Avon Products, Inc.

946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Avon Products, Inc. and United Steelworkers of America, AFL-CIO-CLC. Case 9-CA-13505 August 27, 1980 DECISION AND ORDER BY M: MRIBRS JENKINS, P NE I.O, ANI) TRU SI)AL.I On May 23, 1980, Administrative Law Judge Almira Abbot Stevenson issued the attached Deci- sion in this proceeding. Thereafter, the Charging Party filed exceptions and Respondent filed an an- swering 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 brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. ' The Charging Party has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Drv Wall Prod- ucts, Inc. 91 NRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing her findings. DECISION SI ATIMIN 01F THE CASE ALMIRA ABHOT S EVENSON, Administrative Law Judge: A hearing was held in this proceeding at Cincin- nati, Ohio, on October 25 and 26 and December 11, 12, and 13, 1979. The charge was served on the Respondent February 14, 1979. The complaint was issued March 30, 1979, and amended at the hearing. The Respondent duly filed an answer to the complaint. The issues are whether or not admitted supervisor, Lloyd Doughty, on November 22, 1978, violated Section 8(a)(1) of the National Labor Relations Act, as amended, by telling employee Barbara Harvey that her opportuni- ties for advancement would be enhanced by abandoning her open support for the Union, threatening to discharge Harvey if she circulated a petition to obtain employees' signatures about her job attitude, and interrogating Harvey about her union activities, and violated Section 251 NLRB No. 131 8(a)(3) of the Act by denying Harvey a promotion be- cause of her union activities; whether or not admitted su- pervisor, Steven Fightmaster, on January 31. 1979, vio- lated Section 8(a)(3) by placing Barbara Harvey on a regular break schedule because of her union activities; whether or not admitted supervisor, Chuck Scarletta, on February 1, 1, 179, violated Section 8(a)(3) by issuing a written reprimand to Harvey because of her union activi- ties; whether or not Supervisor Doughty on February 5, 1979, violated Section 8(a)(1) by threatening to discharge Harvey because of her union activities and whether or not on February 12, 1979, Supervisor Doughty violated Section 8(a)(3) by reprimanding Harvey because of her union activities. For the reasons given below, I conclude that the allegations are not supported by a preponder- ance of the credible evidence and recommend that they all be dismissed. Based on the entire record including my observation of the demeanor of the witnesses and after consideration of the briefs filed by the General Counsel and the Re- spondent, I make the following: FINI)INC; S OF FACI AND CONCI USIONS ()I LAW' 1. Al I iED UNFAIR ABOR PRACTrICES A. Background The Springdale, Ohio, plant of Avon Products, Inc., here involved, employs a complement of 2,200 employ- ees in the manufacture and distribution of cosmetics and related products. Its supervisors and agents include Gen- eral Manager R. A. Gropler and Personnel Operations Manager Virgil Mac Burton. The material handling de- partment was supervised by Thomas Jensch (manager until November 1978) and Chuck Scarletta (manager until January 1979 and then night operations manager). Lloyd Doughty was second-shift section manager, and John Studenka, Steven Flightmaster, Curtis Howell, and Donald Riley were supervisors. All the Respondent's employees are salaried. There are no timeclocks. There is a job-posting system open to all whose supervisors recommend them, with seniority con- trolling in almost all instances. There are no posted rules and, as far as the record shows, no employee rule book. Rules and instructions are given orally by supervisors at start-of-shift meetings with their employees. Second shift employees work a 4-day week and a 10-hour day from 3:30 p.m. until 2 a.m. Monday through Wednesday they receive a 15-minute afternoon break, a 30-minute lunch break, and two 10-minute breaks after lunch; on Thurs- day the after-lunch breaks are 15 minutes. There is a four-step disciplinary procedure referred to as a counseling program under which hundreds of em- ployees have been counseled within the last 2 years. ' No issue% hae been raised with respect o jurisdictioln or labor orga- tIiatiTon status Itased on the facts alleged i the complaint and admitted ill the ans cr I find that 11 It Responlldcnt is an employe r ilhin the Mrieairig of Sec 2(2) oI the Act engagd iln iloInerce and in operatiions affecillg commi erce 5 ithin the rlrning ii Sec 2(h) and 7) If the Act, iand hat tlie (harging Part tioin1T, nitcd Selsiork.rs of Acric, Alt. CI() CI(., is ia lhh r Irgllli(lln iiltl the eanlllg f Sc 2(5) of the Act AVON PRODUCTS, INC. 947 However, no employee with less than 10 years' service can be fired by anyone except his general manager, 2 and no employee with 10 years or more of service can be fired by anyone except the president of the Respondent in New York City. Only about six employees were ter- minated during the year 1978, most for excessive absen- teeism. There is an informal grievance-type open door system whereby employees are encouraged to take their griev- ances up through four steps but are permitted to ap- proach any member of management they wish. At mate- rial times, employee performances were reviewed semi- annually, and a rating of "below standards" in any one of six categories of performance resulted in being barred from bidding on another job for a period of at least 90 days or until a "meets standards" rating was achieved.:' During the last 2 years out of approximately 5,000 per- formance reviews, a total of 226 "below standards" rat- ings were given, of which approximately 20 were below standards in the category of "relationships and attitude." Barbara Harvey is an employee in the material-han- dling department. She has been a permanent employee of the Springdale plant since 1966. During that period she has received three promotions, eight temporary promo- tions, six job changes, and in addition has changed shifts three times, all apparently through the job-bidding pro- cedure. In her performance review of January 1977, she was rated "meets standards" in every category except quantity (defined as volume of work produced and ad- herence to standards and schedules) in which she was rated "below standards;" in March 19774 she was rated "meets standards" or "exceeds standards" in all catego- ries; in April 1978 she was rated meets or exceeds stand- ards in all categories except dependability in which she was rated below standards because of absenteeism. 