that leaflets were being handed out accusing
the Company and the Union of collaborating on raising
production rates. Obviously, this related to Sylvan's cam-
paign propaganda. This led to a discussion in which Jody
and the union representatives agreed that the accusation
was unfair and false, and Jody suggested that the Union
ought to do something about it. On this note, Sylvan re-
turned to work.'"
On April 19, a day before the election, Sylvan held a rally
in front of the plant after the day shift ended at 4:30 p.m.
The rally was attended by some 60 employees and lasted
about 15 minutes. Standing near the doorway to the plant
observing the rally were General Foreman London and
Plant Superintendent Kirschberger.' 4 Addressing the assem-
blage, Sylvan again criticized the Company's mandatory
overtime policy, its unjustifiably high production rates, its
exclusion of black workers from skilled departments, its
failure to upgrade non-English-speaking employees, and its
discharge of employee Begazo because she had nominated
Sylvan as steward. She also took the Union's leadership to
task for not challenging the discriminatory treatment ac-
corded employees and for collaborating with the Company
in enforcing the latter's policies. Moreover, on this occasion
she distributed antoher leaflet in English and Spanish of the
same general tenor as the one she had previously distrib-
uted on April II11. In it she appealed to the employees to
vote for her as convention delegate and to demonstrate at
the UAW convention in Los Angeles, and demanded the
end of forced overtime, higher production quotas, discrimi-
nation against minorities, and deportations. In addition, the
leaflet urged full-paid maternity benefits, translation of' all
contracts, better safety rules, and a paid holiday on Martin
Luther King's birthday. There is no question that Respon-
" The foregoing April 13 episode reflects Sylvan's uncontradicted testi-
mony. which I credit, although I am aware that she did not mention it in her
initial pretrial affidavit, dated August 10, 1977, and that it was first men-
tioned in her supplemental affidavit given to the General Counsel's attorney
on April 19, 1978 a few days before the hearing in this case. In assessing
Sylvan's credibility, I have also taken into consideration the misrepresenta-
tions she had made in her job application which is discussed in the remedy
section of this Decision.
4 There is a conflict in testimony not necessary to resolve as to whether
Personnel Manager Bernard Slome was also there.
dent was fully aware of Sylvan's campaign activities and
the above-described leaflets, which Respondent placed in
Sylvan's personnel file. Indeed, Director of Labor Relations
Jody testified that "[a]nything that is being distributed,
sooner or later or usually sooner, finds itself on [hisl desk."
Following her loss of the delegate election Sylvan made
plans for her and other employees to attend a protest dem-
onstration outside the convention hall in Los Angeles on
May 15. the opening day of the UAW convention. This
demonstration was sponsored by an organization with un-
concealed political objectives. To raise funds to travel to the
convention Sylvan and her supporters sold raffle tickets at
the plant. On May 6, Sylvan distributed literature to em-
ployees at the Bronx facility from 7 to 8 a.m., calling for
support of the upcoming May 15 demonstration and the
defeat of the UAW "bureaucrats" who collaborate with the
"bosses." Although essentially political in nature, one hand-
bill specifically identified Respondent as one of the
"bosses."
Sylvan, whose regular shift at the Long Island City plant
started at 8 a.m., telephoned the personnel office the same
morning of May 6 that she would be late for work, as she
had an appointment with an eye doctor or optometrist.
Two days before, Sylvan had seen the plant nurse because
she was experiencing some trouble with her eye while at
work. At 10 a.m. (May 6)., after passing out leaflets at the
Bronx facility, Sylvan kept her appointment with her op-
tometrist, who happened to be her uncle. In the meantime,
Odet Stitt, the manager of the Bronx facility, who was un-
der general instructions to inform Jody about any excep-
tional occurrences at this facility which would be of interest
to Jody, telephoned the personnel office and reported that
Sylvan was seen there distributing leaflets before 8 a.m. For
this reason, Personnel Manager Slome promptly directed
Sylvan's foreman, Maraventano, that as soon as Sylvan ar-
rived, he was to bring her and Committeeperson Lena
McNeil'" to the fifth floor for a meeting.
Such a meeting was subsequently held around lunchtime,
which Shop Committee Chairman Mieli also attended, al-
though not expressly invited by Slome. Slome inquired of
Sylvan about her eye trouble and how she could be at the
Bronx facility if her eye were so painful. Sylvan explained
her eye problem; that she had visited the optometrist at 10
a.m., which was the earliest time the optometrist could see
her: and that her presence at the Bronx facility did not
interfere with her medical appointment. As Sylvan had sub-
mitted a note from the optometrist when she reported for
work, no disciplinary action was taken against her. In Syl-
van's brief to the Administrative Law Judge, it is conceded
that Respondent had a legitimate reason to inquire whether
Sylvan had actually visited the optometrist. On the same
day, Stitt forwarded the literature Sylvan and "an unidenti-
fied helper" had distributed on the indicated occasion, with
a covering memo, to Jody. These documents were then
placed in Sylvan's personnel file.
Sylvan participated in the May 15 demonstration in Los
Angeles, returning to work the following day sporting a
bright green button with the legend "Build A Class Struggle
UAW," which she wore on her blue jeans for about a week
15 The presence of a union representative when disciplinary action against
an employee is contemplated accords with prevailing plant practice.
334
STANDARD MOTOR PRODUCTS. INC(.
or so. Moreover, she discussed the demonstration with a
number of employees in the plant cafeteria.
3. Sylvan's discharge
As indicated above, Sylvan was terminated on May 25
for the asserted reason that she falsified her production card
in violation of rule 7 which subjects an employee to dis-
charge for "falsifying a time card, production card or any
other company documents." Admittedly. this rule was
known to Sylvan. whose alleged offense essentially con-
sisted of delaying II minutes in punching out on her tan
production card from her first assigned job and punching
into her second job. Respondent adduced testimony that it
viewed Sylvan's offense as falling within rule 7 because her
conduct presented a distorted picture of costs to be allo-
cated to the two jobs involved; that accurate cost records
were necessary for it to remain competitive in the electronic
ignitions systems market, upon which the future of its busi-
ness survival depended; and that, while Sylvan's offense
standing in isolationis might appear to be inconsequential,
if permitted to go unpunished, it would encourage other
employees to do likewise and thus have a serious impact on
its cost accounting records. For this reason, among others,
Respondent testified that rule 7 has always been rigidly en-
forced, requiring immediate discharge of the offender re-
gardless of the number of minutes involved in the falsifica-
tion or whether the offense was willful. As examples of such
rigid enforcement, Respondent presented evidence of dis-
charges of a number of employees for deliberately claiming
on their production cards more items completed than they
had actually finished or for including on their production
cards some of their production of the previous day. Clearly,
the issue to be resolved here is not the reasonableness of
Respondent's falsification rule or its strict enforcement.
