Levco Automotive Products Co.

LEVCO AUTOMOTIVE PRODUCTS CO. Levco Automotive Products Company and Deborah K. Weinstein. Case 6-CA-8839 November 25, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On January 26, 1977, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, the Charging Party filed cross-exceptions and an answering brief to Respon- dent's exceptions, and Respondent filed an answer- ing brief to Charging Party's cross-exceptions. 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 briefs and has decided to affirm the rulings, findings, and conclusions2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. REMEDY Having found that Respondent committed certain unfair labor practices, it will be ordered to cease and desist therefrom and, because of the nature of the violations found, to cease and desist from in any other manner interfering with, restraining, or coerc- ing employees in the exercise of their rights under Section 7 of the Act. We shall also order that Respondent take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(1) and (3) of the Act by refusing to rehire Deborah Weinstein and Denise Winebrenner, we shall order that these employees be offered immedi- ate reemployment to the positions in which they would have been reemployed in January 1976, or, if such positions no longer exist, to substantially equivalent positions, and that they be made whole for their loss of earnings suffered as a result of the discrimination against them with interest thereon in accordance with the formula described in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). 3 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- 233 NLRB No. 111 ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Levco Automotive Products Company, Pitts- burgh, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified herein. 1. Substitute the following for paragraph I(a): "(a) Refusing to rehire or in any other manner discriminating against employees because of their union activities or because of their appeals to the Occupational Safety and Health Administration." 2. Substitute the following for paragraphs 2(a) and (b): "(a) Offer to Deborah Weinstein and Denise Winebrenner immediate reemployment to the posi- tions in which they would have been reemployed in January 1976, but for the discrimination against them or, if such positions no longer exist, to substantially equivalent positions. "(b) Make each of the foregoing two named individuals whole for any loss of pay or any benefits they have suffered by reason of Respondent's discrimination against them, in the manner described in the Board's Remedy." 3. Substitute the attached notice for that of the Administrative Law Judge. I Respondent's request for oral argument is hereby denied, as the record and brefs adequately present the issues and positions of the parties. 2 The Administrative Law Judge concluded that Respondent violated Sec. 8(a)3) and (I) of the Act by failing to rehire Deborah Weinstein and Denise Winebrenner. but inadvertently stated in his Conclusion of Law I that Respondent violated the Act by "discharging" these two individuals. Accordingly, Conclusion of Law I is hereby amended by deleting the word "discharging" and substituting therefor the words "failing to rehire.," we shall also make the appropriate changes in the Order and the notice. 3 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in International Union, United Automobile, Aero- space and Agricultural Implement Workers of America (UAW), Local No. 521, or any other labor organization of our employees by refusing to rehire any of our employees because of their membership in, support of, or activities on behalf of the above-named or any other labor organiza- tion. WE WILL NOT discriminate against our employ- ees in the use of necessary conveniences in the plant because they have complained to Occupa- tional Safety and Health Administration for correction of conditions of employment. 803 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to join or assist International Union, United Automo- bile, Aerospace and Agricultural Implement Workers of America (UAW), Local No. 521, or any other labor organization, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer Deborah Weinstein and Denise Winebrenner immediate reemployment to the positions in which they would have been reem- ployed in January 1976, but for our discrimina- tion against them or, if such positions no longer exist, to substantially equivalent positions. WE WILL make whole Deborah Weinstein and Denise Winebrenner for any loss of pay they may have suffered as a result of the discrimination against them, plus interest. LEVCO AUTOMOTIVE PRODUCTS COMPANY DECISION STATEMENT OF THE CASE THOMAS A. RiCCi, Administrative Law Judge: A hearing in this proceeding was held in Pittsburgh, Pennsylvania, on October 18, 19, 20, and 21 and on November I and 2, 1976, on complaint of the General Counsel against Levco Automotive Products Company, here called the Respon- dent or the Company. The complaint issued on June 28, 1976, on a charge filed on December 10, 1975, by Deborah Weinstein, an individual, here called the Charging Party. The Respondent is charged with having discriminated against two employees in violation of Section 8(a)(3) of the Act, coerced employees by illegal statements on the part of its management agents, and improperly assisted Interna- tional Union, United Automobile, Aerospace and Agricul- tural Implement Workers of America (UAW), Local No. 521, here called the Union, in violation of Section 8(a)(2). Briefs were filed by all parties. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Levco Automotive Products Company, a Pennsylvania corporation, has its principal place of business in Pitts- burgh, where it is engaged in the manufacture of starters, alternators, generators, and water pumps. During the 12- month period preceding issuance of the complaint it received at this location materials and goods valued in excess of $50,000 directly from out-of-state sources. During the same period the Respondent shipped goods and materials valued in excess of $50,000 directly to points outside the Commonwealth of Pennsylvania. I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. A Picture of the Case For some years UAW Local No. 521 has been the bargaining agent, under successive signed contracts, for the approximately 90 production and maintenance employees of the Respondent. On May 19, 1975, two women - Deborah Weinstein and Denise Winebrenner - were hired. They became very active in union affairs and in pressing for full implementation of the terms of the collective-bargaining agreement in effect. They furthered their desires to look after the work interests of the employees both vis-a-vis the employer and with respect to employee participation in the concerted activities of the employees in the running of the Union - what they called greater democracy within the labor organization. They filed grievances under the contract, they appeared at union-employer conferences pursuant to those grievances, they held employee meetings at their homes to discuss union affairs and working conditions, they formed an employee committee, and they wrote and distributed a number of leaflets publicizing their grievances - against both the Company and the Union. On October 24, 1975, there was an economic mass layoff, and 30 of the about 90 employees were sent away, among them Weinstein and Winebrenner. In