W. R. Bean & Son, Inc.

National Labor Relations Board - Board Decisions

Sep 14, 1970

185 N.L.R.B. 637 (N.L.R.B. 1970)

W R. BEAN & SON, INC
W. R. Bean & Son, Inc. and Atlanta Bookbinders'
and Binderywomen 's Union, AFL-CIO, Local 96.
Case 10-CA-7868
September 14, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On May 15, 1970, Trial Examiner George L. Powell
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
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 here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts
the findings, conclusions,' and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby adopts as its Order the Recom-
mended Order of the Trial Examiner, and orders
that the Respondent, W. R. Bean & Son, Inc., Atlanta,
Georgia, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order.
' These findings and conclusions are based, in part, upon credibility
determinations of the Trial Examiner, to which the Respondent has
excepted Having carefully reviewed the record, we conclude that the
Trial Examiner's credibility findings are not contrary to the clear prepon-
derance of all the relevant evidence Accordingly, we find no basis
for disturbing those findings Standard Dry Wall Products, Inc, 91 NLRB
544, enfd 188 F 2d 362 (C A 2).
TRIAL EXAMINER'S DECISION
637
amended , herein called the Act,' was tried before me in
Atlanta , Georgia. Bnets were tiled by the Respondent and
the General Counsel on January 27 and 29, 1970, respec-
tively. The complaint , issued August 22, 1969, based upon
a charge filed July 22, 1969, presented the question of
whether an individual employee, Rosa Ruth Holmes, had
been discharged because of her membership in and activities
on behalf of the Union, and because she engaged in concerted
activities with other employees for the purpose of collective
bargaining and other mutual aid and protection or whether
she was discharged for cause , namely, excessive absenteeism
Respondent answered denying the alleged unfair labor prac-
tice pleading that Holmes was discharged on May 19,
1969 for cause. All parties appeared at the trial, were
represented and participated in it and were granted full
opportunity to adduce evidence , examine and cross-examine
witnesses , submit briefs , and present oral argument.
On the entire record of evidence , my observation of
the witnesses as they testified , and on due consideration
of the briefs, I find , for the reasons hereinafter set forth,
that the General Counsel has established by a preponderance
of the evidence that Respondent seized upon excessive
absenteeism as a pretext and violated Section 8 (a)(1) and
(3) of the Act by discharging Rosa Ruth Holmes for
her union activities thereby illegally discouraging member-
ship in the Union . As a remedy for this unfair labor
practice , I will recommend that Respondent reinstate
Holmes and make her whole for any loss of earnings.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE EMPLOYER AND THE LABOR ORGANIZATION
I find that the allegations of paragraphs 2 and 3 of
the complaint, respecting the nature and volume of business
carried on by the Respondent, W. R. Bean & Son, Inc.,
a Georgia corporation engaged in the printing and sale
of commercial printing paper in Atlanta, Georgia, are true,
and conclude therefrom that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
of the Act.
I find and conclude that the Atlanta Bookbinders' and
Binderywomen's Union, AFL-CIO, Local 96, herein called
the Union or Charging Party, has been at all times material
in the complaint a labor organization within the meaning
of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
Holmes had been previously discharged for union activity
by Respondent, and, upon issuance of the Board order
in the subsequent unfair labor practice proceeding, Respond-
ent had reinstated her with backpay and posted the necessary
notice.'
The first significant date in this case is March 13, 1969.'
Holmes was working in the plant on this day when notified
that her mother had unexpectedly died She was excused
STATEMENT OF THE CASE
GEORGE L. POWELL, Trial Examiner: This case, under
Section 10(b) of the National Labor Relations Act, as
29USC Sec 151,etseq
Case 10-CA-6916,158 NLRB 712
' All dates are in 1969 unless otherwise noted
185 NLRB No. 81
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from work and remained off work for approximately 3
.,;+;._s. During this time she called her foreman, Gerald
Baker, telling him she was thinking of coming back to
work but did not know if she was really about to do
so at that time. Baker excused her telling her to let him
know when she was coming back. She returned to work
in the first part of April. On April 20, Holmes again
was working in the plant when notified that her son had
been killed in an automobile accident She again was excused
from work and remained off work until she was discharged
in May. At some time during this period of absence she
telephoned the plant and spoke with her foreman, Baker,
telling him that she was still nervous and upset and that
if they really did not need her she would like to have
some more time off. She credibly testified that Baker told
her that he understood her position having experienced
a similar tragedy in his family, and he told her to take
her time about returning. Also according to Holmes, around
the middle of the month of May she asked fellow employee,
Violet Davis, to speak to Foreman Baker regarding a possible
shift change she would like in order that she could be
with her husband, a heart patient Davis returned word
to her that Baker saw no reason why she could not change
shifts and that when she got ready to come back to work
to come to Bindery Superintendent Carter's office and
discuss it with Carter. Davis corroborated Holmes.
