Union Camp Corp.

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 411 (N.L.R.B. 1984)

UNION CAMP CORP.
Union Camp Corporation and Doris E. Parker. Case
5-CA- 13973
30 April 1984
ORDER GRANTING MOTION AND
DISMISSING COMPLAINT
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 30 December 1982 Administrative Law
Judge Karl H. Buschmann issued the attached deci-
sion in the above-entitled proceeding in which he
found that the Respondent violated Section
8(a)(1) of the Act by discharging the Charging
Party. The Respondent filed exceptions and a sup-
porting brief.
On 5 April 1984 counsel for the General Counsel
filed a Motion to Dismiss Complaint in light of the
Board's decision in Meyers Industries, 268 NLRB
493 (1984). Neither the Respondent nor the Charg-
ing Party has filed a response to the motion.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The.Board has considered the matter and, in the
absence of any opposition thereto, the Board grants
the motion.
ORDER
It is ordered that the complaint issued by the Re-
gional Director 25 June 1982 is dismissed.
DECISION
KARl H. BUSCHMANN, Administrative Law Judge.
This case arose upon a charge filed by Doris E. Parker
(Parker) on December 31, 1981. The complaint which
issued on June 25, 1982, alleges in substance that the Re-
spondent, Union Camp Corporation, located in Franklin,
Virginia, violated Section 8(a)(l) of the National Labor
Relations Act (the Act) when it discharged Parker, a
part-time employee, for filing an unemployment compen-
sation claim in which she claimed to be available and
searching for employment.
Respondent, in its answer filed July 2, 1982, denied the
commission of any unfair labor practice. Respondent also
alleged in its answer that Parker was removed from
spare status because the conditions of eligibility for un-
employment compensation conflicted with company re-
quirements for employees in spare status positions.
A hearing was held on October 13, 1982, in Norfolk,
Virginia. Both parties filed briefs on November 29, 1982.
Based on the entire record in this case, I make the fol-
lowing
FINDINGS OF FACT
The Respondent, Union Camp Corporation in Frank-
lin, Virginia, manufactures and sells paper. The manufac-
turing operation consists of processing logs and wood
270 NLRB No. 77
chips into pulp, and then converting the pulp to paper.
The paper is sold to customers in rolls or in sheets. The
Bleach Division of the Company is responsible for the
manufacture of paper. There is also a Building Products
Division and a Woodland Division. Approximately 1800
persons are employed in the Bleach Division and about
1200 are in hourly jobs.
Respondent's plant operates 24 hours a day, 7 days a
week, with four shifts. Therefore, in addition to regular
full-time employees, Respondent employs "part-time
spare employees" as chip samplers and paper testers.
These part-time paper testers and chip samplers worked
both on a scheduled and an "on call" basis. Spare testers
were scheduled to work to fill in for anticipated absences
among full-time testers or to perform overtime work to
be done. In addition, if a full-time tester failed to report
for work or became ill on the job, a spare would be
called to work. Because spares often had to work un-
scheduled hours, Respondent required that all spares be
"on call" or be available for work on short notice.
In October and November 1981, Respondent em-
ployed 24 full-time paper testers. Twenty of those were
employed as paper testers and four as head paper testers.
Respondent had six manufacturing machines, each of
which required one paper tester per shift. Respondent
also employed about five spare paper testers at this time,
including the Charging Party, Parker.
Parker had been employed by Respondent since Octo-
ber 1978, initially as an on-call spare chip sampler and
then for about 2 years as a spare on-call paper tester.
Parker was a spare paper tester when she was terminated
and removed from spare status by Respondent in Decem-
ber 1981. From January I through November 1, 1981,
Parker earned about $11,000, a substantial portion of
which was earned from unscheduled on-call assignments.
There had been no major complaints concerning Parker's
availability. She was considered to have a "good
record."
During prior periods when Parker had not worked,
either scheduled or on call, for a week or more, she had
filed for and received unemployment compensation bene-
fits. Parker filed her original unemployment compensa-
tion claim at the suggestion of Joseph King around Janu-
ary 1980. King was the division manager of Industrial
Community Relations for Respondent. Parker had filed
for unemployment compensation benefits eight or nine
times between January 1, 1980, and November 1, 1981.