January 1976, again for economic reasons, the Respondent started increasing its employee complement; on January 26 it recalled eight of the group which had been laid off. Although Weinstein and Winebrenner had both filed written applications for reemployment, they were not hired. The complaint alleges that these two women - but not any of the other 28 employees who were laid off on October 24 - were sent home in retaliation for their prounion activities in violation of Section 8(a)(3) of the Act. It also alleges that the Respondent refused to recall them the following January because of such protected activities, again in violation of the statute. In defense here, while denying the commission of any unfair labor practic- es, the Respondent asserts that inclusion of these two women in the mass layoff resulted only from automatic application of the seniority provisions of the union contract, and that the refusal to take them back, while others were recalled, was because their work performance had been relatively inadequate and because they had caused too much disruption among the employees in the shop. The employee shop committee which looks after the Union's interest in this plant - Local No. 521 being an amalgamated local representing employees of several unassociated companies - consists in part of employees 804 LEVCO AUTOMOTIVE PRODUCTS CO. working as group leaders. The complaint alleges that group leaders in this plant are in fact supervisors within the meaning of Section 2(11) of the Act, and that therefore, by utilizing its supervisors to hold agency authority within the Union the Respondent has been and is unlawfully assisting the Union, in violation of Section 8(a)(2) of the Act. And finally, there are a number of separate allegations of illegal coercion and restraint practiced by management agents in the form of statements and issuance of reprimand notices to employees contrary to the proscriptions of Section 8(a)(l). Of the 698 pages of transcript in this case, close to 400 are filled with the recitals of Weinstein and Winebrenner, belabored in infinitestimal detail beyond reason. The grievances they filed, the complaints they voiced in claiming inadequate representation by union agents, and the unending talk between employees - individually and in groups, with union and company officers - about all these matters, go on and on throughout the record without end. Shorn of the argumentative and descriptive coloration that runs throughout the record, however, I think, after listening to the long story and after carefully studying the testimony, that there is one serious question underlying the whole case. Were Weinstein and Winebrenner removed from the payroll with finality because they were so energetically determined in their concept of union activity that the Respondent simply decided it would not have them in the plant any more? B. Alleged Violation of Section 8(a)(2) The heart issue will be better understood if unrelated questions and allegations of wrongdoing which are but minor parts of the case are set aside for the moment. The General Counsel asks that the Respondent cease and desist from permitting its group leaders to act as spokesmen, or agents of the Union, on the ground that they really represent management. He does not request that the Union be disestablished or that the Respondent withdraw recogni- tion because of the group leaders' union activities of the past. This question - are the group leaders supervisors? - has nothing to do with whether Weinstein and Winebren- ner suffered illegal discrimination at the hands of the Company. In each of six or seven production departments there is a group leader, and the complaint alleges each one of them is a supervisor within the meaning of Section 2(1 1) of the Act. Some of them, particularly Nate Johnson, in the warehouse department, and Al Gouda, in another department, are union committeemen in the shop and act on behalf of the Union representing employees in their collective-bargain- ing relations with the employer. If in fact group leaders in this plant are supervisors, their activities as union agents amount to illegal assistance to the Union by the Respon- dent, or at least interference with that independence which the statute guarantees employees in their statutory right to carry on concerted activities. ' An alternative contention made by the General Counsel in his posthearing brief is that if the evidence falls short of proving that group leaders are supervisors, there should nevertheless be a finding that they are "agents," and that therefore their activities are chargeable to the Respon- Most of the direct evidence offered in support of the complaint on this point goes to the authority and work of Agnes Kusick, group leader in the subassembly depart- ment, where Weinstein and Winebrenner worked, and this is because the entire case is based upon charges and accusations made by these two women. There is no charge against the Union, which therefore did not participate in the proceeding at all. There is also limited evidence by employees about the work activities of Johnson. For the rest, at least with respect to what the remaining group leaders do at work, the proof is limited almost entirely to the uncontradicted testimony of Adams, the plant manag- er, offered in defense. Considering all the relevant evi- dence, I find that none of the group leaders, including Kusick and Johnson, are supervisors as defined in the Act, and accordingly shall recommend dismissal of this allega- tion of the complaint.i The group leaders have no authority to, and do not hire, discharge, discipline, promote, lay off or otherwise deter- mine the employment status of any employees who work with them. They are covered by the collective-bargaining contract, are hourly paid, punch a timeclock, and receive overtime pay. They each morning pass on the work instructions given them by the regular supervisors who are in charge of the work and are superior to the group leaders. The regular supervisors are uniformed, salaried, attend union meetings, and regularly tell the group leaders what work orders are to be filed each day in each department. The work consists largely of remanufacturing used automobile parts. The used parts, and new replacement components for each part, must be brought to each department each day in sufficient quantities. It is the duty of the leaders to see to it that these parts are readily available for each workman all the time. There are necessary tools that must also be at the ready, and the leaders see to it that these tools are always within reach of the employees, sometimes bringing them to the employees at their request because they are lacking. In short, a better name for the leaders would be expeditors, conduits of work orders from management. Somebody has to tell the employees what must be done, and it is the leaders who do this. They keep the production records of all workers to record what is produced - each piece that is put together. They work at tables part of the time doing this. A recording system also requires that the leaders place next to the daily production of each person a letter code symbol associating the quantitative work output to a scientific production standard survey constantly maintained by the front office. The manager testified, and I have no reason not to believe his coherent explanation, that the leaders have no discre- tion to change the related symbol so as to misrepresent what the work output equals in terms of the code system. If a leader were to do so - conceivably to the disadvantage of the employee - he or she would be violating an instruction, action which could hardly help prove the leaders are part of management. But more important, the record shows clearly the symbols (called RE - for record dent anyway. There is no such allegation in the complaint. the case was not tned on such a theory of illegality, and the record would in no event warrant such a half-measure attempt to prove the complaint as written. 