On May 29, without any warning of any sort or without
any communication from Respondent that her absence was
felt or that her presence was needed at the plant, Holmes
was told by Respondent's counsel, Specht, and by James
P. Campbell, vice president of manufacturing, that she
was discharged ° It is not clear whether Respondent decided
to terminate Holmes on May 16 and wrote her to this
effect on May 19, but it is clear, and I find that she
was told of her discharge on May 29.5 In a different
situation lack of a warning might not cause suspicions
that a reason other than absenteeism was involved, but
here Holmes was out on an excused leave of absence
brought about by a tragedy.
' As for previous warnings , Holmes had been warned in January,
some 5 months earlier not to be absent I do not consider this bad-
habit warning to relate to the excused absences to recover from deaths
of her mother and son
' Respondent moved to correct 1 1, p 375 of the Transcript which
reads as follows "reported to work on the 18th then she would not
have been dis-" Respondent moved to correct this by deleting the word
"not," attaching to his motion affidavits of three witnesses at the trial
(including the one testifying at p 375) to the effect that the correct
testimony did not include the word "not " Further, Respondent argued
that the context of the record supported his motion
In opposition to the motion, the General Counsel provided an affidavit
from the court reporter that the transcript accurately reflected his record-
ings, and counsel for the Charging Party stated the record was correct
providing affidavits from two witnesses to the trial agreeing that the
record was correct Apparently only a recollection was relied on except
in the case of the reporter
It so happens that the Trial Examiner keeps notes of testimony but
not verbatim et hteratim His notes on this point read that the witness
testified "if she had reported on 18th he would have discharged her "
Further he cannot recall the word "not" being used in this It is also
the opinion of the Trial Examiner that the context of the record tends
to support the Respondent 's position and the Trial Examiner's notes
Accordingly , the record is found to be in error and Respondent 's motion
to delete the word "not" is hereby granted
The notice of discharge was given at the beginning of
the collective bargaining session held on May 29, between
the Union, represented by Murray McKinsey, Frank
Thompson, Davis and Holmes, and the Company, represent-
ed by Attorney Specht, William Bean and James Campbell
According to McKinsey, Specht called him into the hall
at the beginning of the session and told him that he did
not believe that Holmes should be in on the negotiating
sessions because she was no longer an employee. McKinsey
replied that Specht could not tell him who to put on
his committee and that he was not going to ask Holmes
to leave but was going to let her sit in on the session.
They then went back into the meeting in the conference
room where Specht made a statement to the effect that
it was not anything personal but he wanted to let them
know that Holmes had been discharged by the Company.
Holmes stated that she had no notification to that effect
and asked McKinsey if he knew of this. McKinsey said
the first he had heard of it was in the hallway before
the meeting Holmes told Campbell that she had contacted
her foreman, Baker, through Davis and that Baker had
told her to come back to work when she got ready. She
further stated that she had received no notification of
the discharge. At this point, according to McKinsey, Specht,
Bean , and Campbell conferred with one another following
which Campbell made the statement that Holmes was dis-
charged and would have the notice in the mail. Holmes
stated that upon returning home at the conclusion of the
negotiating session she found her notice of discharge in
the mail.
Holmes' Union Activity
As has been noted earlier, Holmes had been discharged
previously by the Respondent and had been reinstated
pursuant to a Board order in May 1966. Following this
action, in June 1968, the Union began an organizing cam-
paign at Respondent's with Holmes actively participating
in the campaign. She passed out application cards for
membership, talked to employees about the Union and
attended meetings called by the Company prior to the
election which was held on October 31, 1968. She attended
about three meetings called by the Company with Vice
President of Manufacturing Campbell presiding. Holmes
stated that she carried a union contract book with her
to the meetings and addressed herself to those present
on union benefits in union contracts. After the Union
won the election, Holmes was elected to membership on
the Union's negotiating committee and attended three bar-
gaining sessions . The first one she attended was held on
April 11 (before her son's death on April 20) The second
one, on May 15, was attended when she was on leave
of absence, and when she attended the one on May 29
she was notified of her discharge. There was one other
negotiating session on May 23, but Holmes had not attended
it. As noted above, during this last period of absence
she had talked to her foreman telling him that she was
still nervous and upset and if they really did not need
her she would like to have some more time. He told
her to take her time in returning to work. Nothing was
said to her at the May 15 negotiating meeting by Specht,
W. R. BEAN & SON, INC 639
Campbell , or Bean with respect to her being on a leave
of absence , yet being well enough to be present at the
negotiating session . However , at the next negotiating session
on May 23, which session Holmes did not attend, there
was some conversation about Holmes ' attending the May
15 negotiating session and yet having not reported to work
and not working Specht , at that time , stated to Union
Representative Crunkleton that Respondent was upset about
this and they were considering firing Holmes. This testimony
is credited and uncontradicted in the record . Crunkleton
did not tell Holmes about this conversation.
