Niagara Fiberglass, Inc.

84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Niagara Fiberglass, Inc. and Teamsters Local 264, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 3-CA-12391 31 March 1986 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 20 November 1985 Administrative Law Judge Steven B. Fish issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed a brief in support of the judge's decision. The National Labor Relations Board has delegat- ed 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 affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. ' The General Counsel has excepted to some of the judge 's credibility findings. The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for re- versing the findings The judge erroneously stated at sec II , par 12 of his decision that after employee Gawron began attending a Wednesday morning course on 16 May 1984, he was able to make up that time missed from work suc- cessfully for the first 3 weeks We note that during the weeks ending 18 May and 25 May, he worked only 36 and 37 hours of his required 40 hours 2 The judge concluded that the General Counsel did not meet her burden of demonstrating that Gawron 's union activity was a motivating factor in the Respondent's decision to deny his request for a change to part-time status Even assuming that the General Counsel has made a prima facie showing that protected activity was a motivating factor in the Respondent's decision, we find that the Respondent has shown suffi- cient reasons for not accommodating the request and that the Respondent has met its burden of demonstrating that it would have denied the request even in the absence of protected activity See Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982), approved in NLRB v. Transportation Management Corp, 462 U S 393 (1983) Michael Cooperman, Esq., for the General Counsel. Nicholas J. Sargent, Esq. (Sargent & Ripka, P.C.), of Buf- falo, New York, for the Respondent. DECISION STATEMENT OF THE CASE STEVEN B. FISH, Administrative Law Judge. Pursuant to charges filed by Teamsters Local 264, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union), on 31 July 1984,' against Niagara Fiberglass, Inc. (Respond- ent), and further charges filed by the Union against Re- spondent on 14 September and 12 October, complaints issued in Cases 3-CA-12326, 3-CA-12391, and 3-CA- 12430. These cases were consolidated in an order issued by the Regional Director for Region 3 on 19 October and a hearing was scheduled to take place on 7 January 1985 in Buffalo, New York. On the opening day of the hearing, an informal settle- ment agreement was reached between the parties, result- ing in an uncontested motion by the General Counsel to sever the cases and preserve for litigation only Case 3- CA-12391. The parties further agreed to withdraw cer- tain allegations in that complaint, leaving only para- graphs VIIc, d, and e to be litigated.2 I granted the mo- tions to sever and to withdraw on 7 January 1985. The portion of the complaint remaining before me al- leges that in its refusal on 23 July to allow its employee Martin Gawron to work on a part-time basis and subse- quently by constructively discharging him on 10 Septem- ber, Respondent discriminated against Gawron on the basis of his union activities, in violation of Section 8(a)(1) and (3) of the Act. Hearings on the complaint were then held before me in Buffalo, New York, on 7 and 8 January 1985. A memorandum of law has been received from the General Counsel. Based on careful consideration of the entire record, including my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION At all times material, Respondent, a New York State corporation with an office and place of business at 88 Okell Street in Buffalo, New York, has been engaged in the manufacture of custom-molded fiberglass parts for subway cars. During the past year, Respondent, in the course and conduct of its business, sold and shipped from its Buffalo, New York facility, products, goods, and materials valued in excess of $50,000 directly to points outside the State of New York. It is admitted and I find that Respondent is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It is also admitted and I find that the Union is now, and has been at all times material, ' All dates are in 1984 , unless otherwise indicated 2 The informal settlement agreement , which was approved by the Acting Director for Region 3 on 8 January 1985 , includes a clause pro- viding that the settlement agreement does not preclude the use of evi- dence pertaining to the settled allegations at the hearing on the allega- tions in Case 3-CA-12391 279 NLRB No. 14 NIAGARA FIBERGLASS 85 a labor organization within the meaning of Section 2(5) of the Act. H. FACTS In late 1981 , Martin Gawron was hired by Respondent as a part-time employee, working about 20 hours per week. His duties included filling holes in the fiberglass units constructed at the factory and sanding these fills in preparation for their being painted. Later in his employ- ment, Gawron was assigned the additional task of gluing gaskets onto the painted parts, the final step in the manu- facture of the electrical