Whitelight Industries

National Labor Relations Board - Board Decisions

Apr 9, 1979

241 N.L.R.B. 815 (N.L.R.B. 1979)

WHITELIGHT INDUSTRIES DIVISION
Whitelight Industries Division of White Metal Rolling
& Stamping Corporation and Pauline P. Johnson.
Case 1-CA-14282
April 9, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On December 7, 1978, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is,
dismissed.
I In adopting the Administrative Law Judge's findings, we have given no
weight to his statement that there is something strange and perhaps signifi-
cant in the fact that the Union took no part in the proceeding before him. In
addition, while the Administrative Law Judge found that earned leave, as
provided in the relevant contract, may be taken only one-half day at a time,
we note that p. 33 of this contract states, "Such leave may be taken one-half
(1/2) day at a time." (Emphasis supplied.) This error, however, does not
affect the validity of his conclusions regarding the alleged discriminatory
discharge.
2 In adopting the Administrative Law Judge's dismissal of the allegation
regarding the maintenance of an overly broad no-solicitation rule, we rely
solely on the General Counsel's failure to litigate the issue at the hearing.
3
In view of our adoption of the Administrative Law Judge's recommenda-
tion that the complaint be dismissed in its entirety. we find that Respondent
has not been prejudiced by the extension of time granted to the General
Counsel for the filing of exceptions.
DECISION
STATEMENT OF THE CASE
THOMAS A. RICCl, Administrative Law Judge: A hearing
in this proceeding was held at Bellows Falls, Vermont, on
October 2 and 3, 1978, on complaint of the General Coun-
sel against Whitelight Industries Division of White Metal
Rolling & Stamping Corporation, herein called the Respon-
dent or the Company. The complaint issued on April 25,
1978, upon a charge filed by Pauline P. Johnson, an individ-
ual, here called the Charging Party. The sole issue of the
case is whether, as alleged in the complaint, Johnson was
discharged by the Respondent in retaliation for her union
activities and therefore suffered illegal discrimination in
violation of Section 8(a)(3) of the Act. Briefs were filed by
the Respondent and the General Counsel.
Upon the entire record, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent maintains its principal office and place
of business in North Walpole, New Hampshire, where it is
engaged in the manufacture, sale, and distribution of mag-
nesium mill products, ladders, rakes and related products.
In the course of its business the Respondent continually
causes large quantities of magnesium products to be pur-
chased and transported in interstate commerce from and
through various States of the United States. It also receives
annually at its New Hampshire place of business goods val-
ued in excess of $50,000 annually from out-of-state sources.
I find that the Respondent is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that United Electrical, Radio and Machine Work-
ers of America (UE), Local 218, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Question Presented
After working 13 months, Pauline Johnson was dis-
charged on February 27, 1978, a Monday. The previous
Friday she had taken a day off from work to enjoy an out-
of-state trip with her husband, not an employee of this
Company, who had occasion that day to attend a UE Local
258 meeting in connection with his own employment and
his own union activities there. According to the complaint,
the Respondent dismissed her because it was a union meet-
ing that took place in Massachusetts that Friday, because
the Company knew Johnson had been active in the affairs
of UE Local 218 in this plant, and because it wanted to
curb her union activities vis-a-vis the Respondent. As the
Company would have it, Johnson was discouraged because
she stayed away on February 24 not only without permis-
sion but after being told she was needed for production and
must not leave, because this was not the first time she ab-
sented herself without regard to her supervisor's insistence
that she not just take off whenever she felt like it, and be-
cause she had finally "pushed him too far," as George May,
her supervisor, put it. The question is purely one of fact:
Does the probative evidence on the record in its entirety
prone affirmatively that the Respondent's real reason for
discharging Johnson was the illegal one alleged in the com-
plaint? I think not, and I will therefore recommend dis-
missal of the entire case.