805 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evaluation) placed on the records in no sense affect the take-home pay of the production worker. Weinstein's repetitive testimony that the group leader's transference of the symbol next to numerical production numbers was used to cut her "grade in half' is but one of many examples of the witness' argumentative injections of conclusionary inferences totally at variance with the facts stated in her own story. The leaders spend a good part of the time doing direct production work themselves. Weinstein started by saying Kusick does this 2 or 3 hours each day; later she said maybe 5 hours. The manager said Johnson works with his hands about 100 percent of the time, and Kusick as much as 75 percent. Between Weinstein and Adams I believe Adams, for Weinstein's hostility and animosity towards her group leader could not have been clearer than it shows on this record. Both Weinstein and Winebrenner also spoke about Kusick transferring them to other departments, personally distributing the paychecks, and arbitrarily selecting who should and who should not do overtime work. The clerical messenger service of bringing paychecks from the front office means nothing. It then developed that transfers to other departments meant only sending an employee elsewhere to finish what she was actually working on because the necessary machine was elsewhere, and that overtime decisions are made by the supervisors, and ordinarily include the entire cadre in a department that is working on a particular kind of product needed. I also find nothing significant in the fact the leaders receive improperly made parts when they come back from later processing and give them back to whoever made them to redo the work. C. Concerted Activities No useful purpose would be served, and I doubt it would be possibie in any event, to set out in coherent sequence the details of the grievances filed by Weinstein and Winebren- ner, in some instances together with one or two other women employees, and the conversations that employees had with union committeemen and with conceded supervi- sors about the grievances. Starting towards the end of August and continuing into the start of September, five or six questions were raised by the two women, each a complaint directly relating to working conditions. They made their complaints orally as well as in writing. The asserted provocations arose as follows: (I) Probationary employees are entitled to a raise in pay after 90 days, or after 3 months, depending upon how the contract was read. The raises did not timely appear in their paychecks and they complained. These grievances were settled to their complete satisfaction the first week in September, their pay was straightened out and they received about $10 that had been overlooked. This one item in the record will serve to illustrate what conception of concerted activities governed the thinking of Weinstein and Winebrenner. On October 24 they each wrote up and submitted a very lengthy statement of grievances, detailing a great many complaints. Among them each woman listed once again the matter of the delayed pay raise in the following language: By Winebren- ner: I. Concerning harassment. (The following examples do not in anyway constitute a complete list; there are more examples.) A. Article XIII (6), contract page 24. B. Backpay incident (Friday 5 September 1975, 3:30- 3:45). 1. Larry Adams, plant manager, was ap- proached by Denise Winebrenner concerning backpay. 2. Larry Adams proceeded to explode in Denise Winebrenner's face. a. Threw paycheck back at Denise Wine- brenner. b. Kicked open office door. c. Banged desk. d. Yelled, 'Get inside.' e. Entire manner can only be described as hostile and angry. By Weinstein: I. Harassment (the following examples do not in anyway constitute a complete list; there are more examples). A. Article Xlll (6), contract page 24. B. Backpay incident (Friday, September 5, 1975, 3:30 - 3:45). I. Ms. Weinstein approached Larry Adams, plant manager, concerning backpay. 2. Larry Adams responded in hostile and angry manner. a. Larry Adams threw paycheck back at Ms. Weinstein. b. He kicked the office door open. c. He yelled, 'Get inside!' d. He slammed his desk. (2) As already mentioned there is a system of recording the production of the employees in the subassembly department, where they work. Agnes Kusick, the group leader there, keeps the records, and makes certain nota- tions on each employee's report each day and every 2 hours or so as they work. These reports bear no relationship to the pay, for all are hourly workers. It is a matter of keeping records to further timestudies, operations techniques evaluations, and other technical surveys conducted by work evaluation engineers. There came a time when Weinstein thought Kusick was not placing the correct theoretical equivalent code letter next to her personal production figures, and complained about what she called deliberate distortion of figures by the group leader. (3) Overtime work must sometimes be performed, and Weinstein was asked by Kusick to do this. The employee complained that the group leader's language was too harsh, that she badgered people when asking them were they willing to do overtime, that she "harassed" them, and should not do that. This became a grievance in itself. A contention by Weinstein was that because the union contract did not make overtime work "mandatory," the group leader was putting undue "pressure" on the employees. A related grievance, separately stated, then was based upon a statement to Weinstein, again by Kusick, 806 LEVCO AUTOMOTIVE PRODUCTS CO. that if she was going to take that attitude, next time she would not be offered overtime work. This, according to Weinstein, was a threat, and again a violation of the employees' rights that should be stopped by the grievance procedure. (4) Employees sometimes make mistakes on auto parts on which they work, parts which then proceed into other departments for further processing. Defective parts are brought back into the department for redoing by the employee who made the mistake. When more than one employee works on the same kind of part, there results a dispute as to who made the mistake. There came a time when Kusick asked the employees to put their names on every part they handled, so there would be no question as to who did what. This was called harassment again by Weinstein, and became the subject of still another grievance. (5) With all this going on, Weinstein held a meeting at her home on or about August 31, where the group discussed their various grievances, reduced them to writing, and added another complaint, aimed at the Union, demanding regular, more frequent employee meetings, because the Union held such meetings at this plant too infrequently. The next day Weinstein personally signed a formal grievance listing all these items and gave