Amole, Inc.

AMOLE, INC. 67 Amole, Inc. and General Teamsters Sales , Service & Industrial Union, Local 654, affiliated with the In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America . Case 9- CA-8205 testified, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYER October 11, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 13, 1974, Administrative Law Judge Max Rosenberg issued the attached Decision in this pro- ceeding. 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 Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent Amole, Inc., Dayton, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. DECISION STATEMENT OF THE CASE MAx ROSENBERG, Administrative Law Judge: With all parties represented, this proceeding was tried before me in Oakwood, Ohio, on. March 13, 1974, on a complaint filed by the General Counsel of the National Labor Relations Board and an answer filed thereto by Amole, Inc., herein called the Respondent.' At issue is whether Respondent violated Section 8(a)(3) of the National Labor Relations Act, as amended, by discharging Peggy Kennedy under circumstances to be chronicled hereinafter. Briefs have been received from the General Counsel and the Respon- dent which have been duly considered. Upon the entire record made in this proceeding, includ- ing my observation of the demeanor of the witnesses who ' The complaint, which issued on February 7, 1974, is based on a charge filed on December 21, 1973, and served on January 2, 1974. Respondent, an Ohio corporation with its office and principal place of business located in Dayton, Ohio, is en- gaged in the preparation, packaging, and sale of cosmetics. During the annual period material to this proceeding, Re- spondent sold and shipped products valued in excess of $50,000 from its establishment in Dayton, Ohio, directly to points located outside the State of Ohio. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that General Teamsters Sales, Service & Industrial Union, Local 654, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, herein called the Union, is a labor organi- zation within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The General Counsel contends that Respondent violated Section 8(a)(3) of the Act by discharging Peggy Kennedy on November 28, 1973, because she had contacted her union representative regarding her working conditions. Re- spondent denies the commission of any unfair labor prac- tices proscribed by the statute. During the times material herein, Respondent and the Union were parties to a collective-bargaining agreement. In pertinent part, article I of that compact provided that all employees must become members of the Union on or be- fore the 31st day of their hire. Article III, section 1, provid- ed that "New Employees shall be regarded as probationary employees for the first sixty (60) days of employment, after which time they will be entered on the seniority list and their seniority date shall be the date of the most recent hire. Probationary employees who are terminated for any rea- son shall have no recourse to the grievance procedure of this contract." Peggy Kennedy was hired by Respondent on October 2, 1973. Within a week after the commencement of her em- ployment, she became a member of the Union. It is undis- puted and I find that, sometime in late October or early November, Kennedy complained to her forelady, Mary Smith, that, based on her seniority, Kennedy believed that she should be permitted to work on a machine where she could earn more money rather than be relegated to the end of the production line where she merely boxed and stacked plastic bottles for shipment and was, paid less. According to Kennedy's testimony, Smith replied "Peggy, you are good on the machine, but you are better at the end of the line, those orders that we had, if you hadn't been there, they would have been. all messed up and I knew, I need you 2 All dates hereinafter fall in 1973. 214 NLRB No. 15 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there to keep those orders straightened out." As a result of this colloquy, Kennedy was denied a transfer to a machine and remained at the boxing and stacking operation. Bobby Coffey, the Union's steward, testified that, on or about November 23, he was approached by Kennedy who inquired about seniority rights at the plant and as to how it applied to employees. At this juncture, Kennedy related that she had been taken off her machine and had been assigned to work on the end of the production line. Coffey stated that he was unaware of this happenstance and asked who had caused the transfer. Kennedy replied that Fore- lady Smith had ordered it and she pleaded with Coffey to investigate the matter. Coffey assured Kennedy that he would speak with Plant Manager Fint Parsons about the subject. Later that day, Smith beckoned to Coffey and a conver- sation ensued. Smith asked Coffey "if I was going around telling [Kennedy] what [Smith] could tell her to do and things like this and how seniority applied." Coffey re- sponded in the affirmative, and Smith added that, "well, I hear you are going to talk to Fint Parsons about Peggy." Coffey replied that he planned to do so later in the day. Smith