Claxton Mfg. Co.

National Labor Relations Board - Board Decisions

Mar 20, 1978

235 N.L.R.B. 261 (N.L.R.B. 1978)

CLAXTON MANUFACTURING CO., INC.
Claxton Manufacturing Co., Inc. and Laborers' Inter-
national Union of North America, Local Union
896, AFL-CIO. Cases 10-CA-12748 and 10-CA-
12781
March 20, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
TRUESDALE
On November 23, 1977, Administrative Law Judge
Almira A. Stevenson issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions 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, to
modify her remedy,2 and to adopt her recommended
Order.
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 and
hereby orders that the Respondent, Claxton Manu-
facturing Co., Inc., Claxton, Georgia, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except that
the attached notice is substituted for that of the
Administrative Law Judge.
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty 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 (CA. 3. 1951). We have carefully
examined the record and find no basis for reversing her findings.
2 In the remedy portion of her Decision and in her proposed notice. the
Administrative Law Judge inadvertently stated that interest on backpay
shall be computed "at 7 percent per annum." In Florida Steel Corporation,
231 NLRB 651 (1977), however, the Board stated that interest on backpay
shall be computed at the adjusted prime interest rate used by the United
States Internal Revenue Service.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge any of you for support-
ing Laborers' International Union of North
America, Local Union 896, AFL-CIO, or any
other union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed them by Section 7 of
the National Labor Relations Act, as amended.
WE WILL offer Raymond Kennedy immediate
and full reinstatement to the job he held prior to
his discharge on April 29, 1977, or, if that job no
longer exists, to a substantially equivalent job,
without prejudice to his seniority or other rights
and privileges.
WE WILL make whole Raymond Kennedy for
any loss of pay he may have suffered as a result of
his discriminatory discharge, plus interest.
CLAXTON
MANUFACTURING Co.,
INC.
DECISION
STATEMENT OF THE CASE
ALMIRA ABBOT STEVENSON, Administrative Law Judge:
This case was heard in Claxton, Georgia, on September 20,
1977. The charge was filed May 2, and served on the
Respondent May 3, 1977. The complaint was issued May
18, 1977, and duly answered by the Respondent. The
complaint and the answer were amended at the hearing.
The issue is whether or not the Respondent discharged
Raymond Kennedy because of his membership in and
activities on behalf of the Charging Party Union and
because he engaged in concerted protected activities, in
violation of Section 8(aX3) and (1) of the National Labor
Relations Act, as amended. For the reasons set forth
below, I conclude that the Respondent did violate the Act
as alleged.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the Respondent and the General
Counsel, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
The complaint alleges, and the answer admits, that the
Respondent is a corporation with an office and place of
business located in Claxton, Georgia, where it is engaged in
the manufacture of ladies undergarments; that during the
past calendar year the Respondent sold and shipped
235 NLRB No. 38
261
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finished products valued in excess of $50,000 directly to
customers located outside Georgia. I find that the Respon-
dent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The Charging Party Union is a labor organization within
the meaning of Section 2(5) of the Act.
Ilt. UNFAIR LABOR PRACTICES
A. Facts
Raymond Kennedy was hired August 13, 1975, and
worked at various jobs as assigned to him by William
Kicklighter, the foreman of the cutting department and an
admitted supervisor. It is undisputed that there was conflict
between the two of them from shortly after Kennedy was
hired. Thus, Kennedy was an habitual absentee, and
Kicklighter frequently remonstrated with him for that, for
talking to other employees, and for wasting time in the
men's room, telling him to get back to work. Kicklighter
conceded that other employees were also excessively
absent and that all employees were guilty of goofing off,
but he contended that Kennedy was worse than the others.
I find, however, that before the advent of the Union
Kicklighter never specifically warned Kennedy that his job
was in danger.' Kennedy said there was a personality
conflict on his part with Kicklighter. Kennedy testified that
at one time he asked Kicklighter why he did not get a pay
raise like the rest of the fellows, and Kicklighter told him
he was already paid more than he deserved. Sometime in
March 1977 Kennedy appealed to two of the company
officers, including Max Habert, as well as the Department
of Labor, about Kicklighter's riding his back so much.
When nothing came of these appeals, he spoke to a number
of employees about organizing and then contacted the
Union and arranged for the business agent and other
officials to meet with the Respondent's employees on
Saturday, April 16, 1977, at I p.m., at a roadside park on
Route 301.