it to Nate Johnson, the group leader who was chairman of the shop union committee. There was much talk among the employees in the shop about these matters as they were happening. In very colorful and supercritical phrases Weinstein related the details. At one point she said the employees gathered - during work hours - "by the department entrance," with a union steward - Sue Halaja - and with the committee chairman. The general manag- er, Adams, came by and said "what the hell is going on here, everybody get back to work." Weinstein, as she testified, then asked the union committeeman "how come the company has the right to call off a union meet- ing. ... " Indeed the witness called virtually every conver- sation - even between two persons - a "meeting," thus laying the foundation for an argument that the employer interfered with union affairs, or "union meetings!" On September 3 Weinstein again confronted Johnson in the shop with a demand that there be a union meeting. This was after she had gathered the employees in her home and written all the detailed complaints. Now Johnson exploded a little bit like Adams, and said: "Goddamn it... I don't want you people coming to me in a group, you are supposed to come to me as individuals, I am the one who calls union meetings around here, . . . the problems that are in the subassembly department are just in that department, and we don't want it spread throughout the shop. Don't come to me any more in a group." On September 4 a grievance conference was held in the manager's office, with both employees and union commit- teemen present. After discussing things, Manager Adams yielded on all issues. He said the girls' production records would no longer be evaluated on the RE equivalents, that employees would no longer be required to put their names on the pieces they worked, and that he would see to it that there was no more "harassment" on the question of who should or should not do overtime. As to the 90 days or 3 months' raise in pay due, he checked with the records, called the payroll office and criticized the girl there, and sent the union steward to obtain the petty cash, out of which the manager then paid $10 or so to each of the women who had this money coming. At this meeting, after Weinstein had spoken her piece in support of each and every grievance - in the type of damning language she used at the hearing, I suppose - Adams commented "he could even close the shop down, or it would come to that, if problems such as these continued." (6) Winebrenner, who was involved in much of the same activity as Weinstein, filed her own separate and individu- ally signed formal grievances on September 4, listing the very same complaints as did Weinstein - late pay raise, overtime "harassment," unfair RE recordings by Kusick. and requirement to put her name on the products she worked on. For the most part, as to the events in September, this witness' story merely reiterates that of Weinstein. It can fairly be described as a virulent diatribe against management and union officers together. There were other incidents involving these two women that gave rise to more grievances - oral and written. Primarily these were assignment of Winebrenner and Weinstein to work the night shift in early October and letters of criticism issued to them by management because they violated written work rules. To hear them tell it, three incidents - night assignment and two disciplinary notices - gave rise to many grievances, not only three; as witnesses they elevated almost each conversation about these things to the status of a separate issue to be resolved through the contract grievance procedure. (7) During September the Respondent started night shifts in three departments, not including subassembly. As to the subassembly department, on October 8 Weinstein and Winebrenner were asked by Kusick and by Manager Adams would they volunteer to work nights. Both Kusick and Adams tried several times to convince them to do so by detailing possible advantages. As with other things, here too Weinstein's testimony is confused and rambling. At one point she said: "I was asked to give a response that afternoon, and Nate [union committeeman Johnson ] and I came to the conclusion that I was going to do the night turn, if I had to, and file a grievance in the process." She added Adams also told her that day he would give her written assurance the assignment would be for no more than 30 days. Both women continued to talk to Johnson, the committeeman, to complain. The final upshot of all this - with oral grievances voiced before and during the events, and again with multiple written grievances filed by the women later - was that Adams did sign a statement, at the request of the union committeeman, limiting the assignment to 30 days. Continuing argument by Weinstein at the hearing - called supporting proof of unfair labor practices by the General Counsel - that such written assurance somehow violated the rights of employees because "I don't trust it," "Was in violation of the constitution," "It violated the contract," "It was not ratified by the membership," merit no discussion in this Decision. There is no sufficient adequate evidence to prove, as alleged in the complaint, that Adams chose Weinstein and Winebrenner for the night shift in order to 807 DECISIONS OF NATIONAL LABOR RELATIONS BOARD isolate them from most of the employees and thereby curb their concerted activities in violation of Section 8(aX3) of the Act.2 (8) There is a written rule that employees in the subassembly department must wear safety shoes. Wein- stein was seen a number of times without them, as she admitted, and Adams warned her about this several times. On September 16, after seeing her again without the safety shoes, Adams issued to her a 3-day "disciplinary suspen- sion" notice, effective September 17. Weinstein complained to the committeeman, who talked Adams out of actually suspending the woman. The manager took back the notice, and did not even place it in her personnel file. Again, I hereby dismiss the allegation of the complaint saying issuance of this notice was a form of coercion violative of the statute. It was issued pursuant to the work rules, the employee involved admitted the violations, and I credit the manager's testimony that he saw Weinstein three times without the proper safety shoes and that other employees have been discharged for such rule violations. It is enough to read Weinstein's story of receiving but not receiving the notice, of seeing it but not seeing it, to reject her statements, where at all coherent, when contradicted by other witnesses. At about this same time Adams gave a disciplinary notice to Winebrenner for putting on her coat preparing to leave before the end of the working time for which she was being paid. Apparently, although the matter is not clear, Adams gave this notice to Johnson, the committeeman. While saying that when Adams told her not to leave early she answered him "O.K., fine," Winebrenner added she refused to accept the notice from Johnson, and told him she "thought it was harassment for the grievances." Again at committeeman Johnson's intervention, Adams forgot about this warning slip also and removed it from Wine- brenner's personnel file. In her rambling testimony Winebrenner referred to another disciplinary notice given her; I think she meant to say for some kind of insubordination. Because much of her testimony is