Steves Sash and Door, Inc.

National Labor Relations Board - Board Decisions

Aug 20, 1969

178 N.L.R.B. 154 (N.L.R.B. 1969)

154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Steves Sash and Door , Inc. and Vita Salinas. Case
23-CA-2975
August 20, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On November 19, 1968, Trial Examiner Fannie
M. Boyls issued her Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief. The Respondent
filed "limited" exceptions to the Trial Examiner's
Decision and a brief in support of its exceptions and
the remainder of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent
herewith and as modified below.
On January 6, 1968, Salinas, who admittedly was
"a very good worker for a long time", was recalled,
on the basis of her seniority, from layoff and
assigned the onerous task of climbing a ladder and
glazing the outside windows of the Crest Moulding
Building. Despite the weather conditions which were
then averaging 37-42 degrees, Salinas' recent bout
with the flu, and her willingness to pass up her place
on the seniority list to a junior employee in terms of
service, Respondent, over Salinas' protestations,
insisted that she report for work and perform the
scheduled job. After performing the job for 1 day,
Salinas became ill, and after notifying the
Respondent in accordance with the contract then in
effect, remained home to recuperate. Upon
reporting to the plant several days later, she was
informed that she had been discharged for violating
plant rule 1, refusing to obey the orders of a
supervisor.
Inasmuch as Salinas was not in violation of rule
1, or any other plant rule for that matter, the
alleged reason for her discharge becomes suspect.
Unlike the Trial Examiner, we cannot pass over this
inconsistency and attribute Salinas' discharge to a
matter of principle, i.e., that the performance of
maintenance work by production personnel was
solely within the Respondent's discretion. On the
contrary, we feel that both logic and the record as a
whole support a finding that Salinas' discharge was
attributable to discriminatory considerations, and
hence violative of Section 8(a)(3) and (1) of the Act.
In reaching the above conclusion, we note that
Salinas had been active on behalf of the Union since
its inception, first as a member of the original
organizing committee, and currently as its financial
secretary. Despite Respondent's demonstrated union
animus,' Salinas further evidenced her loyalty to the
Union in August 1966, following her discharge for
refusing to sign a damaging progress report relative
to her work without prior consultation with the
Union Coincident with the Respondent's action in
this regard, a number of Salinas' fellow employees
engaged in a walkout, which later developed into a
full-fledged strike. Although the Respondent
subsequently acknowledged that her discharge was a
mistake and that she was in fact a good employee,
Salinas declined the Respondent's offer of
immediate reinstatement, electing, instead, to
participate actively in the strike then in progress.
Upon the settlement of the strike in March 1967,
and Salinas' return to work, the Respondent moved
Salinas from job to job contrary to prior practice
and continually indicated dissatisfaction with her
work. The handling of Salinas' seniority status
following her return to work is a further indication
of the Respondent's disposition towards Salinas.
Thus, the record indicates, contrary to the finding of
the Trial Examiner, that the reinstatement of her
seniority to 1951 was not a magnanimous gesture on
the part of the Respondent, but rather was achieved
only after repeated requests by Salinas, the filing of
a grievance and a union protest
In view of the foregoing, and in the absence of
any justification whatsoever for the Respondent's
adamant refusal to allow Salinas to waive her
seniority standing and bypass immediate recall, we
conclude that the assigned reason for the discharge
of Salinas-failing to obey an order of asupervisor-
was a pretext, the real reason being her membership
in and activities on behalf of the Union.
Accordingly, we shall reverse the Trial Examiner
and order her immediate reinstatement with
backpay.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Union of Electrical, Radio and
Machine Workers, AFL-CIO, Local 1012, is a labor
organization within the meaning of Section 2(5) of
the Act.
'Sieves Sash and Door Company . 164 NLRB 76, enfd. in part and set
aside in part 401 F.2d 676 (C.A 5)
178 NLRB No. 27
STEVES SASH & DOOR 155
3. By discharging Vita Salinas on January 12,
1968, Respondent has violated Section 8(a)(3) and
(1) of the Act.
4. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that the Respondent engaged in
certain unfair labor practices, we shall order that it
cease and desist therefrom and take certain
affirmative action to effectuate the policies of the
Act. It will also be ordered that Respondent offer to
Vita Salinas immediate and full reinstatement to her
former or 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 the discrimination
against her by payment of a sum of money equal to
that which she would normally have earned as wages
from January 12, 1968, to the date of Respondent's
offer of reinstatement, less her net earnings during
said period, in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289, together with
interest thereon at the rate of 6 percent per annum,
as set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Steves Sash and Door, Inc., San Antonio, Texas, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees or otherwise
discriminating against them in regard to their hire,
tenure of employment, or any other term or
conditions of employment, because they engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
(b) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise
of their right to self-organization, to form, join, or
assist International Union of Electrical, Radio and
Machine Workers, AFL-CIO, Local 1012, or any
other labor organization, to bargain collectively
through representatives of their own choosing, or to
engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or
protection, or to refrain from any or all such
activities.