retorted that Coffey, "had no right to tell people what they could do . . . what jobs they should be on .... Smith ended the discussion by inviting Coffey to contact Parsons. A short while thereafter, Coffey entered Parsons' office and inquired as to why Kennedy had been transferred from machine work to the end of the production line. Par- sons answered that Smith had told him that Kennedy's production was not up to par. Coffey suggested that it might have been more politic for Smith to have explained the reason for the move rather than simply ordering the switch. Parsons thereupon promised that he would "look into it." Dissatisfied over her unsuccessful attempt to obtain the more desirous and lucrative machine work to which she deemed herself entitled, Kennedy telephoned Dick Loy, the Union's business representative, on November 26. Dur- ing their conversation, Kennedy apprised Loy of her dis- cussion with Smith and informed him of her wish to trans- fer to machine duties due to the fact that she possessed. greater seniority than the woman then employed on the machine. Loy informed Kennedy that he had a previously. scheduled meeting with Plant Manager Parsons set for No- vember 28, and he assured her that he would bring up the topic at the meeting. It is undisputed and I find that, on the afternoon of November 28, Loy called upon Parsons.. Loy stated that he had received a telephone call from Kennedy in which she complained that she had been denied the right to exercise her seniority in the selection of the duties which she per- formed. Parsons reminded Loy that, pursuant to their la- bor contract, probationary employees such as Kennedy could be utilized anywhere in the plant at management's discretion to enhance their training. Loy readily agreed and the conversation terminated. Kennedy further testified that, at approximately 3 p.m. on November 28, she was instructed by Forelady Smith to proceed to Parsons' office. When she arrived, Parsons an= nounced that, "Peggy, I'm going to have to let.you go " Kennedy inquired into the reason for this personnel action, and Parsons responded, "You have gotten in contact with the union, you have caused Mary [Smith] trouble." In her testimony, Kennedy emphatically denied that, during this terminal interview, Parsons assigned any other reason for her termination. Whereupon, Kennedy was discharged on the afternoon of November 28, approximately 2 days be- fore she would have finished her probationary period and become a permanent employee of Respondent.S Plant Manager Parsons testified that he initially decided to discharge Kennedy on November 23 after discussing the subject with Forelady Smith, who was his sole fount of information concerning Kennedy's work performance. Ac- cording to Parsons, he had received several adverse reports from Smith in late October and early November concern- ing Kennedy's low productivity on the screening machine, and Smith had recommended Kennedy's discharge as early as the end of October. However, Kennedy was transferred from the machine to the boxing and stacking operation on the production line. In Parsons' words, his decision to ter- minate Kennedy was reached on November 23 when Smith informed him that "Peggy Kennedy was going around the screening department, talking to people, causing trouble and was going to become a troublemaker." When ques- tioned as to why he did not discharge Kennedy on Novem- ber 23, Parsons replied that "I had 'what I thought was more important business to take care of . . . I was involved with several meetings with executives of the company, in the early part of the week, on some inventory problems." Parsons denied that, on this date, he had any knowledge that Kennedy had gone "to the Union for anything." Parsons further averred that the first he learned that Kennedy had enlisted the support of the Union in her quest for machine work was on November 28 when he met with Union Business Representative Loy about a grievance and Loy brought up Kennedy's complaint that she be- lieved she was being discriminated against because she was not allowed to operate the screening machine. Despite the. fact that, according to Parsons, he had already decided to terminate Kennedy on November 23, and,` indeed, was about to sever her employment a few hours after his discus- sion with Loy, Parsons failed to disclose this intelligence to Loy but, instead, reminded the latter that Kennedy was still a probationary employee whose work assignments were within the exclusive discretion of management. Loy agreed with Parsons' observations and the meeting ended. A few hours later, Parsons summoned Kennedy to his office. It is his testimony that "I told her we were going to have to let her go, that her ability to get production was not what we required from an employee, that she had walked throughout the screening department, harassing people and spreading stories and was in general, a troublemaker." Kennedy protested that "I'm a good worker, you are doing this because I .went to the Union." Parsons inquired wheth- er Kennedy was in need of gainful employment, and when she responded affirmatively, Parsons referred her to anoth- er establishment and assured her that "if