Steves Sash and Door, Inc.

154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Steves Sash and Door, Inc. and Vita Salinas. Case 23-CA-2975 August 20, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On November 19, 1968, Trial Examiner Fannie M. Boyls issued her Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. The Respondent filed "limited" exceptions to the Trial Examiner's Decision and a brief in support of its exceptions and the remainder of the Trial Examiner's Decision. 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 hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith and as modified below. On January 6, 1968, Salinas, who admittedly was "a very good worker for a long time", was recalled, on the basis of her seniority, from layoff and assigned the onerous task of climbing a ladder and glazing the outside windows of the Crest Moulding Building. Despite the weather conditions which were then averaging 37-42 degrees, Salinas' recent bout with the flu, and her willingness to pass up her place on the seniority list to a junior employee in terms of service, Respondent, over Salinas' protestations, insisted that she report for work and perform the scheduled job. After performing the job for 1 day, Salinas became ill, and after notifying the Respondent in accordance with the contract then in effect, remained home to recuperate. Upon reporting to the plant several days later, she was informed that she had been discharged for violating plant rule 1, refusing to obey the orders of a supervisor. Inasmuch as Salinas was not in violation of rule 1, or any other plant rule for that matter, the alleged reason for her discharge becomes suspect. Unlike the Trial Examiner, we cannot pass over this inconsistency and attribute Salinas' discharge to a matter of principle, i.e., that the performance of maintenance work by production personnel was solely within the Respondent's discretion. On the contrary, we feel that both logic and the record as a whole support a finding that Salinas' discharge was attributable to discriminatory considerations, and hence violative of Section 8(a)(3) and (1) of the Act. In reaching the above conclusion, we note that Salinas had been active on behalf of the Union since its inception, first as a member of the original organizing committee, and currently as its financial secretary. Despite Respondent's demonstrated union animus,' Salinas further evidenced her loyalty to the Union in August 1966, following her discharge for refusing to sign a damaging progress report relative to her work without prior consultation with the Union Coincident with the Respondent's action in this regard, a number of Salinas' fellow employees engaged in a walkout, which later developed into a full-fledged strike. Although the Respondent subsequently acknowledged that her discharge was a mistake and that she was in fact a good employee, Salinas declined the Respondent's offer of immediate reinstatement, electing, instead, to participate actively in the strike then in progress. Upon the settlement of the strike in March 1967, and Salinas' return to work, the Respondent moved Salinas from job to job contrary to prior practice and continually indicated dissatisfaction with her work. The handling of Salinas' seniority status following her return to work is a further indication of the Respondent's disposition towards Salinas. Thus, the record indicates, contrary to the finding of the Trial Examiner, that the reinstatement of her seniority to 1951 was not a magnanimous gesture on the part of the Respondent, but rather was achieved only after repeated requests by Salinas, the filing of a grievance and a union protest In view of the foregoing, and in the absence of any justification whatsoever for the Respondent's adamant refusal to allow Salinas to waive her seniority standing and bypass immediate recall, we conclude that the assigned reason for the discharge of Salinas-failing to obey an order of asupervisor- was a pretext, the real reason being her membership in and activities on behalf of the Union. Accordingly, we shall reverse the Trial Examiner and order her immediate reinstatement with backpay. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Electrical, Radio and Machine Workers, AFL-CIO, Local 1012, is a labor organization within the meaning of Section 2(5) of the Act. 'Sieves Sash and Door Company . 164 NLRB 76, enfd. in part and set aside in part 401 F.2d 676 (C.A 5) 178 NLRB No. 27 STEVES SASH & DOOR 155 3. By discharging Vita Salinas on January 12, 1968, Respondent has violated Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It will also be ordered that Respondent offer to Vita Salinas immediate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings suffered by reason of the discrimination against her by payment of a sum of money equal to that which she would normally have earned as wages from January 12, 1968, to the date of Respondent's offer of reinstatement, less her net earnings during said period, in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Steves Sash and Door, Inc., San Antonio, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees or otherwise discriminating against them in regard to their hire, tenure of employment, or any other term or conditions of employment, because they engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist International Union of Electrical, Radio and Machine Workers, AFL-CIO, Local 1012, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer Vita Salinas immediate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority or other rights and privileges, and make her whole for any loss of pay which she may have suffered as a result of the discrimination practiced against her, in the manner set forth in the Section of this Decision entitled "The Remedy." (b) Notify Vita Salinas