Maryland Cup Corp.

MARYLAND CUP CORP. Maryland Cup Corporation and International Union of District 50, United Mine Workers of America. Case 5-CA-4211-2 September 10, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA On April 16, 1969, Trial Examiner John G. Gregg 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, and the General Counsel filed an answering 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 hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the 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. The Trial Examiner found that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Mrs. Esther Morris on September 23, 1968. He found that the reason given for her discharge, excessive absenteeism, was pretextual and that in fact she had been terminated because of her activities on behalf of the Union We do not agree. While we adopt his finding that the Respondent was aware of Mrs. Morris's prominence in the Union's organizing campaign and was aware of her remark, uttered after the Union lost an election in August 1968, to. the effect that "we will be back next year," it is our opinion that the evidence adduced at the hearing does not support the conclusion that she was discharged for discriminatory reasons. The Respondent contends that Mrs. Morris had been warned twice in 1968 about her attendance record and, in September 1968, her absenteeism became aggravated. The record indicates that she was on vacation for the week of August 19-23 and then was on a previously approved leave of absence from August 26-30. She did not report to work for the week of September 2-6. Whether the latter absence was authorized in advance was in dispute at the hearing, and the Trial Examiner did not resolve the conflicting testimony. The record does indicate, 389 however, that even if the final week of absence was approved before it was taken, as Morris claimed, the approval was given not by her own supervisor, who had authorized the first 2 weeks of leave, but by a leadman. There is no showing that the leadmen ,had ever informed Morris' supervisor that he had -told Morris to take a third week off. Mrs. Morris worked the week of September 9-13, but she did not report for work during the week of September 16-20. Although it is questionable whether she complied with a plant rule requiring that an employee call in when absent for 3 days,' Respondent does not contend that she was terminated solely for allegedly violating this rule. When she came in to claim her check on Friday, September 20, she was told to pick it up Monday morning at the personnel office. On reporting to that office on Monday. September 23, 1968, Mrs. Morris was informed by Mr. Weber, a personnel assistant, that she was terminated.' The Trial Examiner's conclusion that the reason advanced by Respondent was pretextual is based in part upon his finding that certain supervisory and management personnel expressed slightly different reasons for the discharge Thus, production manager Ritgert apparently thought that she had been terminated for failure to call in within three days of her absence. We are unwilling to accord great importance to his opinion, or to any conflict it may present, as he was only tangentially involved and may well not have been fully informed. The Trial Examiner also thought it significant that her personnel card listed her as discharged for "absenteeism, poor working habits" despite the fact that there was no evidence that her performance had been unsatisfactory. We can accord little probative value to the additional reference to poor working habits; this does not necessarily indicate that Respondent was searching for a pretext, but may as logically be taken to indicate Respondent's knowledge that, in addition to her record of absences, she had frequently reported to work late and left early, as detailed hereinafter.' 'Mrs. Morris claims that she complied with the rule , but her -own testimony is contradictory . She testified that she knew she should have called in on her first day out, but that she did not attempt to do so until the second day, Tuesday At one point, she testified that she called in Tuesday but the line was busy, later, she claimed that she had called in twice that day but that no one answered the phone . She testified that she called in after 4 p.m. Wednesday and told a woman that she would be out sick for the remainder of the week The Respondent denies ever receiving this message. Mrs Morris testified that she did not know the identity of the woman who took the message , the page covering the day in question was torn out of the call-in book next to the telephone and was never recovered. 'Mr Weber testified that before he told her that she was terminated, Mrs Morris presented a medical excuse for the prior week and asked for an additional 1 or 2 weeks off "since she was not feeling quite up to par even though the doctor's note said that she could return on the 23rd " Mrs Morris denied asking for extra time off. The Trial Examiner made no resolution of these conflicting versions of the meeting. 