there was a 3 Although the complaint alleges that Kennedy was discharged on No- vember 29, it seems clear on this record and I find that she was severed from Respondent's employment rolls on November 28. AMOLE, INC. chance of her getting employment there, that I would not do anything to hinder her getting another job." Parsons concluded his testimony by proclaiming that Kennedy's discharge had no relationship to her enlistment of the Union's support in order to obtain reassignment in her du- ties at the plant. When summoned as a witness, Forelady Mary Smith tes- timonially related that, immediately following Kennedy's employment on October 2, Smith put Kennedy to work on a variety of machines. At some indeterminate date, Pro- duction Scheduler Guinevere Wilkin informed Smith that Kennedy was not fulfilling production requirements and suggested that Smith reassign Kennedy. Whereupon, Smith directed Kennedy to work at the end of the production line where she boxed and stacked plastic bottles in preparation for shipment, a task for which, by Smith's own admission, she deserved a rating of "very good." Following her reas- signment, Smith received no other complaints regarding Kennedy's work performance, but contended that Kennedy's fellow employees commenced to complain about her body odor, messiness, and bossiness, and that these became ingredients in her reports to Parsons recom- mending Kennedy's discharge. In the course of the presen- tation of its defense, Respondent introduced a parade of witnesses to substantiate Smith's testimony. This effort proved abortive. Regarding the complaint about Kennedy's body odor, Parsons candidly conceded in his testimony that Kennedy's alleged "body odor" played no role in her termination. Moreover, in his terminal interview with Kennedy, Parsons made no mention of "messiness" or "bossiness" as being motivating factors in causing her separation from employment with Respondent. Rounding out Smith's testimony, she denied that she had ever told Parsons that she was concerned because Kennedy had complained to the Union over the latter's failure to obtain machine work or that she was worried about her future as a result of any such complaint. Smith also denied that she had ever mentioned to any union steward that she was unhappy over Kennedy's complaints to the Union. However, Smith did bring herself to admit that "Bobby Coffey, the Union Steward, had told me something about Peggy mentioning something to him and I said `well, you shouldn't go around starting trouble, Bobby'... . I credit the testimony of Kennedy, who impressed me as a sincere and forthright witness, and find either in late Oc- tober or early November she was transferred from her work on a screening machine to the task of boxing and stacking plastic bottles in preparation for shipping. I find that Kennedy objected to the transfer and complained to Smith that the former believed she was entitled to machine work by virtue of her accrued seniority. When Smith failed to reassign Kennedy, the employee sought out Union Stew- ard Bobby Coffey on November 23, informed him of her gripe, and questioned him concerning the subject of senior- ity rights. Coffey assured Kennedy that he would present " In fact , Smith admitted on the stand that no employee had ever com- plained to her that Kennedy had failed to clean up her work area, and that Smith herself never observed any deficiencies regarding this aspect of Kennedy's work. 69 the matter for Parsons' consideration later in the day. I credit Coffey's testimony, not only because it possessed the qualities of candor, but also because it was partially cor- roborated by Smith, and find that, on the afternoon of November 23, Coffey engaged in a conversation with Smith during which the forelady asked if Coffey had been advising Kennedy about her employment rights and if he intended to speak to Plant Manager Parsons about Kennedy's complaint. When Coffey indicated that he had so advised Kennedy and that he had planned to communi- cate with Parsons about Kennedy's job assignment, I find that Smith stated that Coffey "had no right to tell people what they could do . . . what jobs they should be on I further find, based on Coffey's credited and essentially undenied testimony, that he spoke with Parsons late in the day on November 23 and questioned Parsons regarding Kennedy's transfer away from the screening machine. Par- sons promised that he would look into the matter. I find that, on the same afternoon, Parsons met with Smith and a discussion of Kennedy's retention of employment ensued. I deem it not only plausible but reasonable to infer from the record that Parsons and Smith discussed the circumstance that Kennedy, although a probationary employee, had sought Coffey's support in her efforts to regain machine work. I find that, on November 26, Kennedy contacted Union Business Representative Loy, informed him of her belief that, based on seniority, she was entitled to operate the screening machine, and received assurances from Loy that he would press the issue with Parsons at a forthcoming grievance session . I also find that, on November 28, Loy discussed the topic with Parsons. I credit the testimony of