PPG Industries, Inc .

PPG INDUSTRIES 821 PPG Industries, Inc. and Randall Martin. Case 10– CA–32813 July 23, 2003 DECISION AND SUPPLEMENTAL ORDER REMANDING BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH On February 13, 2003, following a remand by the Board,1 Administrative Law Judge William N. Cates issued the attached supplemental decision. The General Counsel filed exceptions, a supporting brief, and a reply brief. The Respondent filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to again remand this proceeding for further consideration as set forth below. The complaint alleges that the Respondent suspended and then discharged Randall Martin in violation of Sec- tion 8(a)(1), (3), and (4) of the Act. In his initial bench decision, the judge dismissed the complaint in its en- tirety, concluding that the Respondent disciplined Martin in accord with its absenteeism and progressive discipli- nary policies. The Board remanded the case to the judge because he failed to resolve certain evidentiary issues.2 Among other things, the judge failed to act on the Re- spondent’s petition to revoke the General Counsel’s sub- poena for documents concerning the administration of the Respondent’s attendance policy. In his supplemental decision, the judge granted the Re- spondent’s petition to revoke and reaffirmed his recom- mendation to dismiss the complaint. As explained be- low, we find the judge abused his discretion in granting the petition. Accordingly, we reverse the judge’s ruling and remand this proceeding for further proceedings. Prior to the hearing, the General Counsel issued a sub- poena for documents concerning the administration of the Respondent’s attendance policy for a 27-month pe- riod. In response to the subpoena, the Respondent pro- vided employee disciplinary notices for all employees who received step discipline for violating the Respon- dent’s absenteeism policy. The Respondent also pro- duced the “Employee Absenteeism Report,” a several hundred page printout providing the complete attendance history of nonsupervisory employees at the facility and discipline of employees for any absence-related offenses. However, the Respondent provided these two categories of documents for only a 21-month period from April 1 PPG Industries, Inc., 338 NLRB 559 (2002). 2 Id. 1999 through December 2000, rather than the full 27- month period, extending through June 2001, covered by the subpoena. The Respondent did not produce two other categories of documents—the “Employee Action/Discipline His- tory” (Employee Action) and “Absences with Notes” reports—for any employees other than Martin. The Em- ployee Action report shows an employee’s entire history of discipline and the dates when offenses were cleared from the disciplinary step procedure. The Absence with Notes reports are unofficial software-created records maintained in electronic form by the Respondent’s hu- man resources supervisor, Joyce Spiller. All information entered on these records is at her discretion. Spiller uses these forms to track an employee’s attendance record, and she may enter comments on them to assist her in this regard. Although the Respondent did not produce these documents for other employees in response to the sub- poena, it introduced Martin’s Employee Action and Ab- sence with Notes forms during Spiller’s testimony at the hearing. In ruling on the Respondent’s petition to revoke the subpoena with respect to the unproduced documents, the judge found in his supplemental decision that the General Counsel had the necessary documents to determine whether the Respondent applied its absenteeism policy in a disparate manner. The judge stated that the Employee Action and Absence with Notes records did not include any relevant information with respect to absenteeism and/or failing to report off that was not already contained in the documents produced by the Respondent. He also found that the Respondent’s limitation on the timeframe for disciplinary records provided was appropriate. Thus, the judge found that compelling production of the addi- tional records was unnecessarily cumulative, duplicative, and/or would pose an undue burden on the Respondent. Contrary to the judge, we do not find that requiring production of the Employee Action and Absence with Notes records would be unnecessarily cumulative and/or duplicative of information already available to the Gen- eral Counsel. The judge’s finding in this regard is specu- lative because he never examined the unproduced docu- ments. Further, the Respondent’s decision to introduce these records for Martin to explain his disciplinary his- tory supports the view that they are necessary to under- stand the administration of the Respondent’s attendance and disciplinary policies. It also shows that the Respon- dent relied on these records both in administering these policies and in preparing its defense of Martin’s disci- pline. The judge has failed to provide a reasonable basis for denying to the General Counsel documents that the 339 NLRB No. 98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 822 Respondent found significant in litigating the unfair la- bor practice allegations in this proceeding. We also reject the judge’s unsupported conclusion that requiring the Respondent to produce the Employee Ac- tion and Absence with Notes, as well as additional em- ployee disciplinary