Hamilton Die Cast Co.

Nicklas rulings, Order,3 lqc) officers, successors, 1. l(b): ' Rapondent has certnin Law Board's established overrule r o l u t i o ~ rapact unlesc the clear resolutio~ Srundad Wall Pmduct~, Inc., (1950). F.2d (M 1). wefully find basis Law resmm Respondent discharge 13, pretextual Respondent's daire penalize activities. Thjus, the aa employees were taking l a v e true inter alia. Jmeph Weltering expressed rapect dety-related Plant ex- p r e ~ e d bccausc he that hostile Magee because p r o d i n g s . Pobert fonner Magee Finally. clur performance discnminatorily I&) issued ceau-anddesist i.e., c a u forth Hick- motr Fmdr Inc., 1357 has been Rapondent haa has nghts. "(b) NOTICE POS~ED ORDER NATIONAL fo-mer BUSHMANN, 949 HAMILTON DIE CAST COMPANY, INC. Hamilton Die Cast Company, Inc. and Bowling and Judy Dunn. Cases 9-CA-14238 and 9-CA-14352 DECISION AND ORDER On August 28, 1980, Administrative Law Judge Karl Buschmann issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed a brief in support of the Decision. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the find- ings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended as modified herein. ORDER Pursuant to Section 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, as modi- fied below, and hereby orders that the Respondent, Hamilton Die Cast Company, Inc., Hamilton, Ohio, its agents, and assigns, shall take the action set forth in the said recom- mended Order as so modified: Substitute the following for paragraph excepted to credibility findings made by the Administrative Judge. It is the policy not to an administrative law judge's with to credi- bility preponderance of dl of the relevant evidence con- vinces us that the are incorrect. Dry 91 NLRB 544 enfd. 188 362 Cir. 195 We have examined the record and no for reversing his findings. We agree with the Administrative Judge that the given by for the of employees Nick Bowling and Judy Dunn on August 1979, were and that action war in fact motivated by its to them for their concerted record shows that Bowling and Dunn were the vic- tims of disparate treatment other not terminated for without prior written notice. Respondent's purpose is demonstrated, by the following evidence: Respondent President in July 1979 his anger with to Bowl- ing's activity. Respondent Engineer Dick Meeker his hostility toward Bowling tiled OSHA charges. Employee Otis Johnson testified Meeker repeatedly made statements concerning Bowling's protected activities. Respondent Super- visor Emery told Johnson that Bowling was in trouble of his role in instituting OSHA Otte, a employ- ee, testified that made statements to the same effect. it is from Respondent's criticism of Dunn's as union ste- ward that she. too, was discharged. In par. of his recommended Order, the Administrative Law Judge a broad order; "in any other manner." We have considered the in light of the standards set in 242 NLRB (1979). and have concluded that a broad remedial order is inappropriate since it not shown that a proclivity to violate the Act or engaged in such egregious or widespread misconduct as to demonstrate a general disre- gard for the employees' fundamental Accordingly, we shall modify the recommended Order and notice and use the narrow injunc- tive language, "in any like or related manner." 254 NLRB No. 113 In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX TO EMPLOYEES BY OF THE LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through represen- tatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT discharge any employee be- cause of his or her union or protected concert- ed activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer Judy Dunn and Nick Bowl- ing immediate and full reinstatement to their jobs, or, if such jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay, with interest, that they may have suffered by reason of our discrimination. All our employees are free to become or remain, or refrain from becoming or remaining, members of a labor organization. DECISION STATEMENT OF THE CASE KARL Administrative Law Judge: This case is based on two charges, one filed in Case 9-CA- 14238 by Judy Dunn on August 21, 1979, and the other B(aX3) (1) discriminatorily employees, 1980, case Inc., AFL-CIO, 140 150 14, 2(5) 13, luve pretextual, Tlre dircharge Bowling haa thrae 12, "Employeen Exh. request IS cards.2 Bowling s l i ~ conce&hg When rester Company of wan McKee, McKee permission Polanka ae absence. aRer was ae usual she luve only the requests b writing. Under these circumstances, a i.e.. mili- 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Case 9-CA-14352 filed by Nick Bowling on Septem- ber 20, 1979. The consolidated complaint issued on No- vember 8, 1979, alleges that Respondent violated Section and of the National Labor Relations Act, herein called the Act, by discharging the two charging parties on August 13, 1979. Hamilton Die Cast Company, Inc., herein called Repsondent, filed an answer on December 26, 1979, in which it admitted all jurisdictional elements of the complaint and the dis- charges of the two but denied all the allega- tions in the complaint that Respondent's conduct amounts to violations of the Act. A hearing on these