On the afternoon of April 15, the day before the union
meeting, employee Jimmy Rolls overheard Foreman Kick-
lighter tell Supervisor Mary Smith that whoever signed the
card would be fired, and Kennedy heard Kicklighter tell
Smith that whoever was involved in the union meeting
would be fired. 2 The meeting was held Saturday, April 16,
at I or 1:30 in the park alongside Route 301, and was
attended by 3 union officials and 50 or 60 employees.
While the meeting was in progress, Kicklighter drove past
on two occasions within a few minutes, going in opposite
This is based on Kennedy's testimony. Kicklighter's testimony on this
and other issues was vague, evasive, and contradictory. Although Kennedy
was not invariably accurate, he was, on the whole, a more credible witness
than Kicklighter.
2 This is based on the mutually corroborative testimony of Kennedy and
Rolls. Mary Smith's denials were less than categorical, and she conceded she
knew the meeting was to be held. Kicklighter's denials are not credited in
view of his general unreliability, and his admissions that he was aware of the
impending meeting, that he asked another supervisor if he had heard
anything about it, and that he had in the past told employees he had heard
of or seen people fired for working for a union.
3 This is based on mutually corroborative testimony of Union Interna-
directions.3 As those attending the meeting were able to
recognize Kicklighter, it seems reasonable, in the circum-
stances, and I find, that he could recognize those attending,
including Kennedy.
Kennedy signed a union authorization card and obtained
the signatures of several other employees on cards at this
meeting. Thereafter, he continued advocating the Union on
and off the plant premises to other employees, some of
whom wore union buttons to work.
On one occasion in mid-April, Kicklighter discovered
Kennedy talking to employee Mary Collins and told
Kennedy if he wanted his job, he had better get back to
work. As Kicklighter walked away, Kennedy followed him
and asked him why he did not go ahead and fire him
instead of riding his back all the time. Kicklighter respond-
ed that he did not have the right to fire him and did not
want to as Kennedy needed a job as bad as anybody else
did.4
The next day, Kicklighter assigned Kennedy to work on
the clipping machine, telling him to stay there and not talk
to anybody about the Union.5 On April 19, International
Representative Hazel delivered to the Respondent a letter
dated April 18, to the attention of Kicklighter and another
supervisor, containing a list of the names of 49 employees,
including Raymond Kennedy, who were members of the
union organizing committee. Kicklighter testified that he
knew Kennedy was engaged in union activities, but he did
not know the extent of his activities. When asked if he
knew Kennedy was on the organizing committee, at first he
answered no, but then conceded he had received the
Union's April 18 letter, and that Kennedy's name was
listed as a member of the committee.
On Friday, April 29, Kicklighter presented Kennedy
with an envelope containing his paychecks and a separa-
tion notice stating he was discharged for excessive absen-
teeism, bothering other employees, and unsatisfactory
work, signed by Vice President Max Haber. When handing
Kennedy the envelope, Kicklighter told him, "I don't know
whether this was something that happened before the
Union started or after," that he "didn't have nothing to do
with it, and he didn't know what was in the envelope." 6
The record shows that it was Kicklighter who decided to
terminate Kennedy, that he recommended termination to
Vice President Max Haber, and that Haber approved his
recommendation. Kicklighter denied that Kennedy's union
activities played a part in the decision. He testified that he
was required to wait until Max Haber came to the plant on
his monthly 4-day visit to discuss such matters with him as
there was no plant manager at the time.
With respect to the reasons for the termination, Kick-
lighter testified that Kennedy was absent 6 to 8 days a
tional Representative Alfred Hazel, Kennedy. and Kicklighter. Kicklighter's
testimony that he did not go there for the purpose of observing the meeting
is not credited as he was not generally credible and as his explanation of his
alleged business reasons for making these trips was unconvincing.
I This is based on the essentially corroborative testimony of Kennedy
and Kicklighter.
5 This is based on Kennedy's credited testimony. Kicklighter contradict-
ed himself as to whether he told Kennedy not to talk about the Union.
I This is based on Kennedy's credited testimony. Although Kicklighter
denied that the Union was mentioned, he was uncertain about the other
remarks attributed to him by Kennedy; he is not credited.