covers prior to their packaging and shipping. In October 1982, Gawron became a full-time employ- ee. There was conflicting testimony concerning the events surrounding this change; Gawron testified that Phillip O'Donnell, Respondent's vice president and co- owner, approached him and asked if Gawron would work full time, although O'Donnell explicitly contradict- ed Gawron's version of the events, testifying that it was Gawron who requested full-time work. Additionally, Gawron alleges and O'Donnell denies that O'Donnell agreed that Gawron would be permitted to return to his part-time schedule whenever he wished to do so. I credit O'Donnell's version of the arrangement and conclude that, contrary to Gawron's testimony, it was he who re- quested a change to full-time status and Respondent did not promise at that or any other time to permit him to return to part-time status whenever he requested such a change.3 Through the spring and summer of 1983, Gawron had no school obligations and worked a full-time schedule at the factory. In the fall of 1983, Gawron took one course at school, which met at 5:30 p.m., Tuesday and Thurs- day nights. By arrangement with his employers, Gawron left work at 4:30 p.m. and made up the missing half-hour by working through his lunch. During this period he had no problem working full time, often exceeding the re- quired 40 hours per week. The following school term, in the spring of 1984, he took a course meeting two evenings per week from 6 to 9 p.m. and again had no difficulty in meeting his obliga- tions as a full-time employee at Respondent. In late April of 1984, Gawron informed O'Donnell that, as of 16 May, he would be starting a course in school which met once a week on Wednesday from 8:30 to 11:30 a.m. Consequently Gawron requested that he be permitted to take Wednesdays off and work a 32-hour week from 16 May forward. O'Donnell said no and sug- gested that Gawron attend his course, report to work at noon on Wednesdays, and make up the 4 hours by work- ing evenings or on Saturdays. Gawron agreed to this ar- rangement. In approximately early May, Gawron and several other employees began discussing bringing in a union. Gawron contacted a representative from the Union, and a Overall, I find, based on my evaluation of the comparative testimoni- al demeanor of the witnesses, as well as the probabilities of the various events in dispute, that O'Donnell's testimony in general , as well as in this area in particular, is more credible than that of Gawron. Accordingly, whenever the testimony of Gawron and O'Donnell is in conflict, I credit O'Donnell he and another employee met with the Union's repre- sentative . Subsequently the representative gave Gawron and another employee authorization cards , which they proceeded to distribute to employees during the lunch hour and the breaks. Between him and the other employ- ee, they obtained nine signed cards including their own and submitted them to the union representative. On 4 June, a petition was filed for an election by the Union at the Regional office. An election was scheduled for and held on 13 July, and the Union was certified on 23 July.Shortly after Respondent received the petition, John McGovern, the shop supervisor, approached Gawron at work. McGovern stated, "Just as I couldn't talk about the Union, neither can you."4 A week or two before the election, Gawron and some coworkers returned 30 minutes late from their half-hour scheduled lunchbreak. O'Donnell met them in the locker room of the plant and warned them that if the Union were elected, work rules would be stricter. He also ad- vised them in the same conversation that in the future they were not to combine their breaks with their lunch hour in an effort to extend their midday absence from the plant. A few days before the election, O'Donnell and Steve Gale, Respondent's co-owner, called a brief meeting of all employees during working hours. They advised the workers that there was no money available for a raise, with or without the Union, and that the only effect of unionization would be to disrupt the employer-employee relationship.5 Later on that same day, Gawron came into O'Don- nell's office. Gawron notified O'Donnell that Gawron had started this "thing" with the Union, and it was be- cause Respondent had refused his request for a raise in January or February of that year.6 As set forth above, as of 16 May, Gawron began at- tending a course in school on Wednesday mornings and agreed, pursuant to O'Donnell's suggestion, to attempt to make up the 4 hours he missed by working on Saturdays or overtime. He was able to make up the time successful- ly for the first 3 weeks but, beginning the week ending 15 June, and through the week ending 17 August, he was not able to make up the time on any of these weeks. Moreover, in 7 of these weeks, not only did he not work the 40 hours required, but his hours did not reach the 36 hours per week which would encompass his workweek without the 4 hours made up. In fact in 5 of these we'ke, Gawron worked less than 30 hours. Based on the undenied testimony of Gawron 5 The above two incidents are derived from the mutually corrobora- tive and uncontradicted