argumentative, obscure, conclusionary, repeti- tive, and almost incoherent, it is not possible to state with any precision exactly what it is she meant to say as to many incidents. Despite his very lengthy brief, even the General Counsel does not explicate the details of other reprimands the lady was given, although at the hearing much was made of whatever Winebrenner was talking about. To the extent it be pertinent, I cannot credit this woman against others who may have contradicted her. Her demeanor and behaviour as a witness was very poor. Issuance of these reprimand and disciplinary notices are not called unfair labor practices in themselves, but the General Counsel contends they constitute cumulative evidence of animus against Weinstein and Winebrenner, and help prove that in the end, when the Respondent removed the two women from the payroll with finality, its purpose was to curb their concerted activities, and not any other objective reason. It is a conclusionary inference 2 I credit Adams' testimony that the need for establishing the night shift was economic, that other departments had already been so changed for the same reason, that Weinstein and Winebrenner were the most junior in subassembly, that they were skilled and productively competent and therefore needed to start the night shift, and that there where other women suggested by the prosecution, and nothing more. The ladies did give cause for the reprimand notices, the notices were issued consistent with established practice, and on recon- sideration at the request of the Union, as well as because of the complaints of Weinstein and Winebrenner individually, the Respondent, in commendable fairness, withdrew them. Unless it can be assumed anything an employer does to the disadvantage of unioneers is illegally motivated merely because the employer knows about the protected activities - an assumption I did not think is warranted - these reprimands in no sense help prove the essential allegation of the complaint. (9) The two women filed written grievances about their assignment to night work as well as the reprimand and disciplinary notices given each of them. Each of these very formal grievance documents is dated November 24, and they include grievances with respect to the October 24 layoffs. In fact each statement is three pages long, single spaced, and complains of just about every jot and tittle of what had been going on in the plant for over 2 months, including a repetition of each of the complaints already detailed above here. Repeatedly the Respondent is charged with harassment and intimidation, past settlements of grievances between the Company and the Union are called "phony," the principals are accused of ignoring the collective-bargaining contract, and virtually all unusual work assignments are called discrimination in one form or another. Nothing of substance would be added to this report by setting out in full the constant reiteration of dissatisfaction with the way both union and employer implemented their collective-bargaining agreement and carried on their respective roles in the industrial relations process. But it is a fact - again clear without question - that however minute the complaints made by Weinstein and Winebrenner, all related to the work performed, all concerned themselves with union activity in one form or another, and all reflected a concern with conditions of employment as that phrase is used in the statute. (10) Starting in about the beginning of October, Wein- stein and Winebrenner began to hold meetings in the homes of one or the other of them; these were attended, so far as the record shows with any clarity to speak of, by two or perhaps three or four other employees. The group took the name "Employee Committee." The principal activists were Weinstein and Winebrenner, and together they wrote extended leaflets generally calling upon the entire work force to act collectively towards generating greater militan- cy within the Union and demanding greater condescension by the Employer towards improving the working condi- tions throughout the plant. Four such leaflets were printed, each three or four pages long, and Weinstein and Winebrenner distributed them in front of the plant on October 24, November 4 and 11, and in early December. Again, it would only dramatize this Decision to reprint those 20 full pages of fine print together constituting the 4 pieces of literature. It is a fact the writing found fault with practically every method the Respondent used in running already assigned to work nights. Weinstein's blunderbuss charge that this was "sexual" discrimination, and other defamatory conclusionary state- ments of evil intent in the Respondent, falls far short of objective evidence of wrongdoing. 808 LEVCO AUTOMOTIVE PRODUCTS CO. its business, ridiculed management by a number of cartoons belittling the Company's agents, and inviting more and more joint action towards making a more perfect world, or at least a comfortable and easygoing place to work, free of any and all social prejudice. No doubt some of the gripes had merit; but it is equally certain many of the complaints were pure fantasy. And yet, as is true with respect to the numerous grievances filed - each in conformity with accepted practice - these general appeals called for improving matters in the shop, and reflected no more than another technique aimed at bringing about better conditions of employment. In the flurry of all this activity, starting in September and October when Weinstein and Winebrenner were still at work, and continuing into the later months while they were in layoff status, people began to call the two women communists. Writings on the walls called them, and another employee named Henderson, communists. In conversations while at work other employees called these two women by the same derogatory name. A written sheet, its source unknown, appeared on a wall saying "Let's get rid of commies spies, commies are trying to take over the Union." Two employees wrote to the Union asking that Weinstein and Winebrenner be expelled because they were communists. The answer of the union president, Arnold, was that the employees would have to "grin and bear it." A motion to get rid of them was made at the union meeting on November 12; Arnold ruled the motion out of order. As a witness Weinstein testified she had no connection with the communist party, and denied ever bringing communist literature or leaflets into the plant. On October 17, an FBI agent came to the plant to study the two women's original work applications. An inquiry by the Respondent informed it that that Government agent was inquiring into possible communist activities. (I11) Weinstein and Winebrenner returned to the plant together on November 7, to attend what they said was a planned meeting to consider the last written grievances they had filed, those of October 24, which included a grievance about the mass layoff of October. There was confusion when they arrived; again employees, including a group leader, started calling them communists. Fearful of physical violence, Weinstein telephoned the police, who came; things quieted down and both Weinstein and Winebrenner left. They never returned to the plant. Adams testified he told the police that day "it was internal . . . a union dispute inside the plant." 