notices and the Employee Absentee- ism Report for the full 27-month period covered by the subpoena, would be unduly burdensome. The Respon- dent has not shown that producing any of these docu- ments would be burdensome, nor has it or the judge ex- plained why limiting the scope of documents produced to a 21-month period is “appropriate” to avoid imposing an undue burden. In sum, we reverse the judge’s ruling revoking the General Counsel’s subpoena duces tecum. We shall re- mand this proceeding to the judge to direct the Respon- dent to comply fully with the terms of the subpoena. Thereafter, the judge shall reopen the record to permit the introduction of any additional subpoenaed documents and any evidence in connection with the same, shall re- evaluate his findings of fact and conclusions of law in light of any additional evidence introduced, and shall issue a second supplemental decision addressing issues raised in this proceeding. ORDER It is ordered that this proceeding is remanded to Ad- ministrative Law Judge William N. Cates for the pur- poses described above. IT IS FURTHER ORDERED that the judge shall prepare and serve on the parties a second supplemental decision setting forth credibility resolutions, findings of fact, con- clusions of law, and a recommended Order in light of the Board’s remand, if necessary. Copies of the second sup- plemental decision shall be served on all parties, after which the provisions of Section 102.46 of the Board’s Rules and Regulations shall be applicable.3 John D. Doyle Jr., Esq., for the General Counsel. Cameron S. Pierce, Esq., for the Company. Randall Martin, Pro Se. SUPPLEMENTAL DECISION WILLIAM N. CATES, Administrative Law Judge. On Decem- ber 31, 2001, I issued my bench decision in this case finding PPG Industries, Inc. (Company) did not violate Section 8(a)(1), (3), and (4) of the National Labor Relations Act (Act) by, on June 12, suspending and, on June 16, 2000, discharging em- ployee Randall Martin (Martin). Although in my bench deci- sion I found counsel for the General Counsel (General Counsel) established a prima facie case by showing Martin engaged in activities on behalf of United Steelworkers of America and 3 In remanding this case, we are not passing on any of the other is- sues raised by the General Counsel’s exceptions at this time. Teamsters Local Union 402 (Unions), which activities were well known to the Company and that the Company had, in the past, exhibited animus toward its employees’ union activities; I concluded it nonetheless demonstrated it would have dis- charged Martin even in the absence of any union or charge filing activities on his part. I found the Company’s discharge of Martin was in keeping with its guidelines, policies and prac- tices regarding absenteeism and call-in procedures. The Com- pany demonstrated it consistently enforced its applicable atten- dance policies and did not treat Martin differently than other employees. On November 20, 2002, the National Labor Relations Board (the Board), with Member Cowen dissenting, remanded the case to me (338 NLRB 559). In its remand order the Board concluded I failed to resolve certain evidentiary issues. The Board stated: In this regard, the Judge failed to act on the [Com- pany’s] petition to revoke [Government] Counsel’s sub- poena for documents concerning the administration of the [Company’s] attendance policy. Nor did the Judge rule on the [Government] Counsel’s request that an adverse infer- ence be drawn from the [Company’s] failure to produce two classes of documents in response to the subpoena. Therefore, we will remand this case to the Judge to con- sider: (1) whether to grant the [Company’s] petition to re- voke; and (2) if the petition to revoke is denied in whole or in part and the [Company] fails to produce the relevant documents, whether an adverse inference should be drawn. On December 6, 2002, I issued an order inviting parties to file briefs prior to my preparation of this supplemental decision. Briefs were filled on January 21, 2003, by counsel for the Gen- eral Counsel and the Company. On November 23, 2001, at the request of the General Coun- sel a five page single space subpoena duces tecum (B-300644) was issued directing the Company’s custodian of records to appear at trial and produce various documents detailed in the subpoena.1 The Board noted in its remand order that its focus was on two classes of documents the Company failed to pro- duce in response to the subpoena. Those two classes of docu- ments, it appears, are covered by paragraphs 5 and 11 of the subpoena. Paragraphs 5 and 11 read as follows: 5) Such records of discussion, disciplines, suspensions, warnings, recommendations for issuance of discipline, termination notices, handwritten notes, internal memo- randa, and other documents as reflected or indicate the oc- casions on which non-supervisory employees employed at Respondent’s Huntsville, Alabama facility received disci- plines, suspensions, warnings, discharges, or other correc- tive action, for the time period January 1, 1999 through June 1, 2001, for attendance or failure to call in problems or deficiencies, including without limitation, such docu- ments as reflect the identity of the person subject to the corrective action, the identity of the person issuing the cor- rective action, the identity of any person or persons who 1 The pertinent documents sought by the General Counsel relate to the Company’s attendance policy. PPG INDUSTRIES 823 recommended such corrective action, and the reasons for the corrective action. . . . . 