Brown Mfg. Corp.Download PDFNational Labor Relations Board - Board DecisionsMay 2, 1978235 N.L.R.B. 1329 (N.L.R.B. 1978) Copy Citation BROWN MANUFACTURING CORPORATION Brown Manufacturing Corporation and United Steel- workers of America, AFL-CIO-CLC. Case 15- CA-6443 May 2, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On February 8, 1978, Administrative Law Judge Robert C. Batson issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting 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 record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified. 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Brown Manufacturing Corporation, Ozark, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as modified: Add the following as paragraph 1(f): "(f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act." I The General Counsel has excepted in part to certain credibility determinations made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. The reference to "Rule 24," which appears in sec. III, 2, of the Administrative Law Judge's Decision, appears to be an inadvertent error which is hereby corrected to read "Rule 22." 2 The Administrative Law Judge inadvertently failed to conform his recommended Order with his findings. We shall therefore correct his recommended Order accordingly. DECISION 1. STATEMENT OF THE CASE A. Proceedings ROBERT C. BATSON, Administrative Law Judge: This proceeding under the National Labor Relations Act, as 235 NLRB No. 189 amended, 29 U.S.C., § 151, et seq. (herein called the Act) was heard by me at Ozark, Alabama, on July 28, 1977,1 based upon a complaint and notice of hearing issued by the Regional Director for Region 15 (New Orleans, Louisiana), on June 14, growing out of a charge filed by United Steelworkers of America, AFL-CIO-CLC, herein called the Union, against Brown Manufacturing Corporation, herein called Respondent. All parties participated through- out by counsel or other representatives and were afforded full opportunity to present evidence and arguments, and to file briefs. Briefs have been received from counsel for the General Counsel and counsel for Respondent. B. Issues The principal issue litigated was whether Respondent discharged David R. Roberts on April 13, because of his union and other protected concerted activities, in order to discourage his and other employees' union and protected concerted activities in violation of Sections 8(aX3) and (1) of the Act. Other issues litigated were whether Respondent, by its supervisor and agent, Production Manager William P. Brown, violated Section 8(a)(1) of the Act by: (a) on or about January 5, orally informing an employee there was no way a union was going to come into Respondent's facility; (b) on or about April 16, orally instructing an employee to remove all union campaign stickers from his person; (c) on or about April 15, threatening an employee by orally informing the employee that Respondent would sell the plant if the Union won the election; (d) on or about April 15, orally threatening an employee with loss of benefits if the Union won the election; and (e) on or about April 26, creating the impression of surveillance of union activities by informing an employee that Respondent was aware that said employee was the leading union adherent. Also presented as a legal issue is whether sections I-4 and 2-22 of Respondent's company rules, which were admit- tedly promulgated and published in September 1976, violates Section 8(aX I) of the Act. Upon the entire record, including consideration of able briefs by counsel for the General Counsel and Respondent, and my observation of the testimonial demeanor of the witnesses, 2 I make the foll wing: 1 All months and dates hereinafter are 1977 unless otherwise indicated. 2 The facts found herein are based on the record as a whole and on my observations of the witnesses testifying under oath. Credibility resolutions have been derived from such record and observations with due regard for the logic of probability under the teachings of N.LR.B. v. Walton Manufacturing Company, 369 U.S. 404 (1962). No testimony has been pretermitted and testimony not discussed has been in conflict with credited testimony or is incredible and unworthy of belief. 1329 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 11. JURISDICTION The complaint alleges, Respondent admits, and I find that at all times material herein Respondent was an Alabama corporation with offices and a place of business located at Ozark, Alabama, where it is engaged in the manufacture of farm implements. During the immediately preceding 12-month period, a representative period, Re- spondent, in the conduct of its business operations, purchased and received goods and materials valued in excess of $50,000 which were shipped directly to it from points located outside the State of Alabama. During the same period of time, Respondent sold and shipped goods and materials valued in excess of $50,000 directly to points located outside the State of Alabama. I find that at all times material herein Respondent is, and has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint alleges, Respondent admits, and I find that at all times material herein United Steelworkers of America, AFL-CIO-CLC, is, and has been, a labor organization within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES Facts as Found 1. Background - union and concerted activities As noted supra, section II, Respondent operates a farm implement manufacturing plant at Ozark, Alabama, as a corporate entity owned by Paul Brown and his sons William P. Brown, who occupies the position of production manager, and Larry Brown, who occupies the position of