if presently serving in the Armed Forces of the United States of her right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payments records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its plant in San Antonio, Texas, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 23, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 23, in writing, within 10 days from the date of this Decision and Order, what steps have been taken to comply herewith. MEMBER BROWN, dissenting: Collective bargaining here has resulted in a contract which provides a grievance-arbitration method of resolving the Salinas discharge controversy, and responsible collective bargaining calls for adherence to such settlement machinery. However, instead of exhausting her contractual remedy, the complainant elected to file unfair labor practice charges. I believe it manifestly inconsistent with the statutory policy of promoting industrial peace and stability through collective-bargaining process to sanction this kind of bypassing of contractually agreed-upon methods for settling disputes.' Therefore, I would require the complainant to proceed under the contractual arbitration machinery, and would not consider the merits of her case at this time. 'In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order." 'See my separate opinions in Cloverleaf Division of Adams Dairy Co., 147 NLRB 1410; Thor Power Company, 148 NLRB 1379; Fiasco Mfg. Co.. 162 NLRB 611. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FANNIE M. BOYLS, Trial Examiner: This case was tried before me at San Antonio, Texas, on June 4, 5, and 6, 1968. It was initiated by a charge and amended charge filed respectively on March 12 and April 5, 1968, and a complaint issued on April 9, 1968, alleging that Respondent, Steves Sash and Door, Inc., had violated Section 8(a)(1), (3), and (4) of the Act by its discharge of the Charging Party, Mrs. Vita Salinas, on or about January 12, 1968. At the commencement of the hearing, Respondent filed a motion to dismiss the complaint on the ground, inter alia , that the issues involved should be handled through the grievance and arbitration provisions of the collective-bargaining agreement Respondent had with International Union of Electrical, Radio & Machine Workers, AFL-CIO, Local No. 1012, herein called the Union. This motion was denied, without prejudice to Respondent's right to renew the motion later. Subsequent to the hearing, the General Counsel and Respondent filed briefs which have been carefully considered. In its brief Respondent renewed its motion to dismiss. As additional grounds, it stated (with a supporting affidavit by its personnel manager attached to the brief) that subsequent to the hearing the Union and Respondent had agreed upon an impartial arbitrator who, sometime after August 26, 1968, was to hear the issues arising out of the discharge of Salinas. The General Counsel, in a letter dated August 21, 1968, opposed the motion to dismiss but did not controvert the factual statements made by Respondent's personnel manager. Thereafter, by letter dated October 29, 1968, the Trial Examiner requested that the parties furnish a stipulation as to whether an arbitration hearing involving the discharge of the Charging Party had been held and requested a copy of the arbitrator's decision if such a decision had been rendered. No such stipulation has been furnished but counsel for the General Counsel and for Respondent have furnished the Trial Examiner with what purport to be and are accepted as true copies of the correspondence between Respondent, the Union and the arbitrator, James M. Gaines, pertaining to the arbitration proceedings.' Upon the entire record in this proceeding and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Texas corporation having its principal office and place of business in San Antonio, Texas, where it is engaged in the business of manufacturing doors, door frames, and related products, and in the sale and distribution of these products to retail and wholesale outlets. During the 12-month period preceding the issuance of the complaint, which is a representative period, Respondent, in the course and conduct of its business, purchased and had delivered to its San Antonio location goods and materials valued in excess of $50,000, 'These papers have been placed in a folder labeled "Trial Examiner's Exhibits" and are identified therein as follows- General Counsel's letter dated August 21, 1968, "TX Exh . V% Trial Examiner's letter dated October 29, 1968, "TX Exh. 2"; copy of Respondent's letter dated November 7, 1968 to General Counsel , enclosing affidavit of W A Barrett and attached Exhibits A through P, "TX Exh 3"; General Counsel's letter dated November 7, 1968 to Trial Examiner and attachments which have been marked Exhibits A through S, "TX Exh 4." directly from points outside the State of Texas. Upon these admitted facts, I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effecutate the policies of the Act to assert jurisdiction herein II. THE LABOR ORGANIZATION INVOLVED International Union of Electrical , Radio & Machine Workers, AFL-CIO, Local 1012, which has a collective-bargaining agreement with Respondent, is a labor organization within the meaning of Section 2(5) of the Act. III. RESPONDENT S MOTION TO DISMISS BECAUSE OF THE EXISTENCE OF OTHER MEANS OF ADJUSTMENT OF THE CONTROVERSY COVERED BY THE COMPLAINT At the commencement of the hearing, Respondent filed a motion requesting that the complaint in this case be dismissed because of the existence of a grievance and arbitration provision in its contract with the Union which the Charging Party had invoked and which had proceeded to a stage wherein the parties were then attempting to agree upon the selection of an impartial arbitrator and also because the Charging Party had filed a charge