Premco Forge, Inc.

PREMCO FORGE, INC 371 Premco Forge, Inc. and Joe Burnell Cases 21-CA- 13449 and 21-CA-13890 DECISION STATEMENT OF THE CASE June 4, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On February 25, 1976, Administrative Law Judge Herman Corenman issued the attached Decision in this proceeding Thereafter, the Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed cross-exceptions, a supporting brief, and an answer to the exceptions filed by the Respon- dent 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 briefs and has decided to affirm the rulings, findings,' and conclusions 2 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 the Respondent, Premco Forge, Inc, South Gate, California, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order i The Respondent and the General Counsel have 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 resolu- tions 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 revers- ing his findings We do not adopt the Administrative Law Judge's Conclusion of Law 4 wherein he found that Respondent violated Sec 8(a)(1), (3), and (4) of the Act by excluding employee Burnell from the birthday party for Vice Presi- dent Joshua on July 10, 1975, for discriminatory reasons Evidence concern- ing this incident was offered by the General Counsel solely for the purpose of showing Respondent's animus towards Burnell because of his union and/ or protected activities The incident was neither alleged as a violation of the Act in the complaint, nor argued as such before the Administrative Law Judge Accordingly, in such circumstances, we do not believe that this con- duct can be properly found to be violative of the Act HERMAN CORENMAN, Administrative Law Judge This case was heard on November 20, 1975, at Los Angeles, California, on a consolidated amended complaint filed by the General Counsel of the National Labor Relations Board, herein called the Board, and an answer thereto filed by Premco Forge, Inc, herein called the Respondent The consolidated amended complaint, which was issued on Oc- tober 9, 1975, is based on charges filed by Charging Party Joe Burnell, an individual, in Case 21-CA-13449 on March 10, 1975, and in Case 21-CA-13890 on August 11, 1975 The consolidated amended complaint alleges that the Respondent violated Section 8(a)(1), (3), and (4) of the Act by laying off Joe Burnell from March 7 to June 9, 1975, by causing Burnell to lose 5 hours of pay on June 26, 1975, and by issuing Burnell a written warning notice on August 6, 1975, all because he engaged in union or other protected concerted activities for the purposes of collective bargain- ing or other mutual aid or protection and because he filed charges and gave testimony under the Act The Respondent's answer admitted the layoff of Burnell from March 7 to June 9, 1975, but alleged the layoff was for economic reasons The answer denied that the Respondent engaged in the unfair labor practices alleged in the amend- ed consolidated complaint At the hearing, the parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce oral and documentary evidence relevant and ma- terial to the issues, to argue orally and file briefs and pro- posed findings of fact and conclusions of law Oral argu- ment was made by counsel for the General Counsel and by Respondent's president, and they filed timely briefs which have been carefully considered Upon the entire record in the case, my observations of the witnesses and their demeanor, and in consideration of the briefs, I hereby make the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The amended consolidated complaint alleges, the answer admits, and I find that the Respondent is a corporation engaged in the manufacture of aluminum forgings at its plant at 5200 Tweedy Boulevard, South Gate, California The Respondent, in the conduct of its business operations, annually purchases and recei-ved goods, products, and ma- terials valued in excess of $50,000 directly from suppliers located outside the State of California Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION The pleadings establish, and I find, that United Steel- workers of America, AFL-CIO, herein called the Union, 224 NLRB No 57 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is, and has been at all times material herein, a labor orgam- zation within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES A Background The Respondent has a history of discriminating against Joe Burnell because of his leadership in union organiza- tion He served as the Union's observer in a Board election held on April 25, 1973, which the Union won and resulted in its certification The Union and the Respondent, howev- er, never entered into a collective-bargaining agreement The hostility of