artist. During material times herein, Respondent employed 28 to 35 employees. Insofar as this record reveals, the campaign mounted by the Union here during the spring of 1977 is the first union activity at Respondent. The testimony concerning the inception of the campaign, allegedly in early March 1977, is scant and, although uncontradicted, is, as more fully set out hereinafter, unreliable. Alleged discriminatee David Roberts testified that in early March he contacted Union Representative David Newell in Dothan, Alabama, but does not relate the content of any discussion with Newell, or whether or not he obtained union authorization cards at that time. Roberts also asserts that he signed a union card in his home on March 10, and that he solicited and obtained signed union authorization cards from 22 other employees, but does not state when or where such activity occurred. Three union meetings were held at the Holiday Inn in Ozark on April 14, the day after Roberts' termina- tion, April 21 and 26.3 3 Although all of Roberts' alleged union activities and the timing thereof, are clearly susceptible of corroboration, no corroboration was offered. While the General Counsel called as witnesses, three other union adherents who, it appears, could have corroborated Roberts' testimony with respect to the timing and extent of his union activities, no attempt was made to do so. Conclusional testimony was elicited from James (Eddie) Howell to the effect that to his knowledge "Dave" (Roberts) headed the union campaign. With respect to the protected concerted activities, con- tended by the General Counsel to be relevent in establish- ing animus to such concerted or union activities, in September 1976 a group of employees estimated by Roberts to be between 18 and 25 and by "Eddie" Howell to be 10 to 15, met approximately 2 miles from the plant to discuss their wages and apparently other work related problems. This meeting was precipitated by the fact that the employees had not received a wage increase in 2 years while their insurance premiums had been raised by $4 per week. At this meeting Roberts testified that he was elected to attempt to set up a meeting with Paul Brown to discuss their wages. A few days later a meeting was held in the plant lunchroom with Brown but it is not clear who arranged, or requested, the meeting. As discussed more thoroughly under the section of this Decision dealing with the discharge of Roberts, it appears that due to some alleged intervening events, Roberts may not have arranged the meeting. At this meeting Brown inquired several times as to what the employees wanted to discuss prior to any employee speaking up. After about the third inquiry, Eddie Howell told him that the employees wanted more money. Brown advised them that he could not afford to give a raise at that time and he did not know when he would be able to do so. Several other employees, including Roberts who cannot remember what he said, also made some comments during the course of the brief meeting. Eddie Howell testified that at some time during the meeting Roberts stated something to the effect "You mean you want us to go back to work and work hard not knowing when they can expect a raise." Billy Brown substantially corroborates Howell as to the extent of Roberts' par'icipation in the meeting with Paul Brown. This record does not disclose any further company knowledge of employees' concerted or union activities prior to approximately April 15, when employees began wearing union insignia. 2. The 8(a)(l) Allegations Billy Brown, son of owner Paul Brown and production manager at the plant, is the only supervisor alleged to have interfered with employees in the exercise of their Section 7 rights. Anthony Lasner testified that on January 5, during an employment interview when he was hired by Billy Brown, Brown explained the published company rules and told him the rules had been made because "the employees have tried to get more money or something like that, and that they had to make up some rules." 4 Lasner asserts that Brown continued by saying, "There was no way the Union could get started at Brown Manufacturing." On cross- examination Lasner testified that Brown was talking about the rules and how they got started but seemed uncertain as However, he testified to no facts which would support this conclusion. Moreover, Union Representative Newell, who was present at Counsel table throughout the hearing, and could have corroborated the timing of Roberts' contact with him, was not called by the counsel for the General Counsel to do so. 4 The foregoing is based on Lasner's testimony and is not denied by Brown. 1330 BROWN MANUFACTURING CORPORATION to what Brown had said about the Union coming into the plant.s Brown did not deny discussing the rules with Lasner and telling him that the employees' attempt to get more money had precipitated the promulgation of the rules. While Lasner's testimony was vague and equivocal, particularly on cross-examination, and he was unsure as to the precise words used by Brown in the conversation, I am persuaded that Brown did make some comment concern- ing the Union's coming into the plant. In view of the finding hereinafter that two of the company rules are invalid, which Brown informed an applicant for employment had been promulgated to thwart the employees' concerted efforts to obtain more money, I find and conclude that Brown's statements concerning the purpose of such invalid rules violates Section 8(a)(1) of the Act. Were the rules to which Brown alluded valid such conclusion would not obtain for there would be no basis warranting an inference that Respondent would resort to unlawful means to thwart concerted