Rather it is whether Respondent's reliance on the rule to
discharge Sylvan was genuine or whether it was really a
pretext to get rid of her because of her dissident union or
other concerted activities.
The pertinent evidence is as follows: Upon reporting for
work in her department at 8 a.m. on May 25, Sylvan's fore-
man, John Maraventano, assigned her to a D-2115B job
previously performed by her. which required the bending of
the ends of small diodes and other operations. After punch-
ing in on her tan production card" and working on that job
until approximately 10:20 a.m.,' Maraventano came to her
worktable and assigned her to another job, VR 109-8. at
another location, 75 feet away. Whether Maraventano sim-
ply told Sylvan to move to the second work station or ex-
pressly directed her to punch out of the first job and punch
into the second job, it is clear that Sylvan was aware that
this is the normal procedure to follow. It is equally clear, as
1i Clearly, the claimed misallocation of the II minutes by Sylvan did not
involve much money. According to Respondent, its labor costs per hour,
which include the average hourly wage rates. fnnge benefits, indirect labor
cost, and overhead, amounted in 1977 to S17.81.
"l The timeclock used for such purposes is located in the electronics de-
partment about 7 feet from the foreman's desk and is not the same timeclock
which employees punch when they report for work and leave at the end of
the day.
I All references to the time spent by Sylvan in her movements between
her first and second assigned jobs and at her job locations are, at best.
approximations subject to understandable human error.
Maraventano admitted, that before the employee moves to
his or her new assignment, he or she must do certain things
before punching out which are chargeable to the first job.
Accordingly, upon receiving her new assignment. Sylvan
properly finished the run on which she was working.
cleaned up the work area by picking up the diodes which
had fallen to the floor, separated the completed and uncom-
pleted pieces in bins, and brushed off her table. She then
brought her completed pieces to the stockroom, which was
58 feet away, to have them weighed by the stockman. Joe
Principato, as she was required to do before starting on her
new job. However, after she had called the stockman from
the stockroom door and waited a minute or two, the stock-
man finally came to the door and took the pieces from her,
but told her that he was too busy to weigh them at that
time. Sylvan thereupon returned to her first table, collected
her sweater and pocketbook, and proceeded to her newly
assigned work area.
It appears that Sylvan arrived at her second work station
at or about 10:25 a.m. This is the time Respondent insists
that Sylvan was required to punch out of the D 21 15B job
and into the VR 109- 8 job. Sylvan instead punched out of
the first job and into the second one at 10:36 a.m.. 11 min-
utes later. Explaining the delay Sylvan testified that the
second job was not fully set up. Without conceding that
such was the case, Respondent states that, if the job were
not properly set up, then Sylvan at least should have
punched out on a green nonproduction card " and not
charged the II minutes to the first job.
There is a conflict in testimony regarding what transpired
after Sylvan arrived at her second work station. According
to her account. as soon as she came there she noticed that
there was no chair,2 and consequently she proceeded to the
P.C. area, where she obtained one. On her way back, she
stopped at the stockroom and inquired of the stockman
whether the parts she had earlier left with him had been
weighed yet. Upon receiving a negative answer, she re-
quested the stockman to advise her of the weight as soon as
he determined it so that she could note her production on
her production card, as she was required to do.' Sylvan
1* S Ivan testified that the green nonproduction card was used for unrated
jobhs or when the job was not properly set up, when parts handled were not in
working order, when the machine broke down. when there was a long wait
for parts. or when production 's'as otherwise interrupted. This card contains
a code used by foremen to indicate the reason for nonproductive time, in-
cluding "waiting for set-up or change over." She testified that she customar-
ily wrote out her reason on the green card. Although she also testified that it
was her practice to punch in on the nonproduction card when there was a
major problem on her job which interrupted her performance for a long
period of time, there is in evidence Sylvan's daily efficiency reports for the 2-
week period preceeding her discharge, showing several instances where Syl-
Nan had recorded on her green card nonproductive time varying from 3-1/2
to I I minutes. According to Maraventano's testimony, employees encounter-
ing any problem on their job regardless of the amount of time involved, are
required to go on nonproductive time and report it to him so that he can
remedy the situation.
20 It is undisputed that, in performing the VR 109 8 operation. employees
are permitted to work sitting or standing. It was Sylvan's practice to alter-
nate between the two.
: I credit Sylvan's uncontradicted testimony concerning her conversations
with the stockman. In fact, at the time oif her termination. Sylvan had not yet
been informed of the weight to note on her production card. Although Mara-
ventano testified that Sylvan's production was promptly weighed when she
brought it to the stockman. Maraventano was impelled to admit that he did
((ontmued)
335
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then returned to her work station with the chair, covering a
total distance of 136 feet, at which time she noticed that
there was not enough grease in the grease dish to last for the
entire job. She thereupon asked the floorman to fill the
grease dish, and, while waiting for this to be done, she
checked the parts she was going to work on. With these
preparatory steps having been taken, Sylvan went to the
timeclock, a distance of 47 feet, where she punched out on
her production card from her first job and into the second
job at 10:36 a.m. She then returned to her work table and
started on her new assignment, greasing holes in small
cases, which also involved other operations. She further tes-
tified that she did not start on her new assignment sooner
because she did not consider the job fully set up, since a
chair was missing and since the grease dish was not com-
pletely filled.22 In addition, she explained that she did not
go on her nonproduction card because she did not believe
that it was necessary when moving from one job to another,
and she had never been told otherwise.
According to Maraventano's testimony, he watched Syl-
van, as he would any employee reassigned to another job,
as she left her first work area and proceeded to the stock-
room and then to her reassigned table, where she started
working on the VR-109-8 job. Moreover, he testified that
he was certain that it was 10:25 a.m. when Sylvan arrived
and began working on her new job. However, he further
testified that although he is "tuned" to the clicks of the
production timeclock, which is located 7 feet to the right of
his desk, he was nevertheless not sure whether or not at that
time Sylvan had already punched out on her production
card from her first job and into her second job, which she
was required to do after her finished pieces from her diode
job were weighed by the stockman. He also testified that,
while walking around in the department, he glanced at Syl-
van at her second work station two or three times but did
not stare at her continuously during the entire II minutes
she was there; that the first time he glanced at Sylvan she
was standing at her machine but that he was unable to
observe exactly what she was doing or whether a chair was
there; that he observed her only one time greasing cases
and was not sure what she was doing during his other ob-
servations; and that when he glanced at Sylvan, she re-
turned his glance. In addition, Maraventano testified that
the reason he was watching Sylvan the morning in question
was the fact that her efficiency was consistently around 100
percent on the various jobs she worked, which made him
"wonder," even though this is the normal efficiency ex-
pected of employees who, if they fell below this standard,
not have personal knowledge and that he was only surmising, but that he
based his belief on his instructions to the stockman to give priority to weigh-
ing over his other duties and on the fact that Sylvan had not reported to him
the stockman's failure to do so.
