DSL Mfg., Inc.

National Labor Relations Board - Board Decisions

Apr 6, 1973

202 N.L.R.B. 970 (N.L.R.B. 1973)

970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DSL Mfg., Inc. and Bettie Oleta Stribling. Case
26-CA-4228
April 6, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On September 15, 1972, Administrative Law Judge
George L. Powell issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
reasons set out below, I find that the General Counsel has
not established by a preponderance of the evidence: (1)
that Stribling was discharged for her union activity; and (2)
that there were independent violations of Section 8(a)(1).
Accordingly, the complaint will be dismissed in its entirety.
This proceeding is based upon a Complaint and Notice
of Hearing issued against DSL Mfg., Inc. (Respondent) by
the Regional Director for Region 26 of the National Labor
Relations Board (Board), on March 7, 1972, founded upon
a charge filed by Bettie Oleta Stribling (Stribling) on
January 31, 1972, and amended on Februar y 28, 1972.
Respondent, participating throughout by counsel, denied
the commission of any unfair labor practices. Briefs were
set for filing on June 16, 1972, but at request of
Respondent the time for filing was extended to June 30,
1972. The General Counsel filed a brief on June 30, 1972,
but Respondent's brief was untimely filed on July 5, 1972.1
Upon the entire record, my observation of the witnesses
as they testified, and the brief filed by the General
Counsel, I make the following:
FINDINGS AND CONCLUSIONS
II. PARTIES
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 complaint herein be, and it
hereby is, dismissed in its entirety,
I The General 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 respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect. Standard Dry Wall
Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
1. STATEMENT OF THE CASE
GEORGE L. POWELL, Administrative Law Judge: This
case was tried before me on May 16 and 17, 1972, in
Oxford, Mississippi, under Section 10(b) of the National
Labor Relations Act,las amended, 29 U.S.C. 151, et seq.
(Act.)
The issues are whether employee Bettie Oleta Stribling
was discharged for her union activity in violation of
Section 8(a)(1) and (3) of the Act or whether she was
discharged,, for cause, and whether certain alleged inde-
pendent violations of Section 8(a)(1) were proved. For the
' I assume that the brief filed by Respondent related to this case
although it was numbered as "6-CA-5664." This brief was read but was not
considered in the decision.
Respondent, a Mississippi corporation engaged in the
manufacture of wearing apparel at Bruce, Mississippi,
during the 12-month period before issuance of the
complaint, sold and shipped goods valued in excess of
$50,000 directly to points outside the State of Mississippi.
I find that at all material times Respondent has been,
and is, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
I find that at all material times Teamsters Local Union
No. 891, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (Union), is now, and has been at all times
material herein, a labor, organization within the meaning of
Section 2(5) of the Act.
There was no issue concerning the jurisdiction of the
Board over the parties.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleged that Supervisor James DeVall
interrogated an employee about her union membership,
activities, and desires in the first part of November 1971;
interrogated an employee concerning a location where a
union meeting was to be held; and created the impression
of surveillance of the employees' union activities by telling
an employee that Respondent already knew what city the
union meeting was to be held in, but did not know the
location of the meeting in that city.
In support of these allegations, the General Counsel
adduced evidence supporting the fact that Stribling
instigated a union organizational drive among Respon-
dent's employees in October 1971: She began this activity
by telling Mr. and Mrs. James Huckaby that she wanted to
get in touch with someone to try to get a union in
Respondent's plant. The Huckabys contacted Henry
DSL MFG., INC. 971
Henderson, president of Local 7706, United Steelworkers
of America, and set up a meeting at their home in late
October 1971. Stribling attended this meeting (along with
some union member employees of Ram Tools) and she
invited four other employees of the Respondent to come
with her to this meeting.
One of the employees Stribling invited to accompany her
to the meeting at the Huckaby's home was witness Shirley
Ann Hughes, but Hughes declined the invitation. The
invitation to attend had been given at night over the
telephone. According to Hughes, the -next day at work,
Plant Manager James DeVall came up to Hughes at her
machine and asked her if she had received a telephone call
the night before. Hughes did not understand what DeVall
was talking about, but when he came back she asked if he
was talking about Jan Mahan, an employee. DeVall said,
"No, another girl that works here." Later on she called
Supervisor Robert Baker over to her machine and asked
him what DeVall was talking about. Baker, who had not
overheard the DeVall-Hughes conversation, said DeVall
wanted to know where the meeting was. To this Hughes
replied that all she knew was that the meeting was in Water
Valley. Baker replied that DeVall knew the meeting was in
Water Valley, that he just wanted to know where in Water
Valley. Hughes has not signed an authorization card, has
not attended a union meeting, nor has she engaged in any
union activity.