or union activities. James E. (Eddie) Howell testified that in mid-April6 he and Frank Brown (not related to the owners) talked about the Union on company time. Howell stated that he thought he could be fired for such activity and went to Billy Brown and told him that he and Frank had been talking about the Union on company time and asked if he were going to be fired for it, and, if so, requested that Brown do it then. Brown assured Howell that he was not going to fire him for such activity because Frank Brown was as liable to being fired for it as Howell. Howell then asked the reason for Roberts' discharge and was told by Brown that it was "insufficient work," explaining that Roberts was stretching a 2- or 3-hour job into 6 or 7 hours. Howell then asked Brown why they didn't close the place, to which Brown replied that he did not want to close but wanted to keep the plant and work with it and make it bigger and better and some day leave it to his son. Brown allegedly continued that if the Union came in they wouldn't be able to afford it and would have to sell the place and could just sit back and not do anything if they didn't want to. Howell again inquired as to the real reason Roberts was fired and again Brown told him, "insufficient work." Howell responded, "Well, most everybody thinks it's because of the Union." Brown replied that it was not because of the Union since he didn't know anything about the Union at that time. Brown related to Howell that as Roberts was leaving his office on the day he was discharged, Roberts had said that the Union was going to come in anyway.7 Howell testified that Brown continued by telling him that if the Union came in it really wouldn't do him any good because they didn't have to give any more money or anything and if the Union came I Brown denies that he told any employee in January that there was no way a union could get started at the plant, stating that he had no reason to do so at that time, presumably since there was no union activity in January. e The original complaint alleged April 17, as the date of the alleged violations discussed here, and Howell testified the events occurred on April 17. However, after counsel for the General Counsel's attention was called to the fact that April 17 was a Sunday, the complaint was amended to allege April 15. 7 Counsel for the General Counsel elicited testimony from Howell to the effect that upon Brown's disavowal of any knowledge of union activity at the time of Roberts' discharge. Howell indicated disbelief of the disavowal, by asking, "How was it that Larry Brown (Billy's brother) knew about the Union and he (Billy) didn't...." Brown replied that he did not know in they could - "If they wanted to they could take the benefits we had now away from us. That they weren't required to give us but three things, and that was our pay each week and two other things." Billy Brown testified extensively at the hearing but was not questioned with respect to these events, thus, the conversation remains undenied. I find that Brown did advise Howell that in the event the Union came in, the plant could be closed although he would prefer to keep it open and that he also told Brown that benefits they currently had could be taken away from them. Such statements clearly constitute threats which interfere with, restrain, and coerce employees in the exercise of their Section 7 rights and therefore violate Section 8(aX)1) of the Act. The fact that Howell initiated the conversation with Brown does not detract from the coercive nature of the threat that the plant could be closed and they (the owners) could sit back and do nothing and that if Respondent wanted it could take away the benefits the employees already had. On April 26, Howell drove up to the gas pumps at the plant and encountered Billy Brown who was "gassing up" his car. Brown told Howell he had heard from several people that Howell was the ringleader of the Union. Howell told Brown he didn't know who he had heard it from to which Brown replied, "several people, but it didn't matter to him." Both men laughed, and the conversation continued for another couple of minutes on other subjects. Brown admits this conversation. The General Counsel alleges this to constitute impression of surveillance of union activities. The General Counsel has sustained this allegation. The fact that Brown identified the alleged source of his information that Howell was the "ringleader" of the union activity does not negate the coercive effect of the communication to its employees that it was being informed of their union activities, North Valley Lumber Sales, Inc., 229 NLRB 1209 (1977). Nor does the fact that Brown's statement was accompanied by laughter blunt the coercive effect of the communication that he was being informed about the union activity by other employees. See Ethyl Corporation, 231 NLRB 431 (1977), and Lucy Ellen Candy Division of F & F Laboratories, Inc., 204 NLRB 121 (1973). Approximately April 26, employee Robert Edward Munn appeared at work with 15-20 paper "stickers" bearing some unspecified prounion legend stuck on his company-owned helmet. Shortly after worktime, at or about 7:30 a.m., Billy Brown told Munn, "you have to Larry knew about it. Howell then told Brown that Larry had told Buddy Yardberry (another employee) that if the Union came in, Paul Brown (the father) would close the plant. The purpose of eliciting this testimony is not clear. To the extent it is offered for the truth that Larry Brown (not alleged as a supervisor or agent in the complaint as amended at the hearing) told an employee the plant would close if the Union came in, it is rejected on the grounds such testimony is clearly inadmissible hearsay. While it is unclear from the brief of counsel for the General Counsel, it appears that the testimony was offered for the purpose of imputing Larry Brown's alleged knowledge of union activities to Billy Brown. Since the testimony has no probative value in establishing Larry Brown's knowledge of the union activity there is no basis warranting an inference that such knowledge was imputed to Billy Brown. 