11) Such applications for leave, pay records, time cards, schedules, handwritten notes, attendance records, printouts of electronic records, computer files, and other documents as indicate, for the time period January 1, 1999 through June 1, 2001, the times non-supervisory employ- ees at the Respondent’s Huntsville, Alabama facility, were absent from work during a time when they would ordinar- ily have been scheduled, including with limitation, such documents as indicate or reflect, for each such absence, the identity of the employee, the date of such absence, tardy, or early out, the time(s) of such absence, tardy, or early out, whether the employee was charged under the at- tendance system, whether such absence, tardy, or early out was paid or unpaid, whether the absence, tardy, or early out was excused, whether the absence, tardy, or early out was approved, the date and time of any request or applica- tion to be absent, tardy, or to early out, the date of the ap- proval, the identity of the person or persons who consid- ered such application or request, the decision on the re- quest or application (granting or denying), and the reasons for decision. The two classes of documents the Company did not produce, for employees other than Martin, are (1) employee/discipline history and (2) absence with notes. On December 3, 2001, the Company filed a petition to re- voke subpoena duces tecum (B-300644). On December 5, 2001, the General Counsel served on the Company its opposi- tion to the petition to revoke subpoena duces tecum (B- 300644). The tenor of the parties’ positions are as follows. First, the General Counsel contends it needs the two classes of docu- ments in question to test the Company’s contention it did not treat Martin differently from other employees when it sus- pended and thereafter discharged him for attendance and reporting off infractions. Second, the Company contends it did not, and needs not, provide the two classes of documents in question because it has already provided the General Counsel with documents containing hundreds of pages which set forth each employees’ history of unexcused absences and whether the employees received discipline for those absences. The Company also contends it provided the General Counsel with relevant disciplinary records for employees disciplined for the same infractions as Martin. The Company contends further document production would be unnecessary, unreasonably cumulative, duplicative, and unduly burdensome. A brief overview of certain facts and findings from my bench decision is helpful. I concluded the General Counsel established an initial showing that Martin’s suspension and discharge was discriminatorily motivated; however, I also con- cluded the Company demonstrated it would have suspended and terminated Martin even in the absence of any protected conduct on his part. As noted in my bench decision Martin was given a record of discussion on December 8, 1999, reviewing with him what was expected of him regarding regular atten- dance. The record of discussion that Martin signed reads in part: This is to review with you the expectation of regularly attendance. As of 12/6/99, you are at 4.0 Occurrences in Absence Program. Absenteeism above four Occurrences will trigger a Disciplinary action. Therefore, you will need to remain at four Occurrences until twelve months. This is to advise you to monitor your absences and maintain regular attendance, as required of Works 22 Employees I found no showing that any of the absences that brought about the December 8, 1999 record of discussion and the warn- ing of the impact future absences would have on his employ- ment were unlawfully motivated. It is undisputed that Martin did not work on June 9, 2000, nor did he call off, as required, prior to the start of his work shift on that date. I found Martin’s absence on June 9, 2000, violated two of the Company’s disci- plinary policies. Martin’s failure to report off on June 9, 2000, advanced him one step in the disciplinary procedure. Martin’s absence on June 9, 2000, was, as just noted, at a time when he had previously been alerted to monitor his attendance, and his unexcused absence on that date advanced him one step in the progressive discipline system elevating him to that step which resulted in his termination. Martin had, at the time of his unex- cused absence on June 9, 2000, already acquired four unex- cused absences in a 12-month period. The Company did and I concluded would have discharged Martin even in the absence of any protected conduct on his part for violating its attendance and reporting off policies. I found the Company consistently enforced its attendance and reporting policies and did not treat Martin differently from other employees. Section 102.31(b) of the Board’s Rules and Regulations pro- vides that the trial judge shall revoke a subpoena if in his opin- ion the evidence whose production is required does not relate to any matter under investigation or in question in the proceedings or the subpoena does not describe with sufficient particularity the evidence whose production is required, or if for any other reason sufficient in law the subpoena is otherwise invalid. Section 102.31(b) further directs that the trial judge make a simple statement of procedural or other grounds for the ruling on the petition to revoke (emphasis added). To the extent not previously satisfied I grant the Company’s petition to revoke subpoena duces tecum B-300644 in all re- spects.2 I am fully persuaded the Company has provided the General Counsel with sufficient documents from which he is able “to adduce comparable incidents of absenteeism that either were or were not the subject of discipline.” Stated differently, the Company provided the General Counsel, at trial, with ap- propriate and sufficient documents relevant to the disparate treatment issue such that and any further production would be unnecessarily cumulative. 