Superior Container, Inc.

National Labor Relations Board - Board Decisions

Sep 25, 1985

276 N.L.R.B. 532 (N.L.R.B. 1985)

532
,r
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Superior Container , Inc. and -National Production
Workers Union Local 707 of Cleveland . Cases
8-CA-17024, 8-CA-17308, and. 8-CA-17449
25 September 1985
'DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN -
On 20 July 1984 Administrative Law Judge
Norman Zankel issued the attached decision. The
General Counsel filed exceptions and a supporting
brief,I and the Respondent filed a reply brief.
The National Labor Relations Board has delegat-
ed its authority in 'this proceeding to a three-
member panel. -
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the. judge's rulings,,fndings,2 and
conclusions3 and to adopt the recommended
Order.
i The General Counsel'also filed a motion to consolidate the present
case with another case involving the same parties In Superior Container,
276 NLRB 521 (1985), the case which the General Counsel requested be
consolidated with the present one, the Board denied the General Coun-
sel's motion However, to the extent that case and the instant proceeding
involve related issues, we take official notice of the other decision
2 In adopting the judge's conclusion that the discharge of employee
Mauldin did not violate Sec 8(a)(3) and (1) of the Act, Chairman Dotson
and Member Johansen do not rely on his findings that Mauldin's job was
critical and that the Respondent - would be unlikely to risk implicating
itself in further unfair labor practice, proceedings at a time when an ad-
ministrative law judge's decision in a previous unfair labor practice pro-
ceeding against the Respondent was pending before the Board -
3 In adopting the judge's' dismissal of the 8 (a)(5) and ( 1) allegations of
the complaint , Chairman' Dotson and Member Johansen note and addi-
tionally rely on the, decision in Superior Container, 276 NLRB 521, in
which they dismissed those portions of an earlier, complaint alleging vio-
lations of Sec 8 (a)(5) and (1) based on their determination there that the
Union's majority status had not been established As noted by the-judge,
no evidence of the Union's majority status was presented at the hearing
in the present case' i
Contrary to her colleagues , Member Dennis found that the Union's
majority status was established in Superior Container, 276 NLRB 521,. that
the Respondent was obligated to bargain with the Union , and that the
Respondent violated Sec 8 (a)(5) by unilaterally changing overtime policy
and paying of bonuses As the unilateral changes allegations 'in the
present case are continuations of the 8(a)(5) violations she found in 276
'NLRB'521 . she believes it unnecessary to repeat those findings here
Contrary to the majority , Member Dennis would find the Respondent
unlawfully discharged employee Siegfried Mauldin in September 1983 In
276 NLRB 521, the Board unanimously found that Mauldin was dis-
charged in violation of Sec 8 (a)(3) in August 1982 The Respondent rein-
stated him in August 1983 pursuant to a 10 (1) injunction In the instant
case, the Respondent failed to show that it would have discharged Maul-
din (only 2 weeks after reinstating him) absent his union activity
The Respondent was again forced to reinstate Mauldin and discharged
him a third time in March 1984 for his failure to comply with the Re-
spondent 's mandatory overtime policy Because the overtime policy was
instituted in violation of Sec 8 (a)(5), Member Dennis would order Maul-
din reinstated with backpay Taracorp Inc, 273 NLRB 221 ( 1984) ("when
the reason for the discharge is an unfair labor practice , a make-whole
remedy is appropriate since the 'loss of employment stems directly from
an unfair labor practice)
ORDER
The recommended Order of the adrriinistraiive
law judge is adopted and the complaint is dis-
missed.
Mark F. Neubecker, Esq., of Cleveland, Ohio, for the
General Counsel.
William F Snyder, Esq. and Glenn D. Waggoner, Esq.
(Marshman, Snyder & Corrigan), of Cleveland, Ohio,
for the Employer.
John L. Oliverio, of Wickliffe, Ohio, for the Union.
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge. The
'above cases were heard by me on May 17, 1984, at
Cleveland, Ohio.
The original charge in Case 8-CA-17024 was filed by
the Union on September 13, 1983; in Case 8-CA-17308
on January 20, 1984; and in Case 8-CA-17449, on March
26, 1984. A consolidated amended complaint issued on
April 10, 1984. In substance, the complaint alleges that
the Employer discriminated -against its employee, Sieg-
fried-Mauldin, in violation of Section 8(a)(3) and (1) of
the National Labor Relations Act by terminating him on
September 9, 1983, and again on March 14, 1984. Also,
the Employer is alleged to have refused to bargain with
the Union, in violation of Section 8(a)(5) and ('1) of the
Act, by instituting certain unilateral changes in working
conditions of employees represented by the Union. Spe-
cifically, the alleged unlawful acts were identified as (a)
a change in the Employer's progressive discipline system
for absenteeism; (b) a change in the method of comput-
ing Christmas bonuses, which allegedly resulted 'in - re-
duced Christmas bonuses for five named employees; (c)
imposition of a mandatory overtime requirement, which
allegedly resulted in Mauldin's second discharge and sus-
pension of another named employee; and (d) establish-
ment,of a progressive discipline system.
On the entire record,- including my observation of the
demeanor of the witnesses, i and after due consideration
of the briefs -filed by -the General Counsel and the Em-
ployer, I make the following
FINDINGS OF FACT '
I: JURISDICTION
The Employer, an Ohio corporation, has, at all . materi-
al times ; maintained a plant at Warrensville Heights,
Ohio, where it has been engaged in the manufacture of
paper products. Annually, the Employer shipped prod-
ucts in excess of $50,000 in value from this location di-
rectly to points outside of Ohio and, during the 12
months immediately preceding September 13, sold and
shipped products, goods, and materials exceeding $50,000
in value from the plant to Imperial Clevite, Inc., Engine
i All witnesses were sequestered throughout the hearing.
276 NLRB No. 56
SUPERIOR CONTAINER
Parts Division (located within Ohio) which itself is in
commerce on other than indirect basis.
The Employer admitted it is, and has been, at all mate-
rial times an employer engaged in commerce within the
meaning of the Act. On this admission, and the above-
stated facts, I so find.
The parties agree, the record reflects, and I find that
the Union is a labor organization within the meaning of
the Act.
IT. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Union President John Oliverio testified that he began
organizing the Employer 's employees in the following
unit which the Employer's answer admits is appropriate
for collective bargaining:
All production and maintenance employees em-
ployed by the Employer at its Warrensville Heights,
Ohio facility, excluding office clerical employees
and professional employees , guards,' and supervisors
as defined in the Act, and any other employees.
On the date of the instant hearing, Oliverio claimed he
was "still . . . trying to organize` these people pursuant
to a bargaining order."
The bargaining order to which Oliverio referred was
issued by Administrative Law Judge Karl H. Buschmann
on September 30, 1983, in Cases 8-CA-16086, 8-CA-
16309, 8-CA-16309-2, and 8-CA-16526. At the time of
the instant hearing , Judge Buschmann 's decision was
pending before the National Labor Relations Board on
exceptions . It remains so pending.