testimony of Gawron and employee Mark Syp- niewski The above is based on the credited testimony of O'Donnell Gawron testified and O'Donnell denied that Gawron asked about a return to part- time status at that time, and O 'Donnell responded that the request would have to wait until after the election As noted above , I have credited O'Donnell in areas where his testimony conflicts with Gawron , and I do so in this instance as well I note, in this connection , O'Donnell's admis- sion that Gawron informed him of his role in starting the union drive, which establishes employer knowledge of concerted activity on the part of Gawron The fact that he candidly made such an unsolicited, damag- ing admission reflects favorably on his overall credibility 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The week ending 15 June, Gawron worked 20.25 hours. O'Donnell spoke to Gawron about it and remind- ed him that he was not making up the time as per their agreement . Gawron replied that he would try to comply. During the next few weeks, he worked 27.25 hours, 28, 32, and 36 hours, respectively, and after each week O'Donnell spoke to Gawron about his failure to report as agreed and to make up the time . Gawron gave a couple of excuses during this period, such as his grandfa- ther died, his dog died, or he was sick. Gawron continu- ously promised to try to work the full 40 hours agreed on. On 16 July a warning letter was written and sent to Gawron, signed by Gale. The letter recounted Gawron's poor record, as outlined above, with regard to attend- ance, and stated that Respondent "can no longer tolerate this absenteeism and you must work a full 40 hour week." The very next week, Gawron called in sick on Tues- day, 17 July, and did not make up either these 8 hours or the 4 hours missed due to his Wednesday class. Thus an- other letter was sent to Gawron by Respondent, signed by Gale, dated 23 July. This letter refers to the warning letter of 16 July, and recounts that, notwithstanding the prior letter, Gawron missed 12 hours of work in the week ending 20 July and failed to make up the hours as required. The letter concludes as follows: "Once again, I must reiterate the fact that our Company can no longer tolerate your excessive absenteeism . If this continues, your position with our Company will be in jeopardy." In late July Gawron informed O'Donnell that he was going back to school in September and requested a change to part-time status and a reduction of hours to 20 hours per week. O'Donnell replied that he doubted very much if he would allow Gawron to do so, but he would check with his attorney. O'Donnell then discussed Gaw- ron's request with Gale. They both concluded that they did not wish to grant the request. Indeed Gale had on several previous occasions recommended that Gawron be terminated for various reasons, but O'Donnell had overruled him and insisted that Gawron be retained. The reasons for Gale's dissatisfaction with Gawron were briefly discussed again at this time, including his attend- ance, poor work, and clowning around. After this discus- sion, O'Donnell called his attorney and asked if there was anything in the law that says Respondent must grant Gawron's request. The attorney advised O'Donnell that he was free to do whatever he wants and he was not re- quired to honor Gawron's request to become a part-time employee. Shortly thereafter O'Donnell advised Gawron of Respondent's decision. During the week ending 27 July, Gawron again put in only 28 hours. On 30 July, another letter was sent to Gawron, pointing out his failure to again make up his hours, as agreed on, and again warning him about the re- currence of such conduct. The letter concludes with, "The next time an incidence like this occurs, you will be terminated." On 16 August Gawron phoned Respondent and in- formed it that he had sustained an injury playing soccer, and would not be at work. The next day Gawron called again and reported that he had been to the doctor, and was advised not to report to work for a week. Gawron neither called Respondent nor reported for work until 10 September, when he reported to Respond- ent at noon.' O'Donnell called him into the office, and asked why Gawron had not called to let Respondent know he was coming in. Gawron made no reply. Gawron then informed O'Donnell that he was starting school and wished to work 20 hours a week. O'Donnell replied no, he had a full-time position with Respondent. Gawron said nothing further and walked out. He did not return to Respondent thereafter.8 The record reveals that Respondent employs a majori- ty of part-time employees, and that a number of part- time employees were hired by it subsequent to Gawron's departure. Additionally immediately after Gawron left, a part-time employee, Thomas Swan, was shifted from a part-time to a full-time employee. O'Donnell denied that Gawron's union activity had any bearing on Respondent 's decision not to grant his re- quest for part-time status. According to O'Donnell, Re- spondent had been dissatisfied with Gawron's perform- ance as an employee for some time , and that it did not choose to accommodate his request for a change of hours. O'Donnell