Pennco, Inc.

PENNCO, INC. Pennco, Inc. and Communications Workers of Ameri- ca, AFLCIO. Case 9-CA-10721 October 31, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On July 28, 1977, Administrative Law Judge John M. Dyer issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order,2 as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Pennco, Inc., Ashland, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: I. Substitute the following for paragraph I(c): "(c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of rights guaranteed under Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 in par. l(c) of his recommended Order, the Administrative Law Judge uses the narrow cease-and-desist language, "in the same or any similar manner," rather than the broad injunctive language. "in any other manner," which the Board traditionally provides in cases involving serious 8(aX3) discrimination conduct. See N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). Accordingly, we shall modify the Administrative Law Judge's recommended Order and notice. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT issue warning notices to employ- ees for engaging in union or concerted activities with other employees for their mutual aid and protection. WE WILL NOT forbid the wearing of union buttons or badges by our employees. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed under Section 7 of the Act. WE WILL revoke and remove the warning notices which we issued to Robert R. Castle and Larry R. Henderson. PENNCO, INC. DECISION STATEMENT OF THE CASE JOHN M. DYER, Administrative Law Judge: Communica- tions Workers of America, AFL-CIO, herein called the Union or Charging Party, filed a charge on October 15, 1976,' alleging that Pennco, Inc., herein called Respondent or the Company, violated Section 8(aXI) and (3) of the National Labor Relations Act, as amended, by giving written warnings to Larry Ray Henderson and Robert Ray Castle and otherwise interfered with employees' rights. The Regional Director for Region 9 issued a complaint on November 30 alleging that Respondent had issued written disciplinary warnings to Castle and Henderson in violation of the Act and that, in September, Plant Superintendent Laird Hicks and Foreman James Sell had violated Section 8(a)(1) of the Act by their demands that employees remove union insignia at work. Respondent, in its answer as amended at the hearing, admitted the jurisdictional and commerce allegations and the issuance of the warnings but denied that it had in any way violated the Act. All parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally at the hearing held in Ashland, Kentucky, on March 3, 1977. Briefs received from Respondent and the General Counsel have been considered. The principal question in this matter is whether the warning notices to Henderson and Castle are legitimate or were given to inhibit their union activities and the activities of other employees during the Union's organizational Unless specifically stated otherwise, the events herein took place during the latter part of 1976. 233 NLRB No. 29 133 DECISIONS OF NATIONAL LABOR RELATIONS BOARD campaign. The evidence makes it clear that the purpose of issuing the warning notices in the middle of the campaign was to hinder Castle and Henderson who were the main employee proponents of the Union. Respondent, in effect, admitted that it warned Henderson to remove his union buttons but places such action on the basis of a lack of knowledge at the time and that it did not thereafter attempt to enforce such regulation. I have concluded that Respon- dent violated Section 8(a)(1) and (3) of the Act. On the entire record in this case, including the exhibits and testimony and including my evaluation of the reliability of the witnesses based on the evidence they produced and the contradictions they admitted, I make the following: FINDINGS OF FACT I. COMMERCE FINDINGS AND UNION STATUS Pennco, Inc., is a Kentucky corporation engaged in the manufacture and sale of aluminum doors and windows at its plant in Ashland, Kentucky. During the past year, Respondent sold and shipped directly to points outside the State of Kentucky goods and products valued in excess of $50,000. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent admits, and I find, that Communications Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background and Undisputed Facts According to the charge in this matter, the Company has approximately 200 employees engaged in the manufactur- ing of aluminum doors and windows at its plant. The supervisory hierarchy relevant to this case includes Person- nel Director Gary W. Layne, Plant Superintendent Laird W. "Pete" Hicks, who has held that job for 3 years, Foreman James Sell, production foreman in the door line, and Dorvin Hineman, shipping department foreman. James Sell had been a foreman for 2-1/2 years and Hineman had been the shipping department foreman for the last 4 of the 5 years he worked there. Larry Henderson worked as a forklift or towmotor driver under Hineman and had been with the Company for about 20 months on two different occasions. Robert Castle had been with the Company for about 3 years and was a valued employee as a door glazier who, according to his own admission, had some absentee problems because of his teeth and general health during the first part of his employment but he had improved his absentee record in latter 1976. On January 21, 1974, Respondent published its general rules of conduct for all employees. They supposedly were distributed to employees when they became employees and were also posted on the bulletin board. The rules contained an explanation of the terms "W" and "T" which meant warning or termination and were to be given in accordance with the seriousness of the offense. Most