As to Mauldin, Judge Buschmann concluded Mauldin
had been discriminatorily terminated on August 13, 1982,
because of his support of the Union. Judge Buschmann
ordered that Mauldin be reinstated ' and made whole.
Prior to the issuance of Judge Buschmann's decision;
specifically, on August 22, 1983, the Employer reinstated
Mauldin. He worked until September 9, 1983, when the
Employer again discharged him. (This discharge will be
considered in sec . D, below.)
On November 28, 1983 , Mauldin was once again rein-
stated . He worked until March 14 , 1984, when he was
once again terminated . (This termination will be consid-
ered in sec . D, below.)
B. Procedure
The General Counsel asked me to take "judicial
notice" of Judge Buschmann 's decision (JD-433-83, Sep-
tember 30, 1983). The record clearly shows that request
was made for two purposes: (1) as background evidence
on the instant 8(a)(3) allegations ; and (2) as substantive
proof of certain prima facie elements of , the instant
8(a)(5) allegations (i.e., the Union's majority status).
I denied the General Counsel 's request , yet officially
noted the existence of the prior litigated cases, that
Judge Buschmann issued a decision , and that those mat-
ters were pending on exceptions.
533
In her posthearing brief, the General Counsel asserts
the propriety of taking notice of Judge Buschmann's de-
cision is an issue which needs resolution. That brief,
however, contains no argument regarding this matter.
In effect the General Counsel requests me to consider
Judge Buschmann's findings and conclusions dispositive
of some of the elements of proof herein. My posthearing
research has uncovered no authority for taking judicial,
or official, notice of the Board's unfair labor practice
proceedings, for the stated purposes, in situations other
than after the Board itself has rendered its decision. One
case was uncovered which involves circumstances I find
analogous to the instant matter. Thus, in Hospitality
Motor Inn, 250 NLRB 1189, 1193, and fn. 7 (1980), the
Board left undisturbed an administrative law judge's re-
jection of the General Counsel's request to take official
notice of an administrative law judge's decision. In Hos-
pitality, the request was made prior to the issuance of the
Board's decision in the case decided by the administra-
tive law judge. Thus, at the stage that the request for of-
ficial notice was made, the findings, conclusions, and
order of the administrative law judge were in recommen-
dation form. The Board had not yet issued a final deci-
sion. -
Arguably, Hospitality is distinguishable from the case
at bar. In Hospitality the purpose of taking official notice
of the prior unfair labor practice proceedings was to
form the foundation for an expanded remedy. Herein, as
indicated, the General Counsel's request effectively is in-
tended to supply substantive evidence of the alleged re-
fusal to bargain, and more. Nonetheless, the requests for
official notice both in Hospitality and herein seek to
attach finality to the earlier findings of an administrative
law judge. Such a result can appropriately be accorded
only to Board decisions or those of the Federal courts.
Insofar as the instant case, and Hospitality, would require
binding application of earlier administrative law judge
conclusions and findings, the cases are clearly analogous.
As in Hospitality, I simply cannot here accord the prece-
dential significance to Judge Buschmann 's decision, as
sought-by the General Counsel. However, as noted, I
have taken note of his decision only to the extent appro-
priate in the present circumstances. Also see A merican
Thread Co., 270 NLRB 526 fn. 2 (1984)). Accordingly, I
reaffirm my earlier ruling . In doing so , it is emphasized
that I conclude I have officially noticed the existence
both of the prior unfair labor practice proceedings in-
volving the instant Employer and Judge Buschmann's
decision to the extent legitimately possible.
C. The Refusal to Bargain,
It is well established that an employer engages in an
unlawful refusal to bargain when , without first consult-
ing the union which duly represents its employees in an
appropriate bargaining unit, it institutes changes regard-
ing matters which are mandatory subjects of bargaining.
NLRB v. Katz, 369 U.S. 736 (1962). Herein, it is undis-
puted that the subjects of progressive discipline system
for absenteeism , Christmas bonuses (in the circumstances
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of this case),2 mandatory overtime, and a progressive
system for failure to work overtime' are mandatory bar-
gaining subjects.
The General Counsel's prima facie case supporting the
allegations that unilateral changes in employee terms and
conditions of mandatory bargaining subjects consist of a
showing that:
(1) The subjects are indeed mandatory. ,
(2) The Union is the majority collective-bargaining
representative of the employees in an appropriate unit.
(Warehouse Groceries Management, 254 NLRB 252; 253-
255 and fn. 22 (1981).)
(3) The Union requested bargaining.
(4) The changes were made without first consulting
the Union.
Each of the above elements must be proved as a pre-
requisite to imposing the duty to bargain contemplated in
NLRB v. Katz. On the record before me. (excluding
Judge Buschmann's findings relative to majority status), I
conclude the record is bare of evidence demonstrating
the existence of two of'the four necessary ingredients of
a complete prima facie case. .
As previously observed , it is undisputed that the mat-
ters in which the alleged unilateral changes were made
are mandatory bargaining subjects., Also, Oliverio testi-
fied that no employer representative offered to bargain
with the Union over any of those `subjects and, that the
Employer had not notified the Union of any changes it
intended to make in any of those subjects . Thus, . there is
evidence of prima facie elements ( 1) and (4), above.
However , I can find no evidence to support elements
(2) and (3). The Employer's answer denies both that the
Union was the representative of the employees in the ad-
mittedly appropriate bargaining unit and that it had been
confronted with a request to bargain . Thus , both- the
Union 's majority status and proof of a request to bargain
were issues raised for litigation.
In his direct testimony, as a witness on behalf of the
General Counsel , Oliverio " was asked no questions con-
cerning either the Union 's majority status or its efforts to
request collective bargaining . Instead , during colloquy
between the ' General Counsel and- me during arguments
on the Employer 's oral motion to dismiss after the Gen-
eral Counsel rested his case ,3 the' General, Counsel con-
ceded the record ' before the contains no evidence-which
establishes a duty on the Employer to bargain with the
'Union (Tr. 107- 108). The General Counsel claimed reli-
ance on Judge Buschmann 's 8(a)(5 ) findings and conclu-
sions as proof of demand ' and majority. '
On the state of the instant record , I must conclude that
those critical elements of a prima facie refusal to bargain
by making unilateral changes in" working conditions are
missing . Absent such proof, I find the burden of proving
the alleged 8(a)(5) and '(1) allegations has not been sus-
tained , and I shall recommend dismissal of all such alle-
gations for that reason.'
2 No issue exists herein which makes the rule of Benchmark Industries,
270 NLRB 22 (1984), applicable
If the above analysis is deemed imprudent by any re-
viewing authority, I nonetheless would recommend dis-
missal of the refusal-to-bargain allegations because I con-
clude the record, in its totality, does not demonstrate any
of the alleged unilateral conduct, actually occurred. Each
will be discussed below.4
1. Absentee-discipline- policy
Complaint paragraphs 12 and 13 allege that the Em-
ployer changed its progressive discipline system for ab-
senteeism Documentary, evidence (G.C. Exhs. 18 and
19) shows that the Employer disciplined employees for
absenteeism as early as 1973.