The above was Hughes' testimony at the trial. However,
on February 25, 1972, Hughes had submitted the following
affidavit to Respondent's counsel:
I, Shirley Hughes, first being duly sworn depose and
say:
While I was at work at my job with DSL Mfg. Inc.,
around Nov 1971 plant manager James DeVall came to
me one day and said "Did you get a call last night?" I
answered "No, I don't reckon." A little later James
DeVall came by again and I asked him if he was talking
about Jan Mahan. He said "No". I asked him "Are you
talking about another girl?". James DeVall said yes.
James DeVall then asked me something about a
2 The General Counsel led the witness by asking her, "In October or
November of 1971 did you have a conversation with Stribling about a
meeting?" She answered, "Yes." Testimony of Henderson and Stribling puts
the meeting in October.
3 Hughes testimony on direct examination, in pertinent part, is:
Q. Would you tell us about this conversation. [The "October or
November" conversation. See footnote above:]
A. You mean about the telephone call? She called one night and
asked if I'd go to a meeting in Water Valley with her, and I told her
that my husband was on the night shift and I didn't have a babysitter,
and I weren't sure at that time whether I wanted to go or not.
Q. Did she tell you where it was going to be?
A. Yes, sir, she said at Water Valley.
Q.
A.
Q.
call?
Did she identify it as to a street or house, or location?
No, shejust said Water Valley.
Did you tell anybody about this conversation or that telephone
A. Yes.
Q. Who?
A. My mother-in-law, for one. I don't know whether I told anyone
else or not.
Q. What's her name?
A. Katie Logan.
Q. Where does she work?
A. For DSL.
Q.' What, if anything, happened at the plant the -next day?
meeting. He did not say "Union meeting" or what kind
of meeting.
Later I called Robert Baker over and asked him what
meeting James DeVall was talking about. and he said
that James DeVall was just trying to find out where it
was going to be.
No supervisor or floorlady of the company ever
questioned me concerning union [sic
I was told by the company attorney that the company
is investigating a charge filed with the NLRB and that I
was free to discuss or not discuss things concerning that
charge with him and that what ever my decision was
and whatever I might-say or not say would not be held
against me in any way concerning my job or working
conditions.
I have read the foregoing affidavit and swear that it is
true.
A. Discussion of Testimony of Hughes
Hughes' affidavit is considerably different from her
testimony. For example: 1) the affidavit puts the date in
November when she had the conversation with DeVall
instead of in October; 2 2) it does not link the date with the
day after the meeting which was brought out by another
leading question of the: General Counsel; 3) it does not
identify Water Valley as the place of the meeting; 4) it does
not tell that DeVall knew the meeting was in.Water Valley
and he only wanted to know where; and 5) the affidavit
puts the meeting to take place in the future "where it was
going to be" rather than in the past.3
I can only speculate as to why Hughes' affidavit varies so
much from her testimony, and speculation does not
amount to evidence. But I do find that the affidavit dilutes
the later testimony into a gruel too thin to support a
finding that DeVall questioned Hughes about her union
membership, activities, and desires or that Baker created
the impression of surveillance of Hughes' union activities
to the extent necessary to find as a matter of law that
Hughes was interfered with, coerced, or restrained from
A. Mr. DeVall came to my machine and, asked me if I got a
telephone call the night before.
TRIAL EXAMINER (Interposing): Who?
THE WITNESS: Mr., DeVall asked me if I'd got a telephone call the
night before.
A. (Continuing) I couldn't remember right away, or didn't think
right away what he was talking about.
He went on by and talked to another lady and then he came back
by, and I asked him if he was talking about Jan Mahan , a girl that
worked there, that had gone home the day before, or if he was talking
about another girl that works there, and he said, "No, another girl that
works here."
Q. (By Mr. Johnson) What, if anything, happened after that?
A. Well, Robert Baker came by-well, I called him by and asked
him what Mr. DeVall was talking about , and I believe he-let's see.
He said he wanted to know where the meeting was,,I believe, were
his words.
Q. This was Baker talking?
A. Uh-huh.
I said I didn't know anything about it, that all I knew was that the
meeting was in Water Valley.
Q. What, if anything, did Baker say to that?
A. He said , well, he [DeVall ] knew the meeting was in Water
Valley, but he [DeVall] just wanted to know where in Water Valley.
Q. What did you reply, if anything?
A. I don't think I made any other reply.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaging in union or concerted activities within the
meaning . of Section 8(a)(1) of the Act. Moreover, the
denials of DeVall and Baker at the trial convince me that
the remarks were not made at all. Accordingly, I will
dismiss these allegations of the complaint.