with the Equal Employment Opportunities Commission, alleging that her discharge was discriminatorily motivated because of her sex. Respondent's motion was denied without prejudice to its right later to renew the motion. Subsequent to the close of the hearing, as already indicated, Respondent did renew its motion. This motion is now denied for the following reasons. Although Section 10(a) of the Act provides that the Board's statutory power to determine unfair labor practice issues "shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law or otherwise," the Board, as a matter of policy, will defer to an arbitrator's decision after a hearing on the merits of the issues, which include those raised in the complaint before the Board, and where certain standards spelled out in Spielberg Manufacturing Company, 112 NLRB 1080, and Dubo Manufacturing Corporation, 148 NLRB 1114, have been met. As shown by the correspondence submitted by the parties, the arbitrator agreed upon by the Respondent and the Union has dismissed the arbitration proceedings without deciding the merits of the discharge controversy and there is accordingly no decision to which the criteria set forth by the Board in Spielberg and Dubo can be applied. But even if the arbitrator had decided the controversy on its merits, I would nevertheless feel constrained for the reasons set forth by Trial Examiner Robert L. Piper, and adopted by the Board, in Tex-Tan Wellhausen Co., 159 NLRB 1605, to decline to defer to the arbitrator's decision. This is because I now realize, after reading the collective-bargaining agreement between Respondent and, the Union-which I had not read at the time I requested a stipulation by the parties-that the arbitrator's authority, under the contract is so narrowly restricted that he is not free to make any decision based upon a preponderance of the evidence but, rather, must accept Respondent's decision if it is supported by substantial evidence. The Spielberg principles may properly be applied only in the normal arbitration case where the arbitrator is free to decide the issues de novo. STEVES SASH & DOOR 157 IV. THE ALLEGED DISCRIMINATORY DISCHARGE OF MRS. VITA SALINAS A. Background Respondent owns and operates three separate divisions or plants in San Antonio which are contiguous to each other. These are the Star Plant (also referred to as the Door Plant) which makes doors; the Specialty Plant (also called the Crest Molding Plant), which makes wooden moldings, doors and door frames; and the Aluminum Plant, which makes glass sliding doors and aluminum windows. The Aluminum Plant which is the one principally involved in this proceeding, has a Cutting and Machine Department, an Assembly Department and a Finishing Department. Mrs. Vita Salinas was hired by Respondent in 1951 in the Assembly Department to assemble and glaze wooden windows in the plant which later made aluminum windows and which came to be known as the Aluminum Plant. After working 2 or 3 years she left Respondent's employ because of pregnancy but returned in 1959 to work again in the Assembly Department of what had then become the Aluminum Plant. Except during the period of a strike between August 1966 and March 1967 and during periods of a general layoff, she worked continuously in the Assembly Department between 1959 and her discharge on January 12, 1968. Salinas was active in the Union's organizational campaign in 1965. She was a member of the Union's organizing committee, held committee meetings in her home and distributed union leaflets. Following an election, the Union was certified as the bargaining representative of Respondent's employees on September 16, 1965.2 On August 3, 1966, Salinas was called into the office of Personnel Manager W. A. Barrett, who read to her a Progress Report which asserted, inter alia, that she worked "very slowly" and had been absent or late too often. She was asked to sign her name at the bottom of the letter, acknowledging that she had read and understood it. She objected to the statement that she worked slowly and refused to sign the report without first being given an opportunity to discuss the letter with a union representative. As a result of her continued refusal to sign, she was told to punch out. On the same morning that Salinas punched out, 20 or 30 of the employees then working in the Aluminum Plant walked out. A strike at Respondent's premises occurred on the following day. On August 5, 1966, Salinas was called into the office of Respondent's president, Marshall Sieves, and, in the presence of Personnel Manager Barrett, Steves told Salinas that Respondent had made a mistake and that she could have her job back any time she wanted it. He told her that she had been "a very good worker for a long time." Salinas told him that before deciding what to do she would like to talk the matter over with a union representative She thereafter continued to participate in the strike. On the same day Salinas was offered her job back, the Union had filed an unfair labor practice charge in Case 23-CA-2467 against Respondent alleging violations of Section 8(a)(1), (3), (4), and (5) of the Act, including an allegation that Salinas had been discriminatorily discharged. A complaint was thereafter issued and Salinas was subpenaed to appear as a witness at the scheduled hearing. No hearing on the complaint was held, however, for in connection with a settlement of the strike in March 1967, the unfair labor practice charges were withdrawn and a collective-bargaining agreement was signed soon thereafter. Shortly after Salinas, along with the other strikers, returned to work, and after the Union had filed a grievance in her behalf, Respondent agreed that her seniority should date from 1951 when she was originally employed. In May 1967 Salinas was elected financial secretary of the Local and