Lazaro Carabello, the Employer's production manager
for 15 years before January 1, 1984, when he became
general manager, whom I credit, testified without contra-
diction that in 1973 employee J. Perez was supended for
3 days for a second absentee offense and in 1979 was sus-
pended for 1 week for a third such offense. Carabello
could, not recall what punishment was imposed for first
such 'offenses, but claimed either a suspension or oral
warning was given, depending on the reason an employ-
ee presented for failing "to call in to report an absence.
Carabello asserted that fourth offenses resulted in dis-
charge.
Employee David Ormston substantially corroborated
Carabello's description of the Employer's policy of disci-
pline for absenteeism. (Certain variations in. their testimo-
ny will be considered below.)
The General Counsel adduced documentary evidence
(G.C. Exh. ' 17) of the Employer's absenteeism discipline
policy. That document, a notice to all employees, reflects
that first-time offenses-would be punished _by a 3-day sus-
pension; second offenses by a 1-week suspension; and
third-time violations made employees "subject to termi-
nation." It is the 'posting of that document in July or
August 1983 which is the basis of the General Counsel's
claim of unilateral action.
Ormston testified he first saw this notice in mid-July
1983. Mauldin claimed he had not seen that "particular
notice" before August 22, 1983..Carabello testified simi-
lar notices have been posted as early as 1973 and that its
terms were implemented since then, subject (as indicated
above) to the substitution of an oral warning for first-
time offenses if an employee offered a reasonable expla-
nation.
One final item of evidence was introduced on the ab-
sentee-discipline issue. The document (G.C. Exh. 3) is a
written warning for breach of the absentee rules. It was
imposed on employee Jose Feliciano on January 21,
1984. Feliciano testified he • had been suspended for his
first offense. Carabello claimed that the first offense
merely. resulted in a warning; that of January 21, 1984
(G.C. Exh. 3). Because the documentary evidence is con-
sistent with Carabello's testimony, and not that of Feli-
ciano,.I credit Carabello's version. Moreover, records of
Feliciano's subsequent similar offenses also are more con-
' I denied the-Employer' s motion at the hearing The motion ' was re- 4 Not every bit of evidence or argument of counsel is discussed How-
newed after the Employer rested I deferred ruling on the second dismis- ever, each has been considered Omitted material has been deemed . irrele-
sal motion until issuance of my written decision vent , superfluous , or of little probative value.
SUPERIOR CONTAINER
sistent with Carabello's general description of how the
absentee policy was implemented (see, G.C. Exhs. 4 and
5).
Although the evidence relating to the absentee disci-
pline system-is somewhat confusing, I conclude the fol-
lowing scenario emerges
(1) The Employer maintained a progressive discipline
system for. absenteeism since 1973.
(2) The written system called for progression of disci-
pline ranging from a 3-day suspension, to a I-week sus-
pension, to a possible termination. .
(3) The Employer exercised flexibility in implementa-
tion of the written policy. Sometimes ' the Employer
varied the offense for which each degree of punishment
was imposed, depending on the reason .offered by an of-
fending employee Instead of imposing a suspension for
the first offense, a warning was given. In such cases, the
terms of the written policy were enforced for subsequent
offenses. This flexibility is demonstrated by Carabello's
credited testimony which is substantially corroborated by
General, Counsel witnesses It is also supported by the
documentary evidence which shows J. Perez was sus-
pended for 3 days for a second offense and 1 week for a
third offense.- Further support for this proposition is
found in_ the discipline reflected in the written warning
of January 21, 1984, to a different employee. Though the
warning is. written, rather than oral, it nonetheless is a
warning, and not a suspension.
The fact that both Ormston and Mauldin claimed not
to have seen the notice advising of the discipline until
July and August 1983 does not diminish the reliability of
Carabello's otherwise supported testimony. The - tran-
script and my observation of the witnesses reflect that
both Ormston.and Mauldin responded relative to the spe-
cific document (G.C. Exh. 17) placed before them, when
testifying when they first saw the policy. Thus, Ormston
was asked when he first saw "that" notice and answered,
"That was posted . . _ (around mid-July 1983)." Mauldin
responded he first saw that "particular notice" on
August 22, 1983. Such responses are not necessarily in-
,consistent with Carabello's claim (not previously report-
ed) that several notices describing the absentee discipline
policy had been prepared and posted over the years.
Moreover, Ormston testified the policy was apparently
discussed at a general employee meeting before 1979.
In sum , I find that the absentee-discipline policy, de-
scribed in the document (G.C Exh. 17) which the Gen-
eral Counsel claims comprised a change in that policy,
actually existed long before that document was posted,
and even beyond (into at least January 1984), and was
implemented in substantial accord, with the document's
terms. Accordingly, whether or not the Union was the
majority collective-bargaining representative at the time
the General Counsel's Exhibit 17 was posted, I am not
persuaded that the Employer, in fact,' unilaterally altered
the absentee-discipline policy as alleged.
2. Christmas bonuses
Complaint paragraphs 14 and 15 allege the Employer
unilaterally changed its method for computing Christmas
bonuses about December 9, 1983.
535
In the, proceeding before Judge Buschmann, the Gen-
eral Counsel litigated an allegation that four employees
received Christmas bonuses, in 1982 which were not
based on their longevity. At the hearing before me, the
General Counsel asserted the instant allegation is intend-
ed to claim that, in 1983, the Employer "again" varied
from its prior practice of basing Christmas bonuses on
longevity. The General Counsel further acknowledged
that the instant allegation relates to the alleged change in
bonus computation which had been already litigated
before; and decided by, Judge Buschmann. On this asser-
tion, alone, I would be justified in recommending dismis-
sal of this allegation. If, indeed, Judge Buschmann's con-
clusion that the Employer did engage in an unlawful uni-
lateral change is sustained , the matter before me is appro-
priately an issue to be disposed of in the compliance
phase of Judge Buschmann's proceeding.
Yet, there is another reason this allegation before me
should be dismissed. This record is, devoid of evidence
that the Employer, in 1983, 'gave any bonuses in any
manner different from that which existed before the
Union's advent. Mauldin testified he was told, when first
hired, in, July 1981, that Christmas bonuses were comput-
ed according to longevity. Ormston testified he, was also
so informed in 1980, 1981, and 1982. Further, Ormston
(during cross-examination) expressly agreed there had
been no change in the basis of awarding Christmas bo-
nuses in 1983. This testimony, coupled with the General
Counsel's acknowledgement that the instant allegation is
not intended to plead that the Employer had actually im-
plemented a change in bonus computation in 1983, con-
vinces me this record contains insufficient evidence to
sustain the allegations in paragraphs 14 and- 15 of the
complaint. These allegations must be dismissed.