2. Take the following affirmative action to
effectuate the policies of the Act:
(a) Offer Vita Salinas immediate and full
reinstatement to her former or substantially
equivalent position without prejudice to her seniority
or other rights and privileges, and make her whole
for any loss of pay which she may have suffered as
a result of the discrimination practiced against her,
in the manner set forth in the Section of this
Decision entitled "The Remedy."
(b) Notify Vita Salinas if presently serving in the
Armed Forces of the United States of her right to
full reinstatement upon application in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and
copying, all payroll records, social security
payments records, timecards, personnel records and
reports, and all other records necessary to analyze
the amount of backpay due under the terms of this
Order.
(d) Post at its plant in San Antonio, Texas, copies
of the attached notice marked "Appendix."' Copies
of said notice, on forms provided by the Regional
Director for Region 23, shall, after being duly
signed by the Respondent's representative, be posted
by the 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 customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 23, in
writing, within 10 days from the date of this
Decision and Order, what steps have been taken to
comply herewith.
MEMBER BROWN , dissenting:
Collective bargaining here has resulted in a
contract which provides a grievance-arbitration
method of resolving the Salinas discharge
controversy, and responsible collective bargaining
calls for adherence to such settlement machinery.
However, instead of exhausting her contractual
remedy, the complainant elected to file unfair labor
practice charges. I believe it manifestly inconsistent
with the statutory policy of promoting industrial
peace and stability through collective-bargaining
process to sanction this kind of bypassing of
contractually agreed-upon methods for settling
disputes.' Therefore, I would require the
complainant to proceed under the contractual
arbitration machinery, and would not consider the
merits of her case at this time.
'In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order."
'See my separate opinions in Cloverleaf Division of Adams Dairy Co.,
147 NLRB 1410; Thor Power Company, 148 NLRB 1379; Fiasco Mfg.
Co.. 162 NLRB 611.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FANNIE M. BOYLS, Trial Examiner: This case was tried
before me at San Antonio, Texas, on June 4, 5, and 6,
1968. It was initiated by a charge and amended charge
filed respectively on March 12 and April 5, 1968, and a
complaint issued on April 9, 1968, alleging that
Respondent, Steves Sash and Door, Inc., had violated
Section 8(a)(1), (3), and (4) of the Act by its discharge of
the Charging Party, Mrs. Vita Salinas, on or about
January 12, 1968. At the commencement of the hearing,
Respondent filed a motion to dismiss the complaint on the
ground, inter alia , that the issues involved should be
handled through the grievance and arbitration provisions
of the collective-bargaining agreement Respondent had
with International Union of Electrical, Radio & Machine
Workers, AFL-CIO, Local No. 1012, herein called the
Union. This motion was denied, without prejudice to
Respondent's right to renew the motion later. Subsequent
to the hearing, the General Counsel and Respondent filed
briefs which have been carefully considered.
In its brief Respondent renewed its motion to dismiss.
As additional grounds, it stated (with a supporting
affidavit by its personnel manager attached to the brief)
that subsequent to the hearing the Union and Respondent
had agreed upon an impartial arbitrator who, sometime
after August 26, 1968, was to hear the issues arising out
of the discharge of Salinas. The General Counsel, in a
letter dated August 21, 1968, opposed the motion to
dismiss but did not controvert the factual statements made
by Respondent's personnel manager. Thereafter, by letter
dated October 29, 1968, the Trial Examiner requested that
the parties furnish a stipulation as to whether an
arbitration hearing involving the discharge of the
Charging Party had been held and requested a copy of the
arbitrator's decision if such a decision had been rendered.
No such stipulation has been furnished but counsel for the
General Counsel and for Respondent have furnished the
Trial Examiner with what purport to be and are accepted
as true copies of the correspondence between Respondent,
the Union and the arbitrator, James M. Gaines,
pertaining to the arbitration proceedings.'
Upon the entire record in this proceeding and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Texas corporation having its principal
office and place of business in San Antonio, Texas, where
it is engaged in the business of manufacturing doors, door
frames, and related products, and in the sale and
distribution of these products to retail and wholesale
outlets. During the 12-month period preceding the
issuance of the complaint, which is a representative
period, Respondent, in the course and conduct of its
business, purchased and had delivered to its San Antonio
location goods and materials valued in excess of $50,000,
'These papers have been placed in a folder labeled "Trial Examiner's
Exhibits" and are identified therein as follows- General Counsel's letter
dated August 21, 1968, "TX Exh . V% Trial Examiner ' s letter dated
October 29, 1968, "TX Exh. 2"; copy of Respondent ' s letter dated
November 7, 1968 to General Counsel , enclosing affidavit of W A Barrett
and attached Exhibits A through P, "TX Exh 3"; General Counsel's letter
dated November 7, 1968 to Trial Examiner and attachments which have
been marked Exhibits A through S, "TX Exh 4."