'Mrs. Morris testified, and Mr Weber denied, that on September 23 the latter told her she was terminated for not calling in within 3 days, sloppy work habits, and eating and drinking on the line The Trial Examiner made no credibility resolution of these conflicting versions of the meeting, as indicated above 178 NLRB No. 59 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While the voluminous records adduced at the hearing are somewhat confusing , it is clear that in the 15 months that she was employed , Mrs. Morris was absent at least 60 times and was late or left work early 18 times. Some of these absences may have been excused , but their sheer number supports Respondent's contention that she was unreliable and could not be depended upon to man her work station on a regular basis. Mrs. Morris's job, removing cups from a conveyor belt and packing them in boxes, was one that had to be performed regularly if production schedules were to be met. Although the Trial Examiner made no finding in this respect, the record convinces us that, due to her erratic attendance, Respondent could reasonably have believed that her continued employment would have a deleterious effect on its production schedules. While differences in length of employment render difficult analogy to the records of other employees, it was established at the hearing that discharges by Respondent for absenteeism were numerous. In reaching our conclusion herein, we find noteworthy the absence of any union animus on the part of Respondent. An election was held at Respondent' s plant on August 23, 1968, which the union lost. No independent violations of Section 8(a)(1), in connection with the election or otherwise, are alleged or shown . Despite Mrs. Morris's prominent role in the organizing campaign, it appears that after the election Respondent was extraordinarily lenient with her. Even though, as the Trial Examiner found, Respondent had spoken to her on two occasions , in March and June 1968, about her absenteeism , she was not penalized for missing work but was allowed to return to work. Her high rate of absence , reported or not, continued after that date to the time of her discharge. Even where an employee may report the reasons for continued absence, or may have what appear to be justifiable excuses for such absences, an employer may well decide that an absence -prone employee is of no value to his business. It would appear that the Respondent here had an ample basis for reaching such a decision as to Mrs. Morris . In our view, the General Counsel has not satisfactorily established that Mrs. Morris was discharged for union activities, and we shall dismiss the complaint herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint be, and it hereby is, dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN G. GREGG, Trial Examiner : This proceeding under Section 10(b) of the National Labor Relations Act was heard in Baltimore , Maryland, on January 30 and 31, 1969, and February 6, 1969, pursuant to due notice. The complaint, which issued on December 10, 1968, on a charge dated September 25, 1968, alleged that the Respondent engaged in unfair labor practices proscribed by Section 8(a)(1) and (3) of the Act by discharging an employee because of her union activities . The Respondent answered generally denying the charges. Briefs were filed by the Respondent and the General Counsel and have been carefully considered . The motion of the General Counsel to correct the record as to certain minor errors as set forth in his Appendix A [omitted from publication] to the brief of the General Counsel is hereby granted. Upon the entire record in the case and from my observation of the demeanor of the witnesses as they testified, there are hereby made the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent is and at all times material herein has been a corporation duly organized under and existing by virtue of the laws of the State of Maryland having a place of business in Baltimore County, Maryland , where it is engaged in the manufacture and sale of paper products. Respondent, in the course and conduct of its business operations, during the preceding 12 months, a representative period, purchased goods valued in excess of $50,000 which were shipped directly from points located outside the State of Maryland . During the same period Respondent sold and shipped products valued in excess of $50,000 directly to points and places located outside the State of Maryland Respondent is, and at all times material herein has been, engaged in commerce within the meaning of Section 2(6) of the Act. IL THE LABOR ORGANIZATION INVOLVED International Union of District 50, United Mine Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The complaint alleges that the Respondent did, on or about September 23, 1968, terminate the employment of Esther Morris and has at all times since that date failed and refused to reinstate her to her former or substantially equivalent position because of her membership in, assistance to, or activity on behalf of the Union, or because she engaged in concerted activities with other employees of the Respondent for the purpose of collective bargaining or mutual aid or protection , and that thereby the Respondent did discourage and is discouraging membership in a labor organization by discrimination in regard to hire and tenure of employment or terms or conditions of employment , and did interfere with, restrain, and coerce its employees and is interfering with, restraining , and coercing its employees, in the exercise of their rights guaranteed in Section 7 of the Act, and did thereby engage in and is thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act MARYLAND CUP CORP. 391 A. The Union Activities of Esther Morris Esther Morris testified essentially that she was employed by the Respondent on June 12. 1967, and was terminated on September 23. 