1331 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remove the stickers from your hood," and gave him an hour and a half to accomplish the task.8 Munn removed the stickers from the hood and stuck an equal number on his tee-shirt, 9 and took the hood back to Brown to show him he had complied with the order. Brown asked Munn why he was wearing so many union stickers and pins on his clothing to which Munn replied to the effect that he was wearing as many as he thought necessary to promote the Union. Munn testified that Brown told him, "Well accord- ing to my lawyer you can't wear but one." ' 0 Munn asked Brown if it were true that those who had anything to do with the Union were going to be fired. Brown replied, "No." Apparently Munn continued to wear the union stickers on his apparel. Counsel for the General Counsel, reciting the facts set forth above in the post-hearing brief," urges "that Brown's actions and conduct with respect to employee Munn are violative of Section 8(a)(1) of the Act." With respect to Brown's order to Munn, a welder, to remove the flammable paper stickers from his protective helmet on the grounds that such presented a fire hazard, I find Respondent's order to remove the paper stickers from the protective helmet was motivated by a legitimate and not unwarranted concern about the threat to safety posed by such adornments on the helmet in accord with the Board's opinion in Andrews Wire Corp., 189 NLRB 108 (1971); see also Standard Oil Company of California, Western Operations, Inc., 168 NLRB 153 (1967). Therefore, Respondent did not violate Section 8(a)(1) of the Act by ordering removal of such insignia. Nor do I deem Brown's rhetorical inquiry of Munn as to why he was wearing so many union insignia on his apparel and that according to his lawyer he could wear only one to be violative of Section 8(a)(l) of the Act. Brown did not request Munn to remove all insignia except one and Munn continued to wear the 20-30 emblems on his apparel. In late September 1976 shortly after the employees met with the Browns to request more money, Billy Brown promulgated and published a set of "Company Rules" which he asserts he plagiarized from another employer. The rules are divided into four sections, rules in sections I and 2 are alleged to be invalid, and section I provides "Three written warnings in one three-month period consti- tutes discharge at Company's discretion," and contains 15 numbered prohibitions for which the sanctions set forth may be imposed. Rule 4, alleged to.violate Section 8(a)(l) of the Act, prohibits "distributing literature on Company premises without management approval." Section 2 of the rules provides "one violation constitutes discharge at Company's discretion," and contains rules numbered 16 through 28. Rule 24 thereof prohibits "agitating on Compa- ny time or on Company premises," and is also alleged to violate Section 8(a)(1) of the Act. Respondent contends that since "[No] employee has ever been discharged, threatened with discharge or warned for violating either Rule No. 4 or Rule No. 22. . . [and] there s Brown testified that he told Munn the stickers could catch fire easily and that the helmet was company property which he was defacing. 9 Munn may have had the stickers on his tee-shirt initially. O0 Brown testified that he asked Munn not to wear so many telling him that two would be plenty, but denied instructing Munn to remove them from his person. is no evidence that the rules inhibit employees from engaging in protected organizational activities, nor is there evidence that there was any association between these rules and protected activity by either the Respondent or its employees," the complaint should be dismissed since "the existence of these rules is so minimal and isolated as not to be supportive of a finding of a violation of the Act." The counsel for the General Counsel contends that rule 4 violates Section 8(a)(1) of the Act since on its face it prohibits employees from distributing union literature in nonwork areas of the plant and during the employees' nonworking time under the rationale of Stoddard-Quirk Manufacturing Co., 138 NLRB 615 (1962). I agree with the General Counsel that rule 4 is invalid on its face, and interferes with, restrains, and coerces employees in the exercise of Section 7 rights. Respondent's defense that in the absence of enforcement of such rule or evidence that the rule inhibits employees from engaging in protected organizational activities negates the finding of a violation is without merit. Thus, if the rule was not intended by Respondent to unlawfully restrict or inhibit union activities it should have been phrased in such a manner so that employees could not misinterpret Respondent's intentions. With respect to rule 22, counsel for the General Counsel contends that the word "agitating" is analogous to "solicit- ing" and since the rule is phrased in per se unlawful language, and forms a basis for Respondent's discharge of employees, such interferes with employee's Section 7 rights. Respondent's position, in substance, is that "agitating is not analogous with soliciting and cites "Funk & Wagnall Standard College Dictionary" (1962) defining "agitating" as "to disturb or shake irregularly" or to "excite