Brown Mfg. Corp.

National Labor Relations Board - Board Decisions

May 2, 1978

235 N.L.R.B. 1329 (N.L.R.B. 1978)

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