3 Further from the transcript: JtDGE Ricci: May I ask you a question that would clarify the major issue, so that the Respondent will be in a better position to defend. Did I hear you say during your opening statement, before calling the witness, that it is your contention that the company laid off, all these 20 people listed on General Counsel's 7, plus others, that the whole layoff was motivated by antiunion animus or anti-employee committee animus, or anticoncerted activity animus. is it your contention that that is what this company did? MR. ANtns: That is the contention, your Honor. JUDGE Ricci: You understand of course, it is not in the complaint, but it is your contention, correct? MR. ANTIS: It is our contention. yes. D. Section 8(a)(3) I. The October 24 layoff The complaint explicitly alleges the two women were illegally laid off on October 24; this was the day the Company laid off 30 employees strictly according to seniority. The original charge, filed on December 10, 1975, lists all 30 of these employees as having been unlawfully discharged to curb union activities, but an amended charge, filed 5 days before issuance of the complaint in June 1976, deletes all but Weinstein and Winebrenner from the entire proceeding. Notwithstanding this calculated reduction in the charge, and in the face of the now limited complaint allegation, the General Counsel contended at the hearing that "It is our contention that the company's layoff was discriminatory motivated in order to get rid of Miss Weinstein and Miss Winebrenner for the protected concerted activities." 3 Throughout the extended hearing the General Counsel vacillated greatly as to precisely what approach to the Respondent's conduct should reveal pinpointed animus against these two women. At times he called the entire group action wrong, unwarranted by business conditions; at other points he said the two ladies were deliberately included as individuals so that the gross action, albeit dictated by economic forces, could be used to mask the limited illegal purpose. In the brief, additional theories are advanced. Now it is asserted maybe there was reason to release 28 employees, but surely not enough objective reason to let go 30. Still another contention is that the Company should have called everybody back sooner than it did, that the unfair labor practice is to be seen in the delay as to all the 30 who went home. And finally, another theory becomes that the failure to recall the two women, when the Respondent restaffed 3 months later, retroactive- ly proves past animus. And throughout the arguments, both at the hearing and in the brief, the contentions are interspersed with allusions to the activities of the group leaders, who did not speak for management at all. It all sounds like a fisherman's prayer that something fall into his net. Weighed against the relevant evidence, I can only appraise the merits of any complaint in terms of the language in which it is written. When the prosecution side of the case argues, in disregard of the complaint, that discharges, not mentioned in the complaint, are and are not unlawful, the approach serves only to confuse the issues and mislead the Respondent as to what it is that has JurxoE Rlcci: I make no ruling as to they've proved, what they haven't proved, what they may prove, I don't know anything for a fact. until I've heard every last word, and have studied it at home, but it is justice to everyone to have the major charges clarified, whether they be in the form of the pleadings, whether they be in the form of purported proof, but it is only fair that who defends should know what they have against you, with that the major contention being, all these people were fired illegally. MR. ArTIS: That is not the contention. [sic JuDGE RIcci: Sir, I understand. MR. ANTIS: The contention is that this layoff was done to get the two alleged discrinunatees in today's proceeding. 809 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to be disproved. In the circumstances, the affirmative evidence offered by the Company, rationally explaining the mass layoff as economically dictated, uncontradicted as it is, must be accepted. As defense witnesses Manager Adams and Gary Reuben, vice president in charge of operations, spoke of excessively high inventories, recent low produc- tion figures, abnormal borrowings, canceled orders, etc., as the reasons for the layoff. Much of their testimony was unsupported by objective proof, but the General Counsel did not question conclusionary summaries prepared by the Respondent from its original records and brought to the hearing. There had been similar substantial layoffs in the past. The record as a whole does show management was irritated by the almost excessive zeal of Weinstein and Winebrenner in their concept of union activities, but the general attitude, whatever it may have been, cannot offset this unquestioned evidence of proper cause for the entire dismissal of all 30 employees. It is a fact, therefore, that the layoff of the 28 employees, at least, was perfectly proper. Weinstein and Winebrenner having been included in the group precisely on the basis of their relative seniority, and pursuant to the provisions of the applicable union contract, it follows they too were subjected to no more than the normal economic misfortune that befell all 30. There simply is no persuasive evidence serving to offset this objective picture, and the complaint allegation of illegal discrimination against the two women on October 24 must therefore fall. 2. Refusal to recall Approximately 3 months after the layoffs, again in keeping with the union contract, Weinstein and Winebren- ner lost their seniority status with the Respondent, and both were so advised by letter dated January 14, 1976. They then each filed formal written application for employment, which the Company did receive. On January 26 the Respondent recalled nine of the persons laid off in October. Of these one had never lost seniority, but two others, like Weinstein and Winebrenner, had lost their seniority. Weinstein and Winebrenner were never recalled. It is this "refusal" to employ which the complaint also alleges to have been motivated by resentment against the two women's concerted activities and therefore violative of Section 8(a)(3). And it is really this conduct that consti- tutes, in my considered judgment, the principal issue of the case. The extended concerted activities, in part straight union activities and in part joint activities with other employees, but always in the interests of working conditions have already been set out, and all of them were clearly of the type protected by the statute. Essentially, the theory of proof against the Respondent with respect to the refusal to recall is that it knew of the protected activity, that it was opposed to such conduct, and that there was no other reason for it not to have recalled Weinstein and Winebren- ner, as it did other employees. Indeed, by the end of February 1976, the Company had hired 21 more employ- ees, including still 2 more in the subassembly department, where Weinstein and Winebrenner had worked, but it never did recall them. Against the inference of illegal motivation, thus urged by the General Counsel, the Respondent advances an affirmative defense of refusal to recall for just cause. Adams, the general manager, personally in charge of the entire production process during the events, and who personally made the decision on behalf of the Respondent not to recall these two women, gave two reasons for denying them further employment. He first spoke of certain productivity