Carolina Paper Millis, Inc.

National Labor Relations Board - Board Decisions

Mar 4, 1981

254 N.L.R.B. 1071 (N.L.R.B. 1981)

INC.
Goodwin. 11-CA-8238 11-
iri
lloard
a ~ d
l q c )
Relatioils
13oard
- -
(ieneral
cledibility
S~andard
P d ~ r c t s Inc., 544 (1950). F.2d
KING,
~ o c k i n ~ -
11-CA-8238 Paper-
;!3, 11-CA-8243
filetl Goodwin
May
tht:
o '
improper
Goodwin Angelo
:!0, 8(a)(l)
' t h r ~ u g h
Goodwin
witne~ses,~
2(2), (6),
2(5)
Sec.
Sec. employer-
cond~tion diwour-
bc ts
N. Walton
and Loganville 404.
contradict~on thew diwredit-
NL.RB
1071 CAROLINA PAPER MILLS,
Carolina Paper Mills, Inc. and United Paperworkers
International Union, AFL-CIO and Harold
Dean Cases and
C A -8243
March 4, 1981
DECISION A N D O R D E R
On September 19, 1980, Administrative Law
Judge Russell M. King, Jr., issued the attached De-
cision this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief,
and the Respondent filed a brief in opposition to
the General Counsel's exceptions.
The has considered the record and the at-
tached Decision in light of the exceptions and
briefs has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and t o adopt his recommended Order.
O R D E R
Pursuant t o Section of the National Labor
Act, as amended, the National Labor Re-
lations adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed.
The Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Dry
Wall 91 NLRB enfd. 188 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings.
DECISION
STATEMENT OF T H E CASE
RUSSELL M. JR., Administrative Law Judge:
These consolidated cases were heard by me in
ham, North Carolina, on October 18 and 19, 1979. The
charge in Case was filed by United
workers International Union, AFL-CIO (the Union) on
March 1979,' and the charge in Case
was by individual Harold Dean on March
26. On 9 a consolidated complaint regarding both
charges was issued by the Regional Director for Region
11 of National Labor Relations Board (the Board) on
behalf the Board's General Counsel. The complaint al-
leges threats by Maintenance Supervisor
Tommie Harrelson on single occasions to employees
Harold and Kaifos and the unlawful
discharge of these two employees on October 19 and
March respectively, in violation of Section
and (3) of the National Labor Relations Act, as amended
Herealter, all dates in August December will be in 1978 and
all dates in January through March will be in 1979 unless otherwise indi-
cated.
254 No. 142
Respondent denies the threats and alleges
that and Kaifos were discharged for good
cause, unrelated to their union support or activities.
Upon the entire record, including my observation of
the demeanor of the and after due consider-
ation of the briefs filed herein by the General Counsel
and Respondent, I make the following:
(the
I. JURISDICTION
The pleadings and admissions herein establish the fol-
lowing jurisdictional facts. Respondent is, and has been
at all times material herein, a corporation duly organized
under, and existing by virtue of, the laws of the State of
North Carolina with a facility or mill and place of busi-
ness in Rockingham, North Carolina, where it is engaged
in the manufacture of paper products. The Rockingham
mill is the only facility involved in this case. During the
12-month period prior to the issuance of the complaint
herein, Respondent, in the course and conduct of its
business operations at the Rockingham mill, received
goods and raw materials valued in excess of $50,000 di-
rectly from points located outside the State of North
Carolina. Also during said representative period, Respon-
dent manufactured and shipped directly to points outside
the State of North Carolina products valued in excess of
$50,000. Thus, and as admitted, I find and conclude that
Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section and (7) of the Act.
I further find and conclude, as alleged and admitted,
that the Union is a labor organization within the meaning
of Section of the Act.
The pertient parts of the Act provide as follows:
7. Employees shall have the right to self-organization to form,
join, o r assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining o r other
mutual aid o r protection . . . .
8 (a) It shall be an unfair labor practice for an
( I ) to interfere with, restrain, or coerce employees in the exer-
cise of the rights guaranteed in Section 7 . . . .
(3) by discrimination in regard to hire or tenure of employment
o r any term or of employment to encourage o r
age membership in any labor organization . . . .
The found herein are based on the record as a whole and upon
my observation of the witnesses. The credibility resolutions herein have
been derived from a review of the entire testimonial record and exhibits
with due regard for the logic of probability, the demeanor of the wit-
nesses, and the teaching of L. R. B. v. Manufacturing Company
Pants Co., 369 U.S. 408 (1962). As to those testifying
in of the findings herein, testimony has been
ed either as having been in conflict with the testimony of credible wit-
nesses o r because it was in and of itself incredible and unworthy of belief.
All testimony has been reviewed and weighed in light of the entire
record.
11.
.4ngelo
a.m. 3:30
19'19.