22 Sylvan testified that, although she could have started working on the job
with the grease that was initially in the dish, she did not do so because she
did not known how long it would last or whether the floorman would be
available to fill the dish when she needed grease. Maraventano, on the other
hand, testified that, if the grease dish was not completely filled, she should
have begun greasing the cases anyway, and when she ran out of grease she
should have punched out on her nonproduction card and informed him so
that he could rectify the situation, even though the nonproduction time prob-
lem in the electronics department was the worst in the entire plant.
would be subject to discipline. Moreover, according to
Maraventano, Sylvan was not the only employee he
watched that morning, but there were others, too, whose
efficiency was similarly at the same 100-percent level but
whom he was unable to name. However, he testified that he
found no offense committed by these employees; nor did he
find any misconduct on other occasions when he watched
these employees and Sylvan for the same reason.
I find that Sylvan's account of her movements and the
time she commenced greasing the cases on her second job
more accurate than Maraventano's, and I credit it. The lat-
ter's testimony indicates that his two or three glances at
Sylvan were, at most, too sporadic and inadequate a basis
for reliable information concerning Sylvan's actions over
the entire I l-minute period. Moreover, it appears that ob-
structions in the general location of Sylvan's work station
and Maraventano's other preoccupations probably hin-
dered his ability to observe her actions carefully.
While Sylvan was at her second work station, Maraven-
tano summoned Union Committeeperson Lena McNeil to
come to the electronics department. Maraventano testified
that about 10:30 a.m. he called McNeil's foreman to send
her over. He did this, he testified, because there was a pos-
sibility of disciplinary action being taken against Sylvan for
not punching out of her first job and into the second one,
and it was his practice to have a union representative pre-
sent on such occasions. However, Maraventano admitted
that when he summoned McNeil he was not sure whether
or not Sylvan had punched out of her first job and into her
second. When questioned under cross-examination by the
General Counsel as to the reason why he had not inquired
of Sylvan whether she had punched out of the first job and
into the second one before summoning McNeil,23 Maraven-
tano gave the following unenlightening, if not evasive, testi-
mony:
Q. Why didn't you go [to Sylvan's work station] ...
and say "Claire [Sylvan], did you punch in?"
A. I wasn't sure whether she had punched in or
hadn't punched in.
Q. Why didn't you ask her?
A. Because at that time I wasn't concerned with it.
Not knowing whether she had or she hadn't. She could
have punched in and then again she couldn't.
Q. You weren't concerned but you called the shop
steward? Why did you call the shop steward?
A. I shouldn't have said that. I mean I wasn't con-
cerned whether she had punched in or not, just that I
wasn't sure, but I don't known whether she had
punched in or not.
Q. You called the shop steward though, right?
A. Yes.
McNeil arrived at the electronics department about
23 It would appear to be only logical and simple for Maraventano to make
such an inquiry of Sylvan before summoning McNeil from her job. No rea-
son was shown why Maraventano could not do this or even why he could not
ask Sylvan to show him her production card. Upon thus ascertaining what
the true situation was, there obviously would have been sufficient time for
Maraventano to call McNeil to be present during his disciplinary interview
with Sylvan if he thought punitive action were necessary.
24 Obviously referring to Committeeperson McNeil.
336
STANDARD MOTOR PRODU)tCTS, INC.
10:35 or 10:36 a.m.,25 several minutes after she was sum-
moned. At that time Maraventano directed Sylvan to
punch out of her second job (VR- 109 8) and onto her non-
production card preparatory to the discussions which en-
sued outside the department. This Sylvan did at 10:37 a.m..
the time shown on her production and nonproduction
cards.26 Thereupon. Maraventano, Sylvan, and McNeil left
the department. While in the corridor, the following con-
versation took place.
Maraventano asked Sylvan why she delayed punching
out on her production card from her first job befbre starting
on her second one. Sylvan replied that the job was not
properly set up, specifying that there was insufficient grease
for the job. Maraventano thereupon inquired how she was
able to grease some cases. This question apparently went
unanswered except that Sylvan repeated that the job was
not properly set up. This elicited Maraventano's further in-
quiry that, if this were so, why did she, Sylvan, fail to punch
in on the green nonproduction card. When no answer was
forthcoming, Maraventano, Sylvan, and McNeil returned
to the electronics Department and went to Sylvan's second
work station, where Maraventano counted the cases previ-
ously greased by Sylvan which were on her table and an-
nounced that there were 38.27 Sylvan estimated that it took
her I to 2 seconds to grease a case and about a minute to do
38. Maraventano, on the other hand, testified that it would
take I to 2 minutes to grease 38 cases, although he also
testified that I case should take about 5 seconds.
Maraventano. Sylvan, and McNeil then returned to the
corridor. There. Maraventano accused Sylvan of falsifying
her production card and summarily discharged her. Sylvan
denied the accusation and argued against her termination.
McNeil also voiced her disagreement with Maraventano's
decision. Neither Sylvan nor McNeil could persuade Mara-
ventano to relent.28
At this juncture NcNeil called Robert Johnson, who was
either vice chairman of the shop committee or vice pres-
ident of Local 365, and the three of them went upstairs to
see Director of Labor Relations Jody, who declined to dis-
cuss the matter because he could not overrule a foreman
and suggested that a grievance be filed. While waiting for
Johnson to secure a grievance form, Sylvan charged Shop
Committee Chairman Mieli, who in the meantime had en-
tered the personnel office, with causing her discharge. Nev-
ertheless, Sylvan prepared the grievance with the assistance
of union representatives, possibly including Mieli, and filed
it with Respondent. The grievance stated that the discharge
15 While Maraventano testified that when McNeil entered the department
he explained to her what he thought was happening. McNeil denied there
was any such discussion concerning Sylvan's alleged offense dunng her brief
presence in the department. She testified that this subject was discussed out-
side the department. It is unnecessary to resolve this testimonial conflict.
25 The nonproduction card also contains Maraventano's notation, "Was
told to punch on green card at time of discharge."
27 Maraventano so testified, while McNeil testified that she did not recall
the number he mentioned. Sylvan, on the other hand, testified that she did
not know how many cases she had greased after punching in on the VR
109-8 job and therefore could not dispute Maraventano's testimony that
there was 38.