3. Bonus reductions
Complaint paragraph 16 alleges that five named em-
ployees suffered reductions in their 1983 Christmas bo-
nuses because of the alleged unilateral changes in compu-
tation (the subject of complaint pars 14 and 15). Three
of these employees, De Benedictus, Maxwell, and Orm-
ston, were the subject of similar allegations in the pro-
ceeding before Judge Buschmann. In the instant hearing,
Maxwell testified her Christmas bonus increased from $50
in 1982 to $250 in 1983; and Ormston testified his bonus
increased from $50 in 1982 to $75 in 1983. Employee
Reese .(named in complaint par. 16) testified he received
no bonus in either year. Mauldin (the fifth employee
named in par . 16) was not asked to relate the sums of
bonus he received in either year. Documentary evidence
(G.C. Exh. 7) reflects Mauldin received no bonus in 1983
and does not contain his name on the 1983 bonus list.
Those documents show De Benedictus received a $50
bonus both in 1982 and 1983. Finally, the documents
confirm the testimony of Maxwell and Ormston as to the
amounts, they received. As for Reese , the documents
confirm his' testimony that he received no bonus in 1983,
but his name does not appear the 1982 bonus list.
The combination of testimony . and documentary evi-
dence shows that there ,was actually no reduction and
bonus received by any of the employees alleged to have
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suffered a reduced bonus in 1983. This record contains no
evidence to explain why Reese and De Benedictus re-
ceived no increased bonus in 1983. - `
The evidence literally does not support the contention,
contained ' in paragraph 16, that' any of the named em-
ployees suffered reduction in their 1983 Christmas bo-
nuses.
The General Counsel asserts, in posthearing brief, that
the reason De Benedictus and Reese received no increase
and the disparity in the increases awarded Maxwell and
'Ormston is aftributable to the'application of factors other
than longevity, found by Judge Buschmann to constitute
an unlawful unilateral change. That assertion must fail
for several reasons . First , it is speculative , because abso-
lutely no testimonial evidence was adduced before'me to
reflect the'basis used' to compute the bonuses for either
employee. Second, there is evidence, the seniority list
(G.C. Exh. 6), which does-show that Maxwell possessed
almost 4 years' greater longevity than Ormston. This evi-
dence more supports -the Employer's contention that it
did not vary from its practice in granting the bonuses ac-
cording to longevity. Finally, the General Counsel's po-
sition is predicated on evidence placed before, and' con-
sidered by, Judge Buschmann, but not before me: Unless
-and until the Board sustains Judge Buschmann 's findings
on the bonus issue , I- am unable to utilize them as the
basis for my findings.
On all the foregoing, I find there is no merit to'the al-
legations in complaint paragraph 16.
4. Mandatory overtime -
Iii complaint paragraphs 17 and 18, the Employer is al-
leged, on September 26, 1983,` to-have imposed a manda-
tory overtime requirement and established a progressive
discipline system for employees' failure to work such
overtime.
The parties litigated -the imposition of a mandatory
overtime system, purportedly initiated in September 1982
before Judge Buschmann who - found ' the Employer's
action constituted an unlawful unilateral change. ' '
Ormston testified, before me, that-overtime was made
mandatory in September 1982. ' He also testified he re-
fused overtime in February 1983 and was- then suspend-
ed. (That precise suspension was litigated in full before
Judge Buschmann.) - -
No direct evidence was presented herein to show- that
the Employer` altered its overtime policy in any way
during September 1983. The documentary evidence rela-
tive to overtime (G.C. Exh. 16) shows the Employer
posted overtime notices between September 13, 1982,
and April 23, 1984. Apparently, the'allegation of an un-
lawful imposition of mandatory overtime in September
1983 is but an ' extension of the issue litigated before, and
decided by, Judge -Buschmann. Absent independent evi-
dence that the Employer changed its overtime policy in
September,1983, from that in effect in September 1982,
no basis exists in this record to sustain the 'allegation of
complaint paragraph 17A. Because of this, ' my findings
-and conclusions 6n-this-issue would be unaffected if the
=Board sustains Judge Buschmann 's findings and conclu-
sions. " • -
The record contains the following evidence with re-
spect to the allegation (complaint par. 17B) that the Em-
ployer unilaterally established a progressive discipline
system applicable to employees who refused or failed to
work overtime. 'Ormston testified he was not aware of
the existence of any policy of progressive discipline for
failure-to work overtime, and affirmatively asserted no
such system had been posted in 1982 or 1983. He further
testified he did not work overtime on March 12,- 1984,
but was not disciplined. I conclude this omission, tends- to
negate the existence of the alleged progressive discipline
policy. -
Feliciano (as discussed above in connection with the
absentee-discipline policy ) had received a series of sus-
pensions in early 1984. While the General Counsel as-
serts those disciplinary actions prove the existence- of a
progressive discipline relative to failure to work over-
time, I am uhpersuaded this is so.' The records of Feli-
ciano's discipline (G.C. Exhs. 3, 4; and 5) do show he
was disciplined because of a failure to work on a number
of Saturdays. The record reflects that hours worked on a
Saturday are overtime ' work, and _the overtime postings
(G.C. Exh. 16) -show that overtime had been scheduled
on each of the dates (January 12 and 28 and March 10,
1984) for-which Feliciano had been'disciplined (compare
G.C. Exh. 16 'to G.C. Exhs. '3, 4, and 5)-Concededly,
there is some basis to conclude 'that the discipline im-
posed on Feliciano was due to a failure to -work over-
time.
.
However, I'am more impressed by the evidence which
negates such a conclusion. Thus, none of the disciplinary
records explicitly indicates the reason for the discipline
was a failure to work overtime . Instead , each such
record relates that Feliciano was disciplined because he
"did'not show up-did not call" (G.C. Exh. 3); "this is
the second week in a row that . . . that [Feliciano]
did not come in or call [G C. Exh. 4]"; and "scheduled
'to work five hours Saturday, 7 a m. to' 12 noon. Called at
10:15. Said he was ill ." (G.C Exh. 5.),Each of these dis-
ciplinary records was signed by Plant Superintendent
John Proctor. The testimony of Carabello (reported' in
the discussion of the absentee-discipline issue) was that
these disciplines resulted from' application of the absen-
tee-discipline policy. Carabello presented that testimony
during examination by the General Counsel under Rule
611(c) Federal Rules of Civil Procedure' No effort was
made to refute Carabello's asaseition (Tr. 30-31). Proc-
tor did not testify. In general , I find Carabello.to be a
forthright and spontaneous witness. I credit his .testimony
that the disciplinary action against Feliciano was related
to the absentee, rather than overtime, policy, especially
where, as herein, the record contains other evidence
'which reflects that if a disciplinary system regarding
overtime existed, the employees were not aware of it.
That evidence ` consists of Ormston 's denial (reported
above) that such a system had not been posted, and -the
testimony of employees Maxwell and Reese . Maxwell
testified she had not been disciplined for not working
overtime because she presented a medical excuse. I find
this testimony consistent with Carabello's when testifying
regarding the flexibility he exercised in implementing the
SUPERIOR CONTAINER " 537
absentee,discipline •.policy. Reese testified he missed two
or three scheduled overtime days (dates unspecified), but
received a written warning only after the last failure to
work. I find the latitude accorded Reese by the Employ-
er belies the existence of a disciplinary system applicable
to failures to work overtime.