262
CLAXTON MANUFACTURING CO., INC.
month since his first week of employment. Kicklighter
conceded, however, that other employees were also exces-
sively absent, some even failing to call in. He also conceded
that Kennedy's attendance improved after mid-April but
insisted that he still missed 4 or 5 days. No records were
presented to show Kennedy's absentee rate or the absentee
rate of any other employees. Kicklighter seemed to lump
Kennedy's alleged bothering other employees and unsatis-
factory work together, contending that his talking resulted
in both. Kicklighter gave as examples one occasion about a
month before the discharge when an employee he could
not identify told him that if he would assign someone other
than Kennedy to work with him, the employee could
produce more; another occasion when a sewing supervisor
said her employees complained that Kennedy was talking
with them when he was not supposed to; and the occasion
in mid-April recited above when Kicklighter caught Ken-
nedy talking to Mary Collins. Here also Kicklighter
conceded that other employees talked when they should be
working and that he spoke to others as well as Kennedy
about it.7 He also conceded that after the mid-April
incident Kennedy improved somewhat about talking but
said that "He didn't improve that much." When asked to
explain what happened during the 2-week period between
mid-April, when Kennedy begged Kicklighter to fire him
and Kicklighter refused, and April 29, when Kicklighter
decided to fire him, Kicklighter said he always liked to give
a person a chance but he could "only take so much of it."
He then said that Kennedy was absent more frequently,
but corrected himself to say that Kennedy was not absent
more frequently, or might have been absent a day during
April, he did not know, but that Kennedy would not
respond to Kicklighter's orders dealing with his work or
work like he should and continued to talk to employees
when he ought to be working.
B. Conclusions
The Respondent asserts that it discharged Kennedy
because of excessive absenteeism, bothering other employ-
ees, and unsatisfactory work; that the discharge was
triggered by the mid-April incident in which Kennedy was
caught talking to Mary Collins (and Kicklighter declined
Kennedy's challenge to fire him) and was delayed until
Vice President Haber's next visit to the plant when
Kicklighter could obtain his permission to effect the
discharge. The Respondent further contends that other
employees were terminated for excessive absenteeism and
lesser offenses than Kennedy's, and that Kicklighter could
have terminated Kennedy at the time of their mid-April
altercation if he had been looking for a pretext.
In my opinion these contentions are not supported by
credible evidence. Thus, it is clear that Kennedy had been
guilty of excessive absenteeism since early in his employ-
ment but no disciplinary action was ever taken against him
because of that. The fact that other employees were
admittedly also guilty of excessive absenteeism and the
Respondent's failure to present records supporting Kick-
lighter's uncorroborated and uncertain testimony on ab-
7 Supervisor Melba Todd and employee Mary Collins also testified that
talking during worktime was widespread.
I There is in the record only one allusion to any other discharge, that an
senteeism or, contrary to Respondent's contention, any
evidence that any other employee was ever terminated or
even disciplined for excessive absenteeism, justifies the
inference that such records would not have shown Kenne-
dy's absences to be more numerous than those of other
employees who never were disciplined.8 Similarly, Kenne-
dy had a long record of talking to other employees on
worktime and harboring a personality conflict with Kick-
lighter, and although Kicklighter "rode his back" and
denied him a pay increase, Kicklighter did not discipline
Kennedy or, as far as the record shows, threaten to
discipline him for that until the mid-April incident when he
told Kennedy he had better get back to work if he wanted
his job. It is significant that according to Kicklighter he did
not fire Kennedy on that occasion even though challenged
to do so, not only because he did not have authority but
also because he wanted to give Kennedy another chance.
This attitude on Kicklighter's part was consistent with
Management's admitted tolerance of a widespread practice
by other employees of talking during worktime. The two
instances of employee complaints about being bothered by
Kennedy apparently occurred so long before the decision
to discharge as to be less of a factor in the decision than
afterthoughts, like his fictitious refusal to obey orders, to
justify a decision made on other bases.
There cannot be any merit in the Respondent's argument
that Kicklighter could have seized on the mid-April
incident as a pretext to discharge Kennedy for unlawful
reasons had he a mind to do so, as it is clear from
Kicklighter's testimony, supported by the Respondent, that
Kicklighter did not have authority to discharge on the spot.
Moreover, it is clear that the decision to discharge
Kennedy was not triggered by the mid-April incident,
which Kicklighter considered to be a matter warranting
only a warning of possible job loss. Thus, despite Kenne-
dy's challenge, Kicklighter testified he was determined to
give him another chance. And yet, Kicklighter conceded
that Kennedy's conduct improved, as to both absenteeism
and talking, during the ensuing 2 weeks before his
discharge.