2a The foregoing findings concerning the immediate conversations leading
to Sylvan's discharge are based on parts of the testimony of Maraventano.
Sylvan, and McNeil which I find reflect what probably occurred on those
occasions.
was "unjustified" and that she did not falsify the produc-
tion card, and requested her reinstatement with backpay.
Sylvan testified that, at the insistance of the union represen-
tatives, she omitted from the grievance certain matters she
wanted to raise. However, at two grievance meetings at-
tended b Jody, union representatives, and Sylvan at which
SNlvan's grievance was discussed, Sylvan credibly testified
that she argued that she was fired because of her union
activities but that she did not remember whether she stated
"union activities or the fact that . .. shel ran against Sal
NMieli as a union delegate." Sylvan lost her grievance and,
when the Union was in the process of taking the matter to
arbitration, as provided in the contract. Sylvan withdrew
and filed a charge with the Board. which is the subject of
the complaint in the instant proceeding.
At the hearing, Maraventano in his testimony asserted
that he was solely responsible for Sylvan's termination and
that he received no instructions from Respondent's officials
to take any disciplinary action against her. Acknowledging
that Sylvan had never before noted a wrong quantity of
items completed by her on her production card and that she
had never experienced a problem with productivity. he
stated that the only reason for the discharge was Sylvan's
misallocation of time, characterized b him as "stealing
time," which was the net effect of Sylvan's failure to punch
out of her first job and into her second job until approxi-
mately I I minutes later than she was supposed to do. He
further testified that he viewed her conduct as a willful vio-
lation of rule 7,2" prohibiting the falsification of production
records, although willfulness is not an ingredient of the of-
fense. Moreover, he testified that, even if the second job
were not properly set up, as Sylvan claimed and Maraven-
tano denied, she should have punched in on the green pro-
duction card and called the improper setup to his attention,
which she failed to do. Finally, he categorically denied that
her candidacy for delegate to the AW International con-
vention in any wise entered into his discharge decision. Di-
rector of Labor Relations Jody also disavowed that Syl-
van's delegate candidacy and her steward activities
prompted her termination or that Respondent acted at the
Union's behest in discharging her.
4. Eric Bolding's employment history; his alleged
discriminatory removal as setup and floorman
Bolding was first hired by Respondent on January 8,
1974, as a material handler at its Bronx distribution center.
On December 13, 1974, he was discharged, but, as a result
of an adjustment of a grievance he had filed, his discharge
was converted to a suspension and he was reinstated with-
out backpay on January 2. 1975. Bolding continued work-
ing at the Bronx facility until he was again terminated on
April I or 2, 1976. As part of the grievance settlement in-
volving that discharge, Bolding was reinstated without
backpay at the Long Island City plant to which he was
transferred. While employed at the Bronx facility, Bolding's
:2 Hlowever. it is noted that there was no apparent or convincingly demon-
strated reason shown why. in view of her relativel) long period of employ-
ment, Sylvan should suddenly decide to falsify her production card. I find
Maraventano's asserted belief of willfulness purely an afterthought. I further
find that Sylan was not guilty of such motivation
337
DECISIONS OF NATIONAL LABOR RELATIONS BOARI)
union activity consisted of preparing and circulating a peti-
tion to the Union, calling for the election of shop stewards.
Bolding's new position at the Long Island City plant was
a production job as a molding machine operator preform in
the molding department, which occupied half of the plant's
basement. In that capacity Bolding operated different ma-
chines under leadman Cleveland Loadhall. The supervisor
of the department was Foreman Otto Reuss.
There is a conflict in testimony as to whether Reuss had
taken Bolding off his production job and assigned him for a
6-month trial period to a setup and floorman job which was
vacant in the molding department. Although this job car-
ried the same grade as molding machine operator preform,
it appears that it was a more desirable job than the latter
one, at least as far as Bolding was concerned. According to
Bolding, unlike the operator's job, the setup and floorman
position gave him "the run of the shop" and involved the
adjustment of machines and, in case of a machine break-
down, helping the leadman "fix it up." The job also re-
quired him to go to other floors for supplies that were
needed on the floor. °
Concerning his assignment to the setup and floorman job,
and its subsequent termination, Bolding testified as follows:
On November 19. 1976, Reuss asked Bolding whether he
was interested in leaving his production work on the ma-
chines and undertaking a setup job. Reuss also stated that.
if Bolding were interested, he would try him out for I
month and, if he proved to be satisfactory during that pe-
riod, he would continue him in the setup job for another 5
months, treating the assignment as a sort of 6-month proba-
tionary period. Bolding accepted the proposition and
worked in that capacity until probably early May or the
latter part of April, after the UAW delegate election dis-
cussed above, when Reuss terminated this assignment and
told Bolding to return to operating the molding machines.
replacing him in the setup job with a new employee who
had been there less than 30 days. In answer to Bolding's
inquiry as to the reason for this change, Reuss stated that
Bolding was talking too much to the employees in the de-
partmcnt, that he had become "arrogant," that his attitude
toward his job had changed, and that he was wandering
around too much.
Reuss denied having had any conversation with Bolding
regarding using him as a setup and floorman on a 6-month
trial basis or for any other temporary period or that he
otherwise offered him such a job.' Reuss testified, however,
that he had had an opening in his department for a setup
and floorman for more than 6 months; that he had tried out
one or two employees for that job, neither of which was
Bolding, who did not qualify; and that finally, on or about
April 22, 1977, he hired Carlos Parmacita, an experienced
setup man, for that job. Reuss further testified that, when-
30 While molding machine operators punch a an production card, setup
and floormen, being considered "indirect labor," are not required to punch
any timecard except, of course, one on which to report in and out of work.
*' The collective-bargaining agreement between the parties contains elabo-
rate provisions for posting and bidding for job openings and for temporary
assignments. The evidence indicates that these provisions were not activated
in connection with Bolding's alleged assignment as setup and floorman.
Moreover, in a memorandum of agreement of the parties dated March 26.
1975, the qualifying penod for setup and floorman is 3 months and not 6
months, which Bolding testified Reuss required him to serve before being
given a permanent assignment.
ever the need arose, he customarily used any molding ma-
chine operator, including Bolding. on the floor or to help
the leadman'3 in setting up machines, but not to do setup
work themselves because it is too difficult. For this reason,
Reuss testified, the only conversation he had with Bolding
regarding setup and floor work was to request him to assist
the leadman in setting up a mold or in performing floor
duties. Moreover, he testified that Bolding did not perform
those services more often than his fellow molding machine
operators and denied telling him that he would no longer
help in setup and floor duties or that he was arrogant.
