NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,557, FORMS CORPORATION OF AMERICA and LOCAL 415-S GRAPHIC COMMUNICATIONS INTERNATIONAL UNION, AFL-CIO., (Nov. 14, 1994), National Labor Relations Board, (Nov 14, 1994)

FORMS CORPORATION OF AMERICA and LOCAL 415-S GRAPHIC COMMUNICATIONS INTERNATIONAL UNION, AFL-CIO.

315 NLRB No. 75.Case Nos. 33-CA-9369 and -9392. November 14, 1994 Elbert D. Gadsden, Administrative Law Judge..

Before Stephens, Devaney and Cohen.

Will Vance, for General Counsel. John S. Schauer (Seyfarth, Shaw, Fairweather & Geraldson), Chicago, Illinois, for Respondent. Susan Brannigan (Asher, Gittler, Greenfield, Cohen & D. Alba, Ltd.), Chicago, Illinois, for Charging Party.

Discrimination--Pretextual Nature of Reason--Known Union Organizer.--By discharging an employee who had openly engaged in union organizing activity, an employer discriminated against him. As a pretextual basis for the termination, the employer attempted to demonstrate that the employee was fired after violating its attendance policy. However, that defense was found to be baseless because the employee had not accumulated enough points under the attendance system to merit discharge. Further, after calling in sick, the employee was told by a supervisor that he need not call in again until the morning of the day he was to return to work. Section 8(a)(3).

Back reference: ¶4095.1745.

Supplemental decision following (1993) 312 NLRB--(No. 56), 1993-94 CCH NLRB ¶15,058.

From Text of Board’s Decision

On September 21, 1993, the Board issued a Decision and Order Remanding this proceeding to the judge for the limited purpose of making credibility findings on two issues: (1) whether employee Steve Shelton called in sick on February 18, 1991; and (2) whether Plant Manager William Barclay told Shelton of February 21, 1991, that he need not call in until the morning of the day that he would be returning to work. [1]

On February 14, 1994, Judge Gadsen issued the attached supplemental decision. The Respondent filed exceptions and a supproting 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 affirm the judge’s rulings, findings, [2] and conclusions and to adopt the recommended Order of Judge Gadsden’s January 21, 1993 decision.

312 NLRB 269.

The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative 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. [19 LC ¶66,308] 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

Here the judge based his findings not only on the demeanor of the witnesses, but also on the weight of the evidence, established or admitted facts, inherent probabilities, and reasonable inferences drawn form the record as a whole. In particular, we agree with the judge’s finding that Steve Shelton did not accumulate the seven points warranting discharge pursuant to the Respondent’s attendance policy prior to his termination on Wednesday, February 27, 1991. Shelton had accumulated three points when he called in sick on Monday, February 18, 1991, and accrued a fourth point as “absent with notice,” on that day. Shelton accrued a fifth point with a similar call the next day. However, Shelton accrued no further points that week because the Respondent viewed his absence as a continuing illness and Plant Manager William Barclay told Shelton on Thursday, February 21, 1991, that he need not call in until the morning of the day he would be returning to work. Shelton did this on Wednesday, February 27, 1991. At this time, Shelton had five points, two points fewer than the number required for discharge and five points fewer than the number alleged by the Respondent. The Respondent therefore failed to rebut the General Counsel’s prima facie case that Shelton’s discharge was discriminatory. The judge correctly found pretextual the Respondent’s assertion that Shelton was discharged because he accumulated more than seven points pursuant to the Respondent’s attendance policy.

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,557, FORMS CORPORATION OF AMERICA and LOCAL 415-S GRAPHIC COMMUNICATIONS INTERNATIONAL UNION, AFL-CIO., (Nov. 14, 1994), National Labor Relations Board, (Nov 14, 1994)

FORMS CORPORATION OF AMERICA and LOCAL 415-S GRAPHIC COMMUNICATIONS INTERNATIONAL UNION, AFL-CIO.

315 NLRB No. 75.Case Nos. 33-CA-9369 and -9392. November 14, 1994 Elbert D. Gadsden, Administrative Law Judge..

Before Stephens, Devaney and Cohen.

Back reference: ¶4095.1745.

Supplemental decision following (1993) 312 NLRB--(No. 56), 1993-94 CCH NLRB ¶15,058.

From Text of Board’s Decision

On February 14, 1994, Judge Gadsen issued the attached supplemental decision. The Respondent filed exceptions and a supproting brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

312 NLRB 269.

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,557, FORMS CORPORATION OF AMERICA and LOCAL 415-S GRAPHIC COMMUNICATIONS INTERNATIONAL UNION, AFL-CIO., (Nov. 14, 1994), National Labor Relations Board, (Nov 14, 1994)

From Text of Board’s Decision

Footnotes

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,557, FORMS CORPORATION OF AMERICA and LOCAL 415-S GRAPHIC COMMUNICATIONS INTERNATIONAL UNION, AFL-CIO., (Nov. 14, 1994), National Labor Relations Board, (Nov 14, 1994)

From Text of Board’s Decision

Footnotes