directly from points outside the State of Texas. Upon
these admitted facts, I find that Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act and that it will effecutate the policies of the Act
to assert jurisdiction herein
II. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical , Radio & Machine
Workers, AFL-CIO, Local 1012, which has a
collective -bargaining agreement with Respondent, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. RESPONDENT S MOTION TO DISMISS BECAUSE OF THE
EXISTENCE OF OTHER MEANS OF ADJUSTMENT OF THE
CONTROVERSY COVERED BY THE COMPLAINT
At the commencement of the hearing, Respondent filed
a motion requesting that the complaint in this case be
dismissed because of the existence of a grievance and
arbitration provision in its contract with the Union which
the Charging Party had invoked and which had proceeded
to a stage wherein the parties were then attempting to
agree upon the selection of an impartial arbitrator and
also because the Charging Party had filed a charge with
the Equal Employment Opportunities Commission,
alleging that her discharge was discriminatorily motivated
because of her sex. Respondent's motion was denied
without prejudice to its right later to renew the motion.
Subsequent to the close of the hearing, as already
indicated, Respondent did renew its motion. This motion
is now denied for the following reasons.
Although Section 10(a) of the Act provides that the
Board's statutory power to determine unfair labor practice
issues "shall not be affected by any other means of
adjustment or prevention that has been or may be
established by agreement, law or otherwise," the Board,
as a matter of policy, will defer to an arbitrator's decision
after a hearing on the merits of the issues, which include
those raised in the complaint before the Board, and where
certain standards spelled out in Spielberg Manufacturing
Company, 112 NLRB 1080, and Dubo Manufacturing
Corporation, 148 NLRB 1114, have been met. As shown
by the correspondence submitted by the parties, the
arbitrator agreed upon by the Respondent and the Union
has dismissed the arbitration proceedings without deciding
the merits of the discharge controversy and there is
accordingly no decision to which the criteria set forth by
the Board in Spielberg and Dubo can be applied. But even
if the arbitrator had decided the controversy on its merits,
I would nevertheless feel constrained for the reasons set
forth by Trial Examiner Robert L. Piper, and adopted by
the Board, in Tex-Tan Wellhausen Co., 159 NLRB 1605,
to decline to defer to the arbitrator's decision. This is
because I now realize, after reading the
collective-bargaining agreement between Respondent and,
the Union-which I had not read at the time I requested a
stipulation by the parties-that the arbitrator's authority,
under the contract is so narrowly restricted that he is not
free to make any decision based upon a preponderance of
the evidence but, rather, must accept Respondent's
decision if it is supported by substantial evidence. The
Spielberg principles may properly be applied only in the
normal arbitration case where the arbitrator is free to
decide the issues de novo.
STEVES SASH & DOOR 157
IV. THE ALLEGED DISCRIMINATORY DISCHARGE OF MRS.
VITA SALINAS
A. Background
Respondent owns and operates three separate divisions
or plants in San Antonio which are contiguous to each
other. These are the Star Plant (also referred to as the
Door Plant) which makes doors; the Specialty Plant (also
called the Crest Molding Plant), which makes wooden
moldings, doors and door frames; and the Aluminum
Plant, which makes glass sliding doors and aluminum
windows. The Aluminum Plant which is the one
principally involved in this proceeding, has a Cutting and
Machine Department, an Assembly Department and a
Finishing Department.
Mrs. Vita Salinas was hired by Respondent in 1951 in
the Assembly Department to assemble and glaze wooden
windows in the plant which later made aluminum windows
and which came to be known as the Aluminum Plant.
After working 2 or 3 years she left Respondent's employ
because of pregnancy but returned in 1959 to work again
in the Assembly Department of what had then become the
Aluminum Plant. Except during the period of a strike
between August 1966 and March 1967 and during periods
of a general layoff, she worked continuously in the
Assembly Department between 1959 and her discharge on
January 12, 1968.
Salinas was active in the Union's organizational
campaign in 1965. She was a member of the Union's
organizing committee, held committee meetings in her
home and distributed union leaflets. Following an election,
the Union was certified as the bargaining representative of
Respondent's employees on September 16, 1965.2
On August 3, 1966, Salinas was called into the office of
Personnel Manager W. A. Barrett, who read to her a
Progress Report which asserted, inter alia , that she
worked "very slowly" and had been absent or late too
often. She was asked to sign her name at the bottom of
the letter, acknowledging that she had read and
understood it. She objected to the statement that she
worked slowly and refused to sign the report without first
being given an opportunity to discuss the letter with a
union representative. As a result of her continued refusal
to sign, she was told to punch out. On the same morning
that Salinas punched out, 20 or 30 of the employees then
working in the Aluminum Plant walked out. A strike at
Respondent' s premises occurred on the following day.