Bolding testified that he was angered by the treatment
Foremain Reuss had thus accorded him, particularly in view
of the fact that on at least four or five occasions Reuss had
told him that he was doing a good job as setup man, as had
Director of Labor Relations Jody when they had occasion
to meet on their arrival in the plant early in the morning.
Continuing, Bolding testified that he promptly tried to
reach Jody on the company telephone 33 to discuss his re-
moval. Since Jody was not in the office at the time, Bolding
further testified, he left a message with Personnel Manager
Slome. Later in the afternoon, according to Bolding, Jody
called Bolding's foreman, who told him that Jody wanted to
see him in Jody's office. Both Jody and Reuss denied that
such a call was made.
Further testifying, Bolding stated that the following con-
versation ensued, with no union representative or any other
person present. He asked Jody why he was taken off the
setup job and replaced by an employee who had not yet
even joined the Union. Jody replied that he did not know
the reason but, in any event, he could do nothing about it
until "he heard the facts of the situation."'4 Bolding then
recounted to Jody his conversation with Reuss in which he
asked Ruess why he was being taken off the setup job, since
Reuss had previously informed him that he was doing a
good job, and protested to Jody that Reuss was being un-
fair. At this point during Bolding's interview with Jody. the
latter remarked that he had heard that Bolding was "doing
a little campaigning for the opposition" and, when Bolding
inquired what opposition, he received no response. As Per-
sonnel Manager Slome entered the office at this juncture,
Bolding asked whether Jody was referring to the pamphlet
he had recently handed Slome and whether Slome had in-
formed Jody about Bolding's campaigning." These ques-
tions also went unanswered. As Bolding was about to leave,
he quoted Jody as saying, "Let me give you a little word of
advice . . . if you want to work around here. Don't mix
politics with your work because we don't care for politics
32 Reuss testified that, while searching for experienced setup men, he uti-
lized leadmen to perform such duties and, at times, with the assistance of
molding machine operators.
" There is uncontroverted testimony that employees were not permitted to
use company telephones.
4 In his prehearing affidavit sworn to on August 20, 1977. Bolding quoted
Jody as replying that the replacement "had a lot of experience and that he
wasn't going to reverse the decision of my foreman." Bolding testified that
his above testimony "is more true [than his statement in the affidavit] . .
because it's fresher in my memory." Later in his testimony Bolding stated
that Jodly told him that he could do nothing about Reuss' action and that
"he wasn't going to reverse the decision of his foreman."
15 Manifestly. Bolding was alluding to his asserted activity at the Sylvan
rally in support of her candidacy for delegate to the UAW international
convention, previously discussed in this Decision.
338
STANDARD MOTOR PROD)lVCTS, INC
around here."' Bolding further testified that he never filed
a grievance on account of such alleged discriminatory treat-
ment hut that he went directly to Jody, as testified to above.
because at the time of his transfer to the ong Island City
plant Jody had informed him that he was coming to that
plant with a clean slate and that if he had any problems. he
was to come directly to Jody."
On cross-examination. Bolding denied making any state-
ment to anyone that Jody ever threatened to transfer him to
a more onerous job because of his support of Sylvan's can-
didacy for delegate to the AW convention. In fact, he
testified, it was Reuss, not Jody, who wanted to transfer
him from the setup and floorman job back to his production
job, and he admitted further that such a threat was not
made either by Reuss or by any company official. More-
over, when questioned concerning the absence of aI union
representative during his asserted conversation with Jody,
which would be contrary to the C(ompany's precautionary
policy to have a union representative present during such
discussions with employees, Bolding testified that the policy
was not applicable where he was involved.
Contradicting Bolding's testimony, Jody categorically de-
nied summoning Bolding to his office, having any conversa-
tion with Bolding regarding his complaint about being re-
placed. stating to Bolding that he would not reverse his
foreman's decision or that he would look into the matter.
and warning Bolding about campaigning for the opposition
and mixing politics with his work. Slome corroborated
Jody's testimony in that he denied being present in Jody's
office at a time when Bolding and Jody were purportedly
engaged in a conversation. Jody further disputed Bolding's
testimony that he commended him on at least four occa-
sions for doing an excellent job as setup and floorman. In-
stead. Jody testified that when he met Bolding on several
occasions he inquired how he was doing and, upon receiv-
ing Bolding's reply that he was doing fine. told him to carry
on the good work. Finally, Jody denied that Bolding was
assigned an onerous position because of his support of Syl-
van's UAW delegate candidacy. Foreman Reuss similarly
denied that his action was prompted by Bolding's activity
on behalf of Sylvan or by Bolding's union activity at the
Bronx facility, of which he was not even aware.
Appraising Bolding's version of the events recited above
in light of the contradicting testimony, Respondent's con-
" In the typewritten portion of Bolding's pretnal affidavit prepared by his
attorney after he had been interviewed by her. Bolding only mentioned that
Jody said to him, "I heard you were doing some campaigning for the oppo-
sition," and when he asked. "What opposition?" Jody replied, "Dunng the
election." However, in the part of the affidavit subsequently prepared by a
Board agent while interviewing Bolding. an additional quotation of Jody's
remarks was included, as follows: "Let me give you [Bolding a little word of
advice. You shouldn't mix politics with your work. We don't care for politics
around here." In view of Jody's denial; Bolding's failure to furnish an ade-
quate explanation for the omission of this statement, which would be strong
evidence of motive underling the alleged discnmination: and the unlikeli-
hood that Jody. an individual experienced in labor relations matters, would
make such a statement, I am not convinced that either of the above-quoted
remarks was made by Jody to Bolding and therefore discredit the latter's
testimony in that respect
7 Jody. in effect, contradicted Bolding's testimony, explaining that t the
conclusion of a discussion of Bolding's Bronx discharge grievance. which
was adjusted to permit his transfer to the Long Island City plant, he, Jody.
told Bolding that he was embarking on a new career and that the rest was up
to him. I credit Jody's testimony in this respect. which appears to me to
accord more with the realities of the situation than does Bolding's account.
tractual obligations relating to the filling of job vacancies.
and the absence of any company record showing a transfer
of Bolding to a setup and floorman job for a 6-month or
other trial period. and in view of my discrediting Bolding's
testimony with respect to Jody's purported admonition to
Bolding concerning the latter's support of "the opposition"
anid mixing politics with work. I have serious doubts that
Foreman Reuss offered Bolding a 6-month trial period to
qualil for the setup and floorman job or that Reuss treated
Bolding any differently from the way he treated other mold-
ing machine operators whom he utilized to help in setup
and floor work as the need arose, or that Reuss was other-
wise motivated by Bolding's support of Sylvan's delegate
candidacN in whatever action he had taken concerning Bol-
ding's continued performance of setup and floorman duties.