Kaifos
co:~tacted
s
handed ques-
tio.1~.
beg;inning
or-
ILaifos
ap~sroached
Un:on
disputed
%was
firs1
such
tele,;ram "[Wle
union
cards5
lal,ge
' l'he
de-
termillations
findings
"
2,700
a.m.6
3:25
3:30
DECISIONS O F NATIONAL LABOR RELATIONS BOARD
THE ALLEGED UNFAIR LABOR PRACTICES
A. Summary of the Evidence4
Kaifos was hired in May 1978 by the Compa-
ny as a maintenance mechanic and he worked on the 7
to p.m. shift. He was discharged on March 20,
His supervisor was Maintenance Supervisor
T c mmie Harrelson.
testified that sometime in August 1978 he was
by several employees who expressed interest
in union, and that he thereafter contacted a union orga-
nizer, who in turn consulted with Union Representative
Arnold Price. T h e first union organizational meeting was
set and held sometime during the last week of August
and thereafter there were approximately four additional
meetings. Kaifos was a strong and active supporter and
was a member of the union's organizational committee.
He solicited signatures to union authorization cards,
out literature, and answered employees'
The organizational attempt failed for lack of inter-
est or support, and, according to Kaifos, all union activ-
ity ceased sometime in December before Christmas, but
he had plans to renew the campaign the following year
in March or April (1979). On August 31 the
Union sent a telegram to the Company listing the 10
narnes of the employees, including Kaifos, who were ap-
pointed after voluntering for the "in-plant organizing
cornmittee," and who would be actively engaged in
gar izing the Union at the mill.
testified that one morning late in September he
Maintenance Supervisor Harrelson and ac-
cused Harrelson of telling other employees that if the
got in the mill would be shut down. According to
Kaifos, Harrelson replied that the Union would not d o
the employees any good, and before "we let the union
in" the mill would be shut down. Kaifos indicated that
he this fact with Harrelson, further relating that
he "president of the Local Union," to which Harrel-
son replied he knew that because he had him "investigat-
ed." Kaifos further explained that sometime during the
week of September the Company posted two letters
on the employee bulletin board in the production area,
signed by the company president, Daniel Cohen. One
letter acknowledged receipt of the August 31 union
and began by stating, d o not want a
in this plant, and will d o anything legally possible
to cppose them, and to keep them out of here." Accord-
ing to Kaifos, the other letter dealt with union authoriza-
tion cards, advising employees that they had an absolute
legal and moral right not to sign such
Kaifos' discharge centered around a piece of equip-
ment in the mill called a centrifuge machine, which was
a piece of equipment purchased several months ago
following includes a summary of the testimony of the witnesses
appearing in the case. The testimony will appear normally in narrative
form, although on occasion some testimony will appear as actual quotes
from the transcript. The narrative only and merely represents a summary
of wtat the witnesses themselves stated or related without credibility
unless indicated, and does not necessarily reflect my ultimate
and conclusions in this case.
Copies of both of these letters were admitted into evidence. Howev-
er, neither letter is the subject of an alleged violation of the Act in this
case.
by the Company and which served as a pollution device.
The machine had an internal cylinder which rotated at
revolutions per minute, separating liquids from
solids, and thus serving as a required pollution device.
Sludge from the mill's operation was pumped to the cen-
trifuge machine, which separated water from solid
matter, and the water was reused within the plant and
the remaining solid waste was hauled away in trucks.
According to Kaifos, if the centrifuge machine did not
operate, the mill would have to be shut down within 3
hours unless the sludge was rerouted to a nearby lagoon.
Kaifos testified that early in the morning of March 20
the centrifuge machine was "making a racket" and that
he determined the machine had a bad bearing and told
Maintenance Superintendent Harrelson about this fact a t
approximately 9 Harrelson instructed him to start
the centrifuge machine, which he did, after which the
machine still made noise and he immediately turned it
back off. Harrelson then insisted that he turn the ma-
chine back on, but he replied that he would not start the
machine unless he got instructions from someone
"higher." Kaifos indicated that later in the morning he
talked to Personnel Manager John Suggs about the cen-
trifuge machine, explaining that he thought it had a bad
bearing and it should not be run, but that Harrelson in-
sisted that it be turned on anyhow. According to Kaifos,
both he and Suggs went to the centrifuge machine,
Kaifos turned it on, and Suggs told him to turn it off im-
mediately and leave it off until he "got back" to him.
Both he and Suggs then talked to Harrelson and Suggs
again stated, according to Kaifos, that the centrifuge ma-
chine should remain off until he (Suggs) talked with
General Manager Daigle. Kaifos testified that after lunch
he and fellow mechanic Charlie Veach removed the
housing and discovered that the bearing was in fact bad.
Daigle and Harrelson then appeared, saw the bad bear-
ing, and Harrelson went to check the supply room to see
if they had a replacement. Later, at about 2 p.m., Harrel-
son told him to reroute the sludge from the centrifuge
machine to the lagoon, which he did. However, after
doing so it was discovered that the lagoon line had been
rerouted to "Hector's Pond," a collection pond for water
used by the city. At o r about 3 p.m. Harrelson told him
to turn off the sludge pump, which he did. Kaifos testi-
fied that about p.m. he asked Harrelson if he had
decided what to d o with the sludge or if he had decided
to run the centrifuge machine with a bad bearing, and
Harrelson stated that he could not make such a decision
regarding such an expensive piece of equipment. Kaifos
then washed up and punched out at his normal quitting
time of p.m., indicating that no one told him to
either remain or leave at that time. The following morn-
ing (March 21) when he reported to work he found a
note on his timecard from Harrelson stating "take off
until I call you." He then left the mill, but apparently re-
turned at o r about 9 a.m. and approached Harrelson
about the note, indicating he wanted a witness present,
to which Harrelson replied he did not "rate" a witness.