her name, along with the names of the other union officers and the union stewards-about 10 or 12 names-were posted on the bulletin board at the plant. Personnel Manager Barrett was aware of this list.' B. Discharge of Vita Salinas on January 12, 1968 During the first period of her employment with Respondent, between 1951 and about 1954, Salinas had worked on the assembly of wooden sashed windows. This had included the putting together of the wooden frames and balances and the installation of the glass panes. The latter operation, which is called glazing, consists of placing putty in the frames, inserting the glass panes, then pressing a beading material along the edges of the glass. When Salinas returned to work for Respondent in 1959, Respondent was manufacturing aluminum windows, which for the most part were assembled in a different manner than the wooden windows. Most of the time Salinas worked on an assembly line, assembling and putting together the various parts of the aluminum sash. She would then pass the sash on to the employee next to her who performed the glazing operation. Occasionally, when Respondent was short of glaziers, Salinas would be called upon to do the glazing. Also, at times she worked at a table where special items were manufactured and she assembled the entire window, performing the glazing operation in addition to the other assembling. Personnel Manager Barrett testified that Salinas was classified as an "assembler, glaziers." There can be no question but that she was qualified to do glazing work. So were a number of other employees in the Assembly Department, including some of the men. A general layoff of the Aluminum Plant employees occurred on December 1, 1967. The Door Plant and the Crest Molding Plant were not affected by this layoff. Between December 1 and about April 1968 no production work other than the completion by Foremen Martinez and Segovia of orders on hand in December, was performed. During the shutdown, these foremen, with the assistance of a driver, Willie Thompson, were engaged for the most part in the moving of machinery and equipment from the rear end of the plant toward the front end near the offices and in cutting a door in one of the walls. On January 4, Respondent's president, Marshall Steves, informed Personnel Manager Barrett that employees in the Crest Molding Plant building which adjoins the Aluminum Plant building were complaining of being cold because of the large number of broken windows in that building. He requested Barrett to see that these windows were replaced as soon as possible. Many of these windows, according to employee Johnson, who worked in the Crest Molding building, had been broken during the strike which ended in March 1967. Barrett estimated that they had been broken over a period of 6 months or a year before President Steves requested their replacement and some possibly as late as the day before they were 'Official notice is taken of Case 23-RC-2414, which shows that the 'There is no substantial dispute as to the facts set forth in the above certification was issued on that date . subsection 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD replaced He testified that the windows had been broken, repaired, and broken again and that repairs had been going on at various times Salinas had greater seniority than any other employee in the Aluminum Plant On January 4, Barrett sent her a letter, which she received on Saturday, January 6, notifying her that she was being recalled from layoff and that she should report back to work as soon as possible but not later than Tuesday, January 9 She reported about 8 am on January 9 to Barrett's office and he assigned her to work under Foreman Martinez Martinez informed Salinas that he was assigning her to work outdoors, replacing the broken windows in the Crest Molding building Salinas protested that she was not dressed warmly enough for outdoors work and also told Martinez that she had been sick with the flu only a few days earlier ' She asked Martinez to call Barrett and inquire whether there was not some indoors work available for her After Martinez called Barrett and related to him what Salinas had said, it was agreed that she would be excused for the day and report for work on the following day According to Barrett, Salinas returned to his office that morning and told him that she had been sick and did not feel like working that day He told her that she could have the day off and come back in the morning She replied that she did not know whether she would feel like coming in the next morning He replied that if she was sick she should go to a doctor and bring back a doctor's certificate to show that she was under treatment She indicated that she did not want to go to a doctor Salinas testified that she did not remember going back to Barrett's office on January 9 after Martinez had told her that she could go home and placed her conversation with him about getting a doctor's certificate as occurring on January 11 Although the exact date when these conversations took place is not important, I am inclined to believe that Salinas had a conversation with Barrett in which she mentioned a doctor's certificate on both occasions After Salinas left the plant on January 9, she telephoned the Union's international representative, Paul Javior, and complained to him about the work to which she had been assigned Javior thereupon called Barrett and told him that Salinas had been sick and that the weather was too cold for her to be working outside He also expressed the view that the work assigned to her was not appropriate for a woman to perform He contended, moreover, that the work was maintenance work and should not properly be assigned to production employees Barrett told Javior that the work was not unusual, that other regular employees had performed