allegations was held on April 10 and 11, 1980, in Cincinnati, Ohio. The General Counsel and the employer filed briefs on June 18 and June 17, respectively. Based upon the whole record1 in this and my observation of the demeanor of the wit- nesses, I make the following: Hamilton Die Cast Company. is engaged in the production and sale of aluminum die castings in Hamil- ton, Ohio. It is admittedly an employer engaged in com- merce within the meaning of the Act. International Molders and Allied Workers' Union, herein called the Union, which represents the to employees pursuant to a collective-bargaining agreement, effective November 1978, is admittedly a labor organization within the meaning of Section of the Act. On August 1979, Respondent discharged two of its employees, because, according to the Employer, they did not turn in a written request for of absence as re- quired under the contract. The General Counsel argues that these reasons were and that the two em- ployees were fired because of their union activities. of Nick Bowling: The record shows that been employed since September 8, 1977, as a maintenance man. Two or months prior to his tour of duty from July 27 to August 1979, in the Ohio Army National Guard, Bowling received a "Re- quest for ARNG Training Duty Leave of Absence" ad- dressed to of National Guard Personnel (G.C. 11). Bowling orally informed his foreman, Robert Lowery, and talked to his coworkers about his training duty at Camp Grayling, Michigan, and provided Respondent's personnel director, Richard Burger, with the for leave along with or 20 Union Approximately 1 month prior to his leave, Lowery re- minded that he turn in a leave-of-absence to Burger his military leave. Bowling told' his supervisor that he had already done so. Bowling also dis- cussed his guard obligation with other members of man- agement, including Steve Woltering, son of Respondent's president, Joseph Woltering. Bowling returned to work on August 13, at the usual starting time. With his timecard was a note requesting him to see his supervisor. Lowery promptly informed Respondent's motion for correction of transcript is hereby granted. It strongly disputed on the record whether Bowling handed the document to Burger. him: "Nick we are letting you go, for failure to put in for leave of absence." told that he had given a slip to Burger, Lowery replied that Burger was no longer with the company and that Bowling was fired. On the following day, Woltering contacted Bowling and offered to resolve the issue if he submit to a lie detector test. Bowling agreed and reluctantly submitted to a lie detec- tor to be administered by Phillip R. Brester, a polygraph examiner. However, Bowling became angry with the process and the type of questions so that decided that he would not be able to get an accurate reading. No other attempt with the polygraph examiner was made by the or Bowling. The discharge Judy Dunn: Dunn had been employed by Respondent as a machine operator for 2 years. In April 1979, she had suffered a nervous breakdown for which she on leave for 5 weeks. At that time the company was informed by telephone that she would not be reporting for work. On June 4, 1979, she had returned to work. On July 25, 1979, Dunn went to work as usual at 7 o'clock. Between 8 and 9 o'clock she approached Emory her supervisor, and informed him that she was very upset and nervous because of family prob- lems and that she needed to see a doctor. grant- ed her to leave work. Dunn was subsequently examined by Dr. who recommended that she be treated in a hospital. She went to the Hughes Hospital in Hamilton and, during her prior hospitalization, had her sister-in-law notify her employer of her One day her hospitalization she called Burger informing him that she hospitalized. She asked whether she should call every 3 days required by the contract, to which he replied: "No, call in periodically." She called Burger on August 1, 1979, and reported that she was out of the hospital, but that she could not return to work until she was released by her physician. On August 6, she called again and informed Burger that she would return on August 13. Burger replied that he would so inform her supervisor. On August 13, she reported for work at 7 o'clock. She immediately noticed that her timecard was not at its place. She went to her supervisor's office with her doctor's excuse, but he was not in, so went to the personnel manager's office. There, Steve Woltering read her a letter which, in substance, stated that she was dis- charged for her failure to make written application for her of absence and that she, as union steward, of all people, should have known of the requirement. Analvsis The record is undisputed that both employees, Bowl- ing and Dunn, have had a satisfactory working record without any history of prior absenteeism or tardiness. It is also clear that the Employer had received prior, oral notification of Bowling's military leave and simultaneous or immediate knowledge of Dunn's absence due to her illness. Furthermore, it is freely conceded by Respondent that the ostensible reason for the discharges were failure of individuals to submit their leave in for the purposes for which the leave was taken,