On August 5, 1966, Salinas was called into the office of
Respondent's president, Marshall Sieves, and, in the
presence of Personnel Manager Barrett, Steves told
Salinas that Respondent had made a mistake and that she
could have her job back any time she wanted it. He told
her that she had been "a very good worker for a long
time." Salinas told him that before deciding what to do
she would like to talk the matter over with a union
representative She thereafter continued to participate in
the strike.
On the same day Salinas was offered her job back, the
Union had filed an unfair labor practice charge in Case
23-CA-2467 against Respondent alleging violations of
Section 8(a)(1), (3), (4), and (5) of the Act, including an
allegation that Salinas had been discriminatorily
discharged. A complaint was thereafter issued and Salinas
was subpenaed to appear as a witness at the scheduled
hearing. No hearing on the complaint was held, however,
for in connection with a settlement of the strike in March
1967, the unfair labor practice charges were withdrawn
and a collective-bargaining agreement was signed soon
thereafter.
Shortly after Salinas, along with the other strikers,
returned to work, and after the Union had filed a
grievance in her behalf, Respondent agreed that her
seniority should date from 1951 when she was originally
employed.
In May 1967 Salinas was elected financial secretary of
the Local and her name, along with the names of the
other union officers and the union stewards-about 10 or
12 names-were posted on the bulletin board at the plant.
Personnel Manager Barrett was aware of this list.'
B. Discharge of Vita Salinas on January 12, 1968
During the first period of her employment with
Respondent, between 1951 and about 1954, Salinas had
worked on the assembly of wooden sashed windows. This
had included the putting together of the wooden frames
and balances and the installation of the glass panes. The
latter operation, which is called glazing, consists of
placing putty in the frames, inserting the glass panes, then
pressing a beading material along the edges of the glass.
When Salinas returned to work for Respondent in 1959,
Respondent was manufacturing aluminum windows, which
for the most part were assembled in a different manner
than the wooden windows. Most of the time Salinas
worked on an assembly line, assembling and putting
together the various parts of the aluminum sash. She
would then pass the sash on to the employee next to her
who performed the glazing operation. Occasionally, when
Respondent was short of glaziers, Salinas would be called
upon to do the glazing. Also, at times she worked at a
table where special items were manufactured and she
assembled the entire window, performing the glazing
operation in addition to the other assembling. Personnel
Manager Barrett testified that Salinas was classified as an
"assembler, glaziers." There can be no question but that
she was qualified to do glazing work. So were a number
of other employees in the Assembly Department, including
some of the men.
A general layoff of the Aluminum Plant employees
occurred on December 1, 1967. The Door Plant and the
Crest Molding Plant were not affected by this layoff.
Between December 1 and about April 1968 no production
work other than the completion by Foremen Martinez and
Segovia of orders on hand in December, was performed.
During the shutdown, these foremen, with the assistance
of a driver, Willie Thompson, were engaged for the most
part in the moving of machinery and equipment from the
rear end of the plant toward the front end near the offices
and in cutting a door in one of the walls.
On January 4, Respondent's president, Marshall Steves,
informed Personnel Manager Barrett that employees in
the Crest Molding Plant building which adjoins the
Aluminum Plant building were complaining of being cold
because of the large number of broken windows in that
building. He requested Barrett to see that these windows
were replaced as soon as possible. Many of these
windows, according to employee Johnson, who worked in
the Crest Molding building, had been broken during the
strike which ended in March 1967. Barrett estimated that
they had been broken over a period of 6 months or a year
before President Steves requested their replacement and
some possibly as late as the day before they were
'Official notice is taken of Case 23-RC-2414, which shows that the 'There is no substantial dispute as to the facts set forth in the above
certification was issued on that date . subsection
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replaced He testified that the windows had been broken,
repaired, and broken again and that repairs had been
going on at various times
Salinas had greater seniority than any other employee
in the Aluminum Plant On January 4, Barrett sent her a
letter, which she received on Saturday, January 6,
notifying her that she was being recalled from layoff and
that she should report back to work as soon as possible
but not later than Tuesday, January 9 She reported about
8 am on January 9 to Barrett's office and he assigned
her to work under Foreman Martinez
Martinez informed Salinas that he was assigning her to
work outdoors, replacing the broken windows in the Crest
Molding building Salinas protested that she was not
dressed warmly enough for outdoors work and also told
Martinez that she had been sick with the flu only a few
days earlier ' She asked Martinez to call Barrett and
inquire whether there was not some indoors work
available for her After Martinez called Barrett and
related to him what Salinas had said, it was agreed that
she would be excused for the day and report for work on
the following day
According to Barrett, Salinas returned to his office that
morning and told him that she had been sick and did not
feel like working that day He told her that she could have
the day off and come back in the morning She replied
that she did not know whether she would feel like coming
in the next morning He replied that if she was sick she
should go to a doctor and bring back a doctor's certificate
to show that she was under treatment She indicated that