that type of work for years and that there was no reason why Salinas should not be required to do it He further told Javior that `since he wanted to make an issue of it," Respondent would not pass up Salinas on the seniority list and let someone else do the work, as Javior requested him to do More specifically, along this line, Barrett was questioned by Respondent's counsel and replied as follows Q Now, let's see, I think that in your earlier testimony there was some testimony about this conversation with Javior and something was said about making an issue of it Please tell us what was said about that A Well, Mr Javior was insisting that it was maintenance work, and therefore he was not going to alinas testified that her siege with the flu had started about 2 1/2 weeks before that date have the people doing the maintenance work And he made it so strong that I had a feeling that he was telling us that we couldn't do it, and that it wasn't our right to do it, and that we wouldn't do it And I felt like that he wanted to make an issue out of it, and I felt that we were entitled to do it, and therefore if we didn t operate the plant he would be operating it TRIAL EXAMINER Is this what you told him or are you just telling us now about what went on in your mind') THE WITNESS I'm telling you that in answer to his question as to what I told Mr Javior I replied to Mr Javior what I was thinking The conversation ended with an understanding that the matter would be discussed further Later on the morning of January 9, Barrett was visited by Union Representative Mendez who, like Javior, objected to Respondent assigning to Salinas the job of working on the outside of the Crest Molding building to repair the broken windows Like Javior, he stated that the work was maintenance work and should be performed by maintenance people, that the work was not appropriate for a woman and also that the weather was too cold for outside work Barrett responded that this type of work had always been done by production employees that Respondent had no separate maintenance department that Respondent's women employees did glazing work, and that Respondent in the past had shutaown a production line in order to have the employees glaze windows' He also told Mendez that he did not think the weather was too cold for outside work but that, in any event, Salinas had been excused for the day He stated very firmly that Salinas would be expected to perform the work assigned to her 6 Both Union Representative Javior and Mendez, after talking to Barrett, told Salinas that she would have to perform the work assigned to her Salinas reported for work on January 10 and spent the entire day replacing the broken windows in the building adjoining that in which she was employed The 26 pound, 'The record shows that a few days before the December I layoff a female employee Rosalinda Aguero worked for 2 or 3 hours one day replacing broken windows in the Aluminum Plant where she worked in the Assembly Department She worked on a ladder on the outside of that building with Bertha Salazar also employed in the Assembly Department handing her panes of glass from inside the building and perhaps also from the outside Around this time Aguero also stood on a table inside the Aluminum Plant replacing broken windows with a male employee assisting her The record shows moreover that 2 or 3 years before the hearing Mary Perez another female employee of the Assembly Department of the Aluminum Plant had stood outside the Aluminum Plant building on top a putty can about 15 inches high and replaced the bottom glass in 3 windows There is no evidence however that any Aluminum Plant employee (except Salinas on the occasion here in issue ) had ever been assigned to replace broken window panes in the Crest Molding Plant building or in any building other than the one in which the employee worked There is evidence on the other hand that such work on the Crest Molding Plant building had been done by Crest Molding personnel Thus according to the credited testimony of Crest Molding employee Juan Johnson in 1966 Supervisor Parris had replaced 35 or 40 panes and in 1967 after the termination of the strike Superintendent Richard Moreno with Johnson assisting him by handing him panes of glass had replaced about 45 windows in one day `The above findings based principally upon Barrett s testimony are consistent with Mendez testimony I need not decided whether Barrett in addition made certain other statements attributed to him by Mendez but denied by Barrett-such as that Salinas was lazy and that Barrett had had trouble with her whole family for even if said I do not believe that such statements throw light upon Barrett s motivation in discharging Salinas STEVES SASH & DOOR 8 foot, wooden ladder on which she worked, as well as some panes of glass and other equipment, were carried outside for her by Foremen Martinez and Segovia and employee Willie Thompson They at first put the ladder on the south side of the building but because the wind was blowing rather strongly there, moved it to the east side where it would not be quite so cold ' The windows were too high above the ground for Salinas to reach without standing on the ladder and even on the ladder she had difficulty reaching broken glass in some of the top panes Foreman Segovia told her that he would fix those Segovia, working inside the Aluminum Plant, cut the glass panes which she was to use and brought them outside He and Martinez also from time to time throughout the day came outside to see whether she needed anything In performing her assigned task, it was necessary for her to remove the broken glass and scrape the old putty off with a putty knife and screwdriver then perform the glazing operation During the morning she had difficulty using the caulking gun which unlike the air pressure automatic