Kaifos' primary duty in the mill was maintenance of the centrifuge
machine, and he had received instructions from the manufacture when it
was installed.
suspe~~ding
bt:fore
on(:
po~nting
$80,000
"
sc~,"
Har-
how
t h ~ t
thi~t
w e n *
Brigman,
Goodwin
a.m.
latt:
Goodwin
wage^."^
Goodwin,
then:."
Goodwin sonie
no
prodems,
Harrelson
samebody
requested
basicall I
expe1,ienced
schedi
2(1,
Goodw.n
Goodwin
Goodwin
Goodwin,
Harrelson
14, Goodwin
Brig-
Goodwin
6:30 a.m.
[him.Iwg Goodwin
18),
Goodwin,
desk.1°
Goodwin
9:30 Goodwin
Har-
Goodwin,
Goodwin
Goodwin,
-
Goodwin
Weather-
l a testified Goodwin
Goodwin
testified
Goodwin
1
the
a.m.
CAROLINA PAPER MILLS. INC. 1073
According to Kaifos, Harrelson then explained that he
was him because he was working on a job
and left the job was completed." Kaifos replied
that no would make a decision as to what to d o with
the sludge, and he merely left at his normal quitting time,
further out to Harrelson that the Company was
using him as a "goat concerning an piece of
equipment According to Kaifos, Harrelson replied,
"Maybe and that if he did not like it to "take it to
the Labor Board." Kaifos related that he then asked
relson much time he was going to give him off, to
which Harrelson replied he had not decided, advising
Kaifos to check back with him the following Monday
morning. The following Monday, Harrelson advised
Kaifos "we decided to let you go" because the
Company was cutting down expenses in the shop. Kaifos
related he argued with Harrelson, pointing out that
they discharging him for union activities, which
Harrelson denied, indicating that they were also laying
off emplcyee Joe who did not support the
Union.
Harold was employed as a mechanic in July
1978 and was discharged on October 20. He indicated
that he worked the "swing" shift from 8 to 4 p.m.
From August on he supported the Union, was a
member of the organizing committee, passed out litera-
ture, and solicited signatures to union authorization
cards. He also attended four out of the five union meet-
ings.
testified that in early October Harrelson ap-
proached him and stated that if the union got in he could
"put [him] through a test and lower [his] Ac-
cording to Harrelson further remarked that
employee Kaifos "puts [the employees] up to talk to
him" every time something goes wrong and that Kaifos
"hadn't teen anything but an agitator ever since he's
been
On August 21 fell on oil in the mill,
injured his back, and was out from August 21 to October
2, during which time he was under a doctor's care. He
had been released for "light-duty" work sometime in
September, but he did not return to work until October 2
because light work was available. He was released
from the doctor's care shortly before his return to the
job on October 2. On his return he continued to have
back and he related that on October I I he
asked Harrelson if he could take off on October 15 and
16, and granted the request subject to his ob-
taining to take care of his shift. The reason for
this absence was to attend or g o to a "drag
strip," although he did not state this reason to Harrelson.
Kaifos indicated that the Company's alleged reason for his discharge
was that he was working on a job and left before it was completed. This
was the Company's defense to Kaifos' later claim for unemploy-
ment compensation, which was ultimately granted. Kaifos conceded that
on occasion mechanics were expected to work overtime when their ma-
chines a breakdown. but on the date in question mechanics
were led to come in on the night shift starting in the midafternoon
of March indicating his assumption that. if there was anything left to
be done regarding the machine, these mechanics would be there to com-
plete the wc rk.
initially testified that this incident occurred in "late" Octo-
ber. His last day of actual work in the mill was October 14.
indicated that he did in fact g o to a drag strip
on those 2 days, notwithstanding the fact that his back
was bothering him. related that employee Irvin
Hodges agreed to work the 2 days for him because he
needed the money, and, according to he re-
ported back to that Hodges had agreed to
cover his shift on October IS and 16. Prior to this leave,
on October indicated that he worked only
several hours and punched out because his back was
"bothering" him. Prior to punching out on October 14
he received permission from Supervisor Howard Watson
to leave early and he also obtained employee Joe
man to cover his shift. testified that after his 2
days off, on October 17, he did not report to work, but
that at 6 o r he called the mill and talked to me-
chanic Frank Weatherford and asked him to "get the
word to the shop for [Harrelson] to know that [he]
couldn't get in, because [he] was still out sick because
[his] back was bothering related that
at this time he was living at his mother's house, she did
not have a phone, and the only number the Company
had for him was his "girl friend's" number, where he
often stayed. On the following day (October accord-
ing to he again called in sick early in the
morning and talked to Paul Swails, who stated that he
would write a note and put it on Harrelson's
indicated that he was still at his mother's house
at this time. O n October 19 at 9 o r a.m.
went to the mill to get his check and explained to
relson that he was going to a doctor and would report
back to work the following day (Friday, October 20).