reports for the month of October, immediately preceding the layoff, and a chart he had prepared showed lower figures for Weinstein and Wine- brenner than the people who had been recalled. Adams said this relatively poor performance by the two women was one of the reasons why he did not want them back. Asked by company counsel was there another reason for the discrimination against these women, Adams, in selective part, gave the following testimony: Q. Now, Mr. Adams, there has been testimony in this hearing, with regard to Weinstein and Winebren- ner, concerning certain matters, which people have talked about, unrest is good and so forth at the plant, without me going into the specific of it, did you take into account, that all this discord and so forth that was happening, or had happened, with regard to this question of rehire Weinstein and Winebrenner? A. Yes, I did. Q. In what way, sir, what were your thoughts on the subject, as you looked at all this in January of 1976? A. Not so much during the period while they were there, with regard to this November 7 incident, the plant was a total discord, bringing them back, could only add to that, the arguing, the fighting. Q. Had you personally become aware of what others have testified to, in the way sign slogans, etcetera? A. Yes. Q. Had you become aware of your people painting off signs, that is trying to get them off the walls, that type of thing? A. Yes. Q. Did you take all this into account, in deciding this matter? A. Yes. * * * Q. (By Mr. Winson): Did you Mr. Adams, in January of 1976, as you were deciding who to recall, consider the effect of these allocations of communism, the effect that they were having on the work force? A. Yes. Q. What did you consider sir, what went through your mind, that is what did you decide to consider on the subject, what were your views and so forth? A. Our plant at that point in time, was running very smoothly, productivity was good, the morale of the people seemed to be as it should be. Q. This is in January, '76? A. Correct, and I felt that to return these two individuals to a work force, could only get it back in the pandemonius state it was in, in October and November. 810 LEVCO AUTOMOTIVE PRODUCTS CO. It is true, as the Respondent points out, that an employer is free to discharge a workman for a good reason, a bad one, or no reason at all, so long as he does not do so for a reason prohibited by the statute. It is equally true, however, that if he discharges the employee for two reasons, one unlawful and the other proscribed by Section 8(a)(3) of the Act, he commits an unfair labor practice. Erie Sand Steamship Company, 189 NLRB 63 (1971). 1 am not at all sure the total record supports Adams' contention Wein- stein and Winebrenner were relatively poor workers. There are records of past performance showing many weeks when their work kept pace favorably with that of other employees. One of the reasons he gave for selecting them for the night shift, only a few weeks earlier in September, was because of their competence compared to others in the department. Whatever numerical equivalents the Company uses for its records are therefore not necessarily reliable. Absent objective indication of why the work of these two should have changed radically those particular weeks he selected for comparison, the numbers shown on Adams' chart could as well be attributable to other causes. But it is not necessary to decide in this case whether or not the first reason for discrimination advanced by Adams is true. The second reason, couched in terms of "disrup- tion," "discord," "trouble," in truth states but synonyms for very determined union or concerted activities. On this record, what he was really talking about at the hearing was dissatisfaction with the fact the women pushed their determination to improve conditions of employment, to enforce the letter of the union contract, too far, at least beyond the point where certain other employees were willing to go. If, in the disagreement among the employees as to how or when to grieve about working conditions, there was "discord," as Adams said, or "unrest," as the Respondent's brief puts it, these conditions are to be expected when some employees are enthusiastic in their concerted action and others are lukewarm. There is no question, indeed no contrary contention is made, but that all the activities of the two women reflected in this record fell squarely in the area the statute was intended to protect. They filed regular grievances, they held employee meetings to discuss conditions of employ- ment, they wrote and distributed leaflets calling for concerted action - within the Union or among employee groups - all to improve the manner and means under which all of them worked. Whatever went on in the plant while all this was being carried on, it was part and parcel of such protected activity. The right of some to disagree with Weinstein and Winebrenner, and to voice their own views, loudly and clearly, was no less protected. When some union members, because they disagree with these particular persons, called them communists in their wrath, the Union president told them they would have to live with it. The same is true of the employer under the provisions of this statute. Adams knew, and this fact the record shows clearly, at least some of the employees who called Weinstein and Winebrenner communists, who shouted at 4 Nancy Henderson, another employee, testified without contradiction that on October 27 employees called her a communist all day long, among them Al Gouda. a group leader. To quiet the disturbance Adams took her into his office, where she sat all afternoon. as protection against the loud them, and who therefore were the direct "troublemakers." If the mere creation of discord - apart from union or concerted activities - disturbed him, he could have fired the direct troublemakers instead. He did not.4 As to those people, who were more passive in their union affairs, Adams followed the advice of the union president - to grin and bear it. Adams at the hearing, and the Respondent's briefs later more articulately, characterized what went on in the shop as a dispute among the employees over the political beliefs of the two women. Somebody called them communists, put posters on the walls calling them that now unpopular name. It is an old story, this use of provocative, even inflammatory phrases, between extremists and moderates in the social aspects of our lives. But whatever the word communist means, there is nothing in this record to indicate in the least that these women did anything but what always constitutes union and concerted activity. It is a question whether injection of the offensive word was brought about by the Respondent's agents or by any employees. But the answer to that question does not matter, for words cannot change substance. The "trouble," a word Adams used to described what happened as far back as September, was over the degree of animation the two women brought to their concept of statutory rights, and no play on words can change that reality. And it was because he wanted no more of that trouble, as Adams frankly conceded, that he decided to refuse employment to Weinstein and Winebrenner. There was no political discourse among the employees, there were no political activities - speeches, literature or other - by the two women in question. The repeated statements in the company brief that the quarreling back and forth in