U.S. Precision Lens, Inc.

U.S. PRECISION LENS 505 U.S. Precision Lens, Incorporated l and Internation- al Molders and Allied Workers Union, AFL- CIO-CLC. Cases 9-CA-23730 and 9-CA- 23896 April 15, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On _November 19, 1987, Administrative Law Judge Stephen S. Gross issued the attached deci- sion. The Charging Party filed exceptions and a supporting brief, and the Respondent filed cross-ex- ceptions and an answering brief. 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, fmdings, 2 and conclusions2 and to adopt the recommended Order. 1 The caption has been amended to reflect the correct name of the Re- spondent. 2 The Charging Party 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 Or. 1951). We have carefully examined the record and find no basis for re- versing the findings. In sec. II of his decision the judge inadvertently found that Supervisor Bryant told alleged discriminatee Engle that he thought she was being "set up." The record shows that it was Engle who told Bryant that she thought she was being "set up." 3 We adopt the judge's conclusion that the Respondent violated Sec. 8(a)(4) and (1) of the Act by treating employee Brenda Wilson's days of attendance at the Board hearing as absences that would count against her in the Respondent's "excellent attendance" program. In doing so, we note that, while it is true, as the Respondent argues, that the analogous violations found in Electronic Research Co., 187 NLRB 733 (1971), and Electronic Research Co, 190 NLRB 778 (1971), were predicated on a theory of discriminatory treatment, the Board developed a different theory of violation in Western Clinical Laboratory, 225 NLRB 725 (1976). In Western Clinical, the employer had required an employee under Board subpoena to take accrued vacation leave, rather than leave without pay, in order to testify at the Board hearing The Board acknowledged that application of this policy to the employee was not infected by unlawful motive, i.e., not "calculated to discourage" the employee from "partici- pating in a Board hearing." Id. at 726 It found the violation, nonetheless, reasoning that the existence of the policy would inherently tend to have such an effect and that prohibiting it was essential to maintaining "the Board's ability to conduct fair and complete hearmgs." Ibid. Thus, w.hile Western Clinical did not overrule Electronic Research, it clearly added a new basis for finding a violation with respect to employees' participation in Board hearings. Western Clinical clearly controls the present case. Fi- nally, we note that the theory employed here essentially arises from the policies embodied in Sec. 8(a)(4) and (1) of the Act. Appropriate affirma- tive relief can be given without finding an additional 8(a)(3) violation, so we therefore dismiss the 8(a)(3) allegation Member Johansen finds it unnecessary to adopt the foregoing analysis, as, in his view, an employer must treat attendance at a Board hearing no less favorably than other employee absences for legitimate, compelling reasons. We adopt the judge's conclusion that the Respondent's discharge of Engle did not violate Sec 8(a)(3) and (1) of the Act- In so doing, we find ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, U.S. Preci- sion Lens, Incorporated, Cincinnati, Ohio, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. that even assuming arguendo that the General Counsel made a prima facie showing that the Engle's discharge violated Sec. 8(a)(3) and (1), it is clear from the evidence and in light of the judge's credibility resolutions that Engle's discharge would have taken place even in the absence of her protected conduct. See Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Or. 1981), cert. denied 455 US. 989 (1982). James E. Horner, Esq., for the General Counsel Timothy P. Reilly, Esq. (Taft Stettinius & Hollister), of Cincinnati, Ohio, for the Respondent. Wesley Royster, of Piqua, Ohio, for the Charging Party. DECISION STEPHEN J. GROSS, Administrative Law Judge. The Respondent, U.S. Precision Lens, Inc. (USPL), manufac- tures lenses and related products at three plants in Cler- mont County, Ohio. In the spring of 1986 the Charging Party, the International Molders and Allied Workers Union, AFL-CIO, CLC (the Union), mounted an orga- nizing drive at USPL. During the course of that organiz- ing drive USPL fired employee Lisa Engle, who had been actively supporting the Union's campaign. Also when six employees of USPL missed work to testify on the Union's behalf at a Board hearing, USP L deemed them "absent" for certain purposes. This proceeding concerns those acts by USPL. The General Counsel claims that USPL violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) when it fired Engle, and that USPL violated those provisions and Section 8(a)(4) in its treatment of the six employees who appeared as witnesses at the Board hear- ing. For the reasons discussed below, my conclusion is that USPUs treatment of the six witnesses did violate the Act, but that its discharge of Lisa Engle did not.1 I. USPL'S TREATMENT OF WITNESSES Three facets of USPL's attendance policy are relevant here. First, USPL allows its employees a maximum of 15 absences per year. USPL fires any employee who is absent rriore than 15 times. Second, each USP L employ- ee is eligible for two unpaid "personal business clays" 1 This case began on November 12 1986, when the Umon filed a charge in Case 9-CA-23730 (regarding Engle's discharge). The Union filed its charge in Case 9-CA-23896 on 12 January 1987, and then amended it on 26 February A complaint first issued on 29 December 1986 (in Case 9-CA-23730). A consolidated amended complaint issued on 27 February 1987. There are no jurisdictional issues since USPL admits it is an employer engaged in commerce within the meaning of the Act I heard the case in Cincinnati on 23 and 24 July 1987. The General Coun- sel and USPL filed briefs on 8 September 1987 Subsequent to the hear- ing, but pursuant to a discussion at the hearing, the General Counsel moved to introduce into the record two documents labeled G C Exhs. 8(a) and (b). No one has opposed the motion and it is granted. 