5 The record shows that Harvey was given verbal counseling (a recorded pre-first-step warning) in January 1978 by Supervisor J. R. Lindhorst for being out of her work area and engaged in idle conversations with employees of another department. During Harvey's employment there have been unsuc- cessful organizing campaigns at the Springdale plant, be- ginning in 1966, by the Oil, Atomic, and Chemical Workers Union, followed by International Brotherhood of Teamsters, United Automobile Workers, and United Association of Machinists. Harvey supported them all, and management was well aware of it. No unfair labor practices have been found to have been committed by the Respondent. Harvey was also active in a second Teamsters organiz- ing campaign from November 1977 until December 1978, handbilling, passing around authorization cards, and talk- ing union to employees; from January until December 1 I The plant is under the authority of two general managers--one for the lab, or manufacturing, process, and the other for the branch. or distri- bution, process I Subsequently performance reviews were put (on an annual basis 4 The record does not explain why Harvey was given two perform- ance reviews within 3 months in early 1977 s The record does not explain the gap in performance reviews btueen March 1977 and April 1978 or 6, 1978,6 she wore a "Vote Teamsters" button every day, the only employee on the second shift to do so. Harvey began this period in her permanent job of inven- tory checker on the second shift; in April 1978 she was given a temporary assignment as second-shift checker. receiving and shipping, apparently on a job bid. under the supervision of Curtis Howell; she returned to her permanent position on November 6, 1978. On September 12, 1978, Supervisor Curtis Howell made out a semiannual performance review on Barbara Harvey, rating her "meets standards" in all categories but one. He rated her "below standards" in "relation- ships and attitudes" (defined as cooperation with other associates; attitude toward company, job, and supervi- sion; and acceptance of constructive criticism). With re- spect to this rating, Howell wrote, "Does not cooperate with other associates. Often feel the Company is unfair. Accept constructive criticism with negative attitude." Howell added: Barbara has constant problems in working with Co- Workers. Barbara must improve her overall attitude by the next review. This matter will be reviewed with Barbara on a monthly basis to record what progress is being made or what further action is necessary to correct the problem. The rating made Harvey ineligible to bid on any job va- cancy. On October 4, 1978, Howell met with Harvey to dis- cuss the performance review. Harvey charged Howell with picking on her because of her union activities; he denied it; she asked for a list of people she allegedly did not get along with; he refused.7 Harvey appealed the rating to Section Manager Doughty who met with her on the next day, October 5, 1978, after discussing the matter with Howell. Harvey charged that Howell planned to have her terminated because of her union ac- tivities and asked Doughty for a list of names of employ- ees with whom she did not cooperate. Doughty refused the names as contrary to company policy and pointed out that Howell would give her a monthly follow up to let her know if she were improving in attitude and rela- tionships. Harvey appealed to Department Manager Jensch, who met with her on October 10, 1978. Harvey complained that the attitude rating was unfair and made her ineligible for promotion for 90 days, and that Howell was prejudiced toward her because of her union activi- ties. Jensch promised to investigate and get back. After obtaining the views of Section Manager Doughty and his superior, Chuck Scarletta, Jensch met with Harvey again on October 12, 1978. Jensch advised Harvey he had been informed by management that she misquoted company procedures to employees, confusing them and requiring management to straighten things out. He told Harvey to Harvey seemed uncertain as to the precise date she stopped wearing a "Vote Teamslers" button 7 The facts with regard to Harvey's counseling sessions resulting from this performance re'ie¥ with Holell on October 4. ith Section Man- ager Doughl n October 5, and with epartment Manager Jenwch on October 1) and October 12 are not in substlanial dispute and are based on an amalgamation of the testimon Iof the participants AVON PRODUCTS. NC 947 94R DECISIONS OF NATIONAL LABOR RELATIONS BOARD avoid procedural situations and refer such matters to management, and promised to review her attitude in a month. In his step-three open door report, Jensch stated, among other things, that material-handling management informed him, . . . they were constantly being confronted with sit- uations of an employee coming to them questioning management's direction because "Barbara says" . . . and required management to take time out to straighten out an employee's misunderstanding. Jensch also wrote that it was possible that Harvey's statements had been accurate but employees had misun- derstood them. As stated above, Harvey went back to her permanent job as inventory checker, second shift, on November 6, 1978. About this time, Harvey bid for a posted job of common stock clerk