W. R. Bean & Son, Inc.

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.