Respondent's president, Robert E Pier- son, to the Union and his proclivity to discriminate against Burnell because of his leadership in union organizational activities is demonstrated in three cases In the first case, it appeared that Pierson discharged Ollie T Smith, an em- ployee whom he regarded as a supervisor 3 hours after the April 25, 1973, election, admittedly because he believed Smith had initiated the union organizational campaign Upon a determination after an informal investigation that Smith was not a supervisor, Respondent entered into an informal settlement agreement in June 1973 providing for Smith's reinstatement Pierson told him, among other things, that he viewed anyone who sympathized with the Union as "anti-Premco," and that he was going to get rid of everyone who voted for organized labor At a joint meeting by Pierson with Smith and Burnell he told them that Burnell was a troublemaker and he urged both Smith and Burnell to quit On this occasion, Burnell told Pierson that it was he rather than Smith who initiated the union campaign Thereafter, Pierson, by harassment of Burnell, sought to have him quit When this means proved unavailing, Bur- nell was discharged on September 17, 1973, allegedly be- cause of a poor attendance record Pursuant to a charge filed by Burnell in Case 21-CA-12133, complaint issued and a hearing was held December 12, 1973 On January 31, 1974, Administrative Law Judge Louis Penfield issued his decision finding 8(a)(1) and (3) violations and recom- mending Burnell's reinstatement with backpay No excep- tions having been filed, the Board, under date of March 4, 1974, adopted the Administrative Law Judge's decision The Board's decision was enforced by the Ninth Circuit on June 25, 1974 Burnell was reinstated to his job with the Respondent in February 1974 Thereafter, he asked for a raise, but it was refused On November 4, 1974, Burnell filed a charge in Case 21-CA-13130 alleging that the Respondent's refusal to grant him a pay raise violated Section 8(a)(1), (3), and (4) of the Act Complaint was issued by the General Coun- sel of the Board January 23, 1975, and a hearing was held before Administrative Law Judge Earldean V S Robbins on February 25, 1975 Finding no merit in the Respondent's contention that Burnell was denied a wage increase because he was a poor employee, the Administra- tive Law Judge found that Respondent violated Section 8(a)(1), (3), and (4) of the Act in retaliation for Burnell's union activities and for initiating and testifying in the pre- vious unfair labor practice proceeding which culminated in his reinstatement with backpay No exceptions were filed to Administrative Law Judge Robbins' decision issued April 8, 1975, and it was adopted by the Board The Board's order was enforced by the Ninth Circuit on July 29, 1975 The Respondent complied with the affirmative provi- sions of the Board's orders in Cases 21-CA-12133 and 21- CA-13130, but the Board's Regional Office has not closed the cases on compliance because of the instant pending case The Current Sequence of Events The issues raised in the instant case are whether (1) Respondent's laying off Burnell from March 7 to June 9, 1975, (2) causing Burnell to lose 5 hours' pay on June 26, 1975, and (3) issuing a written warning notice to Burnell on August 6, 1975, violating Section 8(a)(1), (3), and (4) of the Act On February 26, 1975, the day after the hearing in Case 21-CA-13890, Respondent's superintendent, Fred Joshua, requested Burnell to go to the top of the building and clean the skylights, a job which Burnell had never performed before When Burnell told Joshua he didn't like to be off the ground that high, Joshua told Burnell that he "better go and clean because management was waiting for me to re- fuse to do one thing so they could fire me " Burnell obeyed Joshua's order and went up to the skylights Fred Joshua went up to the skylights and washed them down with a hose while Burnell scraped them, until employee Robert De Shazer came up and relieved Joshua The General Counsel makes no contention that this incident constituted an unfair labor practice, but points out that it demonstrat- ed Respondent's continuing hostility to Burnell in Fred Joshua's warning Burnell that Respondent was waiting for him to refuse to do one thing so that it would have cause to discharge him Fred Joshua testified he told Burnell that he wouldn't ask anybody to do anything that he wouldn't do himself, but did not deny that he warned Burnell that man- agement was waiting for Burnell to refuse to do one thing so they could fire him Although I do not find this remark to be an unfair labor practice, it does to some extent mani- fest Respondent's continuing hostility to Burnell Illustrative of