on the first shift at no change in pay except that Harvey would have lost her second-shift pre- mium; Section Manager Doughty and Department Man- ager Scarletta forwarded her bid with approval.H The bid was rejected by the personnel department because Harvey was ineligible due to her below standards per- formance review. On November 8, Harvey circulated among material- handling employees a petition headed "The following employees feel that Barbara Harvey's attitude and rela- tionships toward other employees should be at least 'meets standards."' She obtained the signatures of 31 second-shift employees; however, all but one or two of the signatories did not work directly with Harvey in her temporary job under Curtis Howell and therefore were not the employees with whom she was charged with being uncooperative. Section Manager Doughty met with Harvey on No- vember 9 and informed her of the rejection of her bid by personnel, and told her management felt her attitude was improving with her meetings with Jensch but not enough to justify taking her off the below-standards rating.1 o On November 9, 1978, Jensch also met with Harvey in con- nection with her below-standards counseling. He in- formed her that a review with management had revealed neither positives nor ngatives worthy of note and this was a good reflection on her performance. Harvey com- plained about being rejected for the first-shift job and Jensch promised to look into it. Harvey showed him her petition with the 31 signatures. He gave it only a brief " Doughty testified he approved the bid because Jensch was conduct- ing monthly meetings with Harvey at the time and, being unable to reach Jensch on the day of Harvey's bid, Doughty went ahead and signed it. I credit this testimony over Harvey's that Doughty refused to approve the bid until at her urging Jensch instructed him to do so, as Doughty's ac- coililt seems the more reasonable in all the circumstances. 9 Mary Lou Childers, ho did work with Harvey, testified that Harvey tricked her into signing the petition which she did only so Harvey could transfer to the day shift, although Childers admitted she believed Harvey met standards. Grover (Doby) Wallace, an active union advocate, testified he would have rated Harvey below standards but signed the petition so she would be transferred to the day shift and re- lieve the second-shift employees of the necessity of working with her. '° Based on Doughty's credited testimony. Harvey made no reference to a meeting with Doughty on November 9. but such a meeting fits the chronology and explains where Harvey received the information that her bid was rejected about which she complained to Jensch. glance and said he would meet with her again in 30 days.' t According to Jensch, he discovered upon contacting the personnel department after this meeting that the first- shift common stock clerk vacancy which Harvey had bid for was canceled and he relayed the information to Harvey on November 16 when he saw her on the dock. 12 B. ,November 22, 1978 The complaint alleges and the answer denies that Sec- tion Manager Doughty violated Section 8(a)(1) of the Act by telling Barbara Harvey on November 22 that her opportunities for advancement would be enhanced by abandoning her open support for the Union, threatening to discharge her if she circulated the petition to obtain the employees' signatures about her job attitude, and in- terrogated her about her union activities; and that the Respondent violated Section 8(a)(3) on November 22 by denying Harvey a promotion because of her activities on behalf of the Union. Harvey testified in support of these allegations that she encountered Doughty in the plant that day and he told her Jensch had mentioned her petition to him but he was unimpressed, and invited Harvey to his office later that evening. When she arrived, the following occurred, ac- cording to Harvey: He says, "I called you in to inform you that you are the most senior candidate for a job that we put you in for, but Tom Jensch and I decided that since it only lasted four weeks that we would turn it down for you." I said, "That's not fair. That's not normal proce- dure." He said, "You should never have put in for it in the first place because of your attitude with work." I said, "I've already proved by getting the peti- tion signed that that evaluation was unwarranted." . . I said, "Would my attitude improve if I would take this Union pin off?" At that time he had a pencil in his hand and he took it and threw it up in the air, swiveled around in his chair, caught the pencil and smiled, and he says, "Yes, that would help a whole hell of a lot. . ." he said, "What do you think these supervi- sors think when they see you running around out on the dock with that Union pin on?" He says, "It sticks out like a sore thumb." He also said, "You know that Avon is a very anti-Union Company and you continue to organize Unions," and he mentioned that if he could have caught me passing that petition around, that he would have nailed me on the spot. I said, "What do you mean by that?" "i Where their accounts differ. I credit Jensch's because it meshes with the chronology and with Doughty's testimony referred to above. "2 Jensch's testimony to this effect was supported by documentary ei- dence which I have no reason to doubt. Harvey could nriot recall that Jensch or anyone else ever told her that the job was canceled AV/ON P'RODUCTS, NC' 949 He said, "I would have fired you right then and there." I told him I had passed the petition around at lunch. He said, "Well, I don't think you would he dumb enough to do it in a work area during work time." I said, "I wasn't." He also said, "I don't think we could ever fire you for coming back on break late or from lunch late or coming in drunk." I told him that I was not going to quit wearing my union pin. At that point he got very angry and he started talking to me through his teeth, and he says, "No matter what management