she did not want to go to a doctor Salinas testified that
she did not remember going back to Barrett's office on
January 9 after Martinez had told her that she could go
home and placed her conversation with him about getting
a doctor's certificate as occurring on January 11
Although the exact date when these conversations took
place is not important, I am inclined to believe that
Salinas had a conversation with Barrett in which she
mentioned a doctor's certificate on both occasions
After Salinas left the plant on January 9, she
telephoned the Union's international representative, Paul
Javior, and complained to him about the work to which
she had been assigned Javior thereupon called Barrett and
told him that Salinas had been sick and that the weather
was too cold for her to be working outside He also
expressed the view that the work assigned to her was not
appropriate for a woman to perform He contended,
moreover, that the work was maintenance work and
should not properly be assigned to production employees
Barrett told Javior that the work was not unusual, that
other regular employees had performed that type of work
for years and that there was no reason why Salinas should
not be required to do it He further told Javior that `since
he wanted to make an issue of it," Respondent would not
pass up Salinas on the seniority list and let someone else
do the work, as Javior requested him to do More
specifically, along this line, Barrett was questioned by
Respondent's counsel and replied as follows
Q Now, let's see, I think that in your earlier
testimony there was some testimony about this
conversation with Javior and something was said about
making an issue of it Please tell us what was said
about that
A Well, Mr Javior was insisting that it was
maintenance work, and therefore he was not going to
alinas testified that her siege with the flu had started about 2 1/2
weeks before that date
have the people doing the maintenance work And he
made it so strong that I had a feeling that he was
telling us that we couldn't do it, and that it wasn't our
right to do it, and that we wouldn't do it And I felt
like that he wanted to make an issue out of it, and I
felt that we were entitled to do it, and therefore if we
didn t operate the plant he would be operating it
TRIAL EXAMINER Is this what you told him or are
you just telling us now about what went on in your
mind')
THE WITNESS I'm telling you that in answer to his
question as to what I told Mr Javior I replied to Mr
Javior what I was thinking
The conversation ended with an understanding that the
matter would be discussed further
Later on the morning of January 9, Barrett was visited
by Union Representative Mendez who, like Javior,
objected to Respondent assigning to Salinas the job of
working on the outside of the Crest Molding building to
repair the broken windows Like Javior, he stated that the
work was maintenance work and should be performed by
maintenance people, that the work was not appropriate
for a woman and also that the weather was too cold for
outside work Barrett responded that this type of work
had always been done by production employees that
Respondent had no separate maintenance department
that Respondent's women employees did glazing work,
and that Respondent in the past had shutaown a
production line in order to have the employees glaze
windows' He also told Mendez that he did not think the
weather was too cold for outside work but that, in any
event, Salinas had been excused for the day He stated
very firmly that Salinas would be expected to perform the
work assigned to her 6
Both Union Representative Javior and Mendez, after
talking to Barrett, told Salinas that she would have to
perform the work assigned to her
Salinas reported for work on January 10 and spent the
entire day replacing the broken windows in the building
adjoining that in which she was employed The 26 pound,
'The record shows that a few days before the December I layoff a
female employee Rosalinda Aguero worked for 2 or 3 hours one day
replacing broken windows in the Aluminum Plant where she worked in the
Assembly Department She worked on a ladder on the outside of that
building with Bertha Salazar also employed in the Assembly Department
handing her panes of glass from inside the building and perhaps also from
the outside Around this time Aguero also stood on a table inside the
Aluminum Plant replacing broken windows with a male employee
assisting her The record shows moreover that 2 or 3 years before the
hearing Mary Perez another female employee of the Assembly
Department of the Aluminum Plant had stood outside the Aluminum Plant
building on top a putty can about 15 inches high and replaced the bottom
glass in 3 windows
There is no evidence however that any Aluminum Plant employee
(except Salinas on the occasion here in issue ) had ever been assigned to
replace broken window panes in the Crest Molding Plant building or in
any building other than the one in which the employee worked There is
evidence on the other hand that such work on the Crest Molding Plant
building had been done by Crest Molding personnel Thus according to
the credited testimony of Crest Molding employee Juan Johnson in 1966
Supervisor Parris had replaced 35 or 40 panes and in 1967 after the
termination of the strike Superintendent Richard Moreno with Johnson
assisting him by handing him panes of glass had replaced about 45
windows in one day
`The above findings based principally upon Barrett s testimony are
consistent with Mendez testimony I need not decided whether Barrett in
addition made certain other statements attributed to him by Mendez but
denied by Barrett-such as that Salinas was lazy and that Barrett had had
trouble with her whole family for even if said I do not believe that such
statements throw light upon Barrett s motivation in discharging Salinas
STEVES SASH & DOOR
8 foot, wooden ladder on which she worked, as well as
some panes of glass and other equipment, were carried
outside for her by Foremen Martinez and Segovia and
employee Willie Thompson They at first put the ladder
on the south side of the building but because the wind was