1968. She started at an hourly rate of pay of 51.64 and at the time of her termination was being paid at the rate of $2.09 per hour, enjoying several raises during the period of her employment. Morris testified that she became involved with District 50 of the United Mine Workers of America, then signed a union card in January 1968, and further that she solicited other employees at the Owings Mill plant to sign authorization cards. Morris testified further that during the campaign she had passed out literature on behalf of the Union on three or four occasions, passing out literature at the Owings Mill plant in February 1968. and March 1968. Her name was included in the literature as a union adherent, in fact as a member of the organizing committee. Morris also testified that she wore badges, buttons, and blouses indicating her sympathy and adherence to the Union. She started wearing badges in the month of July 1968. wearing the buttons, a blouse indicating union sympathy and badges alternately. She did this from July 1968, until the start of her vacation on August 19, 1968. Morris testified to discussions which she had with Amlong. plant manager at Owings Mill, on numerous occasions beginning in the month of July when Amlong would visit the packing lines daily to talk with employees including Morris. These discussions went on for a period until the time that Mrs. Morris started her vacation on August 16, 1968, and had to do with the subject of the Union. Mrs. Morris testified additionally to conversations with Mr. Freedman, the Respondent's head of manufacturing, who in the course of a meeting gave a lecture in which he discussed the subject of the Union. At the end of the lecture, according to Morris, Freedman asked it anyone had anything to say and Morris was given the opportunity to speak, Morris then told Freedman that she had been insulted by the lecture and objected to his calling active union members "union pushers." Morris testified that this latter confrontation with Freedman took place on August 14, lust 2 days before she entered on her vacation. Morris testified further, that at the time the election was held, August 23, 1968, she' was an observer for the Union at both sessions She also attended the conference held just prior to the election with representatives of the Respondent. At this conference Morris objected to having the employees led to the election stage by leadmen or supervisors. She also attended the counting of the ballots on the day of the election, in the company of the Respondent's hierarchy, including Amlong, Ritgert, Freedman, Johnson, Haulsee, Levi, and all the department heads. At the counting of the ballots which indicated a defeat for the Union, Morris was one of several who stated "we will be back next year." I credit the testimony of Esther C. Morris whom I found to be a straightforward and sincere witness, relative to her union activity as outlined above and her discussions concerning the Union with representatives of the Respondent. The credible evidence of record preponderantly supports a finding and I find that Esther Morris was an active union supporter and that the Respondent was aware of her activity. I find that the Respondent was aware of Morris union activity as early as February 16, 1968, when leaflets were distributed to the employees on all three shifts. Morris actively engaged in the distribution of this leaflet, prominently identifying her as a member of the organizing committee. Under these circumstances I land that the Respondent had knowledge of her activity and her role in the campaign dating from that time, as well as throughout the period from mid-February through the date of the election in August 1968. B The Discharge of Esther Morris Mrs. Morris testified that when she was hired she was instructed that the policy of the Respondent was that an employee absent because of sickness was to call in within a 3-day period. The employees were given a telephone number to call. Testimony of record also indicated that she was supplied with a copy of the Respondent's published work rules. Morris testified that she discussed her vacation about the second week in July with her supervisor Crais, indicating that a vacation in August would be satisfactory, and that Crais had given her on August 19 for her vacation week. According to Mrs. Morris, she then requested and he granted an additional 2-week leave of absence to follow her week's vacation. Mrs. Morris testified that Crais inquired what she was going to do during that time and she told him she was going to take a trip. According to Mrs Morris, Crais told her to report hack to work on September 3, but as she was in a rush she did not realize that a return on this date would only have meant a one week instead of a two week extension. She later called the plant and talked to Bob Johnson and was told by Johnson that instead of returning on September 3, she could return on September 9, which would give her the additional 2 weeks leave of absence. Mrs. Morris testified that during her vacation she visited the plant on the Thursday prior to the election for the purpose of attending a meeting for the employees on the second shift. She testified that she returned to work on Monday September 9, 1968. She then worked the entire week from the 9th to Friday the 13th. She was due to return to work on Monday the 16th. According to Morris, she was out the week of September 16, but she called the plant on Tuesday, September 17, and got a busy signal. she called again Wednesday afternoon a little after 4 o'clock and talked with a young lady whom she could not identify. She asked this individual to give Bob Johnson a message that she was sick and would be out for the rest of the week. Morris testified that she saw a doctor on Wednesday, September 18, and received a medical certificate from the doctor. Morris testified that on Friday, September 20, 1968, during that same week that she was absent for illness, she went to the plant to pick up her paycheck. According to Morris, Johnson greeted her with the remark "1 thought that you had quit. No one had heard from you " Morris dented this and told