Kennedy and find that, following Parsons' colloquy with Loy on November 28, the plant manager summoned her to his office and announced that she had been discharged because "you have gotten in contact with the Union, you have caused Mary [Smith] trouble." To be sure, Respondent would have been legally privi- leged to terminate Kennedy at any time, apart from con- tractual considerations, for reasons of "body odor," "messiness," or "bossiness," or for no reason at all. Howev- er, I am not convinced that Respondent's personnel action with respect to Kennedy on November 28 was predicated on these grounds. Kennedy, who was a member of the Union, decided to utilize the Union's collective power in her attempt to correct what she believed to be an employ- ment inequity. After complaining to Coffey and Loy, both of these union representatives brought Kennedy's griev- ance to the attention of Smith and/or Parsons for consider- ation . Perhaps, unwittingly, Parsons divulged the basic mo- tivation for separating Kennedy. from Respondent's em- ploy when he testified that she was "causing trouble and was going to become a troublemaker." In sum, I am convinced and find that Respondent select- ed Kennedy for discharge on November 28, not because of any deficiencies in her work performance or of any unde- sirable personal traits, but because she had contacted her union representatives to press grievances which she har- bored concerning her working conditions. I therefore con- 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clude that, by discharging Kennedy on that date, Respon- dent violated the provisions of Section 8(a)(3) of the Act.' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities set forth in section III, above, occurring in connection with Respondent's operations described in sec- tion I, above, have a close and intimate 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 thereof. V. THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices, I shall recom- mend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondent discharged Peggy Kenne- dy on November 28, 1973, for reasons which offended the provisions of Section 8(a)(3) of the Act. I shall therefore recommend that Respondent make her whole for any loss of pay which she may have suffered as a result of the dis- crimination practiced against her. The backpay provided for herein shall be computed in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent per annum computed in the manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact and con- clusions, and upon the entire record in this case, I hereby make the following: 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 Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Peggy Kennedy, thereby discriminat- ing in regard to her hire and tenure of employment, in order to discourage her membership in the Union, Respon- dent has engaged in and is engaging in unfair labor practic- es within the meaning of Section 8(a)(3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. . Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: 5 See Loose Leaf Metals Company, 181 NLRB 202 , 206 (1970): Lapeer Metal Products Co., 134 NLRB 1518, 1520 ( 1961). ORDER6 Respondent Amole, Inc., Dayton, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees, thereby discriminating in re- gard to their hire and tenure of employment, in order to discourage their membership in the Union. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which I find is necessary to effectuate the policies of the Act: (a) Offer to Peggy Kennedy immediate and full rein- statement to her former job or, if it no longer exists, to substantially equivalent employment, and make her whole for any loss of pay which she may have suffered as a 'result of the discrimination practiced against her, in the manner set forth in the section of this Decision entitled "The Rem- edy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security records and reports, and all other records necessary to analyze the amount of backpay due herein. (c) Post at its plant in Dayton, Ohio, copies of the at- tached notice marked "Appendix." ' Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's authorized repre- sentative, shall be posted by it immediately upon receipt thereof and maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not al- tered, defaced, or covered by any other material. (d) Notify the Regional Director, for Region 9, in writ- .ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 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. 7 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge our employees from work, thereby discriminating in regard to their hire and ten- ure of employment, in order to discourage their mem- bership in General Teamsters Sales, Service and In- AMOLE, INC. dustrial Union Local 654, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act, as amended. 71 WE WILL make Peggy Kennedy whole for any loss of pay she may have suffered as a result of our discrimi- nation practiced against her, and we will reinstate her. All our employees are free to become, remain, or refrain from becoming and remaining members of any labor orga- nization. AMOLE, INC. I