of the rules provide for two warnings before a termination, whereas some rules provide for immediate termination. The "Absentee Control Policy," after reminding employees that their attendance at work was important, states that employees should get prior approval or authorization from the foreman and that, if they are not able to report for work, should notify the plant of their absence as early as possible. Thereafter, rule I states, Three (3) unexcused absences in any ninety (90) calendar days will result in the following disciplinary action. A doctor's slip will be accepted for absence. I-w 2-w 3-t Respondent's explanation of this rule was that, when the third unexcused absence in a 90-day period occurs, a warning would be given. If three more absences occur within the same 90-day period, a second warning would be given. If three more absences occur in that same 90-day period, the person is subject to being terminated. According to Respondent, attempts at organization had been made in prior years, the last one occurring approxi- mately 2 years ago. In the late summer of 1976, Castle and Henderson went to the union headquarters and there talked to the local representative of the Union. They each signed union authorization cards and were given other union authorization cards to distribute to employees. According to their uncontradicted testimony, Henderson and Castle passed out union authorization cards to other employees, received signed cards, and returned them to the Union. The Union thereafter filed a petition which was docketed as Case 9-RC-11659; a hearing was set and held on September 17, 1976. Both Castle and Henderson received subpenas issued at the request of the Union and both showed their subpenas to their supervisors the day before they attended the NLRB hearing. They, along with one other employee, testified for the Union at the hearing and Personnel Manager Layne was present when they testified. Plant Superintendent Hicks testified that Castle showed him his subpena and said he told Castle it was a subpena and that Castle had to go to the hearing. Hicks indicated that this was the first he had learned of any possible union connection between Castle and the Union. Around September 25 or 26, while Henderson was punching in, Hicks remarked on the large CWA union button Henderson was wearing and told Henderson to take it off, that he did not want to see it around the plant. Henderson took the badge off then. Hicks admitted that he saw a badge on Henderson and told him that was campaigning and that he did not want that done in the plant and Henderson took the badge off. Later that day, Hicks said he saw Henderson with the badge on again but said nothing to Henderson about it since in the meantime he had learned from higher authority at the plant that wearing a union badge was permissible. About 3 or 4 days later, Foreman Sell spoke to Henderson about the CWA union badge Henderson was wearing. According to Henderson, Sell told him to take the badge off, that he did not want any campaigning in the plant; he took the badge off and left it off for 2 or 3 days before resuming wearing it. Sell testified that he merely questioned Henderson on whether Henderson was allowed 134 PENNCO, INC. to wear a CWA badge in the plant and told him that, if he were not allowed to do so, to put it in his pocket. He stated that Henderson replied that it was his right to wear it and he did so. While there might be a question as to the second occasion, it seems clear that on the first occasion the plant superintendent did order Henderson to remove a union badge when he had no right to do so and thereby infringed on employees' rights. Therefore, this violation is in effect admitted and I find Respondent, by demanding employees remove union buttons or badges, violated Section 8(a)(1) of the Act. The representation case decision issued on September 24 and the election was scheduled for October 21. In the 4- week period between the decision and the election, both parties issued campaign propaganda. It is clear from the Company's leaflets that it did not want a union in its plant and sought to dissuade the employees from voting for it. The Union sought to counter by handbilling employees, usually in the afternoon as they were leaving the plant. Among those who assisted in the handbilling, besides local union representatives, were employees Robert Castle and Larry Henderson. Castle stated that he remembered handbilling about 1 week before he received a warning notice and Henderson testified that he assisted in handbilling on approximately 12 occasions in the 4 weeks prior to the election. Castle stated that Plant Foreman Ken Kelly saw him passing out handbills when he did so around October 1. Henderson testified that both Plant Superintendent Hicks and his foreman, Dorvin Hineman, saw him passing out handbills, and that Hineman was 2 or 3 feet away as he was giving out handbills to employees leaving the plant in their cars. Henderson said that Personnel Director Gary Layne and some others, who seemed to be taking pictures, were watching the handbilling from a window in the plant. B. The Written Warnings to Castle and Henderson On October 7, Castle was given a written warning, dated that day, which stated he had violated rule I dealing with excessive unexcused absences of the absentee control policy and it was signed by L. W. Hicks. That rule is quoted above. In regard to Castle's unexcused absences, Respondent stated that Castle's record for 1976 showed he had five unexcused absences in January, one in February, one in March, two in April, one in May, four in June (June 7, 10, 11, and 28), and none in July or August, and absences on September 15 and 17 and October 4. In regard to the latter three, since they would be the only three absences