Johnson of her phone call. Johnson was unable to locate her check, told her to report into personnel on Monday morning. When Morris did so, Weber, a personnel assistant for the Respondent told her that no one had heard from her and that she was terminated, giving as the reason, absenteeism for not calling in within three days, sloppy work habits, and eating and drinking on the line. Morris testified that she had never been warned nor disciplined for any reason by the Respondent, except for the receipt of a slip relating to a missing tube in April or 39 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD May 1968. Mrs. Morris specifically denied that her Supervisor Crais had ever talked to her or warned her about absenteeism or lateness. The record is devoid of any indication that Mrs. Morris work was other than satisfactory , and indicates that during her tenure she was given several raises. David Levi, personnel director for the Respondent for over 11 years, testified that the Respondent had a practice of discharging employees for excessive absenteeism and that roughly during the period September 1, 1968, to October 21 , 1968, approximately 20 to 35 employees were discharged for that cause. Mr Levi testified significantly as follows: Q. What is that policy'? A. We of course require the employees who are absent to call in. Q. This is obviously an unexcused absence that I am referring tog A. And employees who absent themselves without calling in subject themselves to disciplinary action by not calling in by the 3rd day'? Q Would this be cause for termination? A. Not normally, no Q. So what is the general nature of the policy? A. The general absentee policy is that when a person is absent or his absenteeism gets to a point where it affects our production or scheduling requirements, we have to release that person from our employ . Levi testified further that if a person had excessive absenteeism and called in during a period of a 3-day absence, that would have a bearing on the consideration of her overall absence record in terms of discipline . However, according to Levi, it would have had no bearing on Mrs. Morris discharge Levi testified that whether or not Mrs. Morris had called in would not have had any bearing on her case because of the nature of her absenteeism, because she was discharged for "excessive" absenteeism. Levi testified further in connection with the call-in telephone , that the telephone is located in the production area out on the floor. He testified that no one is given responsibility for answering that telephone and that the telephone could be answered by anyone when it rings. Levi testified that the Respondent "attempts" to make a record of calls that come in relative to absences . Calls which come to the telephone relative to absences are noted in a book marked "Absentee Log Book." Levi stated that no one has specific responsibility for maintaining this log book . According to Levi, when the question arose as to whether or not Mrs. Morris had called in on the dates in question . he examined the log book for September 17 through September 20 and found that those pages were missing from the log book . An investigation was made but the pages were not found, nor did the Respondent find out what happened to those pages. Levi testified that the Respondent tries always and constantly to review the attendance records of all of its employees, that this is basically one of the responsibilities of the department heads; the production department. "When it appears that a person's record is getting to a problem stage or approaching a problem stage, or has been drastically changing from a good record to a poor one, we try to counsel these people and talk to them; or rather with them ." Levi testified that this is normally done by the department head , who in the case of Mrs. Morris would be Crais. Levi testified that if the discussion is not heeded , and the poor record continues, and further counsel and further talks by the department head or by other management people in the plant does no good, the Respondent many times has to terminate the employee for that reason. Testimony by Crais, Morris supervisor, indicated that while he was her supervisor he talked to Morris about her absence record and her lateness record two times: once on March 13, 1968, about absenteeism, and once on June 27, 1968, about absenteeism and lateness. According to Crais, he made a notation of these discussions on the back of her personnel card and in fact there is such a notation on the card. Crass stated that he told Mrs. Morris that if her absenteeism continued he would have to release her. He stated that her absenteeism straightened up a little after the first warning and that he called her into the office again in June at which time Mrs. Morris gave him her excuse. Crais testified that he told her this time that if he had to talk to her every couple of months about her excessive absenteeism he would have to terminate her. Crais stated that, concerning Mrs. Morris' vacation leave, he authorized her only I additional week after her vacation. Crais stated that Mrs. Morris was supposed to return to work the day after Labor Day which would be September 3 on a Tuesday and that the first time he heard from Mrs. Morris was on Wednesday, September 4, when she called him on the call-in phone and asked whether she was still carried on leave of absence When he said no, that he had only authorized her to be gone i week, according to Crais, Morris said that she had asked for 2 weeks and they were having a discussion on this when Crais finally told Mrs Morris that since it was already Wednesday and she had missed Tuesday and Wednesday, and there were