241 NLRB No. 132
815
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Facts
It is a fact Johnson was active in the affairs of UE Local
218, which has long represented the Respondent's shop em-
ployees under successive contracts. She was an elected
member of the shop safety committee during 1977 and for 3
or 4 months, ending in December 1977, was a substitute
member of the Union's executive board in the plant. The
Company knew all this. To prove management animosity
against her, Johnson spoke of a number of her absences
from work, including the one on Friday which precipitated
the discharge. Aware of the Company's contention that she
repeatedly flouted instructions not to take time off at will,
she colored her story to say she never did anything wrong
and always either had advance permission to leave or acted
in keeping with established work rules. At least she tried to
do this, because by the time she was through she had herself
virtually admitted she did more than once disregard in-
structions. The Respondent in turn calls attention to those
same absences as proof of what it now calls "repeated un-
authorized absences" as objective and proper basis for dis-
charge.
There is a direct question of credibility with respect to
Johnson's last absence, on February 24. She denied flatly
even mentioning her intended absence to anyone, including,
especially, Supervisor May. May testified she asked permis-
sion of him to leave on Thursday, February 23. His story is
that he told her that day that he needed her for produc-
tion-what with another woman in the department being in
the hospital-and that he could no longer allow unautho-
rized absences. I credit May against Johnson. There are
many reasons for this decision on my part; demeanor, gen-
eral evasiveness by Johnson as a witness, and repeated re-
fusals to answer questions directly are some of these rea-
sons. A major reason for this holding, however, is her
testimony in its totality with respect to one absence she
took in September 1977 which contributed more than any-
thing else to the supervisor's growing irritation over her
total disregard of his work instructions.
In August 1977, Johnson decided she would like to take a
whole week off in September to accompany her husband to
New York City. Her first version was that when she asked
could she take all that time next month May answered that
"as far as he knew, it would be all right." May's testimony
is that he told her instead that he would check on the vaca-
tion schedules of others and then let her know and that a
few days later, on verifying that two other girls in the de-
partment were going on vacation that particular week in
September, he told Johnson he could not afford to let her
go. With this, still according to May, Johnson said nothing.
May added that a day or two before Johnson took off he
again told her she could not go, but she went anyway.
Continuing with her story, Johnson said that 2 days be-
fore departing she did learn that her leave had not been
approved. "I asked the secretary if my days had been ap-
proved and she said no." This, of course, was direct admis-
sion by the witness that she did not have permission before
leaving, else there would have been no occasion to inquire
at all. From here Johnson went to her doctor and obtained
a very small slip. It is dated September 8, and all it says is,
"Pauline Johnson is under my care for illness and unable to
work until 9/19/77." On the basis of this slip, Johnson
stated at the hearing: "I went on the week's vacation after
my doctor put me on sick leave." With this, Johnson
changed her entire story. Now it was not that she had been
given permission by the Company to take a vacation but
that she stayed away because she was sick, with the doctor
taking the supervisor's place in authorizing the absence.
Johnson gave the medical slip to the Company immedi-
ately before her departure, on September 9, Friday. She left
town that day and was back Monday, September 19.
From Johnson's testimony:
Q. What was the nature of your illness at that time?
A. My nerves.
Q. Now if you already had been granted earned
leave time for that period, there would be no occasion
to get a doctor's certificate, would there, Ma'am?
A. I was there for a pap smear test and my yearly
physical.
Q. If you had already been given earned leave as
you say you were, there was no occasion to send in a
sick slip to the Company, was there?
A. I found out two days before that they were not
approved.
Q. Were you sick between the 8th of September and
the 19th of September?
A. I was very nervous....
Q. Were you so ill that you could not work because
of your illness?
A. No.
Q. Were you so ill that you couldn't report to White
Metal for work because of your illness?
A. Yes, I had to get away from the place.
By the time she was finished with her story, Johnson vir-
tually admitted she knew all along she had no permission
for leave. Asked on cross-examination if it was not true
Supervisor May had told her back in August he would
check into the matter and "get back" to her, she answered,
"He probably did." Asked again what May answered when
she first asked permission, she replied: "He said that he
didn't think that Ed Lemp [the manager] would be willing
to go along with the three earned leave days."