The above evidence, including the Respondent's toler-
ance of excessive absenteeism and talking by Kennedy and
others over a long period of time, Kicklighter's professed
wish to give Kennedy another chance after the mid-April
incident, Kennedy's admittedly improved performance
during the ensuing 2 weeks before his discharge, Kicklight-
er's attempt to conceal from Kennedy at the time of
discharge the role he played in the decision, Kicklighter's
attempt to rely on incidents to support the discharge which
were mere afterthoughts, and the vague, contradictory, and
unreliable nature of his testimony generally compel the
conclusion that the reasons advanced by the Respondent
for the discharge of Kennedy were not the real reasons.
The evidence shows, however, that Kennedy was the
employee who initiated the union campaign; that Kick-
lighter and other supervisors knew about the union meeting
before it took place; that Kicklighter threatened to fire
anybody who was involved in the meeting or signed a card;
employee was discharged while in the hospital, but there is no evidence as to
the reason she was terminated.
263
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Kicklighter drove to the meeting for the purpose of
placing it under surveillance and observed those in atten-
dance among whom was Kennedy; that Kicklighter admit-
tedly knew Kennedy was a union advocate and was less
than honest in revealing his knowledge that Kennedy was a
member of the in-plant organizing committee; that he told
Kennedy and other employees not to talk about the Union
and told Kennedy the same thing again the day after the
mid-April incident when he assigned Kennedy to the
clipping machine; and that Kicklighter gratuitously con-
nected the discharge with the advent of the Union by
professing not to know whether the discharge was based on
something that happened "before the Union started or
after."
In view, therefore, of the failure of the Respondent to
show cause for the discharge, the disparity of its treatment
of Kennedy, its knowledge of the union campaign and its
threats to discharge those involved, the animus displayed
by Kicklighter,9 and the timing of the discharge at the first
visit to the plant of the sole company officer with authority
after the union campaign began, I find that a preponder-
ance of the credible evidence establishes that the Respon-
dent discharged Raymond Kennedy on April 29, 1977,
because he was an active advocate of the Union. I
conclude that the Respondent thereby discriminated
against Kennedy in his tenure of employment to discour-
age membership in a labor organization, in violation of
Section 8(a)(3) and (1) of the Act. to
THE REMEDY
In order to effectuate the policies of the Act, I recom-
mend that the Respondent be ordered to cease and desist
from the unfair labor practices found, and, in view of the
nature thereof, to cease and desist from infringing in any
other manner on its employees' rights guaranteed by the
Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4,
1941).
Having found that the Respondent discriminatorily
discharged Raymond Kennedy, I also recommend that it
be ordered to offer him immediate and full reinstatement
to his former job, or if that job no longer exists, to a
substantially equivalent job, without prejudice to his
seniority or other rights and privileges, and to make him
whole for any loss of earnings suffered by reason of the
discrimination against him, plus interest at 7 percent per
annum. F. W. Woolworth Company, 90 NLRB 289 (1950);
9 In addition to the evidence of animus detailed above, based on
comparative demeanor and probability in light of the other credited
evidence I credit Mary Collins over Supervisor Melba Todd's denial that
Todd coercively interrogated Collins and employee Pam Almann about
their union activity on May 12, 1977. At the hearing, the General Counsel
stated that a settlement agreement had been reached with respect to all
allegations of the complaint, including all 8(aXl) allegations, which were
withdrawn, except that relating to the discharge of Kennedy. The General
Counsel further stated that no 8(aXl) findings should be considered in
connection with the testimony regarding animus.
'o Contrary to the Respondent's contention, it is not unusual for an
employer to choose one of many employees known to be engaged in union
activity for discharge, as the discharge of one tends to discourage union
membership by all. I have read with interest the cases referred to me by the
Florida Steel Corporation, 231 NLRB 651 (1977); Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER "
The Respondent, Claxton Manufacturing Co., Inc.,
Claxton, Georgia, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee to discourage membership in and support of
Laborers' International Union of North America, Local
Union 896, AFL-CIO, or any other union.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Raymond Kennedy immediate and full rein-
statement to his former job or, if that job no longer exists to
a substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any lost earnings in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its plant in Claxton, Georgia, copies of the
attached notice marked "Appendix." 12 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by the Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
Respondent but find them inapposite because there, unlike here, the
General Counsel failed to prove by a preponderance of the evidence that the
employee discipline was discrinminatorily motivated.
11 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
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
12 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
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."
264