The General Counsel also alleged , as an independent
violation of Section 8(a)(1) of the Act, that Supervisor Lura
Jane Hubbard on or about January 25, 1972, asked an
employee of Respondent whether Stribling was still
working for the Union . The General Counsel called two
.witnesses to establish this allegation of the complaint. The
first witness, employee Georgia Campbell , testified as
follows:
Q. You testified that you know Oleta Stribling. Do
you recall the day Oleta Stribling was fired?
A: Yes.
Q. What, if anything , happened after lunch that
day?
A. Well, Esther Edwards asked me I know Oleta
had been sent home and I told -her no, I didn't.
TRIAL EXAMINER : Who asked you that?
THE WITNESS: Esther Edwards.
Q. (By Johnson) What happened after that, if
anything?
A. Well, after we went back after lunch, after we
started back working, I asked- Lura Jane Hubbard did
she know what happened to Oleta.
Q. Where did this take place?
A. At my machine.
Q.
A.
Q.
A.
Q.
In the plant?
Yes. .
In what department?
Where I work , on side seaming.
Side seaming?
A. Uh-huh.
Q. What, if anything, did Lura Jane Hubbard say?
A. Well, when I asked her what happened to Oleta
she say, well , she didn ' t know whether Oleta - quit or
what, she didn 't know what happened.
Q. Was anything said after that?
A. Yes. Before I turned around she asked me was
Oleta still working for that union.
Q. What, if anything, did you say?
A. I told her I didn't know anything about that.
Q. Was anyone else present?
A. Yes. .
Q. Who?
A. Cora McClora.
Employee Cora McClora worked on a machine immedi-
ately behind Campbell and testified as follows:
Q. Do you recall a conversation between Campbell
and Hubbard after Oleta Stribling was fired?
A. Yes, I do.
Q. Who was present?
A. Georgia , Lura Jane and I.
Q. Would you tell us about this conversation.
A. Lura Jane came up and Georgia asked Lura
Jane what happened to Oleta..Lura Jane said she didn't
4 According to Stribling 's letter' to Metz (G.C. Exh. 3) there were 253
employees in November 1971. There were approximately 225 women at the
date of the trial , according to DeVall. .
know that she had been fired, and Georgia asked Lura
Jane, "For what?" and Lura Jane said she didn ' t know.
So Lura Jane asked Georgia was Oleta still working for
the union , and Georgia said she didn 't know. Then
Lura Jane walked away..
Q. Is that all that was said?
A. That's all I heard.
Supervisor Lura Jane Hubbard testified that she did
have a conversation with Campbell on the day of
Stribling's discharge . Campbell called her back "and asked
me what happened to Oleta and I told her I didn ' t know if
she quit or they fired her ."-Hubbard testified that that was
the extent of the conversation.
Both Campbell and McClora were clear on this testimo-
ny as if the incident had been frozen in space and time like
"stop action" on television . On the other hand, they knew
little about what else took place on those days . This is not
unusual in these cases and is not dispositive of credibility.
Moreover , there is some question of whether Campbell's
and McClora' s machines were working during this conver-
sation. I' heard the testimony and found that I had
difficulty in hearing Miss Campbell in the courtroom with
no other sounds being made and with her sitting about 5
feet from me. I find it highly unlikely that McClora, some
42 inches behind her, could overhear Campbell, who was
not facing McClora, at the time she was having the
conversation with Hubbard even if the machines of
Campbell and McClora were not running . There is no
question but that the machines of other employees in the
immediate vicinity were running.
There is no other evidence in the case that links the name
of Stribling with union activity. Her activity began in
October and ceased no later than around mid -December
and her discharge was near the end of January . Without
even reaching the question of whether such a question,
under all the circumstances, if made , would violate the Act,
it is incredible that such a question could be heard in the
noise, of the plant. I credit Hubbard and find as a
consequence no evidence to support this allegation in the
complaint and will dismiss it.
B. The Discharge of Bettie Oleta Stribling
Henderson obtained authorization cards from James
Metz, president of the Union on November 5, 1971, and
later the same day gave them to Stribling . Between this
date and November 23, Stribling obtained 21 signed
authorization cards from Respondent 's employees, and
other employees obtained 19 signed cards.4 In early
December 1'971, Metz set up a meeting for Respondent's
employees at a cafe near Bruce , Mississippi . In addition to
Metz and Henderson , some 20 employees including
Stribling attended . Stribling, along with some others, spoke
out. Following this meeting, the employees "slowed down"
their organizational activity because of the holiday season.