or stir up." In view of the fact that the rules were implemented in the wake of, and to thwart, the employees' efforts to obtain more money, I find the intent of the rule to be sufficiently ambigious to warrant a finding that rule 22 is an overly broad no-solicitation rule, the mere existence of which interferes with employees' Section 7 rights. It is well settled that the risk of ambiguity must be held against the promulgator of the rule rather than employees who are supposed to abide by it. Accordingly, I find rules 4 and 22 violate Section 8(a)(1) of the Act. 3. The 8(a)(3) Allegation The question presented here is whether David R. Roberts was discharged on April 13, because of his activities on behalf of the Union and/or his earlier participation in protected concerted activities, as the General Counsel claims, or because he failed to timely perform several tasks assigned to him, in effect engaging in a work slowdown, as Respondent contends. Prior to his discharge, Roberts had been employed by Respondent for some 4-1/2 years, and apparently was considered qualified to perform most of the jobs involved in Respondent's operation. Roberts assisted in designing " Counsel for the General Counsel also recites additional testimony by Munn concerning another employee's stating that those involved with the Union would be fired and accused Brown of discussing the Union with another employee. In the context here such testimony has no probative value; it is patently hearsay; is not alleged as an unfair labor practice; and, has no relevance to the allegations of the complaint. 1332 BROWN MANUFACTURING CORPORATION and building a seeding machine, called a Superseeder, for which Respondent has applied for a patent, and in maintaining and repairing these machines at the purchas- er's farms after they had been sold. Roberts also worked on the utility trailer line. Roberts was discharged by Billy Brown shortly after noon on April 13, subsequent to Billy's receiving a report from Larry Brown that on the previous day he (Larry Brown) had observed Roberts standing at the door of the plant for about 2 hours watching him and two other employees dismantle a small building, during the course of which Roberts had performed no work.12 Billy Brown considered Larry Brown's report in conjunction with several other incidents occurring during the preceding month which indicated that Roberts was not putting forth the effort to complete his assigned tasks in a timely manner, in effect wasting time, and decided to fire him. Brown called Roberts to his office and discharged him stating as the reasons Larry's report that Roberts had not done any work for a 2-hour period the preceding day; the inordinate length of time it had taken Roberts to assemble two Superseeders 2 or 3 weeks earlier, and two recent instances when Roberts had taken about twice as long to perform some equipment repairs in the field as should have been required. Brown then told Roberts that Roberts didn't appreciate his job or care how much work he got done. Roberts took issue with Brown's statement that he did not appreciate his job, whereupon Brown restated the reasons for the discharge. Roberts walked to the door and told Brown, "I know the real reason you are firing me." Brown made no response and Roberts continued, "You are firing me because of the-because of me trying to get the Union started . . . but it don't matter . . . this plant's going to go union anyway." A few days later, about April 21, Roberts returned to the plant and asked Billy Brown the reason for his discharge that had been stated on his "unemployment form." Brown replied, "insufficient work." Roberts testified Brown then told him the Company could not afford a union and that he would take anyone to the office and show them the Company's earnings. Roberts replied that the (union) situation was out of his hands. Brown did not testify with respect to this conversation.' 3 Roberts testified that immediately after his discharge on April 13, he proceeded to the breakroom where some fellow employees were sitting eating lunch and advised them that he had been fired and knew the reason why, but that they should not worry, since it was nothing but a scare tactic. Roberts further alleged that he declined the employ- ees' offer to leave with him. However, several employees followed him to the parking lot where they talked for about 10 minutes14 when Billy Brown approached them and 12 Larry Brown testified that while Roberts was standing in the doorway watching them he pointedly looked at Roberts, getting "eye contact" with him, and then looked at his watch, thus attempting to convey to Roberts that he was timing him. 13 Counsel for the General Counsel urges that Brown's failure to deny this conversation, which is not alleged as an independent unfair labor practice, warrants an inference that Brown knew of Roberts' union activity prior to his discharge and discharged him for that reason. The General Counsel's reliance on Angwell Curtain Company, Inc., 94 NLRB 675 (1951), is misplaced. Angwell is clearly inapposite on the facts. In Angwell, the discriminatee had inquired at the time of her layoff as to whether it was asked Roberts if he were trying to start trouble. Roberts replied that he was merely telling the men goodbye and Brown replied, "Well I just wanted to know if you were trying to start anything," whereupon Brown returned to the plant. Billy Brown testified the other work deficiencies he considered in conjunction with Larry Brown's report in making the determination to discharge Roberts included the fact that about 3 weeks prior thereto Roberts had been assigned to assemble two Superseeders, and had taken 