Respondent's continuing hostility to Bur- nell is an incident that occurred on July 10, 1975 The em- ployees were celebrating Vice President Elmo Joshua's birthday, and employee Larry Turner was circulating a birthday card among the employees at lunch time to be signed by them Larry Turner told Burnell that Mr Pierson wanted all the employees except Burnell to sign the card, and they all signed it, but Burnell did not That same day all the employees except Burnell were invited to a party in the office where pie was served Burnell testified, "I was the only employee in the plant during the time they was in the office eating pie " This incident without question saddened and humiliated Burnell, who testified he was not being treated as a "man " I would agree with counsel for the General Counsel that this birthday party incident mani- fested Respondent's continuing hostility and its proclivity to discriminate against Burnell by denying to him the plea- sures and amenities accorded to other employees during working hours in the plant PREMCO FORGE, INC 373 B The Layoff of Burnell The Respondent laid off Burnell on March 10, 1975 The question arises whether there was economic justification for the layoff The evidence shows that Respondent's busi- ness declined extensively in all months since January 1975 and became progressively worse in the period between Jan- uary 1975 and November 1975 Whereas the employee complement in the shop stood at 16 in September 1974, it continued to drop during all of 1975 to the point that there were 9 employees in April 1975 and only 5 employees in November 1975 Whereas the number of pounds of prod- ucts shipped by the Respondent from June 1974 to Febru- ary 1975 averaged approximately 128,500 pounds per month, in the months of March 1975 to November 1975 the Respondent's shipments averaged 37,600 pounds per month In view of the decided drop in business to the point that production dropped critically in March 1975 and the following months in 1975 , it is clear, and I find, that there was economic justification for a layoff The Respondent's records show without dispute that two maintenance men were laid off on January 22, 1975, a saw operator laid off January 25, 1975, a saw and ship employee on March 6, 1975, and saw operator Joe Burnell on March 7, 1975 Counsel for the General Counsel contends, however, that even though there may have been economic justifica- tion for a layoff on March 7, 1975, the fact remains that Burnell was discriminatorily selected for layoff, inasmuch as six men with lesser seniority were retained on the day Burnell was laid off Burnell testified credibly that Plant Superintendent Fred Joshua summoned him to his office on March 7 and told him that he had been laid off because there wasn't any work Burnell asked why they didn't lay off some of the other employees since he was the third oldest employee in the Company Joshua replied he was just doing what he was told to do Burnell's testimony concerning those em- ployees with greater and lesser length of service than him with the Respondent was verified by a stipulation between the parties as follows Toby Brown, hired August 3, 1970, Willie Gaines, hired October 8, 1970, Joe Burnell, hired January 4, 1972, Larry Turner, hired January 3, 1973, Paul Lane, hired April 26, 1973, Eddie Rasbury, hired October 2, 1973, Mark Houston, hired October 15, 1973, Elmo Joshua, Jr , hired June 10, 1974, and David Russel, hired August 4, 1974 It thus appears, and I find, that at the time of Burnell's layoff on March 7, 1975, six employees who were retained had a shorter length of service varying from 1 year to 2-1/2 years shorter than Burnell's Burnell testified credibly that at the time of his layoff he was a saw operator , maintenance man, shipping depart- ment employee, motor driver, and loader and unloader of ovens He testified further that he had been on all the jobs that are in the plant Burnell testified credibly that at the time of his layoff, Mark Houston and Eddie Rasbury were press operators, a job he had operated at one time , Elmo Joshua, Jr, and Paul Lane were saw operators, as was Burnell, Larry Turn- er worked in the shipping department , as had Burnell prior to his layoff and subsequent to his reinstatement in June 1975, and David Russel worked in the shipping and saw department and also did welding, jobs which Burnell also had performed at the Respondent's plant Burnell was reinstated to his job on June 9 , 1975, 5 days after complaint issued in Case 21-CA-13449, in a time pe- nod when Respondent's volume of shipments was compar- atively low Inasmuch as business was definitely on the downturn when Burnell was reinstated in June 1975, it is not unreasonable to conclude that the Respondent