On November 4, 1981, John D. Mumford, resident
manager of Respondent's Franklin Bleach Division, in-
formed all employees that there would be a shutdown of
one paper machine beginning the following Sunday (No-
vember 8, 1981) and lasting into the first week in De-
cember (G.C. Exh. 3). Parker received the memorandum
on Friday November 6, 1981, when the foreman, Lonnie
Jernigan, brought it into the workroom and told the
paper testers to read it. Jernigan said some full-time
paper testers would be placed on other jobs but the
spares would not be working. When the schedule for the
next week was posted, on November 6, 1981, Parker was
not scheduled to receive any work.
411
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Monday, November 9, 1981, Parker filed a claim
for unemployment compensation benefits in the Suffolk
Virginia Employment Commission Office. At that time,
Parker was given a claimant questionnaire (G.C. Exh.
10) and told to fill it out showing where and when she
had searched for work. She also received an application
identification card (G.C. Exh. 11), and picked up a pam-
phlet entitled "Unemployment Insurance Programs in
Virginia" (G.C. Exh. 12). Each of these documents ex-
plained that an applicant for unemployment compensa-
tion benefits must be actively seeking work and be avail-
able, ready, and willing to accept suitable work.
Parker sought another job as required by the Virginia
Employment Commission (VEC). On November 27,
1981, a determination was made that Parker was entitled
to unemployment benefits for the period of November 8-
21, 1981 (G.C. Exh. 6). During this period, Parker was
never either scheduled or called for work by Respond-
ent; nor did she find another job. Between November 23
and December 12, 1981, Parker worked several times on
on-call assignments, and her name was on the schedule
for work for the week of December 13, 1981.
Respondent received Parker's unemployment claim
form which required that the Company, as former em-
ployer, answer some questions regarding this former em-
ployee's claim for unemployment compensation (G.C.
Exh. 5). Joseph P. King answered this form on Respond-
ent's behalf on November 12, 1981. In the space for re-
marks, King wrote:
Employed on a call basis since 10-11-78 and has
not been terminated. By accepting the condition im-
posed; i.e., being available for work on short notice,
the employee cannot be otherwise employed and,
therefore, cannot meet qualifications for unemploy-
ment compensation [G.C. Exh. 5].
Respondent also received a copy of VEC's determination
awarding unemployment compensation benefits to
Parker. The determination stated:
You have worked for this employer on an on-call
basis since 1978. Due to lack of work, you did not
perform any services during the period 11-8-81
thru 11-21-81.
An unemployed individual is one who during any
week performs no services and with respect to
which no wages are payable, or in any week of less
than full-time work if the wages payable are less
than the week benefit amount.
In view of the above, you were unemployed during
the period 11-8-81 thru 11-21-81 and entitled to
benefits. [G.C. Exh. 6.]
Respondent filed an appeal from VEC's determination
on December 8, 1981, stating that Parker:
. . .has agreed to be available to work on very
short notice. This, in our view, means that she
cannot be involved in other work or be seeking
other work. Because of this, we do not feel that she
would be eligible to draw unemployment during the
periods when she is not actually working. [G.C.
Exh. 7].
Immediately following this letter of appeal, Respondent's
Joseph King spoke with a deputy Virginia employment
commissioner who confirmed that Parker had been asked
about her availability for other employment and had
"satisfied the Commission that she was in fact seeking
other employment." Based on this confirmation, Re-
spondent notified Parker that she was "removed from
spare status" and thereby terminated in a letter dated
December 14, 1981 (G.C. Exh. 2). The letter was read to
Parker over the phone that same day. Respondent then
withdrew its appeal of the award determination in a
letter dated December 15, 1981 (G.C. Exh. 8), thereby
allowing Parker to receive the 2 weeks of benefits previ-
ously awarded.
In response to her termination and removal from spare
status, Parker filed an unfair labor practice charge alleg-
ing that Respondent terminated her in violation of Sec-
tion 8(a)(l) of the Act. Parker alleged further that by dis-
charging her Respondent interfered with her Section 7
right to seek unemployment compensation benefits and
this interference was not supported by a sufficient busi-
ness justification.