machine driven gun she used inside the plant had to be operated manually to force the putty through the gun As Foreman Martinez explained, putty has a tendency to stick in cold weather and he attempted several times to make the gun work properly before giving up and buying a new one Salinas also had difficulty with breakage of the old strips of beading furnished her and it was necessary for Segovia to get new beading before she could proceed with the glazing Other than as already noted, no one assisted Salinas at her work that day It was necessary for her to climb up and down the ladder for panes of glass, the caulking gun and whatever tools were necessary in cleaning out the sashes and replacing the panes She completed work on only nine windows that day On the following day, after clocking in just prior to 8 a m , Salinas sought out Foreman Martinez and asked him to call Barrett and inquire whether there was not some inside work for her to do, stating that she would be willing to do anything inside the plant but that it was too cold to work outside She told him that she had some cramps during the night and that she then had cramps in her legs and was not feeling well After calling Barrett, Martinez informed Salinas that there was no work for her to do inside and that Respondent wanted the outside job done Salinas insisted that it was too cold to work outside and that if she got sick, Barrett would not pay her doctor bills Martinez suggested that she talk to Barrett Salinas then telephoned Union Representative Mendez from a plant telephone and asked him to come to the plant She waited for him outside until he arrived 25 or 30 minutes later Then both of them went to Barrett's office 'Official United States weather reports show that the temperature on January 10 at the International Airport at San Antonio varied from a low of 35 degrees to a high of 46 degrees Readings taken every 3 hours showed that it was 35 degrees at 6 a in 37 degrees at 9 a in 42 degrees at noon 4^, degrees at 3 p in and 40 degrees at 6 p in 'A photo of Union Representative Mendez taken by a friend of his who accompanied him to the plant that morning shows Mendez as he explained standing on the ground with an arm upraised and unable to reach the bottom pane Mendez is 5 feet 7 inches tall Respondent strenuously objected to the receipt in evidence of this and other photos taken with Mendez Polaroid camera, depicting the building and Salinas at work and has renewed his objection in its brief The poor quality of the pictures Respondent contends requires their rejection The quality of the photos however can only affect the weight if any to be given them not their admissibhty The photos were properly identified and they were correctly admitted into evidence 159 Upon entering Barrett's office, the first thing Mendez asked was whether Barrett was pleased with Salinas' work on the preceding day Barrett replied that the work which she had done was acceptable but that she would have to finish the job Mendez protested that it was too cold for a woman to be working outside Salinas told Barrett that she was "real sore" from climbing up and down the ladder on the preceding day and that she was not feeling too well She asked him if he was trying to inflict punishment upon her He replied that he was not and insisted that the remedy for sore muscles was to use them and that moving around while working would keep her from getting too cold He told her again, as he had on January 9, that if she was ill, she should see a doctor and bring him a doctor's certificate ' She protested that she could not afford to go to a doctor but would be glad to do so if Barrett would pay the doctor' s bill Barrett declined to do this Mendez repeated his contention made on January 9 that the work being assigned to Salinas was maintenance work, not production work, and that it was inappropriate for a woman to do He requested that Salinas be permitted to take time off and come back to work at some other time Barrett replied that Salinas was fully capable of doing the work, that it was her turn to work and that he would expect her to do the work assigned to her He accused Salinas of making excuses for not working Finally, he suggested that as the day progressed it would warm up and offered `in a spirit of trying to cooperate ' to postpone until 10 a m the time when she would be required to start working '° He declined a suggestion by Mendez that a definite temperature be set as a gauge by which it might be determined whether it was too cold for outdoor work Mendez asked Barrett what his decision would be if the weather did not improve Barrett replied, `Well, we will see at 10 o'clock "" Following this interview, Salinas reported to Foreman Martinez that Barrett had excused her until 10 a m , that she was going home and would be back by 10 Salinas lived only about three blocks from the plant Salinas testified that when she arrived home she was feeling awful " About 9 15 a m she telephoned Barrett's office for the purpose of telling him that she felt too ill to come to work " The receptionist who answered the telephone told Salinas that Barrett was not in his office She called again shortly before 10 a m and received the same message When she called a third time shortly after 10, the receptionist told her, ' Vita, it is no use Mr Barrett doesn't want to talk to you ' 'Although Respondent had no hard and fast rule with respect to requiring a doctor s certificate Respondent had on a number of occasions in the past required employees to present such certificates especially when they were absent for more than one day or when Respondent had reason to suspect that the employee s absence was not because of illness "Official United States weather reports show that the temperature range on that date was between 36 and 47 degrees Readings