wants, you want just the opposite," and he said, "I don't care if you come in with a UAW hat on tomorrow .... " Oh, I recall about the union card, he asked me if I had passed out a union card on the dock earlier that evening. I said, "No, I did not . . . ." He said, "Didn't you know everything that you say on break is repeated to me?" I said, "No, I didn't." Lloyd Doughty testified his only encounter with Harvey on this date was on dock when he asked her why she was out of her usual work area and, as she satis- factorily explained her presence, he passed on by. He denied having any other meeting with her on November 22, and denied all the remarks attributed to him, insisting that his chair will not swivel all the way around because his office is too small; that he did not know about Har- vey's petition; that he would not have fired her for cir- culating it if he had known; and that he does not have authority to fire anyone. As the General Counsel indicates in his brief, I am re- quired to make a "sheer credibility resolution" in a one- on-one situation between Harvey's testimony and Doughty's denials. After much consideration I have con- cluded that I cannot credit Harvey over Doughty. First, her demeanor was not so superior to that of Doughty as to justify belief in her word against his without any cor- roboration by either circumstances or testimony, and in view of my overall findings there is neither.'3 On the contrary, these factors favor Doughty. Thus, the only job vacancy in issue was the first-shift common stock clerk vacancy for which Harvey submitted a bid. As the credited evidence establishes that Doughty and his supe- rior, Scarletta, both endorsed Harvey's bid and that it was rejected by personnel because of her below-stand- ards performance review, it is clear that Doughty and Jensch did not have a hand in the decision. Moreover, I have found that Doughty had already informed Harvey of the ineligibility ruling by personnel. In these circum- stances, I cannot believe that Doughty would tell Harvey a gratuitous lie to his and the Respondent's dis- advantage, or scold her for having submitted the job bid l1 I similarly cannot credit Harvey's testimony that she reported Doughty's alleged November 22 remarks to Personnel Operations Man- ager Burton at her December 6. 1978, counseling session with him over Burton's testimony that she asked him, in one of his February 1979 meet- ings with her, whether Doughty had the right to ask her to remove her union button or to penalize her because of union activity and that Burton told her absolutely not He testified he subsequently questioned Doughty about this and Doughty denied making any such remarks. in the first place. Secondly, as Doughty had no authority to fire Harvey or anyone else and by Harvey's own ver- sion of the conversation Doughty confessed his inability to fire her no matter what she did, it seems nearly impos- sible that he would have threatened to fire her over the petition. A further inherent inconsistency in Harvey's ac- count is that Doughty on the one hand allegedly said that her below-standards attitude rating would he im- proved if she ceased wearing a union button and practi- cally simultaneously declared he did not care what kind of union insignia she wore. Accordingly, I conclude that the allegations that Sec- tion Manager Lloyd Doughty violated Section 8(a)(1) on November 22, 1978, are not supported by a preponder- ance of the credible evidence, and I recommend that these allegations be dismissed. It is also alleged that, on November 22. the Respond- ent denied Harvey a promotion because of her activities on behalf of Steelworkers Union. The General Counsel takes the position in his brief that this allegation is sup- ported by evidence that on November 8 or ), 1978, Harvey was ruled ineligible for the job she wanted on the first shift by Supervisor Howell's below-standards performance review of September 12, 1978, because of her activities on behalf of the Teamsters Union. This contention cannot stand. Aside from the fact that it is at considerable variance from the complaint, the credible evidence fails to sub- stantiate the contention that the rating was discriminator- ily motivated. Even though Harvey was not shown to be the leading union advocate in the plan as the General Counsel contends (thus, there is no evidence she attend- ed any union meetings or was a member of the employee organizing committee as Grover Wallace was), it is true, and I find, that management had knowledge of her en- thusiastic support of the Teamsters, and she was the only employee on the second shift who wore a "Vote Team- sters" button every day. There is, however, no credible evidence of union animus. Moreover, the Respondent has not committed any unfair labor practices in the past and I have concluded above, and below, that the evidence fails to substantiate the allegations that the Respondent violated Section 8(a)(1) during the period covered by this complaint. 14 The General Counsel contends that the record shows a lack of basis for the below-standards rating. This is not shown, however, by Harvey's petition of November 8 in- asmuch as few signatures were obtained from the em- ployees Harvey was working with at the time. More- over, although the fact that various members of manage- ment who dealt with Harvey in the counseling program emphasized different shortcomings on Harvey's part, and Department Manager Jensch expressed some doubt about one aspect of the rating, might have weakened the Re- spondent's case against Harvey in an arbitrative sense, I cannot say, in light of the weight of the evidence sup- ' Supervisor Donald Riley's remark to Harey. iI November 1978. that he liked the Teamsters pin she va. .earing ad Wondered if she "had helped rip off the pension fund rsith the Teamsters" and thought her union advocacy ridiculous, sas neither a iolation of Sec (a)(l nior evidence of discriminatory motive A V O N P R O D