In the face of this testimony, for Johnson to insist, at the
hearing, that she had permission to leave for a week in
September and that she did not in fact act in direct disre-
gard of the directives of management was pure fiction.
Wherever she is contradicted by other witnesses on this rec-
ord, she cannot be believed. In the light of her own state-
ment that she was not unable to work because of any ail-
ment, the medical slip she produced-on its face therefore
fake-removes all doubt as to where the credibility resolu-
tion must go.
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WHITELIGHT INDUSTRIES DIVISION
There were other instances of absences in disregard of
May's instructions. In January she just told May she was
going to take time off to go to an executive board meeting.
Because she was not a member of that Board, he told her
not to go. He had a number of times given her this permis-
sion during the previous months, when she was an acting
member of the Board. She went anyway. After her return,
in his justified indignation, May told her she was suspended
or discharged if she did it again.
C. Argument
If ever a respondent employer came forth with affirma-
tive proof sufficient to explain convincingly a lawful basis
for discharge, this is it. The Respondent says repeated defi-
ance of the supervisor's instructions was its reason, and it is
a fact Johnson was guilty of "repeated unauthorized ab-
sences." There have been cases where, notwithstanding pro-
bative evidence of misconduct by the discharged employee,
countervailing evidence of disparate treatment offsets the
persuasiveness of the affirmative defense. With this aim in
mind, the General Counsel proved, from the Company's
records, that there was no established rule about warnings
or discipline or discharge with respect to straight absences
and that there were other employees who had been ab-
sent-for many reasons, sick, vacation, bereavement, with
permission granted-much more than Johnson had been
absent yet had not been discharged in consequence. The
argument goes that Johnson was picked out of the lot be-
cause she was a unioneer, else why did they not treat her
like everybody else? The fatal defect in this reasoning is
that Johnson's repeated offense was different in kind from
whatever faults were found in others. There was a problem
of people losing too much time from work to suit the Com-
pany. In fact, the collective-bargaining agreement sets tup a
system of monthly percentage bonuses exactly to reward
people for better attendance. But this entire system. with all
its records, has nothing to do with disobedience, with ab-
sences for pleasure jaunts. When the boss says no, the em-
ployee may not just take time off at will. In her brief the
General Counsel mixes apples and pears.
There is also much testimony about something called
earned leave. Again as provided in the collective-bargaining
agreement, there is a very detailed system under which em-
ployees enjoy up to 3 days annually away from work with
pay. The rules are very precise. The time may be taken only
one-half day at a time; in case of "sickness or bereavement"
a person can just take off, but if the employee wishes to use
"earned leave" for any other reason she must obtain ad-
vance permission. In her ever-changing testimony about the
week she took off in September, Johnson kept referring to
this earned leave business, how she had only taken so many
days and was still entitled to 2 more days that year. How 2
days became 5 she did not say; why advance permission
pursuant to the contract should apply to others and not her,
she passed over. She made the same argument in connec-
tion with the February incident. But it was a whole day she
took, not half, and again the contract requirement about
advance clearance is conveniently ignored.
I suppose in support of this "disparate treatment" theory
the General Counsel called Dawn Scott, another employee
in the stepladder department, where Johnson worked. Scott
said there are times when employees take this "earned
leave" without asking for permission in advance. She also
said that whenever she asked for leave, of any kind and for
whatever reason, and Supervisor May said no, she never
took it. But more important, Scott, 11 years with the Com-
pany, testified she nev.. heard of anyone who asked for
earned leave, was denied, and then proceeded to take it in
defiance of instructions.
Lemp, the manager, said the Company never had a case
like Johnson's-a continuing story of just leaving work re-
peatedly after being told not to do so. The evidence relating
to absences too great in amount, therefore, has nothing to
do with this case and in no sense effectively weakens the
relevance and persuasiveness of the Company's defense.