On the foregoing, I conclude there is insufficient evi-
dence in this record to sustain any of the allegations in
complaint paragraphs 17A and 17B.
5. Discipline for failure to work overtime
Complaint paragraph 19 alleges that Feliciano was sus-
pended and Mauldin's March 14, 1984 termination was
due to implementation of the Employer's mandatory
overtime and overtime-discipline policies. Also, that
paragraph alleges that other unidentified employees were
disciplined by those policies' application.
No extensive discussion of this allegation is required
for resolution. As to Feliciano, I have concluded above,
that his January 1984 suspensions were for. failure to
comply with the absentee-discipline policy.
Inasmuch as I shall conclude,' in section D, below, that
Mauldin's March 14, 1984 termination was due to insub-
ordination, no merit can attach to the claim expressed in
complaint paragraph 19. This conclusion would not be
affected even if Judge Buschmann's findings and conclu-
sions are sustained by the Board. - '
Even if it were ultimately determined that Mauldin's
August 13, 1982 termination was discriminatory, as
Judge Buschmann found, neither' Judge Buschmann's
(nor my) findings regarding the allegations of discrimina-
tory treatment of Mauldin would be affected because
each such allegation stands independent of the other.
Simply stated, I shall find below that Mauldin's Septem-
ber 9, 1983, and March 14, 1984 termination are not re-
lated to his earlier protected - activity found by Judge
Buschmann. -
Finally, no evidence whatever was offered to show
that any other specific employee had been disciplined in
any way because of a failure to work overtime, nor was
there any effort to amend the complaint to identify the
names of any'such other employee.
On all the foregoing, I find there is no merit to the, al-
legations in paragraph 19 of the complaint.
D. The Discriinination5
1. Mauldin 's September 9, 1983 termination
a. The facts -
As earlier indicated , Mauldin was reinstated on August
22, 1983 , from his absence due to the August 13, 1982
termination which Judge Buschmann later found to have
been discriminatory , in violation of Section 8(a)(3).
Mauldin met with Carabello on August 18, 1983. Cara-
bello offered Mauldin his old job . Mauldin accepted, and
volunteered he would also accept assignment to other
b The facts described in this section are a composite of the testimony
presented by Mauldin and Carabello, together with relevant documentary
evidence _ • i
positions. Carabello then reminded Mauldin of the Em-
ployer's rule on'alisenteeism and tardiness. Carabello re-
viewed Mauldin's absences during his past period of em-
ployment. That included one suspension for absenteeism.
Mauldin told Carabello he would have no such probelm
in the future and said Mauldin knew he had to call in
should he have to be absent from work This conversa-
tion was memorialized in a memorandum (G.C. Exh. 2)
which Carabello and Mauldin signed.. In this' memo,
Mauldin , in relevant part, acknowledged they spoke of
his tardiness and absentee' record and that it would not
be a further problem.6 "
Between August 22 and September 8, 1983, Mauldin
had not been disciplined for absence or tardiness. How-
ever, - on September' 8, a workday, "Mauldin did not
report for work. At the hearing, Mauldrn asserted he had
=felt ill the preceding day; that his illness caused him dis-
comfort that night, and- he did not get' to sleep until
about 3 a.m, September 8. According to Mauldin, that
situation caused him to, sleep beyond' his customary
,waking time of 6:10 a.m. on workdays Thtis, on Septem-
ber 8,'-Mauldin awoke about 9:15 a.m., though his report-
. • -ing-to-work time is 7 a in.
Mauldin testified that, on awakening on September 8,
he telephoned a friend for a ride to work. He then imme-
diately called Carabello, who commented the call was
late. Mauldin explained he overslept, but said he would
report to work within 10 or 15 minutes.
Mauldin waited about one-half hour after speaking
with Carabello, but Mauldin's driver had not arrived to
transport him. About 10:30 or 11 a.m., Mauldin reached
his driver at the driver's workplace. Mauldin's friend
said he could not leave his job to take Mauldin to work.
- Mauldin immediately called Carabello who remarked
Mauldin should. have been at work -an hour before.
Maulding explained his transportation did not- arrive.
Carabello reminded him they spoke on August 18 about
Mauldin's punctuality and warned Mauldin that a future
occurrence would result in Mauldin's termination. Maul-
din said he understood that, but he did not have money
to take a bus to work.? Mauldin then asked Carabello
whether he should report to work on the following day
Carabello responded ' in the negative and said he would
first have ,to confer with his (Carabello's) superior and
would call Mauldin that night at Mauldin's mother's
house. Mauldintestified he waited for Carabello's tele-
phone call, but-none came. I' cannot credit this assertion
because the conversation"between Mauldin and Carabello
held on September 9 (to be reported' below) does, not at
all reflect that Mauldin protested "that he had waited at
his mother's house for Carabello's call.,-
The next day, September 9, Mauldin reported for
work at the 7 a.m. starting time. His timecard was miss-
ing from the rack. He conferred with Carabello about
6 Although Mauldin claimed he was told he was considered a new em-
ployee and that statement was not orally disputed by Carabello, I do not
accept Mauldin's oral testimony in that regard because the Employer's
records after that date bear his original 1981 starting date
7 The record reflects the bus fare was $1 and required three buses, and'
that direct driving time from Mauldin's residence by private automobile
is-about ' 25 minutes
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8 30 a.m. Mauldin testified that Carabello told him Cara-
bello had telephoned Mauldin's mother's house to tell
him not to report to work on September 9; that he was
fired. Carabello complained Mauldin's absence required
rescheduling of work and. changes in machine set up.
Three employees (including Mauldin) regularly worked
as a team on the Employer's solitary Flexo machine op-
eration. Carabello, again, explained the importance of reg-
ular attendance. 'Further Carabello said he was upset
with Mauldin because Carabello needed him to, work.
Mauldin protested he had been ill. Carabello said,
"[S]orry, you're a good worker, but I have to, let you
go." Mauldin continued arguing, asking whether the
only acceptable excuse was production of a_ medical
statement. 'Carabello simply responded that he; could do
nothing except let Mauldin go. -
When testifying, Carabello acknowledged that (in Sep-
tember 1983) he told the Board agent investigating the
September 9 termination that Mauldin had been dis-
charged because he failed to, apologize to Carabello.
Mauldin testified that during a conversation with Cara-
bello (to be further described below) before he was rein-
stated in November 1983, Carabello told him his Septem-
ber discharge was due ' to absenteeism and because he did
not care about his job. "because . . . [he] ._•. . didn't even
apologize to" Carabello. -
Finally, Carabello ' testified he told the Board agent
that another employee, Nick Bongalis, had also been dis-
charged because of tardiness and absenteeism. This last
testimony was confirmed by a record of discharge (G.C.