blowing rather strongly there, moved it to the east side
where it would not be quite so cold ' The windows were
too high above the ground for Salinas to reach without
standing on the ladder and even on the ladder she had
difficulty reaching broken glass in some of the top panes
Foreman Segovia told her that he would fix those
Segovia, working inside the Aluminum Plant, cut the glass
panes which she was to use and brought them outside He
and Martinez also from time to time throughout the day
came outside to see whether she needed anything
In performing her assigned task, it was necessary for
her to remove the broken glass and scrape the old putty
off with a putty knife and screwdriver then perform the
glazing operation During the morning she had difficulty
using the caulking gun which unlike the air pressure
automatic machine driven gun she used inside the plant
had to be operated manually to force the putty through
the gun As Foreman Martinez explained, putty has a
tendency to stick in cold weather and he attempted several
times to make the gun work properly before giving up and
buying a new one
Salinas also had difficulty with breakage of the old
strips of beading furnished her and it was necessary for
Segovia to get new beading before she could proceed with
the glazing Other than as already noted, no one assisted
Salinas at her work that day It was necessary for her to
climb up and down the ladder for panes of glass, the
caulking gun and whatever tools were necessary in
cleaning out the sashes and replacing the panes She
completed work on only nine windows that day
On the following day, after clocking in just prior to 8
a m , Salinas sought out Foreman Martinez and asked
him to call Barrett and inquire whether there was not
some inside work for her to do, stating that she would be
willing to do anything inside the plant but that it was too
cold to work outside She told him that she had some
cramps during the night and that she then had cramps in
her legs and was not feeling well After calling Barrett,
Martinez informed Salinas that there was no work for her
to do inside and that Respondent wanted the outside job
done Salinas insisted that it was too cold to work outside
and that if she got sick, Barrett would not pay her doctor
bills Martinez suggested that she talk to Barrett
Salinas then telephoned Union Representative Mendez
from a plant telephone and asked him to come to the
plant She waited for him outside until he arrived 25 or 30
minutes later Then both of them went to Barrett's office
'Official United States weather reports show that the temperature on
January 10 at the International Airport at San Antonio varied from a low
of 35 degrees to a high of 46 degrees Readings taken every 3 hours
showed that it was 35 degrees at 6 a in 37 degrees at 9 a in 42 degrees
at noon 4^, degrees at 3 p in and 40 degrees at 6 p in
'A photo of Union Representative Mendez taken by a friend of his who
accompanied him to the plant that morning shows Mendez as he
explained standing on the ground with an arm upraised and unable to
reach the bottom pane Mendez is 5 feet 7 inches tall Respondent
strenuously objected to the receipt in evidence of this and other photos
taken with Mendez Polaroid camera, depicting the building and Salinas at
work and has renewed his objection in its brief The poor quality of the
pictures Respondent contends requires their rejection The quality of the
photos however can only affect the weight if any to be given them not
their admissibhty The photos were properly identified and they were
correctly admitted into evidence
159
Upon entering Barrett's office, the first thing Mendez
asked was whether Barrett was pleased with Salinas' work
on the preceding day Barrett replied that the work which
she had done was acceptable but that she would have to
finish the job Mendez protested that it was too cold for a
woman to be working outside Salinas told Barrett that
she was "real sore" from climbing up and down the
ladder on the preceding day and that she was not feeling
too well She asked him if he was trying to inflict
punishment upon her He replied that he was not and
insisted that the remedy for sore muscles was to use them
and that moving around while working would keep her
from getting too cold He told her again, as he had on
January 9, that if she was ill, she should see a doctor and
bring him a doctor's certificate ' She protested that she
could not afford to go to a doctor but would be glad to do
so if Barrett would pay the doctor' s bill Barrett declined
to do this Mendez repeated his contention made on
January 9 that the work being assigned to Salinas was
maintenance work, not production work, and that it was
inappropriate for a woman to do He requested that
Salinas be permitted to take time off and come back to
work at some other time Barrett replied that Salinas was
fully capable of doing the work, that it was her turn to
work and that he would expect her to do the work
assigned to her He accused Salinas of making excuses for
not working Finally, he suggested that as the day
progressed it would warm up and offered `in a spirit of
trying to cooperate ' to postpone until 10 a m the time
when she would be required to start working '° He
declined a suggestion by Mendez that a definite
temperature be set as a gauge by which it might be
determined whether it was too cold for outdoor work
Mendez asked Barrett what his decision would be if the
weather did not improve Barrett replied, `Well, we will
see at 10 o'clock ""
Following this interview, Salinas reported to Foreman
Martinez that Barrett had excused her until 10 a m , that
she was going home and would be back by 10 Salinas
lived only about three blocks from the plant
Salinas testified that when she arrived home she was
feeling awful " About 9 15 a m she telephoned Barrett's
office for the purpose of telling him that she felt too ill to
come to work " The receptionist who answered the
telephone told Salinas that Barrett was not in his office
She called again shortly before 10 a m and received the
same message When she called a third time shortly after