was en- deavoring to prevent further financial losses accruing from a foreseeable backpay obligation to Burnell Respondent's vice president and part owner, Elmo Josh- ua, testified that the Respondent, at the time of Burnell's layoff on March 7, retained employees Elmo Joshua, Jr, and Mark Houston even though they had less seniority than Burnell because they worked on the night shift The record shows , however, that Burnell had worked the grave- yard shift previously (ALJD, 224 NLRB 371), and there is no evidence that Burnell was offered work on the night shift or would not take it as an alternative to a layoff Vice President Elmo Joshua also testified that Larry Turner and Paul Lane were retained notwithstanding they had lesser seniority than Burnell because Turner was the shipping foreman and Lane was the saw foreman Elmo Joshua also testified that Eddie Rasbury was retained because he was a day pressman whereas Joe Burnell was considered a saw operator and a shipping and receiving department employ- ee Although Elmo Joshua conceded that Burnell also had operated the press, he testified that Burnell was too slow A similar contention that Burnell was too slow made by the Respondent was rejected by the Administrative Law Judge in his Decision in Case 21-CA-13130 It developed through Elmo Joshua's testimony on cross- examination that neither Lane nor Turner, whom he classi- fied as foremen , had any of the qualifications of a supervi- sor within the meaning of the Act, and that at the time of Burnell's March 7 layoff neither Lane nor Turner had any- one working under their supervision Indeed , Elmo Joshua testified that it was Fred Joshua who directed the work of the employees in the plant and assigned the work to the employees Elmo Joshua further testified that David Russel was retained longer than Burnell because he was a certified welder needed in the repair of an oven which required about 6 weeks of work He further testified that the Re- spondent does not have a seniority system, but Respondent produced no evidence to substantiate this conclusionary statement by Joshua, Sr, and I place no reliance on this unsupported conclusion , nor do I place any credence on the conclusionary testimony that Burnell was a slow or poor worker, especially when it is noted that a similar de- fense in the two previous cases wa,. not credited by the Administrative Law Judges Moreover, Respondent's re- tention of Burnell in its employ since his hire in January 1972, except when he was discriminatorily discharged, hardly supports a contention that he was a slow or poor worker I find that at the time of Burnell's layoff on March 7, 1975, he was capable of performing and had performed the vanousjobs being performed by the six retained employees who had less seniority than Burnell Respondent 's continu- ing hostility to Burnell, as disclosed by the incidents de- 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scribed in this case, when considered in conjunction with Respondent's hostile background to unionism and its past discnmmation against Burnell, and Respondent's disparate treatment of Burnell on March 7 by laying him off while six employees with lesser seniority were retained on jobs which Burnell was capable of performing and had per- formed, convinces me, and I find, that Burnell's discharge violated Section 8(a)(1), (3), and (4) of the Act C Burnell's Loss of 5 Hours' Pay Burnell testified that on June 19, 1975, 10 days after Respondent reinstated Burnell to his job, he told Plant Su- perintendent Fred Joshua that he wanted to leave early June 24 on business Joshua said "Okay" and he left, but he returned one-half hour later and asked Burnell what his business concerned that required him to leave early on June 24 Burnell asked why Joshua wanted to know the nature of his personal business, and Joshua replied that Pierson wanted to know Burnell told Joshua "to tell Mr Pierson if I told him my personal business then I wouldn't have no personal business " On the morning of June 24, according to Burnell's testimony, he reminded Fred Joshua that he was going to leave work early that day as he had requested on June 19 Joshua replied, "Okay " Burnell left at noon that day On the following morning, June 25, Bur- nell testified, he called in about 6 30 a in and reported to Fred Joshua that he would not be in to work that day because he was ill Burnell returned to work at 6 30 a in on June 26 Fred Joshua met him at the timeclock and asked if Burnell had a slip from the doctor Burnell said no Joshua told him not to punch in until Elmo Joshua and Pierson arrived When Elmo Joshua and Pierson arrived at the plant about 9 30 am, Burnell was called into Elmo Joshua's office Elmo Joshua asked why Burnell