288 NLRB No. 58 506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD each year. Third, USPL has an "excellent attendance" program. Any USPL employee who works for any 6- month period without being absent earns a "personal paid holiday." Absences for jury duty or funeral leave or personal business days do not count as absences for pur- poses of this program.2 On 14 October 1986, the Union filed a representation petition for an election at USPL, in Case 9-RC-15020. (All events I hereafter refer to occurred in 1986 unless otherwise noted.) The Board held hearings in the matter on November 4 and 17. The Union subpoenaed six USPL employees to testify at that hearing. 3 Those em- ployees did in fact testify, each missing at least 1 day's work to do so. The employees could have, but did not, used personal business days for the purpose. USPL did not deem the six employees absent for pur- poses of its 15-absences-per-year rule. But USPL did deem the employees absent for purposes of its excellent attendance program. For five of the employees the Com- pany's action had no impact on their holiday time: Be- cause of one or more other absences each of the five had incurred, none would have earned a personal paid holi- day anyway. But one employee, Brenda Wilson, would have earned a personal paid holiday had USPL not counted as absences the days she missed because of her attendance (under subpoena) at the hearing. The question is whether USPL violated Section 8(a)(1), (3), or (4) by treating Wilson's days of attendance at the hearing as abSences for purposes of the excellent attendance program.4 The leading case is Western Clinical Laboratory, 225 NLRB 725 (1986), enfd. in relevant part 571 F.2d 457 (9th Cir. 1978). An employee spent several days under subpoena by the General Counsel at a Board hearing. The employee testified on one of those days. The em- ployer treated two of those days, including the day the employee testified, as leave with pay. As for the other days, however, the employer charged them against the employee's vacation time even though the employee asked that they instead be treated as days of leave with- out pay. The record did not show that the employer's action was either "in reprisal for [the employee] having testified at the hearing, or was calculated to discourage him from participating in a Board hearing." Nonetheless the Board concluded that the employer's action violated the Act. . . • we believe that Respondent's actions so inter- fered with [the employee's] rights, and with the 2 USPL's employees' handbook reads. When an employee works for any six consecutive month period without being absent, the employee will earn a personal paid holiday during the subsequent six-month period. Allowable exceptions are limited to time off for jury duty, funeral leave, scheduled vacations, holidays, or other paid incentive days. [Emphasis in original.] 3 Lisa Engle also testified pursuant to a union subpoena, but USPL had already fired hire. 4 The General Counsel claims that USPL's action in respect to all six employees, not Just Wilson, violated the Act. Wilson's situation presents a much clearer case than the circumstances presented by the other five em- ployees. As the remedy will not thereby be affected, I will focus solely on USPL's treatment of Wilson. 5 225 NLRB at 726. Board's processes, that such actions are violative of Section 8(a)(3), (4), and (1) of the Act. In order for the Board to fulfill its obligation to adequately administer the Act, it is necessary that its processes not be unjustifiably fettered by any- thing that precludes parties from participating in such processes free from coercion or restraint. In our opinion, forcing an employee who attends a Board hearing as a witness under subpena to use his accrued vacation time, when he would prefer to take leave without pay, amounts to such restraint regardless of the motive behind such action.6 Here USPL forced Wilson, in order to honor the Union's subpoena, to make the Holson's choice of using her personal business days to cover her attendance at the hearing so as to retain her personal paid holiday or, al- ternatively, not using her personal business days but losing her personal paid holiday. Clearly action of that ilk restrains employees from participating in the Board's processes at least as much as did the employer's action in Western Clinical Laboratory. I, accordingly, conclude that USPL violated Section 8(a)(1), (3), and (4) when it failed to grant Wilson the personal paid holiday she would have been awarded but for her attendance under subpoena at the hearing.7 USPL'S DISCHARGE OF LISA ENGLE Kitty Lung was Engle's immediate supervisor. During the morning of 29 October, Lung assigned some work to Engle that required Engle to use the plant's air-powered staple gun. The staple gun had long had a problem—sta- ples tended to jam in it. Soon after Engle began using the staple gun it did jam. Engle was a grade 3 "opera- tor." And as a matter of company policy, any employee of that classification facing that kind of problem was sup- posed to advise a supervisor of it or have a "set-up" em- ployee fix it. But as a matter of fact, grade 3 operators assigned to use the staple gun routinely undertook to unjam the staple gun themselves, using screwdrivers, nailfiles, pliers, or the like to pry the offending staples loose. Engle accordingly went over to fellow employee Doug Kelsey who, Engle knew, always brought a pock- etknife to the plant. Engle borrowed Kelsey's knife to use on the jammed staple and began to walk back to the staple gun. Engle and another employee testified that as Engle made her way to the staple gun she kept the knife closed—that the blades were folded into the body pocketknife. But as I weigh the evidence, I find that as Engle was walking she opened the knife. When Lung (Engle's supervisor) saw Engle walking with an open pocketknife she stopped Engle and took the knife, saying something on the order of, "Lisa, what the hell are you doing?" 