within the 90-day period prior to the October 7 warning, Castle stated that he called the Company and spoke to Assistant Plant Superintendent Miller and told him that he would be absent on September 15, since he had to go to the hospital and pick up his wife and their new baby. He states that Miller said that was okay and no contradictory testimony was offered. The September 17 absence was Castle's attendance at the representation case hearing where he appeared under subpena and, according to Hicks, Castle had shown him the subpena prior to the date of the hearing and had been told by Hicks that it was a subpena that he had to obey, and that he had to go to that hearing. There was no evidence elicited concerning the October 4 absence. If the 90-day period encompasses the June 28 date, the October 4 date is dropped and no evidence was offered concerning June 28. In either event, the September 15 and 17 dates are part of the 90-day period. Under any criteria, certainly the September 17 absence in response to a Board subpena should not be in a category of unexcused absence. Further, it would seem that the absence of September 15, where Castle called and spoke to the assistant superintendent about his projected absence of that day to bring his wife and baby home from the hospital, would seem to be an excused absence rather than an unexcused absence. Whether the September 15 absence is considered excused or unexcused, with the September 17 absence in response to a Board subpena, it is clear that there were not three unexcused absences within a 90-day period or at least the 90-day period which preceded the warning of October. If this warning were given for June or January absences or for any others, the reason, as to its being given at the time that the individual was in the middle of a union campaign and not at the time that such absences occurred, would raise a rebuttable presumption it was done for the unlawful purpose of intimidating a union proponent in his activities. Respondent did not attempt to say what unexcused absences the warning applied to, so under these circumstances I must presume it applied to the three unexcused absences which immediately preceded the date of the warning. Applying it to those three dates, it is clear that it is invalid under the terms of the rule and therefore was unlawfully given to Castle. When we add to this that Castle had never been given a warning prior to this time, when his absentee record was worse, it is possible to come to only one conclusion and that is that it was given to Castle at this particular time to inhibit his union activities and the activities of other employees in the plant. Respondent also produced evidence concerning Castle's tardiness record but he was not given a warning for tardiness which comes under a separate rule and therefore any evidence in regard to this is irrelevant to consideration of the warning given. Henderson was given a written warning on the following day, October 8. His warning was signed both by Hicks and Foreman John Sells, and stated it was for violation of plant rule number 5, "Attention to Work." On the written warning, the explanation was "loafing and attention to work. Spending to [sic] much time visiting around plant, not getting finished products to the dock." Henderson refused to sign the warning on the basis that he had not broken the rule. Hicks stated that he saw Henderson at one time talking to two glasscutters, and waved his arm to Henderson to move the towmotor and he did. He stated that the loading dock supervisor, Hineman, told him that Henderson was not doing all the work that he should. During his direct testimony, Hicks stated he told Hineman to observe Henderson's performance for a few days and, if the poor performance continued, to let him know. According to Hicks, Hineman thereafter gave him a note with figures on the relative performance of the three towmotor operators which indicated that the other two were doing twice as 135 DECISIONS OF NATIONAL LABOR RELATIONS BOARD much work as Henderson; he said this represented 2 days' performance. When he was thereafter confronted with his affidavit which indicated that he only talked to Hineman once and had received figures for I day from Miller, Hicks stated that he did not really remember the specifics. Questioned as to what happened to the paper, Hicks said he threw it in the wastebasket and did not keep it after talking to Henderson and issuing the warning. Hicks' acknowledged affidavit, however, claimed that, when giving the warning to Henderson, he showed Henderson the figures on which the disproportionate amount of work and the warning slip were based and gave Henderson a copy of the original. Henderson denied being shown any such figures. Hicks also testified that he offered to give Henderson a verbal warning but that Henderson said that, if he deserved a warning, to make it a written one. In some contradiction of that, we have the fact that the written warning had been prepared prior to the time that Henderson went in the office. In about the same manner, Foreman Dorvin Hineman testified that, for a period of I to 1-1/2 weeks, Henderson was gone for units to be pulled to the dock longer than usual and that he did not want to get involved, realizing that there was a union campaign going on. He stated that he was told to see Hicks if there was a disciplinary problem and he saw him regarding Henderson. He said that at one time he saw Henderson talking to the people on the glass line for almost 15 minutes and that he did nothing about it. He stated that Henderson was pulling about half the amount of units to the trailers that the other two towmotor drivers were pulling and that he talked to Miller and Hicks about Henderson's performance and was told to watch Henderson