had re- fused to tell Fred Joshua the nature of his personal busi- ness, and he also inquired if Burnell had a "slip from the doctor " Elmo Joshua directed Burnell to go to a private doctor Burnell replied he did not have the money Elmo then directed Burnell to the Company's doctor Burnell went to the Company's doctor and returned to the shop about 5 hours later with the doctor's slip Elmo then per- mitted him to return to work Elmo told Burnell he could not pay him for the time he sat from 6 30 a in until around 11 20 a in waiting for the doctor Superintendent Fred Joshua testified that he did not give Burnell permission to leave June 24 but referred him to Elmo Joshua Fred Joshua testified that on the following day Burnell did not report to work so he phoned Burnell's house about 7 20 a in and talked to Burnell Burnell told him he was sick, that he had meant to call Joshua, but that he was so sick that he had not had a chance to call in to the office Joshua testified he called Burnell's house again about 4 p in and talked to Mrs Burnell, who told him that her husband was not at home Fred Joshua testified in agreement with leading questions put to him by Pierson that, because Burnell had called in sick, it was assumed in a conversation with Elmo and Pierson that Burnell had been to the doctor's when he was not at home at the time Fred Joshua phoned him at 4 p in Pursuant to more lead- ing questions put to him by Pierson, Fred Joshua testified that in the phone conversation with Burnell's wife he told her to tell Burnell to bring a slip from the doctor that morning, and she said she would tell him, but she did not know whether he would bring one or not When Burnell did not bring in the slip from a doctor, he was required to go to Respondent's doctor to be examined and bring in a slip from the doctor Called as an adverse witness by counsel for the General Counsel, Pierson testified that the Respondent has a policy regarding requiring employees to furnish doctors' slips as follows Well, we feel if a man's off, say if there's a new epi- demic or we possibly he might have something that could be contagious, we will request a doctor's certifi- cate or we will send him to our doctor Pierson further testified that it is not a hard and fast rule that an employee who is off sick must have a doctor's slip Asked by counsel for the General Counsel if it were not true that a doctor's slip was required of Joe Burnell for June 24 and 25 because he refused to say where he had been on those days, Pierson answered, "That wasn't the reason-I can't answer a qualified `yes' on that " Pierson conceded, however, that in a previous affidavit given by him to a Board agent he stated that, "We required one of Joe Burnell because he refused to say where he had been on the afternoon of June 24 and June 25 We felt the com- pany had a right to know where he had been or if he was sick " Office Manager Evelyn Marie Glidewell testified credi- bly that at a meeting held on June 26, 1975, with Elmo Joshua, Fred Joshua, Joe Burnell, and herself present, she prepared minutes of the meeting which was called "to dis- cuss Joe Burnell's absence from work on Wednesday June 25 and the fact, that he left work without permission of his immediate supervisor on Tuesday, June 24 at 12 10 p in " Vice President Elmo Joshua testified he was present at the June 26 meeting where Burnell was present along with Fred Joshua and Marie Glidewell and which involved a reprimand to Joe Burnell for leaving his work without per- mission Elmo Joshua testified that he himself did not give Burnell permission to leave nor did he authorize Fred Josh- ua to give Burnell time off Responding to a leading ques- tion put by Pierson at the hearing, Elmo agreed that he and Fred Joshua "went together to Joe Burnell shortly before noon and told him not to punch out " Joe replied he had to go on some personal business and with that he punched out Elmo Joshua testified that Burnell's absence from work after noon on June 24 and all day on June 25, 1975, result- ed in the Respondent's failure to ship a rush order of heli- copter parts to Bell Helicopter in Texas on time Elmo tes- tified that the Respondent was 3 or 4 days late in shipping this order because, in the absence of Burnell, the Respon- dent did not have any other sawmen in the saw department to cut the parts because the other saw operator was off at the time Elmo testified that this was a new account and that the Respondent has received no business since from Bell Helicopter because of the late shipment and agreed PREMCO FORGE, INC 375 with Pierson's leading question that the Respondent had received a phone call from Bell Helicopter expressing their displeasure in not getting the order on time This