According to Harrelson replied that he had
been "laid off," advising him to g o talk to General Man-
ager Daigle about the matter. He went to Daigle, who
informed him that he had been fired and they had not
been able to reach him at the number they had for him,
and further that the Company's president, Cohen, had
reaffirmed that he was fired. asked Daigle if
his discharge had anything to d o with his union activi-
ties, and, according to Daigle replied, "It
don't make a damn what it is for."
Hodges testified as a present employee of the Compa-
ny. He had worked as a mechanic for 5 years. He agreed
to, and did in fact, work Sunday and Monday, October
testified that the rules, as he understood them, were to call
in at least 2 hours before his shift was lo commence to avoid any penalty
or suspension. Weatherford testified that he was not working and not in
the mill that Monday, and thus received no such phone call.
ford's timecard verified this.
Kaifos that was not present for work on October
I8 because when he went to work himself that night he saw a note on
Harrelson's desk that would not be in that day. The note was
signed "Paul," who is identified in this case as Paul Swails, the night su-
perintendent. Swails was not called to testify in this case, nor was the
note produced. Kaifos further that he picked the note up and put
it in Harrelson's desk drawer for the purpose of delaying Harrelson's
knowledge of the note in order to avoid having to cover or work for
on his shift later on that morning. Kaifos related that the note
was found and placed in the drawer at approximately a.m., and Kaifos
further explained that the desk was actually Harrelson's desk, but was
used during the day by a secretary for clerical purposes. Harrelson used
the desk only occasionally. Kaifos indicated that he found note when
he was working the midnight to 8 shift (October 18-19). an apparent
deviation from his normal shift.
DECISIONS
15 Goodwin, Har-
Sunday
broken
M a ~ c h
.:imecard
askf:d
rigt t
2nd
home,
Hoclges
Ingram, Goodwin
Ingram.
J1:sse
when
"bli~nk"
3:30 centri-
fugl:
obsxved
while
whlch
check[ed]
3:30
standing
strtcted late.12
.was
Floland
Good-
wir's
Goodwin
conlpany
lear't
Go3dwin
v
Goodwin
' I Kalfos mtll sometime earher
~ h c ~ h r e e after earl~er In
"
manufilcturer
bearing,
3:15,
Goodwin,
Goodwin
Goodwin
Goodwin
(330
situ- '
ation
Har-
Veach.13
'"each In
1074 OF NATIONAL LABOR RELATIONS HOARD
and 16, for and Hodges indicated that
relson knew this fact because Harrelson came in briefly
to the mill. Regarding the bearing on the centri-
fuge machine, Hodges testified that the bearing was in
fact replaced a week or so after Kaifos' discharge, and
was in fact defective. H e had saved the actual bearing
and identified it during the hearing. The bearing was
in half but the centrifuge machine continued to
run, after Kaifos' discharge, until it was replaced.
Hoclges also testified that he was standing nearby on
21 when Kaifos asked Harrelson what the note on
his meant. According to Hodges, Kaifos further
if he could have a witness and Harrelson replied
that he could not, and Kaifos then replied that he had a
to a witness, to which Harrelson responded, "You
don't have any rights." Regarding the Company's absen-
tee policy, Hodges testified that employees were to call
in let Harrelson know, either at the mill or at his
when they would not be able to report to work.
also remembered one case where employee Leo
before was discharged, "[took] about
five" days off without calling in. According to Hodges,
this resulted in a 3-day suspension of
Jorden was employed by Respondent on January
20, 1978, as a mechanic. He worked on March 20 during
the centrifuge incident and testified that after lunch,
the centrifuge machine was off, he placed a
in the sludge line upon Harrelson's instructions,
but sometime after Harrelson stated that the
machine was going to be turned back on and re-
quested that he go and remove the blank. Thereafter, he
Harrelson placing the note on Kaifos' timecard
at the same time shouting to General Manager
Daigle, "Are you sure this is what you want to do," to
Daigle replied, "That's what I want to do." After
removing the blank and punching out, he joined Kaifos
and employee Hodges at a nearby tavern and drank a
beer." At the tavern he told Kaifos about the note on
his timecard and Kaifos then "[went] back and
it out." Jorden also testified that between 3 and on
March 20 five or six of the maintenance employees were
around, including Kaifos, and none were in-
to remain At this time Kaifos remarked
to the group that since he had not been asked to stay late
he "going on."
Daigle testified as the mill's general manager, a
position which he held for 5 years. Regarding
discharge, Daigle indicated that he was not in-
volved in the decision, although came to him
the day after he was discharged to discuss the matter,
and he advised him that it was between him and Mainte-
nance Supervisor Harrelson. Daigle testified that it was
policy for employees to call their supervisors at
2 hours prior to reporting time if they were sick,
and that during Goodwin's absence he attempted to call
"at least [a] half dozen times" at the number
the had for him, and that he never got any answer. Ac-
cording to Daigle, the decision to discharge
and Hodges had left the and apparently
had planned to meet work the day.