Actually, of course, the essential question-a never-
changing one-is not whether the Respondent has made
out a case but rather whether the General Counsel, all
things considered, has proved illegal motive. It is a Section
8(a)(3) case, which means antiunionism charged to the em-
ployer. From all that is shown on this record, the Respon-
dent has long had a perfectly good relationship with the
Union. When Johnson was warned, in prior incidents,
about taking off in violation of orders, she filed grievances
and, with the Union's backing, won them. It does not fol-
low from this-as the General Counsel suggests-that the
credible evidence in this record about what in fact hap-
pened must be ignored. The basic prosecution assertion
being that Johnson suffered illegal discrimination for hav-
ing served as a union official in some capacity, there is
something strange and perhaps significant in the fact the
Union took no part in this proceeding.'
As in every inference case-and that is all this case is
about-absent direct evidence of unlawful purpose in the
discharge, all relevant factors must be considered, not only
one out-of-context grouping or another. A very significant
fact is that in connection with both of the major incidents
which precipitated the dismissal-the September week and
the February 24 absence-Johnson was not engaged in
union activities at all. On that score, at least, she was can-
did. As to February 24, from Johnson's testimony: "I
wanted the day off with my husband and I just happened to
attend a union meeting." About September: "Q: Tell me,
when you went to that meeting, did you have anything to
do with the union affairs that took place in that meeting, as
a representative of your local? A: No. Q: So you didn't
really go to a union meeting, you just went with your hus-
band on a trip. A: Yes." There is uncontradicted evidence
that when Johnson failed to appear at work on February
24, Supervisor May told one of the employees in the depart-
ment: ". . . if Brenda LaCasse could verify that Pauline was
at the meeting that Friday, that he was pulling her card on
Monday morning."
The General Counsel's stress upon this phrase by the su-
pervisor that day exalts description over substance. May
had told Johnson the Thursday before not to go away. So
far as he was concerned it mattered not whether it was a
bridge party she chose to go to, a little vacation with her
husband, or a union meeting. What he wanted to find out
was whether she had flouted his instructions or not.
I After her discharge the Union filed a regular grievance on her behalf, hut
just before the arbitration stage she chose to withdraw the grievance.
817
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson spoke of two other incidents, each of which the
General Counsel argues supports the inference of animus
based upon concerted activities. She was not convincing as
to either. In late January or early February 1978, 19 women
circulated and signed a petition complaining about safety
glasses they were required to wear at work. "As a group"
they handed it to a supervisor named Atkins; he said he
could do nothing about it. Johnson said it was she who
drafted the petition. But there is no evidence, nor is it
claimed, that her particular individual participation ever
came to the attention of management.
Johnson was a member of the shop safety committee. She
complained to OSHA about conditions in the shop, there
was an inspection, and corrections were made. She said that
thereafter she was assigned to another department where
work was heavy and where there were no women. She testi-
fied that one day Supervisor May said to her: "See what
happens when you're a naughty girl?" Again, as she went
along, her testimony changed. Now she said she only did
that work a few hours a day, maybe 2 or 3 days a week, for
a few weeks only. Were there really no other women in that
department working the same machine as she? "I didn't see
any." Didn't she know certain other women also worked
there when needed? Repeatedly she kept saying she did not
know. Then came Gloria Langley, also called by the Gen-
eral Counsel, presumably in support of the complaint. She
testified she too sometimes worked that same machine in
the department in question, that it was not really a difficult
job, and that it was a regular practice to assign other
women there when necessary. May's version of the chat
Johnson spoke about is that it was Johnson who asked him,
"Is this what I get for being a bad girl?", and that he an-
swered, "No, that has nothing to do with it, Pauline." I
think Johnson was deliberately exaggerating, and I again
credit May.
In conclusion, I find the evidence in its totality insuffi-
cient to support the essential allegation of illegal intent in
the discharge of Johnson and shall therefore recommend
dismissal of the complaint.
Postscript
Both the General Counsel's and the Respondent's briefs
are dated November 20, 1978; this means Counsel for the
Respondent did not see the prosecution brief until after he
had mailed his own. In her brief for the first time in this
entire proceeding-starting with the wording of the charge
and complaint and continuing throughout the 2-day trial-
the General Counsel articulated the contention that a cer-
tain phrase in the parties' collective-bargaining agreement
constitutes an unfair labor practice by the Respondent on
its face. She calls it the "employer's overly-broad no-solici-
tation rule." It reads as follows:
All grievances shall be processed in accordance with
the grievance procedure as outlined above, and the
Union agrees that there shall be no Union activity dur-
ing working hours within the Company's property and
there shall be no interferences with production or plant
operations by any union officer or agent.
There is an allegation in the complaint reading:
At all times material herein Respondent has main-
tained an overly broad no-solicitation rule.
The contract, 42 printed pages, was placed into evidence
by the General Counsel. Clause after clause was referred to
and discussed from every angle while testimony was being
offered and arguments were being made. Not once did the
General Counsel even mention the one clause now said to
prove the allegation that the Respondent maintains a no-
solicitation rule. There was much talk about the detailed
provisions covering attendance bonus, disciplinary actions,
grievance procedures, leave of absence, earned leave, safety
committe, etc. No-solicitation rules normally appear in em-
ployer handbooks, management-distributed rules of con-
duct, company instructions to its employees. Is it a company
rule when union and employer agree upon procedures for
handling their continuing relations in the shop-fixing time
and place for the flow of collective bargaining? Is the dis-
tinction between "working hours" and "working time" of
determinative significance in the circumstances of this case?
Maybe, although Board law, even in the case belatedly
cited by the General Counsel, is by no means clear.
I think it more important that the Respondent may have
been misled into believing that the General Counsel had
abandoned this pin-pointed conclusionary statement of law
in the complaint, one which bears no relationship to the
substantive issue which was so fully litigated. Certainly, not
made aware in the slightest exactly what the complaint re-
ferred to, the Respondent was effectively denied any possi-
ble opportunity to come forth with any defense it might be
able to advance. Were it to attempt, possibly in a reply
brief, to offer a pertinent factual defense, it would be met
with the old "too late" argument.
If there is one thing that has characterized Board pro-
ceedings over the years, it is that they must deal fairly with
all parties. A respondent is entitled to know, at the very
latest during the hearing, where it is defending itself, for
which of its actions it is being called to account. In the very
case cited by the General Counsel, the Board found no fault
with a no-distribution rule to be in effect "during working
hours." Essex International, Inc., 221 NLRB 749 (1976).
Among the related factors deemed pertinent to the Board's
decision there was the fact there had been "no proof of
enforcement" of the rule at issue. How could the Respon-
dent here know which related matters it could bring forth in
possible defense without being told what "rule" the com-
plaint referred to? With passing reference to "no-solicita-
tion" and "no-distribution" law, the General Counsel cava-
lierly overlooks the fact that this one uses neither phrase
but speaks only of "union activity." Could that language be
read, if the realities of what went on over the years in this
plant were known, as no more than a limitation upon the
grievance-processing "union activities"?
A complaint is supposed to state facts, as well as conclu-
sions of law. But even assuming a special kind of pleading
where particular details need not be specified at that early
state, certainly before the hearing is over the respondent
ought to be told. The critical allegation of wrongdoing in
this case, coming at such a late stage, seems more like a
postscript to a completed message. It may be that inclusion
of that particular provision in the parties' contract, if and
when the related factors come to light, would be found by
818
WHITELIGHT INDUSTRIES DIVISION
the Board to be an unfair labor practice by both the Union
and the Employer. But as matters stand, in the interests of
justice to all parties, I am unable to make such a finding on
this record.
ORDER2
I hereby recommend that the complaint be, and it hereby
is dismissed.
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order. and all objections thereto shall be deemed
waived for all purposes.
819