6 id. 7 USPL cites Electronic Research Co., 187 NLRB 733 (1971), in sup- port of its position that USPL's treatment of Wilson did not violate the Act. That case does mvolve a "perfect attendance mcentive award" much like the personal paid holiday here at issue But I do not read Elec- tronic Research to be inconsistent with Western Clinical Laboratory. To the extent it is, of course, Western Clinical Laboratory governs. U.S. PRECISION LENS 507 USPL fired Engle later that morning. When Engle asked why, the manager of the department in which Engle had worked, Mary Eads, said: "for not following safety rules, for carrying an open knife." From the viewpoint of Engle and many other uspi, employees, the reason -Eads gave for firing Engle was a peculiar one. Carrying a knife for work-related reasons was not extraordinary at USPL; employees there use knives for a variety of jobs. Thus discharging Engle for carrying a pocketknife (even if the blades were out) hardly seemed an appropriate response on USPL's part, particularly since Engle was competent at her job and had received "good" ratings on her performance apprais- als. As a result Engle, some of her fellow employees, the Union, and, finally, the General Counsel concluded that the reason USPL fired Engle had to have been Eagle's union activities Engle had been active in the Union's or- ganizing campaign, handing out authorization cards in the plant, and distributing handbills outside each of USPL's three plants. A number of supervisors had seen Engle distributing handbills. And Engle thought Lung had noticed Engle's union card activity. But the fact is that USPL had for some time been on the verge of firing Engle. Indeed, by 29 October (the date of her discharge) Engle had managed to alienate several supervisors at USPL, starting with her immediate supervisor (Lung), and continuing on up to a vice presi- dent of the Company. Under those circumstances, any infraction of USPL's rules by Engle would have meant termination of her employment. Engle's walk through the plant with an open knife was just such an infraction. As I will discuss later, I do not think that any of the supervisors who participated in USPL's decision to fire Engle knew that Engle was actively prounion. Also the record indicates that USPL would not have fired her for her union activities even if anyone in USPL's manage- ment had known them. A. Why USPL Fired Engle For one thing, as touched on in part I, USPL termi- nated its employment of any employee who is absent more than 15 days in any 365-day period—even though the employee has valid excuses for each missed day; and USPL requires supervisors to "counsel" employees whose absences approach that level. Engle was a prob- lem for immediate Supervisor Lung: Engle's absences stayed consistently at the 13- to 14-day-per-year level. Lung spoke to Engle about it in June; another supervisor had spoken to her about it 3 mbnths earlier; and Engle's absences were still at that level when USPL fired her in October. For another thing, Engle detested Lung and let her feelings show. As a result, about 6 weeks before USPL fired Engle, Lung talked to Engle about her attitude, saying that it was "going to have to change." Lung put a memorandum in Engle's personnel file to that effect. (Engle claimed that the problem was that Lung began to be "unfair" to Engle when Engle began her union activi- ties. But the record fails to show that Eagle's union ac- tivities had anything to do with Lung's treatment of Engle.) Several other supervisors, in addition to Lung, consid- ered Engle's behavior to be a problem. USPL's management focuses heavily on safety matters and is relatively unforgiving about employee accidents. On 14 October-2 weeks before she was fired—Engle hurt herself while at work. That led Lung and the plant personnel manager, Eric Grothaus, to meet with Eagle. While that injury might not ordinarily have been deemed significant: (1) Engle had had another accident, albeit very minor, 2 months earlier; and (2) from the viewpoint of Lung and Grothaus, the accident on 14 October oc- curred because Engle failed to follow company policy in the way she lifted a box full of parts and, in addition, Engle lied about how the accident occurred. The upshot of these circumstances, together with Engle's attendance record and her problems with Lung, was that Grothaus told Engle that her employment at USPL was "on shaky ground" and that she needed to make some improvement if she wanted to continue working there. Grothaus put a memorandum in Engle's personnel file to that effect. Not long after her meeting with Lung and Grothaus, Engle asked for copies of the papers in her personnel file. USPL's vice president of human resources, Jerome Behne, opted to have Engle review the file in his pres- ence rather than to give her the copies she wanted. The meeting took place on 22 October, Mary Eads (Engle's department manager) joined Behne and Engle. The meet- ing did nothing to