Jorden indicated that he had earlier asked to work overtime that
day
was made by Harrelson. Regarding the March 20 centri-
fuge machine breakdown, Daigle testified that about 3
p.m. he called the machine's and was ad-
vised to go ahead and run the machine even with the
bad the manufacturer indicating that they would
ship a new bearing right away. Soon thereafter and
about he made the decision to turn the machine
back on and so informed Harrelson. According to
Daigle, within 2 or 3 days thereafter the new bearing ar-
rived and the defective bearing was replaced. Regarding
the actual discharge of Kaifos, Daigle testified that the
decision was also made by Harrelson.
Daniel Cohen testified as the Company's president. He
indicated that he had never met employee
even at the time of his discharge, but at that time he
knew he was a member of the union organizing commit-
tee. Cohen testified that on the third day of Goodwin's
absence Harrelson came to him and indicated that he
wanted to replace because he had not heard
from him in 3 days and had attempted to reach him by
phone without success. Cohen indicated that he immedi-
ately told Harrelson to discharge and replace
him, whereupon Harrelson pointed out that
was a union supporter. Cohen responded: "It doesn't
make any difference . . . [he] has not shown up; he has
not called."
Regarding the discharge of employee Kaifos, Cohen
testified that he made the final decision to discharge
Kaifos. Cohen related that the centrifuge machine was
vital to the plant's operation, the Company having been
forced to install it by state and Federal authorites. Ac-
cording to Cohen, disposal of sludge in any other
manner could result in a $5,000-a-day fine. Cohen testi-
fied that when the centrifuge was turned off on March
20, and after employee Kaifos had punched out for the
day p.m.), Harrelson came to him and complained
about Kaifos' departure before the centrifuge matter had
been resolved. H e and Harrelson then discussed the
and Harrelson "preferred to let him . . . stay on"
because of his union involvement, but Cohen indicated
that he insisted Kaifos be discharged, explaining to
relson that Kaifos had "refused to obey his orders and
that once you allowed that to happen we might as well
fire [him]." Cohen related that both Harrelson and me-
chanic Veach had ended up staying late that afternoon
"putting the centrifuge back together," and when he
talked to Harrelson he was "filthy" as a result of having
worked on the machine with
Cohen also testified that earlier in the week of the cen-
trifuge problem he had complained to Harrelson about
the rise in the payroll cost of the maintenance depart-
ment over the last 6 months, and had told Harrelson he
wanted a reduction immediately and that he would have
to "get rid of a couple of men." When Harrelson came
to him after repairing the centrifuge machine late in the
afternoon of March 20, Harrelson himself suggested that
they could discharge Kaifos for economic reasons, but
Cohen testified that he insisted Kaifos be discharged for
had been on the centrifuge problem that day and apparent-
ly was due to leave when Katfos left, but had stayed over.
INC.
orders.14
Harrc:lson
working
tp
o i
refrlsal Har-
d~rection,
have
K,iifos'
machine
2:30
a r~d
t11e
w':re
whether
what
Ifarrelson
Earrelson
bet,ween 1-1/2
the
rephced.
com~~le ted ac-
comp1ish1:d
they
Goodwin
company
usual
discharge.15
p e ~ a l t y disrespkct,
;m
l 4 testlrnony. testlmo-
Kaifta
for
notlces admltted coverlng
'"Also
tte
Hurrelson
Goodwin
Goodwin
Goodwin
notif i~at ion. '~
Goodwin
Goodwin
machine.lB
3:30"
" Goodwin
Goodwin termmated
l R testjfied
1075 CAROLINA PAPER MILLS,
failure to obey In summary, Cohen testified
that he discharged Kaifos for "insubordination" based on
what and Daigle had told him; that is, "he had
been on the job and he had left the job without
permission after they had asked him stay there until
they had gotten complete instructions from [the manu-
facturer the centrifuge machine]." Cohen additiopally
added tha; Kaifos' "insubordination" also included his
earlier to turn on the centrifuge machine at
relson's and that in his opinion Harrelson
would discharged Kaifos at that time, based upon
this refusal along, had it not been for Harrelson's knowl-
edge of union involvement.
Charlie Veach testified as a present employee of the
Company and as an assistant supervisor. When Kaifos
was discharged, Veach was a mechanic. Regarding this
discharge, Veach testified that on March 20 the centri-
fuge was "vibrating real bad and we thought
we had a bad bearing in it," and thus at or about
p.m. he Kaifos pulled the cover and ascertained that
in fact a tearing was bad. Since they had no replacement
bearing manufacturer of the machine was called and
it was determined that the machine could be operated
with the faulty bearing. Veach testified that he and
Kaifos instructed to "stay there until they found
out they could get the bearing in or on the ma-
chine or we had to d o to it."
