Production Plated Plastics, 595 (1980)
PRODUCTION PLATED PLASTICS
Production Plated Plastics, Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW).
Cases 7-CA-14599 and 7-CA-14990
January 28, 1980 DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND TRUESDALE
On August 27, 1979, Administrative Law Judge James T. Youngblood issued the attached Decision in this proceeding. Thereafter, the General Counsel and Respondent filed exceptions and supporting briefs and Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein.
The Administrative Law Judge found that Respondent had committed various violations of Section 8(a)(1), (3), and (5) of the Act in this proceeding. We agree with those findings, and the Administrative Law Judge's reasoning supporting them, with the following modifications, described below:
The Administrative Law Judge found that a change instituted by Respondent which involved its decorating department employees' restroom privileges was a violation of Section 8(a)(1), (3), and (5). We agree, as explained below.
On September 15, 1977, an election was held at Respondent's Richland, Michigan, plant in which a majority of the employees at that plant chose the Union as their collective-bargaining representative.
Respondent thereafter filed objections to the election.
While the objections were pending, on October 22, 1977, the Union requested that Respondent begin contract negotitations. That same week, without notifying the Union, Respondent instituted a new restroom use policy in its decorating department,
Respondent has 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 resolution with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Productrs Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings.
We agree with the Administrative Law Judge that it is unnecessary to reach the issue of whether Respondent violated Sec. 8(aX5) of the Act by refusing to bargain with the Union prior to its certification because the record shows that Respondent has engaged in a post-certification refusal to bargain.
247 NLRB No. 76 requiring that employees sign out in order to use the restroom and providing that employees would be disciplined if they signed out more than five times each week. Before this change, employees were required merely to obtain permission from a supervisor or line leader prior to using the restroom. The Administrative Law Judge found that this change was in retaliation for the Union's election. In reaching this conclusion he relied on the timing of the change and on his finding that the decorating department had been identified by Respondent as the most prounion department in the plant.
In its exceptions, Respondent argues that the record does not support a finding that it had identified the decorating department as the most prounion department. It also argues that the change found to be retaliatory was instituted for legitimate business reasons and was the culmination of a series of changes made to correct sagging production due to excessive restroom breaks by employees in that department.
Specifically, Respondent argues that between January and October it had counseled its supervisors and line leaders to enforce existing rules more stringently, and that it had instituted its new policy only after it became clear that supervisory employees were not enforcing the rules, and were, in fact, abusing them themselves.
We agree with Respondent that the record does not indicate that the decorating department had been identified as the most prounion department in the plant. However, the record does support the finding that the decorating department was markedly prounion, and known to be such by Respondent Furthermore, contrary to Respondent, the record also supports an inference of unlawful motivation from the timing of the change because Respondent has failed to substantiate its defense of business justification. In this regard, the Administrative Law Judge noted correctly that, although Respondent claimed that the problem of excessive breaks existed as early as January 1977, there is no evidence that any employee had actually been disciplined for such alleged abuse until after the election. And, although not noted in the Administrative Law Judge's Decision, Respondent also failed to present evidence that any supervisory employee had ever been disciplined for abusing restroom breaks, or for failing to enforce plant rules. Likewise no evidence In reaching this conclusion, however, we do not rely on the Administrative Law Judge's erroneous statement that the complaint alleges, and the answer admitted, that Respondent failed to respond to a March 17, 1978, postcertification request by the Union for bargaining information. Rather, we rely on the fact that Respondent's post-certification failure to supply certain information to, and to bargain with, the Union has been fully litigated and proven in this proceeding.
We also note that, because we make no finding regarding a precertification refusal to bargain on Respondent's part, we find it unnecessary to pass on the Administrative Law Judge's statement that the General Counsel's argument on this issue may be 'meritorious.' 595
DECISIONS OF NATIONAL LABOR RELATIONS BOARD was presented to substantiate Respondent's claims that decorating department production was sagging and that employees in that department were taking more breaks than employees in other departments. We therefore conclude that the Administrative Law Judge was correct in rejecting Respondent's argument of a business justification for its change, inferring an unlawful motivation from its timing.' 2. The Administrative Law Judge found that the demotion of employee Harvey Hanna in August 1977 and his discharge in October 1977 were violations of Section 8(a)(3). As explained below, we agree.
The Administrative Law Judge found that, at the beginning of August 1977, Harvey Hanna was employed in Respondent's engineering department, doing work which involved deciding the allocation of job assignments within the plant, but immediately after a mid-August conversation in which a supervisor interrogated him concerning his prouniou sentiments Hanna began receiving what he considered to be 'bottom-line jobs' which involved plant maintenance and physical labor. The Administrative Law Judge also found that, approximately 2 months later, Hanna was summarily discharged, allegedly for using the restrooms prior to his break.
The Administrative Law Judge found Hanna's job change was a demotion and was in violation of Section 8(a)(3). He rejected Respondent's testimony that Hanna was transferredout of the engineering department due to its elimination for lack of work, since he found that an employee with less seniority than Hanna remained in the department following Hanna's transfer. He also found Hanna's discharge violated Section 8(a)(3). In so doing, apparently he relied for an inference of unlawful motive on the demotion and on finding that, prior to his discharge, Hanna had been harassed with disciplinary actions by a supervisor who admitted to Hanna that he had been under pressure from management to discipline and to terminate employees because ofthe union campaign.
With regard to the demotion, we find that the record does not show that an employee with less seniority than Hanna remained in the engineering department after Hanna's transfer. However, the record does show that during August there were five to seven employees in that department, other than Hanna. Respondent failed to present any convincing evidence to show that any employees other than Hanna were transferred or to explain why it was necessary to transfer Hanna to a job where he was assigned menial duties. We regard this omission as a ' In finding that the change in Respondent's restroom policy violated Sec.
8(aX5) as well as Sec. 8(aX3) of the Act, the Administrative Law Judge apparently relied, in part, on his finding that the change was discriminatorily motivated. However, while such a finding is a prerequisite for establishing a violation of Sec. 8(a)(3), it is not a prerequisite for finding a violation ofSec.
failure of proof on Respondent's part. Thus, we find that the timing of the demotion, following as it did Hanna's interrogation, coupled with Respondent's failure to introduce any objective evidence to negate the inference of unlawful motivation from this timing, supports the finding that Hanna's demotion was unlawful.
With regard to the discharge, we find that the Administrative Law Judge correctly relied on appropriate factors in finding a violation. We also note that his finding of unlawful motive is supported by the additional evidence that Hanna had never been disciplined at the time of his discharge for using the restroom during working time, the offense for which he was discharged, while the record shows that employee Sarah Chapman had been given at least six warnings for the same conduct without having been discharged.
While we agree with the Administrative Law Judge that Respondent violated Section 8(a)(5) of the Act by withholding a Christmas bonus without first bargaining with the Union, we substitute the following remedy for that proposed by the Administrative Law Judge for the...
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