Elkton Die Casting Co., Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1977

232 N.L.R.B. 500 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Elkton Die Casting Company, Inc. and International
Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America, UAW. Case
9-CA-10864
September 28, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On June 8, 1977, Administrative Law Judge
Michael O. Miller 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,2 and
conclusions of the Administrative Law Judge, except
as modified herein, 3 to modify his remedy, 4 and to
adopt his 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, Elkton Die
Casting Company, Inc., Elkton, Kentucky, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
I On July 28, 1977, Respondent filed a "Motion for Judgment on the
Pleadings and to set Aside the Order of Reinstatement for William Adrian
Stokes." In its motion, Respondent contends that, because the Charging
Party has not filed a bnef in answer to Respondent's exceptions, "the Order
of Reinstatement for William Adrian Stokes must be set aside and held for
naught." Respondent's motion is hereby denied as lacking merit. The
General Counsel's motion to strike Respondent's motion is also denied.
2 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
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
Additionally, Respondent asserts that the Administrative Law Judge's
findings are the result of bias. After a careful examination of the entire
record, we are satisfied that this allegation is without merit. There is no basis
for finding that bias and partiality existed merely because the Administra-
tive Law Judge resolved important factual conflicts in favor of the General
Counsel's witnesses. As the Supreme Court stated in N.LR.B. v. Pittsburgh
S.S. Company, 337 U.S. 656, 659 (1949), 'IT]otal rejection of an opposed
view
3 The Administrative Law Judge found, and we agree, that the discharge
of William Adnan Stokes violated Sec. 8(a)3) and (1) because it was
motivated by Stokes' union activities and not by the reasons advanced by
Respondent. However, we find it unnecessary to consider or pass upon the
Administrative Law Judge's alternative finding that the discharge indepen-
dently violated Sec.
8
(aXl) under the principle of N.LRB. v. Burnup &
Sims, Inc., 379 U.S. 21 (1964).
232 NLRB No. 82
4 In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior
to August 25, 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge: This
case was heard on April 28, 1977, in Hopkinsville,
Kentucky, upon a charge filed on December 3, 1976, and a
complaint which issued on January 26, 1977. The com-
plaint alleged that Respondent violated Section 8(a)(3) and
(I) of the National Labor Relations Act (herein the Act) by
discharging William Adrian Stokes on November 24, 1976,
because of his union activity. Respondent admitted
discharging Stokes but denied that the discharge was
motivated by his union activity.
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue orally.
All parties waived filing of briefs. Based upon the entire
record, including my observation of the witnesses and their
demeanor, I make the following
FINDINGS OF FACT
I. THE RESPONDENT'S BUSINESS; UNION'S LABOR
ORGANIZATION STATUS; PRELIMINARY CONCLUSIONS
OF LAW
Jurisdiction is not in issue. The complaint alleged and
Respondent admitted that Respondent satisfied the
Board's standards for the assertion of jurisdiction over
nonretail business enterprises. I therefore find and con-
clude that Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
The complaint alleged, Respondent admitted, and I find
and conclude that International Union, United Automo-
bile, Aerospace and Agricultural Implement Workers of
America, UAW, herein the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICE
A. The Facts
On November 24, 1976,1 an NLRB representation
election was conducted among Respondents' employees.
The Union was chosen as the employees' collective-
bargaining representative by a vote of 41 to 20. William
Adrian Stokes (herein Stokes) had been active on the
Union's behalf and had handbilled for the Union on the
day of the election. At the end of the second shift on
November 24, Stokes was called into Plant Manager Dan
Rogel's office and discharged. He was given a letter setting
forth the following reasons for that discharge:
1. In the tool crib on the second shift on November
23, 1976, your assigned work station, you were
All dates hereinafter are 1976 unless otherwise specified.
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ELKTON DIE CASTING COMPANY
engaging in union activities and threatening another
employee on his vote in the impending election.
2. Later in the evening you left your assigned
station, the tool crib, and you went to another portion
of the plant in violation of your assigned duties. There
you engaged in union activity.
3. In another portion of the plant, you were
observed by your supervisor engaging in union activi-
ties and threatening an employee as to his vote in the
impending election.