Indeed, it appears that the problem herein resulted from
Bolding's resentment that Reuss was able to hire an experi-
enced setup man to fill that position, thereby limiting Bol-
ding's opportunity to assist in such work. Accordingly I do
not accept Bolding's testimony in the respects indicated
above. In so finding and in view of my ultimate conclusion
regarding the alleged discrimination against Bolding. it is
unnecessary to determine whether or not Bolding really
complained to Jody in the latter's office about his removal
trom the setup and floor job and his return to production
work.
Because he felt that he was unfairly treated by Foreman
Reuss and that he could no longer work with him. Bolding
requested Respondent to transfer him to another job. Ac-
cordingly, in conformity with plant practice, Bolding sub-
mitted to Director of Labor Relations Jody a transfer re-
quest torm, dated April 26. 1977. which stated that he
wanted a transfer to any other department on the day shift
because he would "like to learn other jobs." Bolding testi-
fied that this reason was not his but was written in by a
union representative, whose assistance was required in or-
der to secure a transfer. The request was granted, and Bol-
ding was transferred to the power press department in a
production job as an "operator stamping" effective April
27. 1977. Although the new job was a grade lower than his
former job, Bolding did not suffer a reduction in pay in his
new job. Subsequently, Bolding's employment with Re-
spondent was terminated. No claim is made that this dis-
charge was discriminatory.
C. Concluding Findings
I. With respect to Sylvan's discharge
As indicated above, the General Counsel and Charging
Party Sylvan contend that Sylvan was unlawfully dis-
charged because of her protected union activities, which
included her aggressive shop stewardship and her candi-
dacy in an intraunion election as delegate to the UAW In-
ternational convention in opposition to Local 365's favored
candidate, Shop Committee Chairman Mieli, and because
of her other concerted activities directed against Respon-
dent. In contrast, Respondent maintains that Sylvan's ter-
mination was due solely to her falsification of her produc-
tion card, in violation of the Company's rule 7, caused by
her delay of approximately II minutes in punching out of
her first job and punching into her second job which. in
339
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
turn, resulted in a misallocation of time to the respective
jobs. In resolving this question, two well-settled principles
must be borne in mind. The first is that the Act does not
prohibit an employer from terminating an employee for any
reason-good, bad, or indifferent -provided the employee's
union or other concerted activities do not enter into the
employer's decision. The second principle is that the exis-
tence of a "justifiable ground for dismissal is no defense if it
is a pretext and not the moving cause."'
At the outset, from a careful review of the record, I find
insufficient evidence to substantiate the contention of the
General Counsel and Charging Party Sylvan that Sylvan's
shop stewardship or her delegate candidacy in any wise
motivated her discharge. For all that appears, Sylvan's
steward activities were no more aggressive or exceptional, if
such were even the case, than those of other stewards and
committeepersons who have for many years been handling
employee grievances and complaints without punitive ac-
tion being visited upon them. Nor am I able to find any
persuasive evidence in the record of Respondent's concern
or involvement in intraunion elections, much less in the
election for delegate to the UAW International convention,
which clearly had no particular interest in the labor rela-
tions at Respondent's plant. Moreover, the record is barren
of any evidence of collusion between Respondent and Local
365 to eliminate a union dissident, such as Sylvan was. Ac-
cordingly, the allegations of the complaint asserting that
Sylvan's discharge was prompted by her steward activities
and delegate candidacy will be dismissed.
However, even assuming that Sylvan's delay in punching
in and out of her respective jobs literally fell within the
prohibition of the Company's rule 7 against falsifying pro-
duction cards,3' I do find that Sylvan's termination was
really brought about by Respondent's resentment over her
sharp attacks made upon it during her delegate campaign,
charging the Company with maintaining unfair, difficult,
and discriminatory conditions of employment, which she
demanded be changed. Without repeating the details, it is
clear that Sylvan, both verbally and in the leaflets she had
prepared and distributed, vigorously criticized Respondent
for, among other things, its supposed discriminatory treat-
ment of Spanish-speaking and black employees; excluding
black employees from skilled jobs; giving women and mi-
norities the worst paying jobs, maintaining forced overtime,
unjustifiably high production quotas, and poor health and
safety conditions; and discharging an employee for nomi-
nating Sylvan as steward. In addition, Sylvan accused the
3' N.LR.B v. Solo Cup Company, 237 F.2d 521, 525 (8th Cir. 1956).
39 Although Respondent assertedly so interpreted its rule 7, there is, never-
theless, a serious question whether Sylvan was required to punch out of her
first job in view of the fact that her completed pieces from that job, as I have
found above, had not yet been weighed by the stockman during the ill-fated
I l-minute delay in punching out. Indeed, Foreman Maraventano testified
that Sylvan was required to punch out of her first job after her completed
pieces were weighed. Moreover, I have also found that Sylvan had not begun
to grease the cases on the second job until after she had punched out of her
first job and into her second job, at 10:36 a.m. Finally, there is some doubt
whether Sylvan's failure to punch her nonproduction card upon her arrival
at her second work station before she went to get a chair in another area in
the electronics department and before she requested the floorman to fill her
grease dish constituted a falsification of her production card. This is particu-
larly so since Respondent, and especially Maraventano, whose department's
nonproductive time was double that of other departments, was greatly con-
cemrned over the nonproductive time problem.
Union of collaborating with Respondent in countenancing
such working conditions and demanded an end to these
conditions and an improvement in employee benefits. There
is no question that Respondent was fully aware of Sylvan's
propaganda activities. Not only did several company offi-
cials attend Sylvan's rally a day before the delegate elec-
tion, but her leaflets found their way into Sylvan's person-
nel file. Indeed, at the close of a grievance meeting between
company and union representatives held on April 13, which
Sylvan attended, Director of Labor Relations Jody voiced
his displeasure that leaflets obviously Sylvan's were
being distributed, unfairly accusing the Company of col-
laborating with the Union in raising production rates, and
suggested that the Union do something about it.