testimony by Elmo Joshua concerning a telephone call was corrobo- rated by Office Manager Marie Glidewell, who testified she remembered the phone call because the buyer was up- set and she "referred the call to Mr Pierson" Ms Glide- well also testified in corroboration of Elmo Joshua's testi- mony that Respondent has not had one inquiry from Bell Helicopter since i Counsel for the General Counsel contends that the con- duct of the Respondent in not compensating Burnell for the 5 hours he spent in procuring a slip from Respondent's doctor before he was permitted to return to work on June 26, 1975, constituted discrimination against Burnell be- cause (1) he filed charges and gave testimony under the Act, and (2) he engaged in union or other protected con- certed activities I am not persuaded that the General Counsel has satisfied the burden of proof to establish his contention The weight of the evidence establishes that the Respondent was in the process of filling a rush order for Bell Helicopter on June 24 when Burnell took off without permission while refusing to divulge to management why he wanted off Under the circumstances, namely the need for Burnell's services as a saw operator to cut the parts for the Bell Helicopter order, Respondent was entitled to know the urgency of Burnell's request to leave his work His re- fusal to divulge the reason and his departure from work at noon on June 24 amounted to insubordination which, in- deed, merited some form of discipline Burnell's telephone report on June 25 that he was too sick to come to work and his absence from home at 4 p in on June 25 when Fred Joshua tried to reach him did not help matters At the disciplinary meeting in the Respondent's office on the morning of June 26, Elmo Joshua reprimanded Burnell for leaving work without permission and directed him to get a slip from Respondent's doctor The evidence shows that other employees, namely, Kelvin Joshua and Albert De Shazer, were more severely disciplined for similar conduct, Kelvin Joshua was terminated for 3 days' absenteeism and De Shazer was given a 3-day disciplinary layoff for absen- teeism I agree with Pierson's remarks during the course of the hearing indicating that it would be intolerable to re- quire an employer to operate a business where employees could leave the job at any time at their own pleasure with- out any explanation for their leaving I am of the opinion, and I conclude, that the Re- spondent's conduct in depriving Burnell of the 5 hours' pay for the time he spent in the doctor's office getting the doctor's slip was a form of discipline not inspired by Burnell's past union or concerted activity, but because of his insubordination and misconduct on June 24 in leaving the plant without permission and at the same time refusing Fred Joshua s testimony concerning the June 26 disciplinary meeting between Burnell and management is as follows Well, Elmo gave Joe a warning about the reason why he had taken off without permission So Joe told him that he had asked, which he had asked me, and I told him I preferred [sic] him to Elmo because I didn t want any part of it because before I give permission so I preferred [sic] him to Elmo to give a reason for his leaving Intertwined with this con- duct was Burnell's failure to come to work the next day, June 25, allegedly because he was sick I have concluded that with respect to this issue the weight of the evidence supplied by Pierson, Fred Joshua, Elmo Joshua, and Eve- lyn Marie Glidewell preponderates in favor of the Respon- dent I do not credit Burnell's testimony that he was grant- ed permission to leave on June 24 Moreover, his testimony that he was sick at home on June 25 is not impressive when it is noted that he was not home when Fred Joshua called I would dismiss this allegation in the General Counsel's complaint D The August 6, 1975, Warning Notice Burnell testified that at least 2 days before Friday, Au- gust 1, 1975, he asked permission of Plant Superintendent Fred Joshua to leave early on August 1, as he had some business to attend to Joshua said, "Okay " On August 1, Burnell reminded Fred Joshua that he would be leaving at noon and Joshua said "Okay " Burnell returned to work the next workday, Monday, August 4 Burnell was called to the office by Elmo Joshua Present were Fred Joshua and Office Manager Marie Glidewell Elmo told Burnell that he had left the premises early Friday without permission and wanted to know his business for leaving early Burnell told Elmo he had received permission from Fred Joshua Elmo told Burnell that he should not have left the premises without permission On August 6, 1975, Elmo Joshua sent a letter by certified mail to Burnell as follows Confirming our meeting at 11 00 a in, August 5, 1975 attended by you, Elmo Joshua, Marie Glidewell and Fred Joshua, we wish to reiterate our position of un- authorized early departures from your job Your leaving at 12 00 noon on Friday, August 1st was unauthorized and done without any explanation This is in violation of our Company rules and is your second violation of this rule within the last month Any further violations will subject you to dismissal A carbon copy of the letter indicates that a blind carbon copy was mailed to Michael L Wolfram, attorney at law, who filed an answer to the consolidated amended com- plaint in this matter, but who made no appearance at the hearing Fred Joshua testified that when Burnell asked him for permission to leave at noon on Friday, August 1, he re- ferred him to Elmo Fred Joshua testified he did not give Burnell permission to leave early that day because he was the only sawman that was left, as the other sawman, Paul Lane, already had been "granted to be off " Fred Joshua also testified that Burnell refused to give a reason why he wanted off 2 Elmo Joshua testified that Burnell was called in on Au- gust 5 at which time he was asked why he left the premises without permission and Burnell would not give a reason 2 Burnell filed a charge August 11, 1975, in Case 21-CA-13890 making general allegations concerning discrimination without reference to any par- ticular events 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He told him "it was personal business and refused to tell us ff Respondent contends that its August 6 warning notice to Burnell that his leaving the premises at noon on August 1 was his second violation of the rule within the last month and any further violation would subject him to dismissal does not constitute disparate treatment of Burnell Respon- dent points to the occasions where it discharged Albert De Shazer, Jr, on October 8, 1974, for "excessive absenteeism and leavingjob in middle of the shift," and after rehire laid him off for 3 days on January 9, 1975, when he called up at 9 a in and said he would be in, but did not show Respon- dent also points to its discharge of Kelvin T Joshua on September 5, 1974 Elmo testified that Fred Joshua fired Kelvin Joshua because he had been late seven times, and because he didn't show up for 3 days after Fred had called Kelvin and he had promised to come in 3 Again I find that the General Counsel has not estab- lished by a preponderance of the evidence that Burnell was permitted by Fred Joshua to leave the premises at noon on August 1, 1975, particularly in view of his refusal to give a reason for leaving, as well as the testimony of Fred and Elmo to the contrary I appreciate that the warning notice mailed by Respondent to Burnell must be scrutinized with care, because of Respondent's past history of discrimina- tion against Burnell for his union activity and his filing of charges and giving testimony against the Respondent However, I have concluded that Respondent was justified in refusing permission in a situation where Burnell's ser- vices were needed because the other sawman, Lane, was gone However, I am persuaded, and I find, largely because of Respondent's past history of discrimination against Bur- nell, as well as the fact that the derelictions of De Shazer and Kelvin Joshua were greater than Burnell's, that there was no warrant for the warning in the August 6, 1975, letter that "Any further violations will subject you to dis- missal " I would therefore find that Respondent's August 6 warning letter to Burnell discriminated against him and coerced and restrained him in the exercise of his rights guaranteed by Section 7 of the Act IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with the operations 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 obstruct- ing commerce and the free flow of commerce V THE REMEDY The recommended Order will contain the conventional provisions for cases involving findings of interference, re- straint, and coercion and unlawful discharge in violation of Section 8(a)(1), (3), and (4) of the Act This will require Respondent to cease and desist from the unfair labor prac- tices found and to take certain affirmative action including the posting of an appropriate notice The Respondent will be directed to make whole Joe Burnell for any loss of earn- ings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he would have earned from the date of his un- lawful separation on March 7, 1975, to his reinstatement on June 9, 1975, less net earnings, if any, during such peri- od to be computed in the manner set forth in F W Wool- worth Company, 90 NLRB 289 (1950), with 6-percent inter- est thereon as prescribed in Isis Plumbing & Heating Co, 138 NLRB 716 (1962) CONCLUSIONS OF LAW 1 Respondent is an employer within the meaning of Section 2(2) of the Act, 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 laying off Joe Burnell from employment and de- nying him employment from March 7, 1975, to June 9, 1975, Respondent discriminated with respect to his tenure of employment in violation of Section 8(a)(1), (3), and (4) of the Act 4 By excluding Joe Burnell from the birthday party for Vice President Elmo Joshua on July 10, 1975, because of his union and concerted activity, the Respondent discrimi- nated against Burnell and restrained and coerced employ- ee in violation of Section 8(a)(1), (3), and (4) of the Act 5 By its letter of August 6, 1975, to Joe Burnell warning him that any further violation would subject him to dis- missal, the Respondent discriminated against him and coerced and restrained employee in the exercise of rights guaranteed in Section 7 of the Act, and the Respondent thereby engaged in unfair labor practices within the mean- mg of Section 8(a)(1), (3), and (4) of the Act 6 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 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 Act, I hereby issue the following recommended ORDER4 The Respondent, Premco Forge, Inc, South Gate, Cali- fornia, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discharging, laying off from employment, or other- wise discriminating with respect to the tenure of employ- ment of Joe Burnell or any other employee because he has engaged in union activity, filed charges with, or given testi- 4 In the event no exceptions are filed as provided by Sec 102 46 of the 3 Explaining the reason for Kelvin's discharge on September 5, 1974, the Rules and Regulations of the National Labor Relations Board, the findings Respondent, under date of March 3, 1975, reported in writing to the State of conclusions, and recommended Order herein shall, as provided in Sec California Department of Human Resources Development, pursuant to 102 48 of the Rules and Regulations, be adopted by the Board and become their request, that Kelvin Joshua "was fired for not showing up for work its findings, conclusions, and Order, and all objections thereto shall be Three warnings were given ' deemed waived for all purposes PREMCO FORGE, INC 377 mony before the Board, or has otherwise engaged in con- certed activity for his mutual aid or protection as guaran- teed by Section 7 of the Act (b) Issuing warning notices to Joe Burnell because he engaged in union and concerted activity within the protec- tion of Section 7 of the Act (c) In any other manner coercing and restraining em- ployees in the exercise of rights guaranteed in Section 7 of the Act 2 Take the following affirmative action which, it is found, will effectuate the policies of the Act (a) Make whole Joe Burnell for any loss of earnings he suffered between March 7, 1975, and June 9, 1975, in the manner set forth in the section of this Decision entitled "The Remedy " (b) Preserve and make available to the Board or its agents, upon request, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amount of backpay due under the terms of this recom- mended Order (c) Post at its plant at South Gate, California, copies of the attached notice marked "Appendix " 5 Copies of said notice, on forms to be provided by the Regional Director for Region 21, after being signed by Respondent's duly authorized representative, shall be posted by it immedi- ately upon receipt thereof and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by the 5In 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" Respondent to ensure that said notices are not altered, de- faced, or covered by any other material (d) Notify the Regional Director for Region 21, in writ- ing, within 20 days from the date of the receipt of this Order what steps Respondent has taken to comply here- with IT IS FURTHER ORDERED that allegations of violations not found herein shall be dismissed APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Following a hearing in which the Company and the General Counsel of the National Labor Relations Board participated and offered evidence, it has been found that we violated the Act We have been ordered to post this notice and to abide by what we say in this notice WE WILL NOT lay off or fire employees for engaging in union or concerted activities with other employees for their mutual aid and protection, or filing charges with or giving testimony in Board proceedings WE WILL reimburse Joe Burnell the pay he lost as a result of our action in laying him off from March 7 to June 9, 1975 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, including the right to file charges with the National Labor Relations Board or to give testimony to that governmental agen- cy PREMCO FORGE, INC