4. Later in the evening and toward the end of the
shift you again threatened an employee as to his vote in
the impending election.
Stokes was the second-shift toolcrib attendant, having
assumed that position about 5 weeks earlier upon recall
from a short layoff from a different position. He admitted
leaving the toolcrib on the night in question, but asserted
that to do so was a regular part of his work. He denied that
he had ever been told that he was not to leave the toolcrib
without permission. David Long, his foreman, testified that
he initially instructed Stokes that he was to remain in the
toolcrib and that he repeated that instruction to him about
2 days prior to the discharge.
The employee allegedly threatened by Stokes was
Hershel Latham, second-shift janitor. According to Lat-
ham's somewhat confusing testimony, he had a series of
four conversations with Stokes on November 23. The first,
it appears, was in the lunchroom before work. Stokes asked
Latham how he was going to vote, Latham replied that his
vote was no one else's business, and Stokes attempted to
persuade him that if he was going to vote against the Union
he should mark his ballot in such a way as to void it.
Latham replied that that would not be right. Stokes denied
speaking to Latham in the lunchroom on November 23.
Shortly after this first alleged conversation, Latham went
to the toolcrib to pick up some gloves. He and Stokes
engaged in some conversation which touched upon the
subject of Latham's religion and Stokes allegedly told him
that if he did not vote for the Union, Stokes would bring a
rock and roll band to his church and disrupt the service.
Latham further testified, on cross-examination, that in the
course of this conversation Stokes said something to the
effect that if he did not vote for the Union, sugar would be
put in his gas tank.2 Stokes recalled discussing religion with
Latham at the toolcrib but denied both alleged threats.
Following his conversation at the toolcrib, Latham went
to Long's office and spoke with Long about Stokes "telling
me about voting for the union and just making fun of my
religion, threatening things that way." He reported the
alleged threat to put sugar in his gas tank. Stokes could see
Latham in Long's office and could see Latham gesturing
toward him. Long placed this conversation at about 9 p.m.
Following his observation of Latham in Long's office,
Stokes spoke with Latham in the foundry. He told Latham
that he did not like Latham talking about him behind his
back. Latham testified that Stokes appeared angry and
said, "I will get you for that." Long came up to Stokes at
2 Latham recalled this statement, on direct examination, only after being
asked a leading question to which an objection was sustained. He did not
attnbute it to the second conversation at that time. On cross-examination.
he omitted the reference to the rock and roll band.
this point and told him to return to the toolcrib. 3 Long did
not claim to have heard any threat made by Stokes.
Toward the end of the shift, according to Latham, Stokes
spoke with him in the men's room. Stokes allegedly said,
"That's all right, that's all right." Stokes denied talking to
Latham in the men's room on November 23.
After he sent Stokes back to the toolcrib, according to
Long, he spoke again with Latham. He asked what the
conversation was about. Long testified that Latham
"reminded me that Stokes had told him that they would
put sugar in his gas tank or anybody else's that didn't vote
for the union and that Stokes was making fun of his
religion and that he was going to bring a rock and roll band
into his church .... " Latham told Long that a gospel
band would be all right, but not rock and roll. According to
Long, this was the first time that Latham mentioned the
threat to bring a band to the church. Latham did not testify
as to this conversation.
Rogel testified that on two occasions about a week
before the election he had observed Stokes picking up work
material outside of the toolcrib and talking to other
employees. He told Stokes that there were other employees
to do that work and directed him to return to the toolcrib.
On November 22, according to both Long and Rogel, Long
observed Rogel go to the tool-and-die area upon checking
in and engage in a conversation prior to the start of the
shift. Stokes was supposed to start 15 minutes early so as to
coordinate with the first-shift toolcrib attendant. Long
reported this to Rogel. On the evening of November 23,
Rogel came in to the plant "sometime after 7:00, after the
lunch hour and David Long then informed" him of a
confrontation at the toolcrib and of the alleged threat to
bring a rock band to Latham's church and break up the
service. However, Rogel did not discharge Stokes until the
following night, "because [he] learned of several other
instances where [Stokes] had been harassing Hershel
Latham."