only 2 more days left in the week, he authorized her to be off for the rest of the week as a leave of absence. While Crais in his testimony could recall specifically that he had warned Mrs. Morris about her absenteeism and had warned her of an impending discharge. and could recall that she had discussed with him the reason for her absences, he could not recall any of the reasons advanced by Mrs. Morris. Although Mrs. Morris had worked for him for 9 months, 'Crais stated that the first time he had discussed her absenteeism with her was on March 13, 1968. From my observation of Crais as he testified and his testimony I found him evasive in his answers and strained in his effort to testily concerning his version of the alleged warnings given to Mrs. Morris I do not credit his testimony. While the notations on Morris personnel card indicate that Crass talked to Morris about absence and lateness, 1 am convinced in view of straightforward and sincere testimony of Morris that the discussions at most were casual and not of a nature to satisfy the execution of the stated policy of the Respondent which would require the counselling and further counselling of employees prior to discharge. Schoonmaker, who was Mrs. Morris' supervisor in the place of Crais at the time of Morris' discharge, testified that on the 19th of September, Bob Johnson, the working leader, informed him that Crais had instructed Johnson to watch certain employees and that Esther Morris was one of them. After listening to Johnson's statement about Morris' absenteeism, Schoonmaker discussed it with Crais, who said he had talked to Morris twice, and that Schoonmaker should refer to Crais' personnel file where it was noted by Schoonmaker that Crass had talked to Mrs. Morris twice. Schoonmaker testified as follows: Q. Incidentally when Mr. Johnson said that Mr. Crais told him to watch Esther Morris, did he say he was to watch her for any particular thing) MARYLAND CUP CORP. 393 A. No. That her absentee record was in excess and any more might be cause for dismissal. Schoonmaker testified that he examined Morris' record in Crais' personnel file and then discussed it with Assistant Plant Manager Ritgert. and "it was decided at that time that she should be dismissed because of excessive absenteeism." Said Schoonmaker, "l turned it over to Mr. Ritgert, which the final decision was then made." For his part Ritgert testified that when Schoonmaker came to him after Schoonmaker had discussed the matter with Crais, "These two had reached a decision to let her go," and that he was asked for his opinion, which was to concur in the decision. Following this. Ritgert called the personnel office and gave instructions that he would like to remove Mrs Morris from the payroll because of excessive absenteeism. Ritgert testified that after Mrs. Morris was terminated he was approached by employee Turnbaugh who queried him as to the reason Morris was discharged. Ritgert testified he told Turnbaugh that Morris was discharged for excessive absenteeism. In her testimony Turnbaugh stated that Ritgert said that Morris was discharged because of her absence of 3 days without notice. It would appear that there were variances in the versions of the discharge advanced by Ritgert. and Schoonmaker. Schoonmaker indicating that the final decision was made by Ritgert, Ritgert indicating that the decision had already been made by Crais and Schoonmaker. It is clear from the record that whether it was the final decision of Schoonmaker or Ritgert or not, their role in the decision was played without personal knowledge of the record of Mrs. Morris. It is also clear that Schoonmaker who was then Morris' department head did not counsel Morris on her absenteeism. I do not credit Ritgert's statement that he told Turnbaugh that Morris was discharged for excessive absenteeism. Ritgert appeared evasive in his testimony and while indicating that he was not aware that Morris was engaging in conduct on behalf of the Union, stated that he was present at the meeting at which Freedman spoke and Mrs. Morris objected to some of his remarks. I simply do not credit the testimony of Ritgert. I credit Turnbaugh's version that Ritgert told her that Morris was terminated because of her absence without call-in. C. Discussion and Conclusions The issue is whether Mrs. Morris was terminated by the Respondent because of her union activities, or because of the reasons advanced by the Respondent; absenteeism and poor work habits. In determining this question the burden of proof is on the General Counsel to establish and sustain the allegations of the complaint by a preponderance of the credible and probative evidence of record. There is no question on this record but that Mrs. Esther Morris engaged in activities protected by Section 7 of the Act and, as found hereinabove, that the Respondent knew of such conduct prior to the discharge. In determining whether Mrs. Morris' discharge was for union activities or for cause it is necessary to consider the employer's true underlying motive. Even though a lawful cause for discharge is available it is no defense where the employee is actually discharged because of his or her union activities. N.L.R.B. v. Ace Comb Company, 141 NLRB 489. In determining the question of motive there is no compulsion to accept the employer's assigned reason for discharging employees "when there is reasonable cause for believing that the ground put forward by the employer was not the true one, and that the real reason was dissatisfaction with the union activity," Great Atlanticand Pacific Company, Inc v. N.L.R.B, 354 F.2d 707, 709 (C. A. 5). I have considered carefully the testimony of this record and I am persuaded that Morris was discharged because of her union activity. I am convinced that there was more than a coincidental connection between her union activities and her termination. The record reveals activity by Mrs. Morris in support of the union during the campaign, increasing in intensity as the time of the election approached On the day of the election Mrs. Morris was very much in attendance and very active. At the earliest opportunity, within the period of one month thereafter, the Respondent, based on the alleged excessive absenteeism of Mrs. Morris terminated her employment. At this time aside from the question of absenteeism, Mrs Morris appeared on the record to have been a satisfactory employee rewarded with several increases in pay. Under these circumstances. in my opinion a convincing case of discharge for cause would have to be made to overcome the inference that the discharge was due to her union activities. Dannen Green and Milling Company v. N.L.R.B., 130 F.2d 321, 328 (C.A 8). While union membership or activities does not insulate an employee against termination, cause may not be asserted to shield an employer against the consequence of a discriminatory termination where the employee would not have been terminated but for his union activities or membership. The circumstances of each case must be weighed to determine what motivations truly dominate the employer in discharging the employees. N.L.R.B. v. Jones Sausage Conpan} and Jones Abbatior Company, 257 F.2d 878, (C.A 4). An employer may discharge employees as he sees fit; may discharge in the interest of efficiency, or from personal animosity or mere whim, but in discharging an employee he may not discharge him on the grounds of union affiliation or activity. A justifiable ground for dismissal is no defense if it is a pretext and not the moving cause. N L.R B. v. Solo Cup Company, 357 F.2d 521 (C.A. 8). In the case at hand I am convinced that the cause for the discharge advanced by the Respondent was pretextual and that Mrs. Morris would not have been discharged but for her union activity. The Respondent contends that Morris was discharged for excessive absenteeism in conformance with a well-established practice of the Respondent to discharge employees with records of excessive absenteeism. The Respondent to support this contention, provided evidence of other alleged discharges by the Respondent. It is interesting to note in examining the records of the other employees allegedly discharged by the Respondent for excessive absenteeism that some of the discharges were based exclusively on absenteeism, while others included the additional charge of "poor working habits" or "poor worker " Some included comments such as "do not rehire,""would not rehire," "good worker when here," "very poor worker," and "would not rehire." It is not possible to make an intelligent or meaningful comparison between these examples of discharge and that of Morris. There is no way of ascertaining the breadth and scope of the judgment made in these cases nor any reasonable method of comparing these discharges with that of Mrs. Morris. It does appear that poor work habits were cited as the basis for a determination not to rehire in many cases. Morris' personnel card, like several others, included the notation "discharged. absenteeism, poor working habits, do not rehire." 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no question but that on this record the Respondent's rules clearly required Mrs. Morris to give proper notice in case of absence from work The rules included the caveat "if unable to contact the department head you should leave a message with the working leader in your department or if he is not available, secure the name of the person taking your telephone message." The rule indicated that noncompliance with this rule would he cause for appropriate disciplinary action. There is no indication of what that action might be. The same is true for absenteeism. Many of the cases advanced by the Respondent in support of its contention that the Company had a long and well-established practice of discharges for excessive absenteeism simply do not support that contention. As was brought out in the testimony of record, some of the examples involved employment of only several days duration where the employee did not return the following week. While these are labeled as discharges for absenteeism by the Respondent, it is clear that the Respondent used an extremely broad brush in so categorizing the discharge and that these examples have little if any similarity to the case of Mrs. Morris In my view little weight may be accorded them for the proposition that the employee involved was actually discharged for excessive absenteeism within the meaning of the terms as explained by Levi, the Respondent's personnel director, and which- includes the element of impact of absenteeism on production. Additionally, other examples advanced by the Respondent involve employment of a much shorter duration than that of Mrs Morris and similarly are not comparable An examination of those few examples having at least a basic similarity with the case of Mrs Morris in that the length or term of employment extends over at least a period of one year or more reveals again no basis for meaningful comparison. Most significantly, while the numbers of days of absence appear at first blush to be comparable, on further examination it becomes clear that in the case of Mrs. Morris, for the year 1968, her record of unexcused absences, totaling approximately about 5 from January 1, 1968, to August 30. 1968, could as reasonably be characterized as a fairly good record rather than a "horrible" record. Additionally, the other cases advanced by the Respondent provide no basis for a determination of the nature of the absence involved, or whether excused or not excused. While the evidence of record establishes the fact that the Respondent indeed discharged employees on the broad grounds of absenteeism, in the absence of more meaningful criteria for comparison I am not inclined to view the discharge of Morris as conforming to any pattern well-established on this record. Testimony adduced through the Respondent's managers indicates that the Respondent's policy in its application would require discharge where the excessive absenteeism interfered with production. There is no manner in which there may be determined from this record the yardstick by which interference with production was to be determined or if in fact such a yardstick existed. Nor is it possible from the record to determine whether any judgment was exercised in determining whether or not Mrs. Morris' absenteeism met. the criterion of interfering with production.On the, contrary, the testimony of record would indicate that no such judgment was made at any time in the procedure starting with Johnson's notice to Schoonmaker that Morris was to be watched and culminating in the discharge for absenteeism and poor work habits. Additionally, while the Respondent advanced "poor work habits" and "eating on the line" as additional reasons for Morris' discharge, the testimony of record completely negates these assigned causes On the contrary, the record indicates that Mrs. Morris was complimented on her work and in fact, and most significantly, given several pay raises during the period of her employment. Accordingly, in assigning these causes as the basis for Mrs. Morris' termination, I am persuaded that the Respondent was advancing pretextual reasons for the discharge in an effort to clothe the discharge with apparent legitimacy and to obscure the true motive for the discharge I am convinced and I find from the testimony of record and for each of the reasons herein discussed that the Respondent, aware of the increasing tempo of Mrs. Morris' union activity, and anticipating continued activity by her in line with her statement that "we will be back next year," used the absentee record of Mrs. Morris as a pretext for her discharge, thereby attempting to obscure the true motivation for the discharge which was to terminate her employment because of her union activity protected by the Act, and that such action constituted a violation of Section 8(a)(3) and (1) of the Act. The Respondent's counsel argues that no inference should he drawn herein inasmuch a, the record is devoid of any evidence of antiunion animus manifested toward Mrs. Morris or any other union adherent. Counsel for the Respondent also adverts to Lozano Enterprises v. N.L R B, 357 F.2d 500, 502. Unlike Lozano the inference arising herein from the union activity and the following discharge is not dissipated by the explanation advanced by the Respondent for the discharge. I found this explanation' surrounded by an ambience of strain and am convinced it is not, under all the circumstances. a reasonable explanation. I am not convinced that Morris was warned prior to discharge, nor am I convinced that the Respondent in fact discharged Morris for excessive absenteeism affecting production or scheduling requirements. Nor did the Respondent on this record prove the existence of a well-established practice of discharge in cases such as that of Morris. I am not convinced, as argued by the Respondent, that Morris was not singled out for discharge but was dealt with wholly in accordance with the consistent application of the Company's well-known and longstanding policies and practices with respect to absenteeism. It is from the Respondent's act in discharging Morris close on the heels of her increasing union activity and the election, and the failure of the reasons advanced for her discharge to withstand scrutiny that the pretextual nature of the allegation of discharge for excessive absenteeism, poor work habits, and eating on the line is inferred. 1 am convinced that the Respondent was in fact substantially and dominantly motivated by its desire to discharge Morris in order to discourage the union activity of its employees protected by the Act and that but for her union activity Morris would not have been discharged. THE REvIEDY Having found that F spondent discriminated in regard to the tenure of employment of Esther Morris by discharging her because of her union activities, I will recommend that she be reinstated to her former or substantially equivalent position and that the Respondent make Esther Morris whole for any loss of pay she may have suffered because of the discrimination against her by MARYLAND CUP CORP. payment to her of a sum of money equal to that which she would normally have earned as wages during the period from the discriminatory discharge to the date of offer of reinstatement , together with interest thereon, less net earnings during said period , the backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and N.L.R.B. v. Seven- Up Bottling Co, 344 U S. 344. CONCLU SIONS OF LAW 1. The business operations of the Respondent constitute and affect trade. traffic and commerce among the several States within the meaning of Section 2(6) and (7) of the Act. 395 2. International Union of District 50, United Mine Workers of America. is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminating with regard to the tenure of employment of Esther Morris in order to discourage membership in a labor organization, the Respondent committed unfair labor practices within the meaning of Section 8(a)(3) of the Act. [Recommended Order omitted from publication.]