Exh. 14). However, Carabello did not have Bongalis'
records at the hearing and could not recall whether or
not Bongalis had been earlier ,suspended. Apparently,
Mauldin applied for' unemployment compensation bene-
fits. In its statement on that claim (G.C. Exh. 9) the Em-
ployer expressed the following reason for separation:
"Employee terminated for failure to 'show up for ,work
on scheduled workday without just` cause and inappro-
priate attitude concerning same "
b. Analysis
The General Counsel must prove certain elements to
establish a prima facie case of discrimination. Those ele-
ments are that (a)-the affected employee had engaged in
activity protected by the Act,. (b) the employer had
knowledge of that activity, (c) the adverse personnel
action imposed on the employee was motivated by an-
tiunion animus , and (d) the .discipline had the effect of
encouraging or discouraging membership in a labor orga-
nization . The General Counsel has the burden.of proving
his case by a preponderance of the evidence...Gonic Mfg.
Co., 141 NLRB 201, 209 (1963). -
My analysis, of the September 9,'1983 (and March 14,
1984) terminations will proceed on two bases. First,
solely in light of the record before me and , second on
the assumption-that Judge Bushmann 's findings, herein
relevant, are sustained.
The instant record, I conclude, does not contain the
requisite element of a prima facie case of unlawful dis-
crimination . Granted, Oliverio's testimony that he had
conducted organizational activity among employees, in-
.cluding Mauldin, is some evidence that employees in
general were engaged in protected activity. However,
this-record contains absolutely no evidence, direct or cir-
cumstantial, of Mauldin's participation in that' activity
Under bight Line, 251 NLRB 1083 (1980), the General
Counsel bears the burden of making a prima facie show-
ing of discrimination before the burden shifts to a re-
spondent to prove that it would have taken the alleged
unlawful disciplinary' action even in the absence of an
employee's protected activity In the instant case, the
Employer rested-its case without adducing any case-in-
chief in its defense. In the absence of a prima facie case
as to 'Mauldin's September 9 discharge, the Wright Line
burden'did not shift to the Employer.
On the foregoing, I conclude this record, alone, does
not support the ,allegation that Mauldin's September 9
discharge was discriminatory:
Assuming Judge Buschmann's decision had been (or is,
at -soine future time) Isustained by the Board, it becomes
appropriate for me to utilize the Board's findings and
conclusions. Doing so casts the' prima facie case in a dif-
ferent light. A so-called Wright Line analysis is required.
Such analysis follows.
Judge Buschmann found that each element of a prima
facie 8(a)(3) case -was proved. Judge Buschmann specifi-
cally found that Mauldin had. been discriminatorily ter-
minated on August 13, 1982, and recommended an ap-
propriate remedy. I agree with the General Counsel that
the results of the earlier case, after Board affirmance,
forms 'the basis for me to conclude herein that a prima
facie case exists which shows Mauldin was discriminator-
ily discharged on September 9, 1983 Thus, the burden
shifts to the Employer to demonstrate that the discrimi-
natory motivation underlying Mauldin's August 1982 dis-
charge was 'not a motivating factor in the September 9,
1,983 termination.
The record as a whole persuades me the evidence sus-
tains the Employer's burden. The following factors, in
their totality, are impressive indicators that the Septem-
ber 9 termination was not motivated by unlawful consid-
erations:
(1) Before reinstating Mauldin on August 22, Carabello
emphasized the need for regular attendance and for Maul-
din to correct his former practice in. that regard. During
that conversation, Mauldin orally, and in writing, literal-
ly committed himself to an understanding of the rules
and a promise his attendance would not be a problem in
the future. That acknowledgment, I believe, provided the
Employer with grounds to expect compliance with
Mauldin 's commitments. - _ -
(2) Mauldin's job was apparently critical to the Employ-
er's operations. There was only' one Flexo operation.
Mauldin's absence necessitated new setups and work re-
scheduling. I conclude, from this, the Employer had
grounds for considering Mauldin's breach of the attend-
ance rules a serious dereliction.
(3),Mauldin was given an opportunity to permit Carabello
some flexibility in application of the absentee-disciplinary
policy. When Mauldin first notified Carabello he had
overslept,' Carabello asked for a commitment as to when
Mauldin would report to work. Mauldin agreed he
SUPERIOR CONTAINER
would be at work within 15 minutes. Yet, he waited
almost 2 hours before informing Carabello his transporta-
tion was unavailable. Even then (11 a.m.) there is no evi-
dence Mauldin volunteered to make further efforts to
come to work. Instead, he asked whether he should
report on the following day. Concededly, by that time
such an offer may have been rejected because of the
hour. Nonetheless,_ I view Mauldin's actions evince a
rather cavalier approach to the absentee policy, to which
he committed himself only 3 weeks before. Such an atti-
tude readily provided a basis for the most serious of re-
sponses by the Employer. .
In spite of this, the discharge was not precipitous. Car-
abello consulted with his superiors as -to the Employer's
course of action. It is not probable, in the face of the
then still-pending decision of Judge Buschmann , that the
Employer would have risked implicating itself in further
unfair labor practice proceedings unless the Employer
believed it had justifiable grounds for the discipline im-
posed. Arguably, it might. be said that the possibility
Judge Buschmann would have concluded, as he later
did, that the Employer had earlier discriminated against
Mauldin actually subjected the Employer to no greater
risk than already existed. Despite this, I find the fore-
bearance exercised by Carabello who directly received
Mauldin's August 18 commitment, and promise of adher-
ence, to the absentee rules reflects the Employer's con-
cern that it wished to avoid further entanglement in
unfair labor practices.
(4) The Employer maintained consistency with respect to
the reasons given for the September 9 discharge. When Car-
abello received Mauldin's first telephone call on Septem-
ber 8, he told Mauldin, the call was late. This was an ob-
vious reference to the absentee rule which required em-
ployees to call in when they needed to be absent. During
their second telephone conversation that date, Carabello
referred Mauldin to their August. 18 discussion regarding
punctuality. Mauldin's record of discharge (G.C. Exh.
14) indicates the reason for discharge was because he
"called at 9:50 on 9/8/83, overslept, said that he will be
in shortly, called back after lunch, would not be in, no
transportation." (Emphasis added.)"
The Employer's statement of reason for separation re-
flects it was for breach of the attendance rules and inap-
propriate attitude "concerning same." During Mauldin's
prehire conference in November 1983, Carabello told
him the September 9 discharge was due to his absence
and because he did not care about his job.
The foregoing clearly demonstrates the Employer, at
no time, altered its stated reasons for the September 9
discharge. The single possible basis for suggesting the
Employer was shifting reasons flows from the General
Counsel's question of Carabello as to whether or not
Carabello told the investigating agent that the discharge
was due to Mauldin's failure to apologize. This point is
emphasized in the General Counsel's posthearing argu-
e The-italicized words vary from Mauldin's testimony which reflects
the second call was made before lunch I need not resolve the conflict.