Holmes' Absenteeism Record
had been excused from work for the time necessary to
pull herself together so that she could work . Possible reason-
able grounds for discharge would have been that she was
untrustworthy in that by attending a union negotiating
meeting she was belying the need for time to recover
from shock . I find that Respondent seized upon excessive
absenteeism as a pretext to discharge this known union
adherent for her union activities . This case follows the
long line of precedence standing for the proposition that
it is "not whether there existed a valid ground for discharge,
but whether the stated ground was the real one. `J. P.
Stevens & Co. v. NL. R.B., 380 F 2d 292, 300 (CA. 2
1967) ' " N L.R.B v. Ulbrich Stainless Steels, Inc , 393
F.2d 871, 872 (C.A. 2, 1968).6
There is no question but that Holmes had a record
of excessive absenteeism . And there is no question but
that absenteeism could be a cause for discharge even though
it was excused absenteeism.
DISCUSSION AND CONCLUSIONS
Absenteeism , like tardiness , is a disease the cure for
which is incentive , motivation, and discipline . The most
effective remedy for this disease is a joint effort to effect
a cure made by the employer and the employee. But an
employee can cure himself with considerable soul searching
and honest appraisal On the other hand , the remedy can
be supplied solely by the employer with the fear of discharge
being the motivating force . The witnesses in this case create
a picture of a very friendly employer having a pleasant
relationship with the employees . There is no question but
that Foreman Baker had a true concern for the welfare
of Holmes and an appreciation of the soul shattering events
from which she suffered : first on March 13 , the news
of her mother 's unexpected death and a month later, on
April 20 , the news of her son's death in an automobile
accident . The further credited evidence is that Baker had
told her to take her time and had even discussed a possible
shift change for her with employee Davis. It strains credulity
under these circumstances to believe that Respondent would
discharge this employee for excessive absenteeism without
first warning her or asking her if she was ready to come
back to work . These two periods of absenteeism were caused
not by bad habits or sham or frivolous reasons but by
tragic events in her life which were understood and appreci-
ated by her foreman.
It is understandable that an employer might consider
discharging an employee and discharge her for being untrust-
worthy when he saw her engaging in nerve-racking work
during a period of time in which she was supposed to
be recovering from a nervous and emotional shock. But
Holmes was not discharged for being untrustworthy. It
seems to me the key to this case lies in the fact that
Respondent became upset because Holmes participated with
the Union in the negotiating meeting on May 15. Thus
it would seem that her union activities , which are protected
under the Act, sparked the very idea that Holmes should
be discharged . The reason given for discharge was that
she had been excessively absent . It is noted that her foreman,
Baker , did not appear to be concerned with her excessive
absenteeism . Apparently overlooked was the fact that she
The Date of the Discharge
Respondent maintains that Holmes was discharged on
May 19 following her failure to report to work on May
18. As noted earlier this discharge had not been transmitted
to Holmes and the exhibits of Respondent show that as
late as May 25 Holmes had been marked down as having
been absent from work . The company representative , testify-
ing as to this notation , had no reason to offer as to
why he had made the notation yet the Respondent was
contending that she had been fired a week earlier on the
19th. Under these circumstances and the circumstances
taking place as they did on May 29, I conclude that
the discharge took place on May 29, 1969.
CONCLUSIONS OF LAW
1. By discharging employee Rosa R . Holmes because
of her participation in the union negotiating meeting on
May 15 , Respondent violated Section 8(a)(3) of the Act
because this discharge tends to discourage union participa-
tion of its employees , a right protected under the Act.
2 By interfering with , restraining , and coercing its
employees in the exercise of the rights guaranteed in Section
7 of the Act, Respondent has engaged in, and is engaging
in, unfair labor practices within the meaning of Section
8(a)(1) of the Act.
3. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It will be recommended that Respondent:
1. Cease and desist from its unfair labor practices.
2. Offer to reinstate employee Holmes with backpay
from the time of discharge , the backpay to be computed
on a quarterly basis as set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950), approved in N.L.R.B.
v. 7-Up Bottling Co., 344 US 344 (1953 ), with interest
at 6 percent per annum , as provided in Isis Plumbing
& Heating Co., 138 NLRB 716 ( 1962), approved in Philip
' In the Ulbrich case, discharges of three employees for alleged poor
attendance records were found to be 8 (a)(3) and ( 1) discharges for
union organizing activity by the discharged employees.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carey Mfg. Co. v N.L.R.B., 331 F 2d 720 (C.A. 6, 1964),
cert denied 379 U.S. 888
3. Post the notices provided for herein
Because the Respondent by its conduct violated funda-
mental employee rights guaranteed by Section 7 of the
Act, and because a discriminatory discharge in violation
of Section 8(a)(3) of the Act strikes at the very heart of the
Act (Entwistle Mfg. Co v N L R.B, 120 F 2d 532, 536
(C.A. 4)), it will be recommended that Respondent cease
and desist from infringing in any manner with the rights
guaranteed by Section 7 of the Act
RECOMMENDED ORDER
provided by the Regional Director for Region 10,
the Respondent shall cause the copies to be signed by
one of its authorized representatives and posted, the posted
copies to be maintained for a period of 60 consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 10,
in writing , within 20 days from the date of the receipt
of this Decision, what steps the Respondent has taken
to comply herewith.'
Upon the foregoing findings and conclusions, and upon
the entire record, I recommend that Respondent, its officers,
agents, successors , and assigns , shall:
1 Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee engaged in activity on behalf of Atlanta Bookbind-
ers' and Binderywomen's Union, AFL-CIO, Local 96, or
any other labor organization.
(b) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their right
guaranteed in Section 7 of the Act to form, join, or assist
the above-named or any other labor organization and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid, or to refrain
from any or all such activities
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act.
(a) Offer to employee Rosa R. Holmes immediate and
full reinstatement to her former job or, if the job no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges,
and make her whole, in the manner set forth in the section
of this Decision entitled "The Remedy," for any loss of
earnings she may have suffered as a result of her discharge
on May 29, 1969.
(b) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary or appropriate to ascertain the backpay due under
the terms of this Recommended Order.
(c) Post in its establishment at Atlanta, Georgia, copies
of the attached notice marked "Appendix."' Immediately
upon receipt of copies of said notice, on forms to be
' In the event no exceptions are filed as provided by Sec 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, recommendations, and Recommended Order
herein shall, as provided in Sec 102 48 of the Rules and Regulations,
be adopted by the Board and become its findings , conclusions, and
order, and all objections thereto shall be deemed waived for all purposes
In the event that the Board's Order is enforced by a judgment of
a United States Court of Appeals, the words in the notice reading
"Posted by Order of the National Labor Relations Board" shall be
changed to read "Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board."
In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director
in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
AFTER A TRIAL IN WHICH ALL SIDES HAD THE
OPPORTUNITY TO PRESENT THEIR EVIDENCE,
THE NATIONAL LABOR RELATIONS BOARD HAS
FOUND THAT WE VIOLATED THE LAW AND HAS
ORDERED US TO POST THIS NOTICE, AND WE
INTEND TO CARRY OUT THE ORDER OF THE
BOARD AND ABIDE BY THE FOLLOWING
WE WILL NOT fire you because you favor, j oin,
or are active for a union
WE WILL NOT fire you because you participated
on the union negotiating committee.
WE WILL NOT, in any manner, discriminate against
you to discourage your membership in the labor union,
or interfere with your right to join, assist or be repre-
sented by a labor union , or interfere with any of
your rights of self-organization and mutual aid guaran-
teed by Section 7 of the National Labor Relations
Act.
Since the Board found that we fired Rosa R. Holmes
on May 29, 1969, because she participated in the
work of the Union's negotiating committee,
WE WILL offer her her old job back and give her
backpay.
Each of you is free to become or remain or refrain
from becoming or remaining a member of any labor union.
W. R BEAN & SON, INC.
(Employer)
Dated By
(Representative)
(Title)
W R BEAN & SON, INC 641
This is an official notice and must not be defaced by Any questions concerning this notice or compliance with
anyone. its provisions may be directed to the Board 's Office,
This notice must remain posted for 60 consecutive days Peachtree Building, Room 701, 730 Peachtree Street, NE.,
from the date of posting and must not be altered, defaced, Atlanta, Georgia 30308, Telephone 404-526-5760
or covered by any other material.