Respondent defends its action on three grounds. First,
it contends that Parker's filing for unemployment com-
pensation did not constitute a protected concerted activi-
ty within the meaning of Section 7. Respondent's second
contention is that Parker was discharged for her viola-
tion of an established requirement for continued employ-
ment as a spare employee and not for any discriminatory
reasons. Finally, Respondent argues that, even if Parker's
filing for unemployment benefits were a protected activi-
ty within the meaning of Section 7, its action was justi-
fied on the basis of a substantial and legitimate business
justification.
Analysis
Respondent's three-pronged defense requires an exami-
nation of: (1) whether or not the filing for unemployment
compensation benefits constitutes a protected concerted
activity within the meaning of Section 7 of the Act; (2)
Respondent's practice of discharging of spare employees
under its on-call rule; and (3) the sufficiency of Respond-
ent's business justification for its rule.
Respondent argues first that Parker's action in filing
for unemployment benefits did not amount to a "concert-
ed activity for the purpose of collective bargaining or
other mutual aid or protection" within the meaning of
Section 7 of the Act. The fact that Parker and all spare
employees were not members of the bargaining unit and
not covered by the collective-bargaining agreement is
emphasized by Respondent as further proof of lack of
Section 7 standing.
Spare testers, like Parker, are clearly "employees
within the meaning of the Act." Indeed, they qualify for
company benefits once they worked in excess of 1000
hours in a 12-month period; moreover, Respondent at-
tempted to keep all spare testers employed above the
1000-hour minimum so that they qualified for benefits.
412
UNION CAMP CORP.
Once they replace a full-time tester, the spare employee
is considered the tester and is paid the contractual rate of
a full-time paper tester. The testimony established that
Parker and all other spare testers worked an average of
1100 to 1200 hours in 1981. Nevertheless, sometimes
these employees were not scheduled or called for work
for extended periods of time. On such occasions, they
qualified for unemployment benefits under the Virginia
system. Since all spare testers were similarly situated,
worked under similar circumstances, and submitted
claims for unemployment benefits for the same reasons
arising out of the nature of their part-time jobs, it cannot
be gainsaid that their act of filing unemployment claims
constituted a concerted activity. The only aspect of indi-
vidual action may have been one of timing, namely, that
these employees, although similarly situated, qualified for
the benefits at different times.
Respondent has cited several cases where certain ac-
tions by employees were held by the Board not to be en-
titled to Section 7 protection. None of the cases cited in-
volved the filing of an unemployment compensation
claim. In the only decision dealing with the precise issue
here, the Board stated explicitly:
It has long been recognized that this Board is re-
quired to administer the Act with careful accommo-
dation to the statutory scheme as a whole. It is
equally well settled that the matter of unemploy-
ment compensation benefits arises out of the em-
ployment relationship . . . and is one aspect of the
national labor policy. Clearly Bramlett's dispute
with Respondent over her entitlement to unemploy-
ment benefits would be a matter of common interest
to other employees, since they might find them-
selves faced with a situation similar to hers in the
future. Thus, by refusing to withdraw her claim
. . .Bramlett refused to allow Self to deny her and,
by way of example, the other employees access to
the State's unemployment compensation appeals
procedure. [Self Cycle & Marine Distributor Co., 237
NLRB 75 (1978).]
The Board's decision in Self Cycle clearly holds that an
employee's act of filing for unemployment benefits con-
stitutes protected concerted activity and seems, there-
fore, dispositive of the issue. See also Ohio Brass Co., 261
NLRB 137 (1982); Krispy Kreme Doughnut Corp., 245
NLRB 1053 (1979), enf. denied 635 F.2d 304 (4th Cir.
1980). 1 accordingly find that Parker's claim for unem-
ployment benefits under the circumstances here consti-
tutes concerted activity protected by Section 7 of the
Act.
The General Counsel, however, has not alleged that
Parker's discharge was prompted by the mere act of
filing her claim. Rather, the requirement, ancillary to a
claim for unemployment benefits that an applicant active-
ly seek employment, provided the basis for the dis-
charge. This, according to Respondent, did not involve
any retaliatory or discriminatory motive but merely a le-
gitimate business justification, i.e., that a spare employee
be available at any time and exclusively work for Re-
spondent. This argument, in effect, assumes that Re-
spondent's conduct was not inherently destructive of im-
portant employee rights, and that, in any case, it had
shown a substantial business justification for its conduct.