10, the receptionist told her, ' Vita, it is no use Mr
Barrett doesn't want to talk to you '
'Although Respondent had no hard and fast rule with respect to
requiring a doctor s certificate Respondent had on a number of occasions
in the past required employees to present such certificates especially when
they were absent for more than one day or when Respondent had reason to
suspect that the employee s absence was not because of illness
"Official United States weather reports show that the temperature range
on that date was between 36 and 47 degrees Readings taken every 3 hours
showed that it was 36 degrees at 6 a in 37 degrees at 9 a in 40 degrees
at noon 45 degrees at 3 p in and 4a degrees at 6 p in
"The findings regarding the January II conference are based upon the
composite and for the most part mutually corroborative testimony of
Barrett Mendez Salinas and employee Hood To the extent that any of
their testimony may appear inconsistent I have credited the accounts
consistent with the above findings
"This call as Salinas testified was made pursuant to a company
requirement that when an employee is absent because of illness or
otherwise he must call Barrett s office before noon and let him know the
reason for his absence in order to avoid a reprimand This requirement is
set forth as company rule 27 in the collective bargaining agreement with
the Union
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Barrett returned to his office about 10 a in and found a
message or messages on his desk informing him that
Salinas had called, but he did not return her call He told
the receptionist that if Salinas called again, the
receptionist could tell her anything she wanted to but that
Barrett had said everything he had to say to Salinas
earlier that morning and was not going to talk to her
again
About 10 45 a m , Barrett instructed Foreman Martinez
to stop whatever he was then doing, take all the men he
had and complete the job Salinas had started as quickly
as he could Martinez, Foreman Segovia, Willie
Thompson, and a new male employee then commenced
the job and completed it about 5 30 p m that day, putting
in a total of 72 panes They used two ladders Martinez,
Segovia and Thompson did the glazing and the fourth
man cleaned the glass and old putty from the broken
windows
Salinas testified that after taking medication and
staying in bed most of the time on January 11, she felt
better on January 12 and reported for work Her timecard
was missing from the rack and when she asked Foreman
Martinez about it, he told her that Barrett had it in his
office She then sought out Barrett and asked him about
it He replied that she did not have any timecard, that she
had quit "automatically" when she did not show up for
work at 10 a m on the preceding day She denied that she
had quit and started explaining that she had tried to reach
him by telephone to tell him why she could not be there,
but he stated that he had nothing to talk to her about and
did not want to listen to her He told her that he had
written her a letter and that she would get her paycheck
by mail
Barrett had, indeed, written Salinas a letter on the
previous afternoon advising her that her employment had
been terminated because she had violated Company Rule
No 1-"Refusal to obey supervisor or group leader during
working time "
C Analysis and Conclusions
In arguing that Respondent's discharge of Salinas on
January 12 following her failure to report to work at 10
am on January 11, was discriminatorily motivated, the
General Counsel asks me to take into consideration
background evidence summarized supra which, he
contends, would warrant a finding of antiunion
motivation He also asks that I take official notice of the
Board's decision in Sieves Sash & Door Company 164
NLRB 76 (subsequently enforced in substantial part 401
F 2d 676 (C A 5)), in which it was held that Respondent
in 1965 unlawfully discharged two employees in
connection with a scheme by which it sought to dilute the
strength of the Union under the guise of filling so-called
"supervisory" posts which were not in fact supervisory,
which posts were offered with slight pay increases to union
adherents with the condition that they cease engaging in
union activities
The General Counsel suggests that Respondent's action
in discharging Salinas in August 1966 when she refused to
sign a statement acknowledging that she had read and
understood an adverse Progress Report without first
granting her request to consult a union representative
about the matter, was motivated by antiunion
considerations However, since there was no contention
that the adverse statements in the Progress Report
themselves were discriminatorily motivated, I am not
persuaded that Respondent 's insistence on her signing the
acknowledgement prior to consulting a union agent was
unlawfully motivated " And since the unfair labor practice
charges, upon which a complaint was issued in early 1967,
were settled and withdrawn in connection with a
settlement of the strike in March 1967, no inference may
properly be drawn that Respondent engaged in any of the
unfair labor practices alleged in that complaint
Let us now consider Respondent's postsettlement
conduct Despite the fact that charges on behalf of Salinas
had been filed during the strike and that Salinas had been
subpenaed to testify at the scheduled hearing on the unfair
labor practice complaint,1° Respondent subsequent to the
strike voluntarily gave in to her request that her seniority
be dated back to her original employment in 1951 after
she filed a grievance with the Union in regard to the
matter-even though there was a 5-year interlude prior to
1959 when she was not working for Respondent This
action by Respondent would tend to indicate that it held
no grudge against her by reason of what had gone on
before
Furthermore, following the termination of the strike,
Respondent on April 12, 1967, entered into a 2-year
contract with the Union and the record does not show
that during the interval between the termination of the
strike in March 1967 and Salinas' recall from the
economic layoff on January 9, 1968, Respondent engaged