further Engle's career at USPL. I got the impression at the hearing that Engle tends not to take any responsibility for the problems that crop up in her life; that instead she tends to blame other people for them. Behne got that same impression during the course of the meeting. Also, during the course of the meeting Engle grabbed the personnel file out of 13ehne's hand. That infuriated Behne. The meeting ended with a warn- ing by Behne to Engle that if her behavior in the plant did not change, if there was one more incident Belme said he would personally fire her. It was 1 week after Engle's meeting with 13elme that Lung saw Engle walking with an open pocketknife. Lung testified that this is what she saw, and I credit Lung in that I find her testimony represents what she thought she saw: She [Engle] had the knife in her hand, and she was just flicking the blade of her knife, and she was just glaring into my eyes. . . with a hatred look on her. Lung clearly thought that Engle was deliberately com- municating something to the effect that Engle would like to use the knife on Lung. I am confident that Engle did not intend to communicate any such message. But given the nature of the relationship between Engle and Lung, it is easy to understand how Lung may have misper- ceived the situation and then jumped to the wrong con- clusion. Lung reported the mater to Department Manager Eads. Eads checked with Kelsey (the employee who loaned the knife to Engle) and came away convinced that Engle had indeed been walking with an open pock- etknife. Eads reported that to Behne as well as telling 508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Behne what Lung said she had seen. Given the unpleas- ant nature of Behne's meeting with Engle a week earlier, the outcome was not in doubt. Behne told Eads to fire Engle. B. Animus There is no doubt that USPL's management greatly prefers that USPL's work force remain nonunion and that this preference obtained during the period in which the events in question occurred. On the other hand, there is no evidence at all that, Engle excepted, USPL took any adverse action against any prounion employee for any reason at any time during the course of the cam- paign. Engle was not as active in the organizing drive as some other employees. Additionally, the record fails to show that any supervi- sor involved in Engle's discharge knew that she was as- sisting in the Union's organizing drive. As touched on earlier, a number of members of USPL's management saw Engle distributing handbills; but Engle always hand- billed with a group of other employees. Although the su- pervisors recognized some of the employees who were engaged in the handbilling (most of whom had been with USPL considerably longer than Engle had), none recog- nized Engle. As for Engle's distribution of authorization cards, I credit Lung's denial that she ever saw Engle engage in any union activity. As a last matter, Engle testified that sometime in Octo- ber Supervisor Ben Bryant told her that he thought she was being "set up." According to Engle, Bryant went on to say: "As long as you keep your temper down and don't miss too many days you'll be all right." Bryant denied that he said any such thing; but I credit Engle. However, as the above discussion indicates, I do not deem that conversation to suggest that USPL fired Engle because of her union activities. THE REMEDY The accompanying recommended Order requires that USPL cease treating employees subpoenaed to testify at Board hearings the way its treated Brenda Wilson. The recommended Order also requires USPL to make Wilson whole by granting to her the personal paid holiday that she would have received had USPL not deemed her days of attendance at the Board hearing to be absences for purposes of its excellent attendance program. The General Counsel urges that the recommended Order include a visitatorial provision that would author- ize the Board to engage in discovery, if necessary, to monitor compliance with the Order. But it does not appear to me that imposing this kind of provision would be appropriate given the circumstances of this case. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- eds 8 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. ORDER The Respondent, U.S. Precision Lens, Incorporated, Cincinnati, Ohio, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Deeming any employee's absence from work in order to attend a hearing, under subpoena, before the National Labor Relations Board to be an absence for purposes of Respondent's excellent attendance program. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make whole employee Brenda Wilson in accord- ance with the remedy section of the decision. (b) Post at its plants in Clermont County, Ohio, copies of the attached notice marked "Appendix." 9 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. IT IS FURTHER RECOMMENDED that the complaint is dismissed insofar as it alleges other violations of the Act. 9 If this Order is enforced by a judgment of a United States court of appeals, the words in the nonce reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT treat your absences from work in order to testify at an NLRB hearing, under subpoena, as ab- sences for purposes of our excellent attendance program. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your rights guaranteed by Section of the National Labor Rela- tions Act. WE WILL make employee Brenda Wilson whole by granting to her the personal paid holiday that she would have received had we not treated her days of attendance U.S. PRECISION LENS 509 under subpoena at an NLRB hearing as absences for pur- poses of our excellent attendance program. U.S. PRECISION LENS, INCORPORATED