That Sylvan's sharp attacks upon Respondent, as distin-
guished from her delegate candidacy and stewardship,
probably led to her termination on May 25 is indicated by
the facts and circumstances surrounding Foreman Mara-
ventano's precipitate action taken against Sylvan without
any prior notice or warnings. Thus, on this morning Mara-
ventano admittedly kept Sylvan under surveillance, offering
at the hearing the very unlikely and remarkable reason for
the surveillance that Sylvan had consistently produced at
around 100-percent efficiency, which made him "wonder,"
even though this is the normal efficiency expected of em-
ployees, who, if they fall below this level of performance,
would be subject to discipline. Yet, Sylvan was unquestion-
ably a satisfactory worker who had never had any problem
meeting production standards during her slightly less than 2
years of employment with Respondent or misused or falsi-
fied her production card before the May 25 episode. Such
surveillance, unprovoked by any deficiency in Sylvan's job
performance, warrants, in my opinion, the inference that
Maraventano was really searching for a reason to get rid of
an unrelenting critic of plant working conditions.4
Strengthening the validity of this inference of discrimina-
tory motivation underlying Sylvan's discharge is the fact
that, only about 5 minutes after Sylvan arrived at her sec-
ond work station and while her production from the first
job was still not weighed, Maraventano summoned Com-
mitteeperson Lena McNeil because, as Maraventano testi-
fied, there was a possibility of disciplinary action being
taken by him against Sylvan for failing to punch in and out
of her respective jobs and because it was company practice
to have a union representative present to witness such con-
frontation. However, Maraventano conceded that at this
point he had no knowledge that Sylvan had not punched
her production card. Significantly, no plausible reason was
offered by Maraventano as to why, before summoning
McNeil from her job, he had not inquired of Sylvan
whether she had punched her production card. Certainly, if
he had thus ascertained that Sylvan had not punched her
production card, there would have been time enough to call
McNeil to be present during the disciplinary discussions
should Maraventano decide, after listening to Sylvan's ex-
planation, not to afford Sylvan an opportunity to rectify her
alleged default. Such a preliminary inquiry of Sylvan ap-
pears to be the only logical and natural thing to do, unless
4 According to Maraventano's testimony, which I discredit, at the time he
was observing Sylvan he was also watching other similarly efficient employ-
ees. whom he was unable to identify. With respect to these other employees,
he testified, he found no reason to punish them.
340
STANDARD MOTOR PRODUCTS. INC.
Maraventano was actuated by an improper motive which it
was wiser to keep concealed.
Finally, there is evidence that Respondent conducted a
long-belated investigation of Sylvan's prior employment
references, whose timing suggests that Respondent was
searching for an excuse to terminate Sylvan. Thus, in about
April 1977, during the UAW delegate campaign, Director
of Labor Relations Jody ordered Personnel Manager Slome
to check on Sylvan's prior employment references listed in
her employment application, although Sylvan had been
working for Respondent for more than -1/2 years and had
a satisfactory job performance record. A memorandum in
Sylvan's personnel file from Slome to Jody dated May 5,
1977, recounts Slome's unsuccessful efforts to contact one
of the references. Explaining what generated this belated
investigation, Jody testified that on March 27, 1977, while
in the process of canceling a warning previously issued to
Sylvan for lateness as a result of a grievance settlement, he
reviewed Sylvan's personnel file, as he customarily did in
grievance matters, and noticed that no responses to refer-
ence inquiries which had been sent out shortly after Sylvan
was hired were in the file. Consequently, he testified, he
directed Slome to follow up these unanswered inquiries.
However, Jody could not account for his failure to order a
reference check on August 11, 1976, when he had a similar
occasion to review Sylvan's personnel file in the course of
canceling an earlier lateness warning which Sylvan had also
grieved. When questioned by the General Counsel to ex-
plain the reason for this omission, Jody could only state
that he "'just didn't order it." Moreover, it appears from the
files of other employees that reference checks or followups
of inquiries were not uniformly made."
Respondent nevertheless argues that a discriminator)y
motive may not be imputed to Foreman Maraventano, who
was solely responsible for the discharge, because it was not
shown that he personally harbored any animosity toward
Sylvan's activities or that he acted under instructions from
any company official who entertained such animosity. I find
this contention totally without merit. As it is the rare case
where direct evidence of unlawful motivation is available
and this is not one-I rely on circumstantial evidence re-
cited above, including management's displeasure with Syl-
van's critical attacks upon Respondent and prevailing
working conditions, to find that Sylvan's discharge was
prompted by unlawful considerations. Certainly, this infer-
ence is not precluded by the absence of more direct evi-
dence of Maraventano's motivation or that he acted under
superior orders. All things being considered, it cannot be
presumed that management did not convey to its supervi-
sor, Maraventano, its displeasure with Sylvan's criticism or
its desire that punitive action be taken.42
In view of the foregoing, I find that Sylvan's discharge
was due to her unrestrained criticism of Respondent in
maintaining conditions of employment which she regarded
14 Respondent places the blame for the failure to verify pnor employment
references of various employees on the delinquency of a personnel employee
who was discharged in February 1976.
a2 In fact, as shown earlier in this Decision, it is undisputed that on the
morning of May 6, when it was reported to Personnel Manage- Slome that
Sylvan was seen passing out leaflets in front of the Bronx facility. Slome
directed Maraventano to bring Sylvan to his office when she reported for
work. Maraventano did this and was present dunng the ensuing discussions.
as reprehensible and which she felt should be changed and
that her falsification of her production card, advanced by
Respondent as the sole justification for the discharge, was
but a pretext to conceal the indicated true reason. I further
find that Sylvan's activities, relating as they did to terms
and conditions of employment, were a form of concerted
activity for mutual aid and protection of employees safe-
guarded by Section 7 of the Act and that therefore her
termination for exercising this employee right violated Sec-
tion 8(a)( 1) of the Act. As Sylvan's efforts to improve work-
ing conditions at the plant were part of her dissident activi-
ties against the union leadership for allegedly permitting
these conditions to go unchallenged, I find that her dis-
charge, in addition, amounted to discrimination to discour-
age such intraunion activities and hence a violation of Sec-
tion 8(a)(3) of the Act. The fact that Sylvan's activities also
had broad political overtones and objectives which might
not meet with universal approval is insufficient to deprive
her of statutory rights as an employee to engage in pro-
tected union and other concerted activity.
2. With respect to Bolding's alleged discriminatory
transfer; the alleged unlawful threat of reprisal by
Director of Labor Relations Jody
On the basis of my factual findings made above, I find
that the General Counsel failed to sustain his burden of
proving by a preponderance of the evidence that on or
about April 25 Bolding was transferred from his setup and
floorman assignment to his former more onerous and dis-
agreeable job as molding machine operator because of his
support of employee Sylvan's delegate candidacy, as al-
leged in the complaint and contended by the General
Counsel and Bolding. Not only was it not convincingly
shown that Bolding's assignment to help in setup and floor-
man duties was any different from that of other molding
machine operators requested to perform such work when-
ever the need for it arose, but the evidence falls far short of
establishing that Respondent's employment of a new em-
ployee with outside machine setup experience was designed
to deprive Bolding of that job reprisal for his support of
Sylvan's delegate candidacy. Moreover, I find equally un-
substantiated by credible testimony the allegation of the
complaint that on or about the same date Director of Labor
Relations Jody threatened to assign employees, including
Bolding, to less agreeable job tasks than they were then
performing if they campaigned and opposed candidates fa-
vored by the leadership of Local 365 in intraunion elec-
tions. Accordingly, the pertinent allegations of the com-
plaint will be dismissed.