3- 1/2 days to assemble a two-roll seeder and 5 days to assemble a three-roll seeder. Brown stated that one with Roberts' experience and knowledge of the machines should have assembled the two-roll machine in a maximum of 2 days and the three-roll machine in a maximum of 3 days. Brown conceded that during the time Roberts was working on the three-roll seeder, he had been sent into town on errands on two occasions. Brown admonished Roberts at the time that he had taken too long to assemble the machines and charged that he had seen Roberts walking around talking to other employees, keeping them from doing their work and that he had observed Roberts making numerous trips to the "field" to obtain one or two parts at a time rather than taking the pickup or handtruck and getting all the parts he needed in one trip. Roberts did not deny that Brown admonished him about the time spent in this task, but asserted that he knew very little about the two- and three-roll Superseeders. However, Roberts admitted that he helped to design the diagrams used in the assembly of the older model Superseeders, and it appears that the modifications for the machines Roberts assembled were minor. On cross-examination Roberts became extremely evasive when questioned about the length of time it should take one of his experience to assemble these machines. Brown related two other incidents occurring a week or two before Roberts' discharge which he also considered. On the first occasion, Roberts was dispatched to a customer's farm to change a cylinder on a piece of equipment. Brown gave Roberts explicit directions to the farm and estimated that it should have taken Roberts no more than I hour to drive to the farm, 30 minutes to change the cylinder and an hour to return. Brown stated that allowing an extra hour it should have taken no more than 3-1/2 hours to complete the job. Roberts was away from the plant 5 to 6-1/2 hours. The following day Brown dispatched Roberts to two jobs in the field, admonishing him not to waste time as he had the day before. One job was in Midland City, located about 15 minutes from the plant and Brown estimated it should have taken no more than 45 minutes to do the repairs. The second job was located near Hartford, Alabama, about 30 final, and was told that it depended on "the outcome of this thing that had started." A few days later she made a similar inquiry and was told "wait until this thing is over." The Board concluded that Respondent's references to "this thing" were references to union activity, which it denied knowing at the time of the layoff, but which had culminated in the filing of a petition prior to the second conversation. The statements made by Brown that the Company could not afford a union forms no basis warranting an inference that it knew of Roberts' union activity at the time of his discharge. " Roberts did not testify what they talked about. 1333 DECISIONS OF NATIONAL LABOR RELATIONS BOARD miles further away. Brown contends that it should not have taken Roberts more than another hour to get to Hartford and locate the equipment. When Roberts located the customer he was informed by the customer that he did not want to stop for the repairs then and Roberts could leave the cylinder which the customer would change later. Roberts was away from the plant about 8-1/2 hours on these two jobs. In defense of the length of time he spent on these jobs Roberts asserts only that he had difficulty locating the customers and that one customer wanted him to wait while he tested the repair. In any event, Roberts admits that Brown admonished him with respect to these events and told him he thought he had been "goofing off." Roberts was then taken off road repair work and assigned to work in the plant. Roberts' contentions that it took him longer to perform the field repairs discussed above then would ordinarily be required because of difficulty in locating the equipment and the request to remain at the site while the customer tested repairs, are unconvincing. It appears that Roberts asserted no such reasons to Brown when Brown admon- ished him about "goofing off" and transferred him into the plant. Roberts merely denied that he was "goofing off" but, apparently, offered no explanation to Brown. Upon the foregoing facts which are based largely upon Billy Brown's credited testimony, and the unconvincing denials by Roberts, I am convinced that during his last few weeks of employment the quantity of Roberts' work deteriorated and renders entirely plausible the observation in Respondent's brief that "It becomes apparent that Roberts did not feel that he was receiving sufficient compensation for his efforts and decided he would do as little as possible in the future, despite the warnings of management." Therefore, I find and conclude that Rob- erts' derelictions of his employee obligations chronicled above, provided Respondent with a legitimate reason to discharge him. However, the finding that Respondent had a legitimate reason to discharge is not necessarily dispositive of the issue of discrimination where it is shown that "a discrimi- natory motive was a factor in the employer's decision." Where good cause exists the burden rests, as it must, upon General Counsel to discover not simply some evidence of improper motive, but to establish an "affirmative and persuasive reason why the employer rejected the good cause and chose a bad one." See Firestone Tire & Rubber Company v. N.L.R.B., 539 F.2d 1335 (C.A. 4, 1976). The counsel for the General Counsel endeavors to sustain her burden of proof with respect to employer knowledge of Roberts' union activities, of which she concedes there is no direct evidence, by urging