the shop resulted from conflicting political views are simply wrong. Adams described the dissension among the employees as "a pandemonius state," and the Respondent's brief uses superlatives. Even the General Counsel speaks of "a plethora" of concerted activity by Weinstein and Winebrenner. Was it the purpose of the statute to protect union activities only up to a certain point? If that were so, how much is too much? I think this case is decided by the Board's decision in Leviton Manufacturing Company, Inc., 203 NLRB 309, enforcement denied 486 F.2d 686 (C.A. 1, 1973). Under the scheme of this statute, a hearing examiner is bound by Board law, not by that of a circuit court which disagrees with the Board in any given case. In Leviton the discharged employees, as part of their activities, filed regular grievanc- es, some of them, at least, found in fact to have been without merit. They also engaged in activities among the employees strongly indicating an intent to disrupt the employer-union relationship, conduct not protected by the statute. Because the employer discharged them for all of their activities, certainly including that part which was protected by law, the Board found there had been a violation of Section 8(aX3). Here, there was no unprotected activity at all. Therefore, even assuming Adams based his abuse from Gouda. The manager even transferred her to another department for several days because of what he told Henderson was Gouda's "bad temper." 811 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refusal to hire on two grounds - poor performance and concerted activity - it follows the Respondent violated the statute as alleged in the complaint. I find that by refusing to recall Weinstein and Winebren- ner on January 26, 1976, the Respondent violated Section 8(a)(1) and (3) of the Act. E. Section 8(a)(l) There is no meaningful proof of animus against the Union as such by the Respondent. The case is essentially a charge, and a good one, of discrimination against only two employees to stop their personal participation. While it is true the Respondent was opposed to the disruption that became manifest as the employees quarreled among themselves, this does not mean it was opposed to the Union as representative of its employees. Indeed, the General Counsel's entire theory is the opposite, for the complaint alleges the Respondent assisted the Union. Throughout the extended hearing countless words, actions, even gestures by the manager and group leaders are presented as improper restraint upon the employees. The complaint lists only some of the incidents as consti- tuting unfair labor practices in themselves. Many are attributed to group leaders on the contention that they are supervisors. They are not, and therefore there is no need to detail the unending statements and activities of the group leaders in the general picture of what happened. As to the real manager, the allegations of prohibited actions are very limited. Some have already been disposed of, such as issuance of reprimand notices. One complaint allegation specifies Adams violated the law because he "harassed" employees; another that he "created the impression" of surveillance. If telling employ- ees to stop fighting among themselves while they are supposed to be working at an hourly rate, if telling them to stop holding union meetings during working hours right inside the production department, is harassment, I suppose the complaint is correct. In the circumstances of this case, I do not think what happened warrants a finding that Adams unlawfully coerced and restrained the people in their statutory rights when he tried to make peace to take the place of war. One day several employees, together with the union shop committee chairman, decided to hold a meeting to discuss grievances instead of working. Adams saw them and ordered them back to work. He even said if all this did not stop while people were being paid to work, he would close the plant. I am unable to make an unfair labor practice finding based on such an incident. Sometime in June 1975, an inspector from the Occupa- tional Safety and Health Administration went through the plant looking things over. In the presence of the plant manager, Sue Halaja, an employee, called the inspector's attention to certain undesirable conditions in one of the ladies' restrooms. The Company took care of that. Approximately 2 months later Adams found occasion to refer to Halaja as "my OSHA queen." A week later he asked her one day "What john are you using?" She answered "The one back there"; this was not the one that 5 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National l.abor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. had been put in good shape, but it apparently was closer to Halaja's work station. Adams came back with: "Well, from now on I'd like you to use the main ladies' room, I had it cleaned for you and OSHA." In his brief the General Counsel says calling the lady an OSHA queen, and telling her to use this toilet instead of that one, were unfair labor practices. The complaint does not so specify, but perhaps it is to be included under "harassment." Not without some hesitancy, I find that Adams violated Section 8(a)(1) of the Act by discriminat- ing against Halaja in ordering her to use a more inconvenient restroom for the reason that she had com- plained to OSHA about working conditions in this plant. See Alleluia Cushion Co., Inc., 221 NLRB 999 (1975). IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, 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. CONCLUSIONS OF LAW 1. By discharging Deborah Weinstein and Denise Winebrenner for engaging in union and concerted activi- ties the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) and (3) of the Act. 2. By discriminating against an employee in the personal use of necessary facilities within the plant for the reason that she had complained to the Occupational Safety and Health Administration about conditions of employ- ment, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)( ) of the Act. 3. 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, conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 5 The Respondent, Levco Automotive Products Company, Pittsburgh, Pennsylvania, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discharging or in any other manner discriminating against employees because of their union activities or because of their appeals to the Occupational Safety and Health Administration. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self- organization, to form, join or assist any labor organization, 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. 812 LEVCO AUTOMOTIVE PRODUCTS CO. to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Deborah Weinstein and Denise Winebrenner immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (b) Make each of the foregoing two named employees whole for any loss of pay or any benefits they have suffered by reason of the Respondent's discrimination against them. (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, 6 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 personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its place of business in Pittsburgh, Pennsylva- nia, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by its representatives, shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to company herewith. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 813