for 2 days and then to report. Hineman said he made up a comparison of the work done for the 2 days as to what was pulled. On cross-examination, Hineman stated in accordance with his affidavit that the figures he gave were just for I day but said he gave Miller some verbal figures for a different day. Hineman admitted that, in his 4 years as foreman, this was the first written warning that he was ever responsible for and that he had taken care of all other disciplinary problems within his department prior to that time without involving higher management but that on this occasion he never spoke to Henderson, did not warn him about what he was doing, did not say anything to him about it, just reported it to higher management, and let them take care of it. Hineman admitted that units were of different sizes, that a unit could consist of an aluminum patio door or a small window, and that each of those items was considered as one unit. These items are stacked on pallets in numbers ranging from 3 to 50 and, in moving units to the trailer, a forklift driver lifts whatever number of units are on the pallet to get the required number and runs it to the loading dock. Thus, there can be some discrepancy in the number of units as to what type of units are being taken to the dock. Hineman stated that, over the long haul, the number of different units average out and the men do about the same amount of work. Hineman stated that, after the warning, Henderson's work performance improved. Henderson testified that he did nothing more after the warning than he did before, and that he worked at the same speed all the time; he denied ever loafing on the job and, for that reason, said he had refused to sign the warning slip. The contradictions between the affidavits and the testimony of both Hicks and Hineman make it appear that their verbal testimony was designed to make what they did appear more reasonable. Such embellishments and contra- dictions do not engender confidence in their testimony. In addition to the above, the warning was supposed to be based on the number of units pulled and there is no description of the units which were pulled; some units would be less than half the size of others and, further, there was no disclosure to Henderson as to what the comparison was. When these are added to the fact that the warning to Henderson followed by I day the warning to Castle, when both of them were vigorously engaged in the union campaign, a pungency about the warnings arises to signal that validity is absent here. The clear invalidity of the warning to Castle, added to the doubtful credibility of the warning to Henderson where Henderson and Castle were the chief union proponents, and the timing of these warnings during the middle of the union campaign when they were handbilling employees, lead me to discredit Respondent's asserted reasons for the warnings and to ascribe to them the reason that Respondent was trying to interfere with the union activities of both Castle and Henderson and of its other employees by demonstrating that written warnings would be given for invalid reasons or for no reason at all to persons who engaged in union activities. I therefore conclude and find that the warnings given by Respondent to Castle and Henderson were invalid and were designed to interfere with their rights and violated Section 8(a)(1) and (3) of the Act; I will direct that Respondent rescind and remove those warnings. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II and therein found to constitute unfair labor practices in violation of Section 8(aX1) and (3) of the Act, occurring in connection with Respondent's business operations as set forth in section I, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act as follows: Having found that Respondent unlawfully issued warn- ing notices to Castle and Henderson, it is recommended that Respondent rescind its warning notices to them and remove said memoranda from Castle's and Henderson's personnel files. 136 PENNCO, INC. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Communications Workers of America, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) and (3) of the Act by the issuance of invalid and unlawful warning slips to Castle and Henderson because they engaged in union and concerted activities with other employees for the purposes of mutual aid and protection. 4. Respondent violated Section 8(a)(l) of the Act by forbidding the wearing of union buttons and badges by its employees. Upon the basis of the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 2 The Respondent, Pennco, Inc., Ashland, Kentucky, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Unlawfully issuing warning notices to employees because they engage in union or concerted activities with other employees for their mutual aid and protection. 2 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and the recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (b) Forbidding employees to wear union buttons or badges. (c) In the same or any similar manner interfering with, restraining, or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Revoke and rescind its unlawful written warnings to Robert R. Castle and Larry R. Henderson and remove said warnings or memoranda from Castle's and Henderson's personnel file in accordance with the recommendations set forth in the section of this Decision entitled "The Remedy." (b) Post at all of its plants, warehouses, and offices, copies of the attached notice marked "Appendix." 3 Copies of said notices, on forms provided by the Regional Director for Region 9, after being duly signed by an authorized representative of Respondent, shall be posted by Respon- dent 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 3 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 137