that an inference of such knowledge is warranted based upon the "wide spread union activity" and the "smallness of the plant." As to employer animus toward union or concerted activity the General Counsel contends such animus is established by Respondent's alleged conduct toward Rob- erts following the employees' concerted activities in Sep- tember 1976, to obtain a wage increase and the postdis- charge 8(a)(1) conduct of Billy Brown. As heretofore noted the only testimony concerning union activity prior to Roberts' discharge was elicited from Roberts, and, although clearly susceptible of corroboration and/or documentation, none was proffered. Counsel for the General Counsel's contention that there was wide- spread union activity prior to Roberts' discharge is ground- ed upon the following testimony by Roberts on direct examination: Q. While you were employed at Brown Manufac- turing Company, did you ever engage in activities on behalf of the United Steelworkers? A. Yes, ma'am, I did. Q. And what activities did you engage in? A. I talked to the people about the Union. I signed the union cards, I attended union meetings. Q. Now, you said you signed union cards. When did you sign the union cards? A. March 10of 1977. Q. Where did you sign them? A. In my home. Q. All right, you said you got union cards and you signed them. How many did you get signed? A. Twenty-two. The General Counsel argues in her brief, based upon the above-quoted testimony, that "Roberts, prior to his dis- charge, was responsible for obtaining 22 signed authoriza- tion cards." Notwithstanding the questions posed to Rob- erts were framed with the term "cards," my reading of the testimony is that Roberts was asserting that he signed one card at his home on March 10, not that he signed all 22 cards or that others were at his home and signed the cards. The record contains no additional testimony or evidence as to when or where Roberts obtained employee signatures on the additional 21 cards. Roberts also testified that he attended three union meetings. However, all such meetings were held after his discharge (April 14, 21, and 26). His testimony that he talked to people about the Union, again, does not aid the General Counsel in establishing a basis from which to infer Respondent's knowledge of such activity, since there is no evidence as to where or when this alleged activity occurred. As suggested earlier, it is my impression from the record as a whole, that it was the discharge of Roberts that triggered the union activity, and not the union activity that triggered the discharge. This conclusion is bolstered by the failure to offer any corroboration for Roberts' vague and general testimony and, assuming counsel for the General Counsel's interpretation of Roberts' testimony that he had obtained 22 union authorization cards prior to his dis- charge were adopted, there were no union meetings until after the discharge and the petition supported by the cards was not filed until April 22. The quantum of evidence of predischarge union activity falls far short of that necessary to infer that Respondent knew of such activity. While the failure to establish Respondent knowledge of union or concerted activity, either by direct evidence or inference, generally precludes a finding that a discharge was motivated by such activity, since this opinion is subject to review, I shall deal with the General Counsel's conten- tions with respect to Respondent's union animus. 1334 BROWN MANUFACTURING CORPORATION With respect to Respondent's animus toward its employ- ees collective activities, particularly toward Roberts, coun- sel for the General Counsel relies heavily upon Roberts' testimony concerning Billy Brown's conduct toward him following the aforementioned employee meeting in Sep- tember 1976. Roberts testified that the day following the September employee meeting Billy Brown approached him and stated that he (Brown) knew about the meeting and what everybody had said and after talking it over had decided to let Roberts go. About 30 minutes later Brown returned and told Roberts "they had discussed it" and had decided not to fire him, but to lay him off. Roberts replied he had rather be laid off, apparently to be eligible for unemployment compensation, and inquired as to what he could do to keep his job. Roberts asserts that he and Billy agreed they would meet with Paul Brown. Roberts testified that some time later he met with Billy and Paul Brown outside the plant and told them he "hated" what he had done and denied that he was "the main man in on the meeting," but agreed to take the rap for it. Billy Brown then took a nickle from his pocket and said, "What you've done is just about what this nickle is worth," and assured Roberts that no one would stick with him. Roberts then told the Brown" "that from then on that I would talk to myself and I wouldn't say anything to anybody else." Although the layoff was never rescinded, Roberts contin- ued to work until terminated in April. Billy Brown denied these conversations. In my opinion, had Brown terminated Roberts, or told him he was laid off, as Roberts asserts, Roberts would have remained laid off until Brown rescind- ed the decision and Roberts would not have been permit- ted to continue working. Moreover, if Roberts had told the Browns that he would thereafter talk to himself and not say anything to anybody, he would not, a few days later at the meeting with the Browns, make the comments attributed to him there. Furthermore, I find it significant that no evidence was adduced that any of the other 20 or so employees at the meeting, including James (Eddie) Howell, who appeared to be the leader in presenting the employees' grievances at the meeting, were so threatened. Therefore, I do not credit Roberts' testimony in this respect. Without recapping the postdischarge 8(a)(l) violations as found, occurring in the context set forth above, I find that such conduct is insufficient to establish Respondent ani- mus towards union or concerted activity which would support the contentions that Roberts' discharge was discri- minatorily motivated. Accordingly, I find that General Counsel has failed to establish by a preponderance of the evidence, that Respon- dent on April 13, 1977, terminated David R. Roberts because of his union or concerted activity. CONCLUSIONS OF LAW I. Jurisdiction is properly asserted in this proceeding. 2. By telling its employees that it had promulgated rules which unlawfully interfered with employees' Section 7 rights because its employees had engaged in protected 5s In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become activity to seek a wage increase; threatening its employees that it could close its plant if the Union were selected; threatening its employees that they could lose benefits currently enjoyed; creating the impression of surveillance of employees' union activities by suggesting that it was being informed of their union activities; promulgating and maintaining rules which prohibit its employees from engaging in solicitation for the Union and distributing union literature on their nonworking time in nonworking areas of the plant, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sec- tion 8(a)(1) and Section 2(6) and (7) of the Act. 3. Respondent has not otherwise violated the Act. THE REMEDY Inasmuch as Respondent has been found guilty of violating Section 8(a)(1) of the Act, it should be ordered to cease and desist from those or like violations, and to take certain affirmative actions to effectuate the policies of the Act. Such affirmative action shall include the posting by Respondent of the notice to employees attached hereto marked "Appendix." Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER ' 5 The Respondent, Brown Manufacturing Corporation, Ozark its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Telling its employees that it had established company rules which unlawfully interfered with their Section 7 rights because they engaged in protected concerted activity. (b) Threatening its employees that it could close its plant if they selected the Union as their collective-bargaining agent. (c) Threatening its employees that they could lose benefits currently enjoyed if the Union were selected as their collective-bargaining agent. (d) Creating the impression of surveillance of its employ- ees' union activities. (e) Promulgating and maintaining company rules which interfere with its employees' rights to engage in union and protected concerted activities, including solicitation for such purposes during their nonworking time and distribu- tion of literature during nonworking time in nonworking areas of the plant. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Rescind the company rules 4 and 22 prohibiting distribution on company premises without prior manage- ment approval and soliciting on company time, promulgat- ed in September 1976. (b) Post at its Ozark, Alabama, place of business, copies of the attached notice marked "Appendix." 6 Copies of said notice duly provided by the Regional Director for its findings, conclusions, and Order, and all objections thereto shall be waived for all purposes. 16 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order (Continued) 1335 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Region 15, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and maintained for a period of 60 consecutive days thereafter in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by other material. (c) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. of the National 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 Act gives all employees these rights: To engage in self-organization To form, join, and assist unions of their own choosing To bargain collectively through agents of their own choosing To act together for collective-bargaining or other mutual aid or protection To refrain from any and all of these things. WE WILL NOT tell our employees that company rules which interefere with their rights to engage in solicita- tion on behalf of the Union during their rights to engage in solicitation on behalf of the Union during their nonworking time and to distribute literature on behalf of the Union during their nonworking time and in nonworking areas of the plant were established because they engaged in protected concerted activities. WE WILL NOT threaten our employees that we can close our plant if the Union is selected to represent them. WE WILL NOT threaten our employees that they could lose benefits they presently have if the Union is selected to represent them. WE WILL NOT create the impression that we are engaging in surveillance of our employees' union activities by telling them we are being informed as to such activities. WE WILL NOT make or maintain rules which prohibit our employees from engaging in union or other protect- ed concerted activities, including solicitation during their nonworking time and distribution of literature during nonworking time in nonworking areas of the plant. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL rescind our rule prohibiting our employees from distributing literature during their nonworking time in nonworking areas of the plant and the rule prohibiting them from soliciting during their nonwork- ing time. BROWN MANUFACTURING CORPORATION 1336 Copy with citationCopy as parenthetical citation