in any antiunion conduct
The General Counsel's theory appears to be that
because of Respondent's differences with Salinas which
precipitated the strike, the charge filed in her behalf
during the strike, her election as the Union's financial
secretary in May 1967 and her continued activity on
behalf of the Union is that capacity, Respondent was
biding its time to find a pretext for discharging her The
General Counsel asks me to infer in unlawful intent from
the following The fact that Salinas was iecalled after the
layoff, not to perform the production work which she had
been performing throughout her long history of
employment with Respondent but, instead, to do outside
maintenance work which, he contends, is not normally
assigned to women employees, the fact that Salinas had
never before been assigned to do outside maintenance
work, the fact that Respondent refused the Union's
request that she be permitted to waive her seniority rights
under the contract to permit Respondent to recall
someone else for the maintenance work and, finally, the
fact that Respondent, in seeking to discipline Salinas for
failing to show up for work at 10 am on January 11,
meted out the severe penalty of discharge for allegedly
violating company rule 1, "Refusal to obey supervisor or
group leader during working time," rather than the
penalty of a written warning for the first offense for
violating company rule 27, "Failure to advise employer of
illness or other emergency preventing reporting for work
prior to noon on any day the employee is supposed to
report unless circumstances beyond the control of the
employee prevents such notification ""
I am not convinced, however, that Respondent meant
to discriminate against Salinas when Barrett sent her the
letter recalling her to work She was at the top of the
"Cf Block Southland Sportswear Inc 170 NLRB No 101 Texaco
Inc Houston Producing Division 168 NLRB No 49 N L R B v
Camco Inc 369 F 2d 125 129 (C A 5)
"The record is silent as to whether Respondent knew about the subpena
"The General Counsel does not mention rule 28 Absent for personal
reasons without permission of the supervisor which permission shall not be
unreasonably withheld' calling for a written warning for the first offense
This would also arguably seem to be appropriate
SIEVES SASH & DOOR
seniority list At least two other women employees who,
like Salinas, worked in the Assembly Department had
theretofore done some outdoor maintenance work,
replacing broken windows in the Aluminum Plant
building Barrett could not have known on January 1,
when he wrote the letter recalling Salinas that the weather
would be uncomfortably cold on January 9, when she
reported at the plant, and I am not persuaded that he
would necessarily have known that she would object to the
work assigned her as being inappropriate for a woman to
do The key to Barrett's conduct on and after January 9,
including his discharge of Salinas on January 12, is, I
believe, his reaction to Union Representative Javior's chief
objections to the assignment, namely, that it was not
proper to assign maintenance work to production
employees and that the outside maintenance work was, in
any event, inappropriate for a woman to perform As
Barrett testified, he refused Javior's request that Salinas
be passed over on the seniority list, and told Javior so,
because he believed Javior was attempting to make an
issue over whether Respondent had the right to assign
production workers to maintenance work and whether
such maintenance work was appropriate for a woman to
perform Barrett was unwilling to yield on these issues, he
explained, because Respondent did not have any separate
maintenance department or group of employees hired for
maintenance work and had always called upon his own
personnel, including women, to do this kind of work
Indeed, Barrett expressed the belief that women were even
better than men in work such as glazing, which requires
the use of then hands, and testified that Salinas, in
particular, was `one of the best glaziers there " Having
taken a firm position with Javior, and later with Union
Representative Mendez and Salinas, that the maintenance
work in question could properly be assigned to production
workers without regard to their sex, and that Salinas
would be required to perform her assignment, he could
not thereafter back down without losing face Barrett,
161
moreover, may well have considered the explanations
given by Salinas for not wanting to do the work-the cold
weather and her soreness and cramps from having worked
8 hours on January 10 at work to which she was not
accustomed - as excuses to avoid completing the
assignment and as attempts to frustrate Barrett in his
determination to require her to do it
To be sure, it is difficult to understand why Barrett
decided that it was Rule No 1 of the Union contract
(calling for discharge) rather than rule 27 or 28 (calling
only for a written reprimand) which Salinas had breached
in failing to report for work at 10 a in pursuant to the
understanding reached earlier on January 11 It seems
clear to me that Rule No 1 cannot reasonably be
interpreted as applying to Salinas' failure to report for
work at the appointed time under the circumstances herein
described and that if she breached any company rule, it
was either Rule 27 or 28 Nevertheless, I think it more
likely that Barrett's application of the wrong company
rule was due to the anger and frustration which he felt
because of being forced to assign other personnel to
complete the assignment than to any design on his part to
retaliate against Salinas because of her prominence in the
Union or because she had many months before caused
unfair labor practice charges to be filed against
Respondent
On the basis of the foregoing findings of fact, and the
entire record in this case, it is concluded that a
preponderance of the evidence does not support the
allegations of the complaint that Respondent discharged
Salinas in violation of Section 8(a)(3), (4), or (1) of the
Act There is accordingly issued the following
RECOMMENDED ORDER
It is hereby ordered that the complaint herein be, and it
hereby is, dismissed