2 To the extent the Board’s Remand Order could be read to require consideration of a failure by the Company to produce documents be- yond the two classes of documents referred to in the remand this revo- cation is intended to cover such. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 824 As noted elsewhere the Company did not provide employee action/discipline history records. The employee action/disci- pline history records cover an employee’s entire history of dis- cipline (and it appears commendations as well). The employee action/discipline history records reflect the date, action/level, reason, department of employee, supervisor of employee, comment, and clear date (where appropriate) for any employee offenses. The records may, where appropriate, include disci- pline for violations of infractions that do not relate to absentee- ism or failing to report off which were the offenses for which the Company discharged Martin. The Company provided the General Counsel with disciplinary records for employees who had been disciplined for absenteeism as well as for failing to report off, which were, as just noted, the infractions for which the Company discharged Martin. In agreement with the Com- pany, I am fully persuaded that the General Counsel has not demonstrated that the employee action/discipline history re- cords contain any relevant information, regarding absenteeism and failing to report off, that is not already contained in the disciplinary records provided by the Company to the General Counsel at trial.3 In that regard the Company provided the General Counsel with documents including several hundred pages of employee absenteeism report forms for all production and maintenance employees at the facility for an applicable 21-month period. The employee absenteeism report forms provided the General Counsel with the complete attendance history of non- supervisory employees at the facility and whether employees were disciplined for any absence related offences. The Com- pany provided records demonstrate whether an employee auto- matically received step discipline when the employee attained the specified number of unexcused absences during the speci- fied time period. The General Counsel had the necessary re- cords to probe whether the Company applied its absenteeism 3 The timeframe for disciplinary records provided by the Company was limited by the Company to an appropriate timeframe. Any greater timeframe would have been unnecessary and burdensome. policy in a disparate manner.4 Any further production of documents by the Company would simply have been and would continue to be unnecessarily cumulative. The second class of documents at focus herein that the Com- pany did not provide are the absence with notes forms. The absence with notes forms are unofficial software created re- cords maintained in electronic form by Company Human Re- sources Supervisor Joyce Spiller. All information entered on the Absence with Notes software records is at the discretion of Spiller. Spiller may enter comments on her absence with notes electronic forms that she may have received in reference to any specific absence to assist her in keeping tract of occurrences; however, the records do not address mitigating circumstances. I am fully persuaded that these incomplete discretionary elec- tronic absence with notes forms would not have provided any additional information not already provided to the General Counsel in greater detail in the records supplied at trial by the Company to the General Counsel. Nothing in the absence with notes would assist the General Counsel to adduce comparable incidents of absenteeism beyond what the documents already produced showed. Requiring the production of the absence with notes forms would constitute an unnecessary production of cumulative and duplicative documents and as such would be unduly burdensome to the Company. In summary, and for the reasons set forth above, I grant the Company’s petition to revoke subpoena duces tecum B- 300644, issued at the request of the General Counsel, to the extent the Company has not already satisfied the production requirements outlined therein. In light of the above ruling, I need not, and do not, address the conditional second part of the Board’s Remand Order per- taining to the drawing of an adverse inference. I reaffirm my prior bench decision. 4 The fact that such necessary records were provided by the Com- pany to the General Counsel may explain the General Counsel ‘s failure to raise on the record any subpoena concerns before he rested, without reservation, his case-in-chief.