candidly admitted that he was not un- happy that Gawron did not choose to remain as a full- time employee, and in fact further admitted that he wanted Gawron to quit. When asked why he didn't fire Gawron, O'Donnell credibly explained that if he did so, Respondent would be liable to pay additional unemploy- ment insurance premiums.9 Substantial and unrefuted testimony was elicited by Respondent, which supports O'Donnell's view that Gawron was anything but an ideal employee. A cowork- er, Philip Woloszyn, testified that he often had to redo the filling and sanding of parts assigned to Gawron, par- ticularly as Gawron's work deteriorated in the spring and summer of 1984. John McGovern, the shop supervi- sor, testified that frequent verbal warnings were neces- sary, prompted by the poor quality of Gawron's work; broken equipment left in Gawron's charge, and a pro- longed series of pranks at the workplace, including play- ing catch with a tapeball, torturing insects, throwing nuts and bolts, tossing frisbees , playing hockey with pieces of the fiberglass, making a voodoo doll with sections of gas- kets, and taping the letters "POW" on the back of his shirt. This behavior was relayed to Phil O'Donnell, who credibly testified that he warned Gawron to cease this conduct. As the quality of Gawron's work deteriorated, McGovern testified that he and O'Donnell considered discharging Gawron in April 1984. Although O'Donnell 7 His regular reporting time was 8 30 a in 9 The above is based on the credited testimony of O'Donnell Gaw- ron's version of the final incident of 10 September is somewhat different, in that he alleges that O'Donnell told him that he no longer had a posi- tion with the company " However, it is clear that even under Gawron's version it was understood by him, that he could still work for Respond- ent as a full-time employee if he so chose e In fact Gawron subsequently applied for unemployment benefits, which were denied because he returned to school NIAGARA FIBERGLASS 87 rejected that option,1 O McGovern did threaten termina- tion after Gawron had persisted in breaking sawhorses used to paint the parts in April 1984. 111. ANALYSIS The General Counsel contends that Respondent's deci- sion to deny Gawron's request for a change to part-time status in July, and again in September 1984, was motivat- ed by unlawful considerations, and in view of its knowl- edge that Gawron could not remain as a full-time em- ployee, amounted to a constructive discharge in violation of Section 8(a)(1) and (3) of the Act. The General Counsel argues that the record establishes that Respondent was aware of Gawron's activities on behalf of the Union, demonstrated animus towards em- ployees who engage in such conduct, and provided pre- textual reasons for its decision denying Gawron's re- quest. I am in agreement with the General Counsel's po- sition with respect to Respondent's knowledge, as O'Donnell admitted that he was informed by Gawron of Gawron's leadership role in bringing in the Union. How- ever, knowledge of union activity in and of itself is not sufficient to support an allegation of discriminatory con- duct. The record must also establish a sufficient quantum of antiunion hostility on the part of Respondent to war- rant the conclusion that Respondent's actions were moti- vated by Gawron's union activities. Albertson's Inc., 252 NLRB 529, 537 (1980); Fibracan Corp., 259 NLRB 161, 171 (1981). I am not persuaded that the General Counsel has met her burden in this regard. The evidence does establish that Respondent by O'Donnell made several antiunion comments to employees, including statements that work rules would be stricter should the Union be elected, and that unionization would result in a disruption of the em- ployer-employee relationship. These remarks do show Respondent's animosity towards the Union, although I need not and do not make a finding whether these re- marks are violative of Section 8(a)(1) of the Act, in order to so conclude. Best Products Co., 236 NLRB 1024, 1025 (1978); Sun Hardware Co., 173 NLRB 973 (1968). However, I do not believe that these statements evi- dence a sufficient amount of antiunion animus or hostility on the part of Respondent to convince me that its ac- tions with regard to Gawron were motivated by his ac- tivities on the Union's behalf. Perhaps recognizing this deficiency in its evidence, the General Counsel places substantial reliance on the oft- cited principle enunciated in Shattuck Denn Mining' 11 that if an asserted motive for an action is found to be false, then the trier of fact can infer another motive; an illegal one. The General Counsel contends therefore that the record establishes that the reasons asserted by Re- spondent for its treatment of Gawron are false and pre- textual, and that it is then appropriate to infer an illegal motive to explain Respondent's actions. I now turn to an examination of these contentions. 