IV. THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, it is
recommended that Respondent be ordered to cease and de-
sist from engaging in the unfair labor practices found and
like and related conduct and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent unlawfully discharged
employee Sylvan because of her protected union and other
concerted activities. To cure this unfair labor practice, the
341
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conventional remedy of' reinstatement with backpay is rec-
ommended. In so doing, I reject Respondent's contention
that Sylvan should be denied reinstatement on the ground
that she had failed to mention in her job application her
college education and her last job with Leviton Manufac-
turing Company and had included two employers for
whom she had never worked, in the face of a warning in the
application "that the making of any false statement on this
application will be sufficient cause for dismissal."
In her testimony, Sylvan explained that her omission of
her college education was inadvertent. Concerning her fail-
ure to mention her last job, she testified that, after leaving
Leviton, she applied for work at various factories; that she
usually included her Leviton employment in her job appli-
cations at these factories; that, since she was unable to se-
cure a job during the 7 or 8 months of unemployment fol-
lowing her departure from Leviton, where she had worked
more than 2 years, she concluded that her lack of success
was probably due to a bad reference given by Leviton be-
cause of her outspoken criticism of the inadequate fringe
benefits available to employees at that plant; and that it
was for this reason that she decided not to list her prior
Leviton employment.
Manifestly, the false statements in Sylvan's previously
submitted job application were not the cause for her termi-
nation. Nor could they be since admittedly they first came
to Respondent's attention during Sylvan's cross-examina-
tion at the hearing. However, the record indicates that Re-
spondent has demonstrated neither diligence in nor a genu-
ine concern for verifying prior employment references or
information contained in its employees' applications, in-
cluding Sylvan's, in order to determine their qualifications
for employment in its plant, although there is evidence of
the discharge of several employees for falsifying their appli-
cations under circumstances clearly different from those
prompting Sylvan's discharge. Considering Sylvan's close to
2 years of satisfactory employment with Respondent, I find
that her fitness for continued employment was not impaired
by the misrepresentations in her application. Indeed, bal-
ancing the misrepresentations against the need to dissipate
the effects of Respondent's discrimination, thereby vindi-
cating Sylvan's statutory rights, as well as those of other
employees who might otherwise be deterred in exercising
them, I find that reinstatement with backpay prescribed
herein is the only appropriate remedy to effectuate the poli-
cies of the Act.
Accordingly, it is recommended that Respondent offer
Sylvan immediate and full reinstatement to her former job
or, if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or other rights
43 Westinghouse Learning Corporation, 211 NLRB 19 (1974); and W Kelly
Gregory. Inc., 207 NLRB 654 (1973). cited by the Respondent in support of
its position are plainly distinguishable. In the Westinghouse case, the Board
denied reinstatement with backpay where the employee misrepresented his
age, because the discrimination occurred after the employee had reached his
65th birthday, when he would have been retired under the company's rule
had he disclosed his true age. In the W Kelly Gregory case, the employee
omitted from his application pnor employment from which he was dis-
charged because of a drinking problem, and he also omitted mentioning
prior traffic violations. For these reasons, the Board refused to order rein-
statement, stating that it was reasonable to infer that, had the employee
answered the questions in his application truthfully, the company would not
have hired him as a truckdnver. Obviously, this is not the situation in the
present case.
and privileges, and make her whole for any loss of earnings
she may have suffered by reason of her unlawful discharge
by payment to her of a sum of money equal to that which
she normally would have earned from May 25, 1977, the
date of her discharge, to the date of the offer of reinstate-
ment, less her net earnings during the said period. Backpay
shall be computed with interest on a quarterly basis in the
manner prescribed by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), and Florida Steel Corporation,
231 NLRB 651 (1977); see also Isis Plumbing & Heating
Co., 138 NLRB 716 (1962). To facilitate the computation,
as well as to clarify the named employee's right to reinstate-
ment and reemployment, Respondent shall make available
to the Board, upon request, payroll and other records neces-
sary and appropriate for such purposes. The posting of an
appropriate notice is also recommended.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
I. 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. By discharging Claire Sylvan for engaging in pro-
tected union and other concerted activities for mutual aid
and protection, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)( I) and (3) of
the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not engaged in other unfair labor
practices alleged in the consolidated complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, as amended, I hereby issue the following recommened:
ORDER4
The Respondent, Standard Motor Products, Inc., Long
Island City, Queens, New York, its officers, agents, succes-
sors, and assigns, shall:
I. Cease and desist from:
(a) Discharging, disciplining, or otherwise discriminating
against employees for engaging in protected union or other
concerted activities for mutual aid and protection with re-
spect to wages, hours, or other terms and conditions of em-
ployment.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights which are
guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action, which is neces-
sary to effectuate the policies of the Act:
(a) Offer Claire Sylvan immediate and full reinstatement
u 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.
342
STANDARD MOTOR PRODUCTIS. IN(C.
to her former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to her se-
niority or other rights and privileges, and make her whole
for any loss of earnings she may have suffered by reason of
her unlawful discharge, in the manner set forth in the sec-
tion 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 records, social security payment records, timecards.
personnel records and reports, and all other records neces-
sary and useful in analyzing the amount of backpay due
and the right to reinstatement and employment under the
terms of this recommended Order.
(c) Post on its premises in Long Island City. Queens.
New York, the attached notice marked "Appendix." Cop-
ies of said notice, on forms provided by the Regional Direc-
tor for Region 29, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places.
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 29, in writ-
4 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 Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional t.abor Relations Board."
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
I1 IS I't RIHtR RI)RtKl) that the consolidated complaint
be dismissed insofar as it alleges violations of Section
81a)(I) and (3) of the Act other than those lfund herein to
have been committed.
APPENDIX
No- l( l 'o EMPI.LOYEE.S
Po()SI l) HY ORI)IR () IllF
NAIIONAI. LABOR RE.AII()NS BOARI)
An Agency of the United States Government
Wl WIll.. NO discharge any employee, discipline, or
otherwise discriminate against him or her for engaging
in protected union and other concerted activities for
mutual aid or protection with respect to wages, hours.
and other terms and conditions of employment.
WE \Vll. NOI in any like or related manner interfere
with, restrain. or coerce employees in the exercise of
the rights which are guaranteed to them in Section 7 of
the Act.
W. i.l offer Claire Sylvan immediate and full re-
instatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges.
and make her whole for any loss of earnings suffered
by reason of her unlawful discharge.
SIANI)ARD MOTOR PR()I)t'( I (.
343