taken every 3 hours showed that it was 36 degrees at 6 a in 37 degrees at 9 a in 40 degrees at noon 45 degrees at 3 p in and 4a degrees at 6 p in "The findings regarding the January II conference are based upon the composite and for the most part mutually corroborative testimony of Barrett Mendez Salinas and employee Hood To the extent that any of their testimony may appear inconsistent I have credited the accounts consistent with the above findings "This call as Salinas testified was made pursuant to a company requirement that when an employee is absent because of illness or otherwise he must call Barrett s office before noon and let him know the reason for his absence in order to avoid a reprimand This requirement is set forth as company rule 27 in the collective bargaining agreement with the Union 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Barrett returned to his office about 10 a in and found a message or messages on his desk informing him that Salinas had called, but he did not return her call He told the receptionist that if Salinas called again, the receptionist could tell her anything she wanted to but that Barrett had said everything he had to say to Salinas earlier that morning and was not going to talk to her again About 10 45 a m , Barrett instructed Foreman Martinez to stop whatever he was then doing, take all the men he had and complete the job Salinas had started as quickly as he could Martinez, Foreman Segovia, Willie Thompson, and a new male employee then commenced the job and completed it about 5 30 p m that day, putting in a total of 72 panes They used two ladders Martinez, Segovia and Thompson did the glazing and the fourth man cleaned the glass and old putty from the broken windows Salinas testified that after taking medication and staying in bed most of the time on January 11, she felt better on January 12 and reported for work Her timecard was missing from the rack and when she asked Foreman Martinez about it, he told her that Barrett had it in his office She then sought out Barrett and asked him about it He replied that she did not have any timecard, that she had quit "automatically" when she did not show up for work at 10 a m on the preceding day She denied that she had quit and started explaining that she had tried to reach him by telephone to tell him why she could not be there, but he stated that he had nothing to talk to her about and did not want to listen to her He told her that he had written her a letter and that she would get her paycheck by mail Barrett had, indeed, written Salinas a letter on the previous afternoon advising her that her employment had been terminated because she had violated Company Rule No 1-"Refusal to obey supervisor or group leader during working time " C Analysis and Conclusions In arguing that Respondent's discharge of Salinas on January 12 following her failure to report to work at 10 am on January 11, was discriminatorily motivated, the General Counsel asks me to take into consideration background evidence summarized supra which, he contends, would warrant a finding of antiunion motivation He also asks that I take official notice of the Board's decision in Sieves Sash & Door Company 164 NLRB 76 (subsequently enforced in substantial part 401 F 2d 676 (C A 5)), in which it was held that Respondent in 1965 unlawfully discharged two employees in connection with a scheme by which it sought to dilute the strength of the Union under the guise of filling so-called "supervisory" posts which were not in fact supervisory, which posts were offered with slight pay increases to union adherents with the condition that they cease engaging in union activities The General Counsel suggests that Respondent's action in discharging Salinas in August 1966 when she refused to sign a statement acknowledging that she had read and understood an adverse Progress Report without first granting her request to consult a union representative about the matter, was motivated by antiunion considerations However, since there was no contention that the adverse statements in the Progress Report themselves were discriminatorily motivated, I am not persuaded that Respondent 's insistence on her signing the acknowledgement prior to consulting a union agent was unlawfully motivated " And since the unfair labor practice charges, upon which a complaint was issued in early 1967, were settled and withdrawn in connection with a settlement of the strike in March 1967, no inference may properly be drawn that Respondent engaged in any of the unfair labor practices alleged in that complaint Let us now consider Respondent's postsettlement conduct Despite the fact that charges on behalf of Salinas had been filed during the strike and that Salinas had been subpenaed to testify at the scheduled hearing on the unfair labor practice complaint,1° Respondent subsequent to the strike voluntarily gave in to her request that her seniority be dated back to her original employment in 1951 after she filed a grievance with the Union in regard to the matter-even though there was a 5-year interlude prior to 1959 when she was not working for Respondent This action by Respondent would tend to indicate that it held no grudge against her by reason of what had gone on before Furthermore, following the termination of the strike, Respondent on April 12, 1967, entered into a 2-year contract with the Union and the record does not show that during the interval between the termination of the strike in March 1967 and Salinas' recall from the economic layoff on January 9, 1968, Respondent engaged in any antiunion conduct The General Counsel's theory appears to be that because of Respondent's differences with Salinas which precipitated the strike, the charge filed in her behalf during the strike, her election as the Union's financial secretary in May 1967 and her