U C T S , I N C q 4 9~ ~ ~ ~ ~ ~ 950 IDECISIONS OF NATIONAL LABOR RELATIONS OARD porting the performance review, that it was proved to be unjustified. Contrary to the General Counsel, the fact that only 20 other employees, or less than one-half of 1 percent of those reviewed, have been rated below standards in rela- tionships and attitude within the last 2 years does not es- tablish disparate treatment of Harvey in the absence of evidence that the Respondent treated other employees more leniently in similar circumstances. The General Counsel relies heavily on the element of timing. Here also, however, the record favors the Re- spondent. The Respondent has been aware of Harvey's activity on behalf of many unions over a period of 12 years without interfering with or discriminating against her because of it. With regard to the second Teamsters campaign, which began in November 1977, Harvey was given a below-standards rating in January 1977 before that campaign began, and another in April 1978 after the campaign was well under way, neither of those ratings being discriminatorily motivated as far as we know. Moreover, although the General Counsel attributes the lifting of the September 12 restriction in December 1978 to the fact that the Teamsters campaign was ended and Harvey ceased wearing a "Vote Teamsters" button shortly before that, as recited below, the fact that the 90- day period ended about December 12 could just as well have accounted for the timing of the lifting of the re- striction. Accordingly, I conclude that this allegation of 8(a)(3) discrimination is not supported by a preponderance of the credible evidence and recommend that it be dis- missed. C. Intervening Events In early December 1978 the Teamsters Union with- drew its campaign to organize the Springfield plant. Bar- bara Harvey testified that she stopped wearing a Team- sters button on either December I or 6, 1978. Thomas Jensch was transferred to New York and at his request Personnel Operations Manager V. M. Burton took over the open door counseling of Harvey. Burton's first counseling session took place December 6, when he agreed to check with material-handling man- agement to see whether Harvey's relationships and atti- tude problems had improved enough to remove the re- strictions on her and to check into the merchandise con- trol job vacancy. Burton then had a final session with Harvey on December 20 and advised her that her prob- lems seemed to be resolved and he would take her off restriction so she could bid for jobs after the first of the year. Burton also advised Harvey that the job vacancy in merchandise control had been canceled. The memo was drafted January 10 or 11, 1979, and put in Harvey's per- sonnel file.' 5 D. January 31, 1979 The complaint alleges, and the answer denies, that on this date the Respondent violated Section 8(a)(3) by insti- tuting a requirement that Barbara Harvey take her work l Shortly thereafter Harvey bid for two first-shift vacancies, which Doughty approved She failed to get either on seniority grounds. breaks on a set schedule, thereby rescinding its prior policy of allowing her to take breaks at her convenience. In support of this allegation Harvey testified that she and Mary Grubbs, a coworker in her permanent position of inventory checker, had been permitted to take their breaks "anytime we pleased" or "whenever I felt like taking a break," and that Steven Fightmaster told her toward the end of January 1979 when he became their supervisor, "We were all adults . . . and he trusted us to take the proper amount of time for breaks .... " A few days later, however, on January 31, 1979, Fightmaster instructed her and Grubbs to schedule their breaktime and to submit to him information on when they would be taking breaks, because he wanted to know where his employees were at all times. Harvey protested that they had never had scheduled breaks before but Fightmaster merely responded that it would be all right to change their schedule if they notified him. Fightmaster testified it was not the policy to permit impromptu breaks, and that all employees under his su- pervision, including Harvey, were on scheduled breaks at 5:30 p.m., 10:30, and 12:30, and lunch at 8 o'clock. He said that after the "Gary Hill situation" (discussed below) arose, someone told him that Harvey had claimed to be on break at 5 p.m., and in order to clear up possi- ble confusion, he spoke to Harvey and Grubbs "the very first part of February" he believed, to make sure they understood what the break policy was. He told them breaks were at the times named above but that he would meet with them again in a few days to see whether those times caused an operational problem for them. He said that Harvey made no comment that he remembered. He met them again 2 or 3 days later and Grubbs told him she had no problems with the break schedule, and Harvey said only that she would like her last break at I a.m. instead of 12:30 so she could do her perpetual in- ventory while the rest of the department was on 12:30 break, and he granted permission. The disparity in the precise dates given here is some- what out of the ordinary in that the date given by Harvey for the change in her break schedule was Janu- ary 31, before the Steelworkers campaign began, where- as the date given by Fightmaster was early February, after the campaign began. Be that as it may, the General Counsel contends that Fightmaster's assertion that his conduct was a result of the "Gary Hill situation" proves that the motivation was the same-discriminatory. I find below, however, that the evidence fails to show that the discipline of Harvey over the Gary Hill incident was dis- criminatorily motivated; by Harvey's own testimony, Fightmaster changed her break schedule during the hiatus in organizing campaigns at the plant; and Mary Grubbs fell under the same interdict although she was not shown to be a union advocate. Moreover, even though Fightmaster may have previously communicated his trust that Harvey and Grubbs would not take more than the alloted 15 minutes for their breaks, he does not seem to have been aware, as the new supervisor, of the practice of these two particular employees, in contrast with other employees of material handling, of timing their breaks for their own convenience, and his remarks --- -- AVO(N PODIUC`IS, INC 9}51 appear to have been designed only to enforce the plant rule as he understood it. Even if it had been otherwise, however, he was entitled to change the practice where. as here, no discriminatory motive has been shown. I conclude that the Act was not violated by the change in Harvey's break schedule, and recommend that this allegation be dismissed D. February 1. 