For analysis purposes only, I accept Mauldin 's account If the documen-
tary evidence were to be more reflective of the facts, then the Employer
would have been even more justified in its response than I find herein
539
ments. Candidly, - Carabello 'admitted that reason was
provided-the investigator. However, Mauldin's account
of the November conversation with Carabello makes it
clear the' General Counsel's question and Carabello's re-
sponse were a distortion of the facts. The full content of
the November conversation =between Carabello and
Mauldin shows that Carabello's reference to an apology
merely 'was an expression of the Employer's belief that
Mauldin's actions revealed a casual approach to his work
commitments. ;
(5) There is no evidence which tends to show. that Maul-
din's 1982 union activity was, at all, a consideration in the
September 9, 1983 discharge. There is. not a scintilla of
evidence that anything Carabello said, or the Employer
documented in writing, referred 'directly or impliedly to
Mauldin's union activity. Only•the issue of adherence to
the attendance rules and' Mauldin's actions relative to
them. were the central and pervasive theme in all conver-
sations . No document in evidence contains anything by
which a connection can be made between the September
9, 1983- discharge and Mauldin's or, for that matter,
anyone else's union activity..
(6) There is no probative evidence of disparate treatment
against Mauldin. Two' possible matters litigated, if cred-
ited, would support 'a contention that discharge was so
harsh a,punishment as to comprise evidence of disparate
treatment.
First, is the evidence relating to employee Bongalis.
The General Counsel made an'apparent effort to show
Bongalis ' discharge was imposed for some absentee of-
fense after the. first. If that were so, then Bongalis' dis-
charge would have been consistent. with the discipline
contained in' the absentee-discipline policy. However,
when Carabello testified he did not have Bongalis'
records at the hearing, and had no independent recollec-
tion of the circumstances of Bongalis' discharge, that
matter was not further explored,or pursued. On the state
of this record, any matters regarding Bongalis have no
or little probative value. _
Second,. the September 9 discharge, imposed pursuant
to.the absentee-discipline policy, superficially was for a
first offense, inasmuch as Mauldin received no discipline
whatever between his August 22 reinstatement date and
the September 9 discharge. If true, it would be expected
that the discipline under consideration should have been
of lesser degree (i.e., a warning, pursuant to the flexible
policy or a suspension). Such a view would result from
an out-of-context' evaluation of all the attendant circum-
stances . In assessing whether the September 9 discharge,
for a seemingly first offense, demonstrates disparity and
overly harsh application of the absentee policy, I have
considered the following factors: (a) Mauldin was not
considered a "new" employee. His termination record
(G.C. Exh. 14) bears his original 'seniority date. Likewise,
that same date appears as the date of hire on the form
furnished by the `Employer to the unemployment com-
pensation authorities (G.C. Exh. 9). According Mauldin
his' seniority, and reinstating him on August 22 to his
former position, indicates the' Employer reinstated him
with all rights, benefits, and privileges he previously en-
joyed, though not explicitly appearing' to be the case in
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this record. It is reasonable, however, to presume that
was the case,: especially since such a presumption is con-
sistent with the fact (in evidence) that.his August 22 re-
instatement -was offered pursuant to an.order (see G.C.
Exh. 8) for the Employer to do so.9
Mauldin's acceptance of these benefits 'reasonably sub-
jected him, also, to Whatever disadavantages -and risks
might have been, inherent :in- returning to employment.
The record shows he had previously been suspended at
some time during his prior employment. (That suspension
does not appear as an issue in Judge Buschmann's deci-
sion.) There is- no evidence of the length of that suspen-
sion or of the number of prior offenses for which it had
been imposed. Since proof of disparate treatment is the
General Counsel=s burden, it was incumbent on him to
adduce the missing, evidence, if it could have supported
such an assertion. The failure to produce such evidence,
considered in the light of the operation of the absentee-
discipline policy, negates any contention herein that the
September 8 absence was merely a -first offense Maul-
din's August 18 prereinstatement interview with Cara-
bello contains an implicit warning that he would be dis-
ciplined for violation of his commitment to adhere to the
attendance rules. The,emphasis • of that conference was
on attendance .and explicit reference was . made to his
former record ;in that regard. Assuming, arguendo, it is
concluded that the Employer literally strayed from its
normal implementation of the attendance rules by impos-
ing a discharge-on Mauldin on September 9, in. my view,
that fact only presents suspicious circumstances herein.
Such circumstances, alone, are -not an adequate ,basis on
which to conclude, Mauldin_ was treated in a disparate
manner' oi% that the Employer committed unfair labor
practices. When considered_ in the totality of the record,
. the ' most that can be concluded is that the Employer
overreacted, was unreasonable; or even arbitrary. It is
well established that an employer may discharge an em-
ployee for good reason, bad 'reason, _ or .no reason at all.
Budd Mfg.'Co. v. NLRB, 138 F.2d 86, 90 (3d Cir. 1943),
cert. denied 321 U.S. 773 (3d Cir. 1943); Associated Press
Y. NLRB, 301 U.S. 103 (1937); Bonn Packing Co., 208
NLRB 280 (1974). A bad reason, when justified- (as I find
herein, because it is undisputed that Mauldin violated the
attendance rules on September 8), is not a substitute for
hard proof of disparate .treatment. No evidence appears
herein of a 'nexus between the degree 'of discipline im-
posed and Mauldin's earlier discriminatory discharge of
1OQ9 - .
2. Mauldin 's March 14 , 1984 termination
(a) The facts
On November 28, 1983, Mauldin was again -reinstated
to his job. This reinstatement was pursuant to a settle-
ment agreement,1 ° rather than by an order, as was the
case with the August 1983 return to work. - '
The record does not reflect the ordering authority However, the
General Counsel attached a court order on this subject to his postheanng
brief
io Whether or not the March 14, 1984 discharge 'compnsed a breach of
that agreement is not . an issue before me ' -
' :Before Mauldin returned to work on November 28, he
had a prework interview with Carabello. It was during
this conference that Carabello discussed the reasons for
Mauldin's September 9 discharge, as reported above.
There is no evidence to show what else was discussed
during that -conversation.
Mauldin returned' to work on November 28, 1983, and
continued to be employed until being discharged on
March 14, 1984: During this period of employment,
Mauldin apparently was again in violation of the attend-
ance rules. Documentary evidence (G.C. Exhs. 10, 11,
and 12) reflects Mauldin was absent or tardy nine times
between December 1, ' 1983, and February 29, 1984.
However, no discipline whatsoever was imposed on him
for any of these infractions.
During'at least March 1984, Mauldin had 'a part-time
job, at which he occasionally worked after the •conclu-
sion of his work shift (3:30 p.m.) at the instant Employer.
On March 5, 1984,'Mauldin was told he was scheduled
to work overtime on that day, and each remaining day
that week. Mauldin told his supervisor he could not not
work overtime' that day or the next because of his part-
time job.