When came back to the centrifuge machine
after the manufacturer was called, Kaifos had left, and
he and then put the bearing covers back on
the centrifuge machine and restarted it. This process
took 1 and hours and, according to
Veach, machine thereafter ran for approximately 7
days befcre the new bearing arrived and the old bearing
was Veach confirmed that it was company
policy that maintenance employees remained overtime
and any job they were on if it could be
within a reasonable time. Regarding the
bearing itself, in Veach's opinion the bearing that me-
chanic Hodges had identified in testimony earlier was
not the one that was taken from the centrifuge machine.
John Suggs testified as the Company's personnel man-
ager. According to Suggs, he interviews employees
when are first hired, and this orientation interview
includes explaining the Company's rules and policies.
Suggs indicated that the overtime requirement to get
equipment "back on line" was a company rule or policy,
and that he explained this to Kaifos when he was hired.
Suggs further related that he also explained to
the rule or policy about the 2-hour notification
of illness (absence) to a supervisor. Suggs testified that
the result for failure to give such notice prior to
absence was Suggs also related that a fre-
quent for walking off a job, or failure
to obey order was also discharge.
At this point in his Cohen had heard the earlier
ny of to the effect that Harrelson had stated that Kaifos' termina-
tion was economic reasons. Cohen insisted that his decision to fire
Kaifos was based on Kaifos' failure "to obey orders."
Some I8 separation were into evidence a
10-year period involving employee failure to report.
admitted into evidence were I8 separate separation notices
covering past 10-year period involving such conduct.
Tommie testified as the Company's mainte-
nance supervisor. He denied ever making any statement
to or Kaifos, o r any other employee, about the
Union or ever discussing the Union with any employee,
although he did concede that Kaifos himself would often
mention the Union to him during minor confrontations in
the mill.
Harrelson testified that when was hired he
also advised him that he should call in before his shift
started if he was sick and unable to work. Harrelson in-
dicated that he discharged because of his ab-
sence from work without Harrelson testi-
fied that he tried to reach by phone four or
five times, but received no answer at the number they
had listed for him. He indicated that he did not impose
the more lenient punishment of suspension because
Goodwin's absence involved more than I day. He relat-
ed that he told personally, at the mill, that he
was "laid off o r fired."
Regarding employee Kaifos, Harrelson testified that he
hired Kaifos himself and that he was a good mechanic.
Harrelson related that upon hiring Kaifos he explained
that a "few" employees would occasionally have to
work overtime if it involved a "key" machine or one
which was necessary to keep the mill operating. Kaifos
and Veach, who Harrelson characterized as the best me-
chanics he had, often worked on the centrifuge machine
together. Sometime in the morning hours of March 20
Kaifos indicated that he thought the centrifuge machine
had a bad bearing. Mechanic Veach confirmed this, and
Harrelson agreed with Veach, but also wanted the ma-
chine to continue running and directed Kaifos to turn it
on; Kaifos refused. After lunch, Veach and Kaifos
changed the bearing oil, and Harrelson and Daigle decid-
ed to call the manufacturer after learning that they could
not reroute the sludge and thus the mill could not oper-
ate without the centrifuge
According to Harrelson, sometime after 3 p.m. Daigle
called the manufacturer and ascertained that the centri-
fuge machine could be run. At this time the "cap" and
"end" were off the bearing housing and Kaifos and
Veach were "waiting" for instructions as to what to do.
Harrelson testified that he had instructed both to "wait"
until a decision was made. After learning that the centri-
fuge machine could be run, he went back to the machine
"close to and Veach was there but Kaifos had left.
Thereafter. he and Veach then worked on the machine
approximately 1 to 1-1/2 hours and placed it back into
operation. Harrelson indicated that after this he put a
note on Kaifos' timecard and then went to the Compa-
ny's president, Cohen, and told him what had happened,
explaining that Kaifos had walked off the job and that he
proposed a suspension. According to Harrelson, Cohen
When was discharged. Harrelson instructed secretary
Judy Page to draft a memo, which he signed, and which reads as follows:
H.D. was because of not reporting to work. I
tried for three or four days to reach him at home because we needed
him for work. He could not be reached at home, and he reported
that he was sick and under a doctor's care. but did not give us an
excuse from the doctor.
Harrelson later that he knew from the beginning that the
sludge could not be rerouted because the line was stopped up.
107ti
then insited
clne day."lg
noan
$80,000
Inirial
I1
com-
Goodwin
19
Goodwin
t11e Goodwin
1ow.r
H a ~ r e l s o n . ~ ~
0tht.r
Goodwin K a i f o ~ . ~ ~
Kaifos
remilrk
Goodwin.
violi~ted
A,though Goodwin
involv-
--
'9
reasor
becaule
2 0 Ifarrelson Goodwin
contell
2 1
Goodwin lackadaisical
throuehout,
serioucness
diff:rent Goodwin, attempt
,ut
discharge,
Har-
rclson is
on
situation^.^^
discharged
Goodwin
11,
16.23 O n
17
Goodwin
6:30
Goodwin
Goodwin
Goodwin
Goodwin
who
Goodwin Goodwin
Goodwin
Goodwin
2 2
act~vity,
Divtsion
Inc.. (1980),
"prima
d~stlnction often
Inc., supra
23
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Kaifos be discharged for his conduct. In
summary, Harrelson indicated that Kaifos was dis-
charged for "disobedience of an order, direct; two times
in He denied that he directed the rerouting
of the sludge to the lagoon, knowing full well that it was
impossible because the line was stopped up. Harrelson
conceded that he stated to Kaifos, sometime after 12
on March 20, that he himself could not make a de-
cision on an piece of equipment.