There was no evidence of activity thereafter.
Respondent discharged Stribling on January 25, 1972.
DeVall called her into his office just before lunch and
DSL MFG., INC. 973
discharged her stating that her poor attitude toward her
work and her poor quality of work led to her discharge.5
Stribling was a "utility" which is an operator used to
work in different parts of the plant to do the various jobs
when other employees are absent. Evidence.was adduced
tending to prove her quality of work may not have been all
that the Company would like to have desired, but from a
study of the evidence it seems clear to me that poor work
quality had little to do with the discharge. Her work had
not deteriorated from what it had always been, and she
had been an employee for some time, so it can only be
assumed that if her work were indeed poor her perform-
ance was tolerated and in the absence of some other
circumstance she would not have been discharged.
However, there was good reason for the employer to
make the discharge because of Stribling's poor work
attitude. Testimony adduced at the trial was that Stribling
was a constant complainer. For example, she was constant-
ly complaining that DeVall was always assigning her work
that he knew she did not like. This complaining, however,
like the allegation of poor work quality, had been put up
with for some time and in itself may not have been a
reason for discharge.
The Respondent was making a serious effort to improve
its efficiency when on January 24, 1972, Duane Jaggers of
.Respondent called the inspectors together and talked to
them about the bad quality of their inspections by leaving
strings and by folding pants in a manner that caused
wrinkles. The inspectors were each shown how to fold the
pants properly. One trainee inspector, Tapley, was shown
how to fold pants by Beth DeVall, wife of James DeVall.
As Beth DeVall was making this demonstration, Stribling
interceded in a loud tone that this employee had been
instructed at least twice before and now comes Mrs.
DeVall to instruct her yet another way. Beth DeVall
related this incident that evening to her husband, James,
whereupon DeVall wrote up a reprimand note on Stribling
and fired her the next day. According to DeVall, the
voluntary remark Stribling made to his wife on January 24,
made up his mind to dismiss her. DeVall denied any
knowledge of union activities in the plant or of Stribling's
participation before Stribling was discharged.
C. Analysis, some Additional Background, and
Concluding Findings
The evidence has established that Stribling was active in
organizing Respondent's employees for the Union. The
evidence also has established that the organizing activity
took place in some 18 consecutive days during which time
40 employees out of 253 employees signed authorization
cards (Stribling got 21 of them). Finally, the evidence
established that no organizing activity took place from
mid-December 1971 until January 25, 1972. On the other
Stribling 's testimony that she was also told on discharge that she was
not making production is not credited . The other witness present , Chance,
denied she was told this ; DeVall denied this also and his written note made
following the discharge does not mention it. DeVall and Chance are
credited.
s "The side that weighs the less will not be satisfied , but that is the way
things are, and it is better than violent death." 55 Georgetown Law Journal
234 (Donald Meiklejohn , Professor of Philosophy and Social Science and
hand, the Respondent has not independently violated
Section 8(a)(1) of the Act and there is no credible evidence
of its knowledge of Stribling's union activity. As the
General Counsel has the burden of proof of establishing
union animus and employer knowledge of union activity in
a pretext discharge case such as here, this burden has not
been met and the case must be dismissed. Respondent has
no burden to prove why it discharged an employee. Given
reasons may be weak and thus create suspicions of
discharge, but suspicions do not make out a violation of
the Act.
Additional "background" evidence was adduced by
Respondent in an apparent attempt to throw suspicions as
to the discharge on other causes. Stribling's husband had
been discharged by DeVall some 11 months earlier for
refusing to perform a work assignment . Mr. Stribling
credibly testified he did not "like" DeVall, his wife knew it,
and he had made.a threat of physical harm to DeVall on
the day he was fired. He never talked to DeVall since, yet
they crossed each others path often in the little town of
4,000 people in which they lived. But there are many
reasons why employees are discharged other than for poor
work performance, and so far as the Act is concerned such
discharges are legal unless a reason for the discharge is to
discriminate in order to encourage or discourage protected
union or concerted activities. As it has not been established
that a reason for Stribling's discharge was her union or
concerted activities, no violation of the Act is made, out
and the complaint should be dismissed for failure of proof.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The alleged interrogation by DeVall and statements
by Baker was not established by a preponderance of the
evidence.
4. The alleged question by Hubbard was not estab-
lished by a preponderance of the evidence.
5. The alleged discharge of Bettie Oleta Stribling was
not established by a preponderance of the evidence.6
THE REMEDY
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:
ORDER 7
The complaint is dismissed in its entirety.
Director of the Program in Public Affairs and Citizenship, Syracuse
University).
7 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the 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.