1979 The complaint alleges and the answer denies that the Respondent issued a written reprimand to Harvey on February 1, 1979, because of her union activities. The record shows that February 1 was the first day of the Steelworkers campaign and the first day they hand- billed the Springfield plant; that Harvey accepted bills and an authorization card which she signed and mailed at the plant mailbox, and distributed the bills among em- ployees in the employee "Hasty Tasty" plant lounge before the start of her shift. Personnel Operations Man- ager Burton admitted he was aware of the handbilling and could have guessed, from her prior union activity, that Harvey was involved in the Steelworkers campaign. According to Harvey, Material Handling Manager Chuck Scarletta called her into the office about 7 p.m. on February I and, in the presence of John Studenka who was scheduled to take over that position in the near future, asked her if she remembered being out of her work area on January 25, and accused her of talking to employee Gary Hill while she was "on an unscheduled break" and holding Hill up from his job for 15 minutes. Scarletta informed her he was putting her on a second- step situation report, skipping the first step of the disci- plinary procedure; and that she again would not be al- lowed to bid for a promotion for 90 days and "This report will not be changed." With respect to the incident under discussion, Harvey testified that, on January 25, she was not on scheduled break periods and was allowed to take a break whenever she wanted to, not to exceed 15 minutes; at or about 5 p.m., on her way to data processing to pick up her per- petual inventory printout, she encountered Hill, a main- tenance utility helper. in the main aisle of the warehouse getting ready to pedal off on his tricycle, and engaged him in conversation for about 5 minutes on impromptu break . . . to which she was entitled"; she assumed Hill was also on break because maintenance department em- ployees had also been accustomed to taking breaks "whenever they felt like it." Later, Harvey testified, Gary Hill told her "it could have been considered" that he was also on break. Hill, who was known by management not to be a union advocate, testified he encountered Harvey at 5 p.m. on January 25 and chatted with her "at the most 5 minutes," and he told Manager Gropler later that he was not on break but he did not have scheduled breaks and since he had not had a break that night yet, "you could consider that my break." Hill asserted that he had spoken with other employees in similar circumstances without being disciplined. Donald Riley, who described himself as Hill's supervi- sor's supervisor, testified that he observed Hill and Harvey in conversation at 5 p.m. and again later at 5:17 p.m. on January 25, and that he reported his ohscrsations to Section Manager Doughty. Scarletta and Studenka testified that their meeting with Harvey on this matter occurred on January 31. and not February I, and Scarletta testified that Doughlii (who said that no one had an excused break before 5:30) had brought the incident to his attention. reporting that he had received the information from Maintenance Supersi- sor Donald Rilev who observed the Harsc ,-Hill coin er- sation. Scarletta recorded in his counseling memno that "more severe counseling" was required in this instance because of Harvey's past record of being out of her work area and disrupting other employees that she w\as being placed on "second counseling" and "The next i- stance of Barbara's absence from her designaled work area will result in Final Counseling. Attached \ as the record of a "verbal" counseling in earl 5 1978 (refe.rred to above) for being out of her work area anld col\r ersi ig ,with employees on several occasiols inl late 177. Scar- letta testified he called Harvey into his office again the next day, February 1, because lie heard se charl;led management with harassing her he denied lihc ch;i-ge and assured her she would not be harassed bectluse of her union activities as long as she contirined thelnl I before work and at breaktime. In subsequent counseling inters jews ith l Personel Operations Manager Burton and (icncral N1aniagIc Gropler on February 12 and April 5. respectiel 5 , til! told Harvey that their investigations indicated that sorme material-handling employees take breaks at times o ther than 5:30 and as she may have therefore beenl oni break (a Scarletta-revised memo in the files states that Harrec probably was on break) this charge would be dropped, but the charge of disturbing Hill would riot be dropped because Hill was not on break. Harvey was taken off re- striction on May 1, 1979. 6 Hill was not discipliled. Burton testified this was Donald Riley's decision aid lihe did not discuss the matter with Riley. Riley testificd that, although Hill had had other performance problems in the past, he had not been one to abuse the break period or disturb other employees. In my opinion, the General Counsel has more going for him in connection with this incident than with the others at issue in this proceeding. Here, the record mlti- cates that the Respondent administered serious discipline against Harvey with little or no justification. Thus it is clear that management eventually concluded that the charge of abusing a break period would not stick to Harvey because she had at that time had unscheduled breaks. Also, there is no evidence to refute lar,.ev's tes- timony that she was not in fact outside her work area in- asmuch as she was on her way to pick up her pcrpetual inventory printout from data processing Moreover, man- agement had no basis for the only remaining charge against Harvey-disrupting the work of another employ- ee-as Personnel Operations Manager Burton and De- partment Manager Scarletta both conceded it was ncci determined which of the two emploees initiated the Thal tIarct, rcccixct illOther he.lox-lllM,Idr, r.itl. i ,.il w ,hirp, id ;utlt' oI April 1979 hecau tf I, i iid til did 11 pi \ the ifting oi Ihe ohb-orpporuniN r'st¢,ltricion ti N I . 1 1'17 A'.'ON t'ROt)ti(iIS, INC '15 I )s52 I)FCISI()NS ()F NATI()NAL. I.ABOR REI.A I()NS B()ARI) conversation (although Harvey admitted on the witness stand that it was she w\ho did so). In view of the fact management was of the firm opinion, and rightly so, that Hill was not on break, one would think that as it was he, not Harvey, ho wasted company time, that manage- menit would discipline him and not her. It was, of course, the other way round, and the Respondent was well aware that Hill was against, and Harvey for, unionization of the plant. Against these facts, however, is the fact that Harvey had a record of discipline for a similar infraction in the past while Hill did not. Also, although the Respondent offered no explanation for the lapse of time between the incident and the discipline, I find, based on the testimony of Scarletta and Studenka supported by documentary evidence, that, in any event, the discipline occurred on January 31, 1979, the day before the onset of the Steel- workers campaign and therefore could not have been triggered by it. Accordingly, although this incident is suspicious, in the above circumstances and in the absence of any unfair labor practices or other evidence of discriminatory moti- vation, I conclude that a preponderance of the credible evidence fails to establish that Harvey was disciplined to discoura ge inion activity, and recommend that this alle- gation also be dismiissed. F. February 5, 1979 The complaint alleges, in effect, and the answer denies that Section Manager Doughty threatened to discharge Harvey on this date because of her union activity, in vio- lation of Section 8(a)(1). Barbara Harvey testified that, on February 5, she wore Steelworkers buttons to work for the first time, and has continued to wear them ever since. Jackie Burton, second-shift nurse, testified in support of this allegation that she spent the lunch break on Feb- ruary 5 at a table in the plant employee lounge with Su- pervisors Doughty and Fightmaster, material-handling department secretary Charlene Schuster, and several other supervisors; that Barbara Harvey passed by on her way to the exit and Supervisor Fightmaster said, "There goes Harvey out. Do you think she'll be back at 8:30?" And bets were made. Doughty commented that "she'd better be back on time. If not, her ass is gone this time." At 8:29, Fightmaster went to a telephone and called the plant floor to see whether Harvey had returned, and he reported that she was back, and "that's when the money was paid on the bets," although "I don't think anybody in particular won," and the group began to play poker with the money that "had come out on the table for who won or lost." Only after having her memory refreshed by her pretrial affidavit did Jackie Burton add that Doughty also said that "Harvey had better be back by that time or else her ass was gone and we can get rid of her and the Union both." Doughty and Schuster flatly denied that Doughty made the remark about getting rid of Harvey and the Union. They and Fightmaster testified in substantial accord that there was a discussion at the table about problems with employees' taking excessive breaks when Harvey passed by and Doughty commented, "... there goes one employee that never takes more than 15 min- utes for a break or more than 30 minutes for lunch," and Fightmaster or someone else said, "Oh, I'll bet that she won't be back in 30 minutes"; but that no money was bet until later when some of the group played their usual game of "liar's poker" for who was to pay for coffee. Doughty and Fightmaster added (but Schuster could not recall) that Fightmaster received a phone call and when he returned to the table he told the group that Harvey had not returned from lunch break. As Jackie Burton's testimony waivered somewhat, in view of her initial lapse of memory of the most damag- ing statement Doughty is alleged to have made, and as she was contradicted by three mutually corroborative witnesses, I cannot credit Burton that Doughty said "... we can get rid of her and the Union both." As the credited version of the conversation was not union relat- ed, I recommend that this allegation be dismissed. G. February 12. 1979 The complaint alleges and the answer denies that the Respondent issued another reprimand to Harvey on this date because of her union activities. Barbara Harvey testified, and Doughty denied, that Doughty told her, during an interview held on January II for the purpose of informing her that the restrictions for below-standards relationships and attitude were being removed, "If you feel it's necessary to work overtime, just contact me before the end of the shift and you'll be allowed to work overtime and I'll be sure to pay you for it .... " Her testimony continued that, on the morning of February 12, she was "running a few minutes late" with her work, and she passed Doughty on her way to the xerox machine about the 2 a.m. quitting time, and he asked if she needed his key to the machine; she told him she did not. About 2:15 a.m. Doughty came into the xerox room with Fightmaster and said, "Don't tell me you're that overworked that you can't get out of here in an eight to ten-hour shift": she responded that the work was not done until the paperwork was done and added, "Don't worry, Lloyd. I won't stay late any more"; Doughty asked, "Did Fightmaster warn you before?"; and she replied, "Well, Lloyd, don't worry, I won't stay late any more whether the work is done or not"; she handed Fightmaster his copy of the report and left be- tween 2:10 and 2:15. On February 15, Doughty called her to the office and read "three memorandums to you concerning your not getting out of here at the end of the shift." He told her he had witnessed her staying over each time, and Harvey responded that he owed her some overtime pay in that case. Doughty said he would not pay, and Harvey reminded him of his assurance on Janu- ary 11 that she could work overtime any time she felt it was necessary and he would pay. Doughty asked if she was saying that he was "telling your supervisor one thing and you another thing," and she said yes. Harvey testified that before 1979 she and Mary Grubbs stayed late whenever they felt their work needed to be completed, once a month at least: that she observed other employees, including one Billie Waller, Charlene AVON PRODUCTS. INC '0)S Schuster, and "different people in maintenance," work- ing late, and that they were never criticized for it. Doughty testified that employees are expected to leave the plant at the end of their shift unless they are instruct- ed by management to stay overtime, and that Harvey is the only employee he has ever had trouble with on this issue. He said he explained this to Harvey on February 14, at which time he informed her of three memos re- ceived from Supervisor Fightmaster to the effect that he told her on January 30 after observing her staying late on several occasions that she should leave at the end of her shift but she thereafter stayed on until 2:30 a.m. ol February 5 and 6. In his counseling memo, Doughty wrote that this would not change the 90-day restriction she was already on for the Gary Hill incident. Fightmaster testified that after observing that Harvey stayed late on January 22, 23, and 24, he explained to her on January 25 that she should leave the plant within a reasonable time after the end of her shift unless he re- quested or gave permission for her to work overtime, and she responded that was what she would do in the future if that was the way he wanted it. However, that same shift, on the morning of January 26, he observed Harvey still at her work station at 2:30. He repeated his instruction and she replied, "Well, from now on she would just leave at two a.m. whether the work was done or not." The following Tuesday, January 31, he told Harvey he had been disappointed in her behavior on Thursday in ignoring his reasonable request and expected her to comply in the future; she said she would. Again, however, at the end of the following Monday shift, on the morning of February 6, he saw Harvey coming out of the women's lounge at 2:30; when he confronted her with this on the following day she said she was late fin- ishing her paperwork and would try to leave within a reasonable time in the future. On February II1, he and Doughty saw her in the office at 2:30 and asked her to leave. Thereafter, he wrote three memos to Doughty outlining the oral instruction he gave her on this subject on January 30, 1979; and that he subsequently observed her in the plant at 2:30 a.m. on February 6 and at 2:25 a.m. on February 12, and asking for more severe disci- pline. Harvey could not recall whether Fightmaster spoke to her on this subject on January 25. She conceded that Fightmaster did speak to her "in a casual conversation" about staying late around the first of Februar. and that she stayed past 2 o'clock on February 2 anrd,l although Fightmaster and Doughty told her then she should not do so, Charlene Schuster was also staying late: and that she stayed after 2 a.m. again on Februar 3 5 or 6, o Feb- ruary 7. and on Februar 5 II or 12. 2 Schuster testified she stased 20 or 30 minutes late on two occasions on Doughty's request. anld sa\ 1t larrxc ais she was leaving the plant with Doughty and Fightmas- ter. I do not credit Harvey that Section Manager Dought ever invited her to stay late any time she felt it necessary and she would receive overtime pay; but I note that even by her own testimony Doughty added that she must con- tact him before the end of the shift to obtain permission and she did not claim that she did so. Moreover. the e i- dence is undisputed that both Doughty and FightmastLr thereafter instructed Harvey on several occasions, begin- ning on January 25, 1979. that she was to leave the plant at the end of her shift and she persistently ignored their instructions. Clearly, therefore, there w;as reasonable cause for the reprimand she received. No disparity is shown in view of Schuster's explanation that she worked late upon supervisory request, and the evidence fails to show that any other employee whom Harvey (or Jackie Burton) may have observed in the plant after 2 o'clock in the morning did not have supervisory permission to be there. I conclude that this allegation is wholly ithout merit, and recommend its dismissal. Accordingly, upon the foregoing findings of fact, con- clusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the folloAs ing recommended: ORDER ' 8 The complaint is dismissed in its entirety. T7 hat the ighlt sifl began on one dae al toied on thc le dtb less acciunllllts fr sonme ol the differences il Ihe l late gi cll ill this t1i- ' In the eenllt no excepliollns are filed as prorilded h Sc 1i0 4 of the Rules and Regulalilos of the Natlinal ahior Relallonl lieord. the Findings. conclusions, and recommended Order hereiln shall. a, prlonidld in Sec 102.48 o)f the Rules and Regulations, he adopted hb Ilic oard iIdl become it, Findings conclusions, and Order. and all ohblwIitois h.literl shall he deemncd sai ed for all purposes .