B. Analysis and Conclusions
is undisputed in this case that both employees Good-
win and Kaifos were known by Respondent to be union
supporters and members of the Union's organizing
mitlee, and that Respondent was strongly and firmly
against the Union, and I so find. T h e complaint alleges
the unlawful discharge of and Kaifos on Octo-
ber and March 20, respectively. The two other viola-
tions charged in the complaint involve Harrelson's al-
leged mill-shutdown remark to Kaifos in late September
and his alleged remark to in early October that
if Union came in he could give a test and
his wages. These incidents were unwitnessed and
the statements were denied by There is no
evidence of similar remarks, and the issue of the al-
leged remarks thus and solely involves credibility, the
resolution of which will also bear upon the discharges
themselves.
I can think of no way to subtly or tactfully dispose of
the credibility resoulutions in this case. Abruptly and
simply, I discredit the major and significant portions of
the , estimony of both and I thus find
that no mill-closing statement was made by Harrelson to
in late September. The test-and-lower-wage
was made, I find, as admitted by Harrelson, but
was unconnected with the Union as alleged by
Accordingly, I find and conclude that the Act was not
as alleged in paragraph 8 of the complaint.
having discredited and Kaifos,
their discharge requires a more detailed discussion of the
facts and evidence in this case in the light of the Board's
most recent pronouncement regarding discharges
Later Harrelson signed a "termination report" which stated the
for termination as follows: "Employee was asked to stay on job
of breakdown and he walked off job without reporting to super-
visor."
did admit that he talked to once in a nonunion
about his abilities as a mechanic and remarked that if he "gave
him a test [he] could probably cut his wages."
1 studied their demeanor closely and scrutinized the logic and plau-
sibility of their testimony. was nonchalant and
and treated his absences (and For that matter the entire pro-
ceeding) without any whatsoever. His explanations were shal-
low a rd often thrown out like afterthoughts. Kaifos, displaying an entire-
ly personality than made a far better at the
truth. the two appeared to become bound together by their common
plight of and their explanations and denials soon took on a
joint a r of false conjectures and contempt. Maintenance Supervisor
a large man who was totally serious and somewhat nervous
throughout his testimony. He obviously would have felt far more at
home the line with the machines at the mill, but he impressed me as
honest and hardworking and a man of few words, most of which were
rcwrvrd for his singular work responsibility of maintaining the operation-
al status of the equipment in the mill.
ing "mixed motive" or "dual causality" In
Goodwin's case, Respondent argues that the discharge
resulted from his absences without calling his supervisor,
Harrelson, in accordance with acknowledged company
rules. Numerous other employees had been
for the same reason, although there had also been excep-
tions. was employed in July, injured his back
on August 21, and was out and under a doctor's care
until October 2. On Wednesday, October he asked
and received permission to be off on Sunday and
Monday, October I5 and Saturday, October 14,
he worked only several hours and then left with permis-
sion because his back was "bothering" him. O n Tuesday,
October (at 8 a.m.), and Wednesday, October 18, he
failed to report to work, and on Thursday, October 19,
he arrived late only for the purpose of picking up his
check, and told Harrelson he was going to the doctor
and would report back to work the following morning.
H e then was told that he was discharged.
claims to have called in on October 17 at 6 or a.m.
and talked to employee Weatherford, who creditably tes-
tified that he received no such call and was not even
working at that time (as reflected on his timecard).
also claimed that he called in on October 18
and left a message with employee Paul Swails, who,
without explanation, was not called to testify in this case.
Kaifos claims to have found Swails' note and hid it in
Harrelson's desk drawer so that he would not be asked
to work Goodwin's shift (in Goodwin's place) on Octo-
ber 18. does not claim that any call was made
during the early morning hours of October 19 when he
reported late to pick up his check. Both Harrelson and
General Manager Daigle tried to reach by
phone, but received no answer with each attempt. The
number had left with the Company was that of
his "girl friend," but during the period in question he
claimed to have stayed with his mother had no
phone; his aunt next door did have a phone, which he .
indicated he used when calling in. Having discredited
(and Kaifos), I find that did not in
fact call in as required, and that Harrelson was never
timely notified on October 17, 18, and 19 that
would not be reporting for work. As of October 19,
had worked less than half the time he had been
employed. His dependability, and thus his value to Re-
spondent, became understandably in serious doubt, espe-
cially after 3 straight days without notification on the
heels of 2 additional days of excused absences. Good-
win's discharge came a month and a half after the
union's organizational notification, during which period
In the past the Board has generally held that, if the discharge was
motivated "in part" by the employee's concerted protected it
was in violation of the Act. In Wright Line. A of Wright Line.
251 NLRB 1083 the Board founded a new test, which pro-
vides that the General Counsel must make a facie showing suffi-
cient to support the inference that the protected conduct [or union activ-
ity] was a 'motivating factor."' At that point, the burden shifts to the em-
ployer "to demonstrate that the same action would have taken place even
in the absence of the protected conduct." Under this new test, it is appar-
ently unnecessary to distinguish between "pretext" and "dual motive"
cases, a which in the past has been difficult to discern.
See Wright Line, at fns. 4 and 5.
By his own admission, he attended drag races on these 2 days.
Goodwill
time.z4
furtker
discharg:
19.z5
d~scharge
had 20.26
machine,
whtmther
sometim~:
Kaifc~s
woeked
and
3:30
msintenance
none! 3:30
left
f r m 3:15 3:30
Ha18relson
3:30,
proc1:dure 1 Harrel-
--
24
m y ,
I3r
f
2 5 1
2s
he
[hat
compl@nt
2(2), (6),
2(5)
8(a)(l)
8(a)(3) (1)
l q c )
2 ' Sec.
In Sec. 102.48
1077 CAROLINA PAPER MILLS. INC.
was out sick and under a doctor's care for the
majority of the I find not only that the General
Counsel failed in this case to present sufficient credible
evidence to raise the inference of an illegal discharge,
but that the sole motivating factor for Goodwin's
was his displayed undependability depicted by
his failure to call or report to work on October 17, 18,
and
The of Kaifos came long after the union ac-
tivity ceased and on March Early in the morn-
ing it appeared that a bearing had burned out in the cen-
trifuge which was vital to the mill's operation.
Throughout the morning there was various talk about
what to do, and the machine was turned off and on sev-
eral times. At one point Harrelson directed Kaifos, who
was the primary mechanic for the machine, to turn the
machine on and he refused. Later on in the day the bear-
ing houring was removed and the existence of the bad
bearing was confirmed. There was no replacement bear-
ing on kand, and the manufacturer was called to ascer-
tain the machine could be run with the faulty
bearing and to order a new bearing. This took place
after 3 p.m. Harrelson testified that he instruct-
ed to remain at the mill until the question had
been resolved. This was not unusual and those mechanics
who on particular key machines were to remain
overtime for reasonable periods if necessary to place the
machine back "on line." Kaifos denied he was told to
remain, mechanic Jesse Jorden testified that some-
time between 3 and p.m. Kaifos and four or five
other employees were "standing around"
and were instructed to remain late. Sharply at
Kaifos the mill (his normal departure time). Within
minutes thereafter the decision was made to place the
machine back on line. It is unclear as to what precise
time the manufacturer was actually reached. The best es-
timate the record would be between and
p.m. himself, together with mechanic Veach,
actually placed the machine back on line after and
the took between and 1-1/2 hours.
son initially decided to suspend Kaifos, but Respondent's
There is absolutely no evidence in the record as to the level or in-
tensity, if o f union activity among the employees at the time of
Goodwin's discharge. Kaifos testified that he abandoned the idea before
Christmas lack of interest. There is no evidence as to when this lack
of interest rst became apparent.
do rot herein pass upon the severity of the result of Goodwin's
conduct, but only that such conduct was the sole cause of his discharge.
and that the result was not discriminatorily applied.
Kaifor testified that when he abandoned his union activity before
Christmas had intended to renew this activity in March or April.
However, there is no evidence that he in fact renewed this activity in
March, or he conveyed his earlier intentions to anyone at or con-
nected with the mill. He had been the prime supporter for the Union.
president, Cohen, upon learning of the events of the day
regarding Kaifos, directed that Harrelson discharge
Kaifos for "disobedience" of Harrelson's orders to both
turn the machine back on and to remain at the mill until
the problem of the machine had been resolved. Other
employees over the past years had also been discharged
for "disobedience."
No matter what prompted Kaifos' discharge, I am sat-
isfied it had nothing to do with his union activities some
3 to 6 months prior to the discharge. I find that in fact
not only was Kaifos told to stay late, but he was aware
of his responsibilities in this connection. In my opinion
these responsibilities were not abrogated by any feelings
Kaifos may have had regarding being used as a "scape
goat" for an expensive piece of equipment. Although
Kaifos himself may have been disturbed or mad, I find
that his direct refusal to turn the machine on and his pre-
mature departure under the circumstances infuriated
Harrelson, whether rightly or wrongly. Not only was
Harrelson defied in the presence of other employees, he
was compelled to step into Kaifos' place and work on
the machine late in the day. On the basis of the forego-
ing, I shall recommend that the be dismissed.
Upon the foregoing findings of fact and initial conclu-
sions, and upon the entire record, I hereby make the fol-
lowing:
1. Respondent is an employer engaged in commerce
within the meaning of Section and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section of the Act.
3. Respondent has not violated Section or Sec-
tion and of the Act as alleged in paragraphs 8
through 13 of the consolidated complaint filed herein.
4. Respondent has not otherwise violated the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section
of the Act, I hereby issue the following recommended:
It is ordered that the complaint herein be, and the
same hereby is, dismissed.
In the event no exceptions are filed as provided by 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.