1° As noted above, Gale also recommended to O'Donnell that Gawron be terminated , but O'Donnell did not concur and Respondent decided to permit Gawron to remain as an employee 11 151 NLRB 1328 (1965) The General Counsel concedes that Respondent had no legal obligation to grant Gawron's request to change to part-time status. However, the General Counsel con- tends that the reasons given by Respondent for its denial of the request were so implausible that the conclusion is warranted that union animus motivated the decision. The General Counsel stresses the fact that Respondent admit- tedly hoped that Gawron would quit when his request was denied, thereby causing Respondent to lose an expe- rienced employee, at a time when it was continuing to hire part-time employees. Insofar as the record revealed substantial evidence of Gawron's poor work perform- ance, the General Counsel contends that such testimony was either false, because an employee with such a dread- ful record would have been discharged, or Respondent condoned such prior work and had decided not to take action based on Gawron's shortcomings. Although the General Counsel's arguments in this regard have some surface appeal, on closer examination and analysis, they do not withstand scrutiny. In fact the record is replete with uncontradicted and compelling evidence of Gawron's poor work record and Respondent's expressed dissatisfaction with same in vari- ous areas of his performance. These problems included poor quality of his work, numerous pranks and horsing around while on the job, and prolonged attendance defi- ciencies. Gawron was warned on several occasions by various Respondent's officials about such behavior, and in fact O'Donnell had rejected recommendations from other supervisors and officials that Gawron be terminat- ed. Such overwhelming evidence of Gawron's work problems cannot be blithely explained away as false, as urged by the General Counsel. Concerning the argument that Respondent condoned such behavior, I find that the record does not support such a conclusion. It must be noted herein that Respondent did not in fact discharge Gawron. In my view, the severe penalty of discharge is not always an easy decision for employers to make, and I conclude that O'Donnell was reluctant to do in this case. However, that does not mean that an employer must grant requests of such an employee for a change of status. I find O'Donnell's testimony that, although he did not wish to fire Gawron at that time, he also did not feel it necessary to accommodate such an employee, to be a perfectly reasonable, plausible, and credible explanation for his actions. Moreover, O'Donnell also testified credi- bly that another reason for its position was that if Gawron were to be fired, Respondent would be liable for unemployment insurance premiums, although it would not be so liable if Gawron quit.12 Concerning the General Counsel's contention that O'Donnell's admission that he hoped that Gawron would quit establishes discriminatory conduct by Respondent, the much-cited Board opinion in Klate Holt Co., 161 NLRB 1606, at 1612 (1966), disposes of such an argu- ment: If an employee provides an employer with sufficient cause for dismissal by engaging in conduct for 12 Indeed , it turned out subsequently that Gawron's application for un- employment benefits was denied 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which he would have been terminated in any event, and the employer discharges him for that reason, the circumstance that the employer welcomed the opportunity to discharge does not make it discrimi- natory and therefore unlawful. Moreover, and perhaps most significantly, the record establishes that Respondent had initially denied a request by Gawron to reduce his hours, prior to any union activi- ty. Thus in late April, before the employees even began to discuss bringing in a union, Gawron, because of a Wednesday course that he was taking, asked O 'Donnell to be allowed to take the entire day off and to reduce his hours from 40 to 32 per week. O'Donnell, however, denied Gawron's request and suggested that he make up the time on Saturdays or on overtime. Thus, Respondent did not accommodate Gawron's request at that time, prior to any union activity , for a reduction of his hours, which was, in effect, a similar request to his subsequent desire for part-time status. Thus, Respondent's actions in July and September in denying Gawron permission to reduce his hours from 40 to 20 per week was consistent with decisions made and standards set prior to Respond- ent's awareness of the Union 's campaign. Mini Industries, 255 NLRB 995 fn . 2 (1981). Accordingly, based on the above analysis, I conclude that the General Counsel has not met the burden of dem- onstrating that union activity of Gawron was a motivat- ing factor in Respondent's decision to deny his request for a change to part-time status in July and September 1984. I shall therefore recommend that the instant complaint be dismissed. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not violated the Act as alleged. On the foregoing findings of fact , conclusions of law, and the entire record, and pursuant to Section 10(c) of a the Act, I issue the following recommended" ORDER The complaint is dismissed in its entirety. 13 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules , be adopted by the Board and all objections to them shall be deemed waived for all pur- poses