NLRB v. Great Dane Trailers, 388 U.S. 26, 34 (1967).
The record shows that both assumptions are incorrect.
Without a representation to VEC that an applicant is ac-
tively seeking employment, the individual is automatical-
ly disqualified for benefits. In short, a spare tester for Re-
spondent who is unemployed for an extended period of
time and otherwise qualified for unemployment benefits
would be prohibited from claiming such benefits because
of Respondent's prohibition against VEC's mandate that
most applicants actively seek employment during the un-
employment stage. Clearly, an employer who enforces
this prohibition and discharges an employee who has
made such a representation in connection with his claim
has obviously destructively interfered with the right of
such an individual and other employees, similarly situat-
ed, to file for and obtain unemployment benefits.
Moreover, under the circumstances of this case, Re-
spondent has failed to demonstrate that its interference
with Parker's protected concerted activity was justified
by a legitimate business reason. The record did not estab-
lish precisely Respondent's policy dealing with the avail-
ability of spare testers. Testimony shows that the rule
had never been reduced to writing and when it was
stated orally it was explained in various ways.
The only clear requirement seemed to be that spare
paper testers had to be available for work on short
notice, or as stated by Respondent in its brief (p. 23),
"ready availability." This requirement understandably
would preclude a spare tester from having other employ-
ment or activities which would conflict with their avail-
ability for on-call work. This was communicated both
orally to employees and in writing to the Virginia Em-
ployment Commission. However, it was not clearly es-
tablished why spare testers should also be precluded
from merely seeking other employment. Indeed, Re-
spondent's references to the rule only once mentioned
the prohibition against "seeking other employment." And
this reference only appeared in Respondent's communi-
cations with the VEC, or after Parker had filed the un-
employment claim. Since the rule had never been re-
duced to writing and had not explicitly been formulated
to preclude spare employees from seeking other employ-
ment, it cannot be argued that Parker was terminated for
cause. Parker and Respondent's representatives testified
that she had previously applied for and received unem-
ployment compensation. Respondent had the same rules
in effect then, and the VEC's requirement that applicants
for benefits had to seek work had also been in existence
before.
Prior to this incident, Respondent had reprimanded
spare employees only after several incidents of actual un-
availability when called for work. But in those incidents
the employees were not terminated even after they had
been unavailable. For example, one spare actually had
another job, yet she was only warned that this was a
problem. She was finally given the opportunity to select
one of her two jobs. Another employee was also allowed
to find her own solution after being unavailable on sever-
413
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
al occasions because she had been dating. In neither in-
stance was the unavailable spare tester terminated or
forced to resign.
Parker was not only available but actually reported for
work on very short notice on several occasions after she
had filed her unemployment claim and, as required, had
begun looking for work. Respondent admitted that
during the disputed period of November 8 thru Decem-
ber 15, 1981, he had no problems with Parker's availabil-
ity for on-call work. The facts belie Respondent's con-
tention that an employee who is seeking other work has
become "unavailable." It was also admitted that Parker's
activities of seeking work had no effect whatsoever on
Respondent's operations during the crucial period of No-
vember 8-21, 1981. It is clear, therefore, that Respond-
ent's business justification was anything but substantial.
Accordingly, I have no difficulty in finding that Re-
spondent violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Union Camp Corporation is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. By terminating Doris E. Parker because she had
certified that she was seeking work in connection with
her claim for unemployment compensation, Respondent
interfered with her rights protected by Section 7 of the
Act and engaged in an unfair labor practice affecting
commerce within the meaning of Section 8(a)(1) of the
Act.
REMEDY
Having found that Respondent has engaged in an
unfair labor practice, I find it necessary to order it to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Respondent, having unlawfully discharged Parker,
must offer her reinstatement and make her whole for any
loss of earnings and other benefits, computed on a quar-
terly basis from the date of discharge to the date of
proper offer of reinstatement, less any net interim earn-
ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in Florida Steel Corp.,
231 NLRB 651 (1977). See generally Isis Plumbing Co.,
138 NLRB 716 (1962).
[Recommended Order omitted from publication.]
414