In fact, Mauldin did not work overtime' on' March 5
and 6. Later that week (on Thursday) Mauldin advised
Plant Manager Proctor that he would need "a couple of
days off" t during the week beginning March 12. Proc-
tor said he was planning overtime work for the week of
March 12. Mauldin testified, without contradiction, -that
Proctor said he would "let . . [Mauldin] .. . know"
regarding the request for time off. On the day of this
conversation Mauldin worked overtime No overtime
had been scheduled for Friday; March 9. On the follow-
ing Monday, March 12, Mauldin's supervisor told him he
was scheduled-to work overtime that day, and each re-
maining day that week. Mauldin said he had asked Proc-
tor for days off, and March 12 was one of them. The su-
pervisor asked whether Mauldin could work overtime
each other day that week. Mauldin replied he needed 2
days off from overtime work.
Within a short time, Proctor approached Mauldin.
They spoke. Mauldin reminded Proctor of the request to
be relieved of overtime. Proctor recalled Mauldin had
spoken to him about the matter the preceding week.
Proctor granted Mauldin's request, but only, for March
12. Proctor told Mauldin he was expected to work over-
time for the remainder of that week.
On March 13; Mauldin advised both his"supervisor and
Proctor that he could work overtime that day. However,
Mauldin told' Proctor -he needed to be 'excused from
overtime on March 14. Proctor was advised by Mauldin
that he had a chance to make extra money on March 14
at his part-time job.' Proctor denied Mauldin's request.
Proctor said Mauldin's full-time job with the instant Em-
ployer "comes first " Proctor warned, "If you leave
(without 'working overtime on' March 14), it's your job."
On March 14, Mauldin worked his regular shift. Maul-
din testified that, some time during that shift, he told
i i The record reflects the quoted words relate to overtime , and were
not intended to request time off from regular working hours
SUPERIOR CONTAINER
Proctor he was "supposed" to leave (at shift's end) that
day. Proctor said that it would be "the end" of Maul-
din's job if he left at the end of the shift.
At 3:30, Mauldin punched out. He spoke to Proctor
and asked, "Do you want me to come in tommorow?"
Proctor answered, "If you leave, no." Mauldin left the.,
plant.
It is undisputed Mauldin was • discharged effective
March 14, 1984. As previously indicated, the discharge
record reflects the reason for discharge as "did not want
to work scheduled overtime" (G.C. Exh. 13).
(b) Analysis
First, considering only the record before me, no ex-
haustive analysis is required to conclude that the evi-
dence does not support the allegation that Mauldin's
March 14, 1984 discharge was discriminatory in violation
of Section 8(a)(3).
No evidence of Mauldin's union activity was adduced.
Likewise there is no independent evidence of animus.
The week before his discharge, and also on March 12,
Mauldin did not work overtime, was excused, and had
not been disciplined in any way
Assuming, arguendo, that I am incorrect in not apply-
ing the motivational findings of Judge Buschmann, I con-
clude this record cannot justify or support the extension
of the motivational evidence in Judge Buschmann's case
to how Mauldin was treated on March 14. This is so be-
cause I find he was treated precisely as others who are
not alleged as discriminatees herein. I cannot accept the
General Counsel's argument that the evidence reflects
Mauldin was treated in a disparate manner. That argu-
ment is based on the evidence which shows that Feli-
ciano was absent twice without discipline; Reese was
absent three times but received only one written warn-
ing; and Maxwell did not perform overtime for 2 days
during the week of March 12. Similarly, Mauldin missed
overtime work on March 5 or 6 and was not disciplined;
and was excused from the overtime work on March 12.
In this context, I conclude the Employer applied its rules
in a substantially uniform fashion.
It was not until Mauldin virtually challenged the Em-
ployer's managerial authority that he was discharge.
(The "challenge" conclusion will be explicated below.)
In the absence of independent evidence before me of
union activity, unlawful motivation, and disparate treat-
ment, I find the instant record does not support a conclu-
sion that Mauldin's March 14 discharge was discrimina-
tory.
Analyzing the March 14 discharge in light of Judge
Buschmann's findings and conclusions presents a similar
result. Judge Buschmann found institution of mandatory
overtime to be an unfair labor practice. The General
Counsel herein asserts Mauldin's March 14 discharge was
for failure to work overtime If true, it would follow that
the discharge was imposed as part of enforcement of an
unlawful rule and, hence, would be unlawful. I am mind-
ful that Mauldin's discharge record (G.C. Exh. 13) con-
nects this discharge to a refusal of scheduled overtime.
Nonetheless, I find that notation is not diapositive. There
are factors, considered in their totality, which militate
541
against a conclusion, that the. March _13 discharge was
caused by an attempt to enforce the mandatory overtime
rule. Those factors are:
(1) Mauldin did not work on March 5 and 6, though
scheduled. No evidence of oral or written warnings,.rep-
rimands, remonstrations, or any other type of discipline
appears for his failure to work those days.
(2) The Employer acted reasonably and apparently
without malice in excusing Mauldin from overtime work
on March 12. That excuse was consistent with the
manner in which Feliciano, Reese, and Maxwell were
treated.
(3) The Employer's focus, in requiring the March 14
overtime, was upon loyalty to a full-time job. Thus,
Proctor asserted to Mauldin that he believed the full-
time job came first. There is no evidence whatever that
when Proctor made that assertion he referred either to
the existence of the mandatory overtime policy or made
any statements regarding the Union or Mauldin's inter-
ests or activity in it . All the evidence before me shows
that the Employer made reasonable allowances designed
to satisfy the employees' personal needs whenever possi-
ble. Thus, the evidence in this record falls short of dem-
onstrating the Employer was concerned with strict com-
pliance with the mandatory overtime rule
(4) No action was taken against Mauldin until the Em-
ployer's authority was challenged. This challenged is ex-
emplified by two obviously calculated actions taken by
Mauldin. First, Mauldin took it upon himself to punch
out, though he had been admonished in what appears to
be a nonthreatening or coercive way about the priority
he ought to attach to his full-time job. Second, it was not
until he had already defied Proctor by punching out that
he asked whether he should return to work the next day.
These events, in total, I conclude represent an effort by
Mauldin to virtually dare Proctor to discipline him.
Upon all the foregoing, and assuming the Board sus-
tains Judge Buschmann's findings regarding earlier dis-
criminatory conduct, I nonetheless find that the record
does not support the further conclusion that Mauldin's
March 14, 1984 discharge was discriminatorily motivat-
ed. Accordingly, I shall recommend dismissal of that al-
legation. '
On all the above, I find the credible and probative evi-
dence shows there is no merit to any allegation of unlaw-
ful conduct.
CONCLUSIONS OF LAW
1. The Employer is an employer engaged in commerce
within the meaning of Section 2(6) and ,(7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The record does not support any of the allegations
that the Employer violated any section of the National
Labor Relations Act as contained in the complaint.
542 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On these-findings of fact and conclusions of law, and
on the. entire record, I issue the following recommend-
ed12
ORDER
The complaint is dismissed in its entirety.13
Board and all objections to them shall be deemed waived for all pur-
12 If no exceptions are filed as provided by Sec 102.46 of the Board's poses.
Rules and Regulations, the findings, conclusions, and recommended 13 This, recommendation constitutes my ruling on the Employer's
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the second motion to dismiss the complaint allegations.