continued activity on behalf of the Union is that capacity, Respondent was biding its time to find a pretext for discharging her The General Counsel asks me to infer in unlawful intent from the following The fact that Salinas was iecalled after the layoff, not to perform the production work which she had been performing throughout her long history of employment with Respondent but, instead, to do outside maintenance work which, he contends, is not normally assigned to women employees, the fact that Salinas had never before been assigned to do outside maintenance work, the fact that Respondent refused the Union's request that she be permitted to waive her seniority rights under the contract to permit Respondent to recall someone else for the maintenance work and, finally, the fact that Respondent, in seeking to discipline Salinas for failing to show up for work at 10 am on January 11, meted out the severe penalty of discharge for allegedly violating company rule 1, "Refusal to obey supervisor or group leader during working time," rather than the penalty of a written warning for the first offense for violating company rule 27, "Failure to advise employer of illness or other emergency preventing reporting for work prior to noon on any day the employee is supposed to report unless circumstances beyond the control of the employee prevents such notification "" I am not convinced, however, that Respondent meant to discriminate against Salinas when Barrett sent her the letter recalling her to work She was at the top of the "Cf Block Southland Sportswear Inc 170 NLRB No 101 Texaco Inc Houston Producing Division 168 NLRB No 49 N L R B v Camco Inc 369 F 2d 125 129 (C A 5) "The record is silent as to whether Respondent knew about the subpena "The General Counsel does not mention rule 28 Absent for personal reasons without permission of the supervisor which permission shall not be unreasonably withheld' calling for a written warning for the first offense This would also arguably seem to be appropriate SIEVES SASH & DOOR seniority list At least two other women employees who, like Salinas, worked in the Assembly Department had theretofore done some outdoor maintenance work, replacing broken windows in the Aluminum Plant building Barrett could not have known on January 1, when he wrote the letter recalling Salinas that the weather would be uncomfortably cold on January 9, when she reported at the plant, and I am not persuaded that he would necessarily have known that she would object to the work assigned her as being inappropriate for a woman to do The key to Barrett's conduct on and after January 9, including his discharge of Salinas on January 12, is, I believe, his reaction to Union Representative Javior's chief objections to the assignment, namely, that it was not proper to assign maintenance work to production employees and that the outside maintenance work was, in any event, inappropriate for a woman to perform As Barrett testified, he refused Javior's request that Salinas be passed over on the seniority list, and told Javior so, because he believed Javior was attempting to make an issue over whether Respondent had the right to assign production workers to maintenance work and whether such maintenance work was appropriate for a woman to perform Barrett was unwilling to yield on these issues, he explained, because Respondent did not have any separate maintenance department or group of employees hired for maintenance work and had always called upon his own personnel, including women, to do this kind of work Indeed, Barrett expressed the belief that women were even better than men in work such as glazing, which requires the use of then hands, and testified that Salinas, in particular, was `one of the best glaziers there " Having taken a firm position with Javior, and later with Union Representative Mendez and Salinas, that the maintenance work in question could properly be assigned to production workers without regard to their sex, and that Salinas would be required to perform her assignment, he could not thereafter back down without losing face Barrett, 161 moreover, may well have considered the explanations given by Salinas for not wanting to do the work-the cold weather and her soreness and cramps from having worked 8 hours on January 10 at work to which she was not accustomed - as excuses to avoid completing the assignment and as attempts to frustrate Barrett in his determination to require her to do it To be sure, it is difficult to understand why Barrett decided that it was Rule No 1 of the Union contract (calling for discharge) rather than rule 27 or 28 (calling only for a written reprimand) which Salinas had breached in failing to report for work at 10 a in pursuant to the understanding reached earlier on January 11 It seems clear to me that Rule No 1 cannot reasonably be interpreted as applying to Salinas' failure to report for work at the appointed time under the circumstances herein described and that if she breached any company rule, it was either Rule 27 or 28 Nevertheless, I think it more likely that Barrett's application of the wrong company rule was due to the anger and frustration which he felt because of being forced to assign other personnel to complete the assignment than to any design on his part to retaliate against Salinas because of her prominence in the Union or because she had many months before caused unfair labor practice charges to be filed against Respondent On the basis of the foregoing findings of fact, and the entire record in this case, it is concluded that a preponderance of the evidence does not support the allegations of the complaint that Respondent discharged Salinas in violation of Section 8(a)(3), (4), or (1) of the Act There is accordingly issued the following RECOMMENDED ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed