Royal Manufacturing Co.

264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Royal Manufacturing Company and Textile Workers Union of America, AFL-CIO-CLC. Case 11-CA-3758 June 30, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On February 13, 1969, Trial Examiner Thomas F. Maher issued his Decision in the above-entitled case, finding that the Respondent had not engaged in certain unfair labor practices as 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 Charging Party filed a supporting brief to the General Counsel's exceptions. The Respondent moved to dismiss the Charging Party's brief on the ground that it did not as a purported exception comport with rule 102.46 of the Rules and Regulations of the National Labor Relations Board.' 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 the briefs, and the entire record in this case, and finds merit in the exceptions. Accordingly, the Board adopts the Trial Examiner's findings and conclusions only to the extent consistent herewith. As found by the Trial Examiner, the record shows that on Friday, October 11, 1968, the three alleged discriminatees, Annette Rorie, Beulah McDaniel, and Sam Watson, asked permission of Plant Superintendent John Lominac to take the following Monday off from work because they had been subpoenaed to appear at a representation hearing scheduled for that day. Annette Rorie, speaking for the others, said: "Mr. John, we have subpoenas to attend a representation hearing on the 14th of October and we would like the day off." Lominac responded, "Okay," and then examined Rorie's subpoena and returned it to her. Mary Winchester, another employee, was present at the time and overheard this conversation. He then informed the three that Graeme Ross, the Respondent's vice president, was delivering a talk to all employees at 'The Charging Party filed "Exceptions To The Trial Examiner's Decision In Support of the General Counsel's Brief." Although martfully styled as "exceptions," the document is clearly a brief, and as such not subject to rule 102.46 which outlines the specificity with which exceptions must be filed. Accordingly, the Respondent's motion is denied. their 2:45 p.m. break in front of the plant. Ross' statement was not alleged to be in violation of the Act. Rorie, McDaniel, and Watson appeared at the representation hearing on Monday morning, took seats at the Union's table, and, although not called to testify, they did offer assistance to the union representative during the proceeding, in particular during his examination of company personnel. Toward the end of the hearing which closed at 11 a.m. the Respondent's counsel, Brown Boswell, stated for the record that the employees were "in violation of company rules for failing to report to work or failing to call in to explain their absence," and that they were "to immediately return to work." Whereupon the union representative took issue with Attorney Boswell, stating that the employees "informed their superior that they would be out, and that they [had] the subpoenas to prove it." At that point Boswell asked to see the subpoenas, and the parties went "off the record" for a brief discussion and the subpenas were returned. The hearing officer then asked the parties whether they had anything further to add before adjournment. Thereupon, the union representative requested that the record show that the employees were there pursuant to subpena and had made their appearance. The Respondent's attorney had nothing further to present and the proceeding was closed. The Trial Examiner found that the testimony of Rorie was in substantial accord with the representation case record. Further, he found, and Rorie testified, that Attorney Boswell stated that no supervisor had the authority to grant these employees the day off and that they were expected to return to work after the noon hour. Employee McDaniel also testified that Boswell had told them "to report back to work after lunch." As for the testimony of Watson, the Trial Examiner credited a statement he gave in an affidavit that "At the end of the hearing, as the lawyer was leaving, he said he was ordering the three of us, Bet.. i, Annette and myself back to work at noon time." The Trial Examiner discounted as being evasive Watson's testimony that counsel was about to step outside with the subpenas, but instead returned them to the union representative and made no further comment. After the hearing, the three employees accompanied by the union representative went back to the union hall where they signed vouchers for pay and other papers and, in general, discussed the case. Around 2:45 p.m. the three employees, who had not yet eaten lunch and were still in their dress clothes, left the union headquarters and went home. Their usual quitting time at the plant was 4:30 p.m., but they did not return to work or call in to say they would not be in until the next day. When the employees reported to work the next day they noted that their timecards had been pulled and sought out Lominac for an explanation. He read to them their separation notice and gave them their wages. The 177 NLRB No. 80 ROYAL MANUFACTURING CO. termination slip stated simply that they had been discharged for unexplained absence from work on the preceding day. The Trial Examiner concluded that the employees were terminated for not obeying a lawful order to return to work and, finding no evidence that attendance at the hearing precipitated their discharge or that Board processes were thereby impeded, recommended that the complaint be dismissed in its entirety. As for the testimony that the dischargees were given the day off, he found that any such permission was rescinded at the end of the hearing and that the employees had no justifiable excuse for not going back to the plant after leaving the union hall. Beyond that, the Examiner reasoned that the subpoena would have clothed the employees with an immunity from employer control only while the proceeding was actually in progress, but not afterward when they were conducting union related business. We find merit in the General Counsel's exceptions. That the employees were given the day off by Superintendent Lominac is not disputed. That permission was countermanded near the end of the representation proceeding is in dispute. Upon a careful consideration of all the relevant evidence in this case, we find that the Respondent's counsel did not reiterate his demand after he returned the subpoenas. Coming as it did from a stranger to these employees, the order understandably had the markings of an intemperate command without foundation because the employees had indeed complied with company rules when they requested Lominac to give them the day off. To say that the three had not obtained permission, as Respondent's counsel did, was clearly unfounded because they had been granted permission in the customary manner. Further, there was no indication by Lominac that someone above him in the Company had to add his approval. On the contrary, the evidence shows that in the past Lominac had on many occasions given them time off and more than once gave them time off with pay. When the Respondent's attorney made his statement, the union representative objected and offered the subpenas as proof of the justified absences of the employees. Counsel then asked that they go off the record. There is an indication in the testimony of Annette Rorie that the Respondent's counsel asserted that no supervisor had authority to grant time off. If this was said, and the record offers nothing that would cause us to find otherwise, then the Respondent, through counsel, was formulating a novel rule to which it clearly had not adhered in the past. We deem this remark, coupled with the assertion that the employees were then in violation of plant rules or without permission , to be further indication of the Respondent's intention to deal with these employees in a discriminatory manner, because the record supports the finding that the plant supervisor had authority to excuse absence. 265 Other testimony to the effect that at the end of the hearing as counsel was leaving he told the employees to go back to work is at best ambiguous in that it could be merely the witnesses' summations of counsel's order which appeared on the record or something that was said after the parties went off the record.- In any case, it is irrebuttable that all three dischargees testified that nothing more was said by the Respondent's counsel after the subpenas had been read and returned. We accordingly find the affidavit of Watson to be ambiguous on this relevant point and the Trial Examiner's reliance on it misplaced. Watson clearly testified that the Respondent's lawyer was silent and did not elaborate again on his demand to return to work after viewing the subpoenas. Further, we find that the Respondent's announced reason for the discharges was pretextual, and that the employees were in fact fired for their expressed interest in the Union. In so concluding, we take special note of the disparate treatment meted out to these three longtime workers. Past practice indicated that employees were given an opportunity to explain the reason for their absence from work. Generally, no disciplinary action was taken except that employees were not compensated for the time missed from work. The record does not reveal that the employees in the instant case had ever been disciplined for absenteeism. All had been complimented for their work and each of them had been with the Respondent for some time; Rorie, McDaniel, and Watson had been with the Respondent for 2, 3, and 16 years, respectively.' Also, we note that Respondent's counsel at the representation hearing alleged that no supervisor had authority to grant time off. This utterance, if true, must have been a rule formulated especially for these three employees, for there is no question but that supervisors, and in particular Plant Superintendent Lominac, not only had the authority to permit absences, but also exercised that authority. In summary, to us it appears that the discharges were motivated by the protected concerted activity of these employees on behalf of the Union and the reason given by the Respondent is pretextual, and that, therefore, the Respondent violated Section 8(a)(1) and (3) of the Act, as amended. We do not rest our conclusion on one incident but rather on the totality of events that transpired. Specifically, we rely on the finding that the employees were given the day off, that the Respondent tried to vitiate that permission by taking the position that the dischargees were in violation of company rules and had not been given permission when, in fact, they had complied with customary practice, and that the Respondent acted arbitrarily without just cause in 'Indeed, it appears the discharge penalty was out of proportion to the alleged misconduct especially since absenteeism was prevalent and, as far as the record shows, was excused. As the Trial Examiner stated , and the Board adopted in Newland Knitting Mills, 165 NLRB No 104• 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not allowing them a chance to present their case.' We are also of the opinion that such conduct impeded Board processes in that it was precipitated by these employees' appearance in support of the Union pursuant to subpena at a representation hearing . Employer conduct which penalizes employees for their participation in such proceedings unquestionably interferes with the Board's duty to maintain an open , impartial forum in administering the Act." We therefore find that the Respondent has also violated Section 8(a)(4).s ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that the Respondent, Royal Manufacturing Company, Charlotte, North Carolina, its officers, agents, successors, and assigns, shall take the following action: 1. Cease and desist from: (a) Discharging employees or exercising other reprisals against them for participating in Board proceedings or engaging in union activities. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Textile Workers Union of America, AFL-CIO-CLC, or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in any 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 which is necessary to effectuate the policies of the Act: (a) Offer Annette Rorie, Beulah Mae McDaniel, and Sam Watson immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed and make them whole for any loss they may have suffered by reason of their discharges by payment to each of them of a sum of money equal to the amount which each would normally have earned as wages from October 15, 1968, to the date of offer of reinstatement, less their net earnings, to which is to be added interest at the rate of 6 percent per annum in accordance with the formula set forth in F. W. Woolworth The failure of [the dischargcesl to return to the plant , if at all improper, is at worst more akin to common absenteeism than to any other breach of discipline It is not analogous to any serious disciplinary breach which in ordinary industrial practice would be readily accepted as cause for the maximum disciplinary penalty on the basis of a single offense 'In our view it is immaterial whether Respondent's counsel repeated to the employees his "order" to return to work after viewing the subpoenas, though for the reasons set out earlier , we would find that he did not repeat it, if the matter were material See Newland Knitting Mills. supra, and the cases cited therein. 'In light of our conclusion that there is merit to the General Counsel's exceptions, and that they are supported by a preponderance of the record evidence in this case, we deem it unnecessary to discuss the other reasons advanced by the Charging Party for overruling the Trial Examiner. Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. (b) Notify the above-named employees if presently serving in the Armed Forces of the United States of their 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 payment records, timecards, personnel records and reports, and all other records relevant and necessary to a determination of compliance with paragraph 2(a) above. (d) Post at its Charlotte, North Carolina, place of business, copies of the attached notice marked "Appendix."' Copies of said notice to be furnished by the Regional Director for Region 11, after being duly signed by Respondent's representative, shall be posted by it 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 said Regional Director, in writing, within 10 days from the receipt of this Decision, what steps Respondent has taken to comply herewith. 'In the event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discharge employees or exercise other reprisals against them for participating in Board proceedings or engaging in union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Textile Workers of America, AFL-CIO-CLC, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in any other concerted activities for the purpose of collective bargaining , or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer to Annette Rorie, Beulah Mae McDaniel, and Sam Watson immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and WE WILL make them whole for any loss they may have suffered as a result of the discrimination against them with interest at 6 percent. ROYAL MANUFACTURING CO. WE WILL notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. Dated By ROYAL MANUFACTURING COMPANY (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101 , Telephone 919-723-9211 , Extension 360. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS F. MAHER, Trial Examiner: Upon a charge filed on October 15 , 1968, by Textile Workers of America, AFL-CIO, herein referred to as the Union, the Regional Director for Region 11 of the National Labor Relations Board, herein called the Board, on November 21, 1968 , issued a complaint on behalf of the General Counsel of the Board against Royal Manufacturing Company, Respondent herein, alleging violations of Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. In its duly filed Answer Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practice. Pursuant to notice a trial was held before me in Charlotte, North Carolina, where all parties were present, represented, and afforded a full opportunity to be heard, present oral arguments, and file briefs with me. Briefs were filed on February 5, 1969. Upon consideration of the entire record , including the briefs submitted , and specifically upon my observation of each witness appearing before me, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE RESPONDENT Respondent Royal Manufacturing Company is a New Jersey corporation with a place of)usiness at Charlotte, North Carolina, where it is engaged in the processing and manufacturing of cotton and synthetic products. During the past 12 months, being a representative period, Respondent manufactured, sold, and shipped from its Charlotte, North Carolina, plant, nshed products valued in excess of $50,000 directly to poi is in the United States outside the State of North Carotin . Upon the foregoing admitted fats I conclude and find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) nd (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED 267 It is admitted and I accordingly conclude and find that Textile Workers Union of America, AFL-CIO, the Charging Union herein, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUE The extent of immunity from discipline derived from participation in an official Board hearing. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Sequence of Events On Friday, October 11, 1968, Employee Annette Rorie, accompanied by employees Beulah McDaniel and Sam Watson, and in the presence of employee Mary Winchester, sought out Plant Superintendent John Lominac and told him they had "subpoenas to attend a representation hearing ' on the 14th of October and we would like the day off.": Lominac said, "okay." He was (reluctant to read the subpoena shown to him but did so and returned it to Miss Rorie. He then told the employees that Respondent's president, Graeme Ross, wished to talk to all of the employees at the 2 :45 p.m . break . Ross spoke to the employees as scheduled and in his speech (not alleged to be in violation of the Act) stated the Respondent' s position opposing the organization of its employees. Thus, according to Miss Rorie , he told them that "the Union was only just something only for taking our money, and he made some comparisons as to how the Union didn't work out with other companies." The hearing in Case 11-RC-2912 convened on Monday morning, October 14, as scheduled, and employees Rorie, McDaniel and Watson were present pursuant to their subpenas which directed them to appear before a designated official of the Board at a designated time and place "to testify" in a designated matter. All three employees sat at the counsel table with the Union's representative and consulted with him from time to time throughout the proceeding . The hearing closed at 11 a.m. On or about the time the hearing actually closed Attorney Brown Boswell, representing the Company in the representation matter, stated on the record: Mr. Boswell: The Company would like for the record to show that there are a number of employees present today who are in violation of company rules for failing to report to work or failing to call in to explain their absence in that they are expected to immediately return to work. Whereupon the union representative took issue which Boswell, stating, "The Union takes the opposite position, that they informed their superior that they would be out, and they have subpenas to prove it ." Attorney Brown then asked to see the subpenas. Because this particular incident is critical to a full understanding of what followed the testimony of all three 'The hearing in Case 11-RC-2812 conducted in the Public Library, Charlotte, North Carolina, on October 14, 1968. 'The credited testimony of Employee Rorie whose account of the incidents herein form the basis of my findings . To the extent that it is corroborative I also rely upon the testimony of Employees Watson, McDaniel and Winchester. I 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD principals to the event must necessarily be reviewed. Thus employee Rorie testified substantially in accord with the above-quoted excerpt of the R case record , stating specifically that "he requested their presence back to work after noon time." On cross-examination she again testified that the company lawyer instructed them to go back to the plant at the close of the hearing, and that no one protested. She also stated that she heard the attorney tell the Union representative that no supervisor had authority to give them the day off and once again admitted that the attorney, in the presence of President Ross, told them, "We want you to go back to the plant and go to work." Employee McDaniel also described the incident as it was detailed in the representation case record quoted above. She also stated that no one told them at the hearing why it was necessary to return to work. On cross-examination Miss McDaniel repeated her testimony that Attorney Boswell told them "he want them to report back to work after lunch." Employee Watson gave a Board agent an affidavit during the investigative stages of the case . Therein he stated: "At the end of the hearing, as the lawyer was leaving, he said he was ordering the three of us, Beulah, Annette and myself back to work at noon time."' When confronted with this statement at the hearing Watson, after much evasion, affirmed it, stating, "Yes, he made that statement." To the extent that Watson's evasive testimony suggests the contrary, upon my observation of him as he testified, I reject it, and rely only upon the statement in the affidavit and his grudging admission of it. At the close of the hearing all three employees, in the company of the Union' s representatives, returned to the Union' s headquarters where they engaged in discussions involving the hearing and union matters generally. They remained there until 2:45 p.m. and then left for home. Although it was still some time before their normal 4:30 p.m. quitting time none of the three made any effort to report for work as directed. In this respect it is to be noted that all three were dressed in their good clothing. On the following morning the three absentees of the previous day reported to work to find their timecards missing from their usual places in the rack. When they reported to Superintendent Lominac he presented them with their wages to date and read to them from notes to the effect that each was being discharged for unexplained absence from their job on the entire afternoon of October 14 after a direct order to be present at work. Each received a termination notice bearing the same reason for discharge. B. Conclusions The thrust of the proof in this matter, judging from the evidence adduced by the General Counsel, appears to be that participation in a Board proceeding, here a representation matter, carries with it an immunity from employer discipline and control. I cannot agree. It is one thing to discharge an employee because he has given his testimony under the Act or has been in attendance at a 'There was some question at the hearing as to Watson's ability to read It is to be noted that his affidavit, which appears in the record, bears an amendment signed and sworn to by him wherein he states that his full statement was read to him by counsel for the General Counsel and that he subscribes to it as true. I accordingly rely fully upon the matter quoted above. hearing, for that is precisely what Section 8(a)(4) prohibits. It is something else again, however, to discharge an employee for refusing to follow a proper order. That is this case. Essential to any finding that the three employees' discharges were caused by their presence at the hearing would be proof of that very fact - and disproof of any other given reason . Nowhere in this record, however, is there even the suggestion that it was the employees' attendance at the hearing that motivated Respondent's action. It is true, of course, that on the previous Friday Plant Superintendent Lominac was not overcome with delight that three of his complement would not be at work on Monday morning. But it is equally evident that he manifest no opposition to their attendance when shown their subpenas. I must conclude and find, therefore, that nothing in Lominac's conduct or statements would suggest a trace of discriminatory intent. It is equally true that the three employees, and all the others, were addressed by the Company' s president in what was referred to in oral argument as an antiunion speech but described otherwise in the credited testimony as an expression of the Company's viewpoint respecting the Union. Viewing such remarks in the light of an employer's statutory right to so express himself and in the absence of any unfair labor practice charge directed to it or of any claim that the speech was such as to destroy the laboratory conditions favored in representation matters,' I see nothing in President Ross' remarks, as summarized by General Counsel' s witnesses, that would suggest a motive on Respondent's part to visit reprisal upon those who actively supported the Union. On the contrary, the evidence in this matter, all supplied by General Counsel in his case-in-chief, amply supports several critical conclusions: (1) the three employees were specifically told to report back to work upon the conclusion of the hearing, (2) they heard these instructions, given to them by the Company's attorney in the presence of its president, and finally, (3) they chose to ignore the instructions given to them and failed to report to work until the following morning. I am not persuaded by arguments offered in opposition to the foregoing conclusions which I deem so obvious. Thus it is claimed that the employees had initially asked for and were given the day off. The short answer to this is their own testimony that the last instructions they received were to get back to work. Nor does the nature of the subpoena lend any more comfort to their case. I cannot interpret that document as requiring a subpoened witness not only testify at the hearing but as permitting him thereafter to participate in such related union business as may arise. I am aware of no official usage of subpoenas for the prosecution of private, nongovernmental business. And finally, I am not impressed by the difficulties inherent in appearing at a hearing in dress clothing and thereafter, at 11 a.m., being required to change to work clothing and go to work. The distances in the Charlotte area are not so great nor the task of changing to one's work clothes so time consuming as to make going to work in the afternoon an impossible or even a difficult task. Upon the foregoing, I would conclude and find that employees Annette Rorie , Beulah McDaniel , and Sam Watson were each discharged for failing to report to work in response to a direct order to do so, as stated to each in 'General Shoe Corp, 77 NLRB 124. ROYAL MANUFACTURING CO. 269 their respective termination slips. I accordingly recommend that the complaint alleging that these discharges were in violation of Section 8(a)(l), (3), and (4) be dismissed. RECOMMENDED ORDER It is recommended that the complaint in this matter be dismissed in its entirety.