Rogel prepared the discharge letter, previously quoted.
The first numbered paragraph, he said, refers to the
incident between Stokes and Latham at the toolcrib. The
second numbered paragraph was intended to refer to
several instances where Stokes "left his work station and
went out to Hershel Latham to threaten him." According
to Rogel, Stokes "may even have left his work station when
he was supposed to be in the tool crib and followed Hershel
Latham into the lunchroom and proceeded to harass him
there about voting for the union."
Respondent maintained no no-solicitation rule which
prohibited employees from discussing the Union while on
worktime. No evidence was adduced that Stokes' absences
from the toolcrib caused any delays in the work or
interfered with his assigned duties. Stokes was not
questioned by either Long or Rogel about the alleged
threats.
The record contains no evidence, other than the
foregoing, that Respondent harbored any union animus.
I Stokes and Latham's version of this conversation are similar except that
Stokes' version does not include the "I will get you .. ." statement. That
statement was not mentioned by Latham when he repeated the conversation
on cross-examination.
501
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Credibility Resolutions
Latham testified about two conversations, in the lunch-
room before the shift and in the men's room toward the
end of the shift, which Stokes denied. As neither alleged
conversation contained a threat such as might constitute
misconduct warranting discharge, I find it unnecessary to
resolve the conflict. Stokes did not deny being in either
place and it is likely that he was in one or both places at
some time in the course of the night. In regard to the
alleged threats by Stokes to Latham, I credit Stokes'
testimony. In addition to being more favorably impressed
by Stokes' demeanor, I note the inconsistencies between
Latham's testimony on direct and cross-examination and
his inability to recall the alleged threat to put sugar in his
gas tank without being reminded of that threat by a leading
question.
On the question of whether Stokes had been told that his
work station was the toolcrib and that he was expected to
remain there, I credit the mutually corroborative testimony
of Rogel, Long, and Latham. I note also that Respondent
had an employee, other than the toolcrib attendant, whose
job it was to pick up such things as dirty gloves. It would
therefore be probable that Respondent would have
expected the toolcrib attendant to remain in or around the
toolcrib area.
C. Analysis and Conclusion
The question presented is one of motivation: whether
Stokes' discharge was motivated by misconduct or union
activity. I conclude that Stokes was discharged because of
the union activity he had engaged in, including his
conversations with Latham, rather than any misconduct on
his part. Stokes' conversations with Latham were either
about the union election or were believed by Respondent
to be on that subject. Stokes did not, I have found, threaten
to put sugar in Latham's gas tank or to disrupt Latham's
church services with rock and roll music. That Respondent
may have believed that Stokes threatened Latham is no
defense where, as here, it is found that he did not. It is well-
settled that an employer violates Section 8(a)(l) by
discharging an employee for misconduct arising out of a
protected activity, despite the employer's good faith, when
it is shown that the misconduct never occurred. N.LR.B. v.
Burnup and Sims, Inc., 379 U.S. 21 (1964); Moore Business
Forms, Inc., 224 NLRB 393 (1976).
Moreover, the evidence establishes that Respondent's
assigned reasons for discharge were pretextual. Thus,
although it claimed to discharge Stokes for threatening
Latham, Respondent was not so concerned with the
veracity of Latham's assertions that it felt any need to
question Stokes. Rogel's affidavit to the NLRB investigator
contained no reference to the alleged threat to disrupt
Latham's church services with offensive music, thus
belying Rogel's concern with that alleged threat. The
testimony of Rogel and Long is inconsistent in regard to
how and when he and Long became apprised of the alleged
threats. Long testified that Latham reported the "gas tank"
threat to him around 9 p.m. and only later mentioned the
rock and roll band. Rogel stated that Long told him of the
latter when he arrived at or about 7 p.m. Rogel did not
decide to discharge Stokes at that time. Rogel waited, he
said, until he learned of "several other instances where
[Stokes] had been harassing Hershel Latham." The other
instances of confrontations between Stokes and Latham,
i.e. the lunchroom, foundry, and men's room incidents, as
testified to by Latham, even if credited, were not such as to
warrant discharge. In regard to Stokes' absenting himself
from the toolcrib, the evidence only establishes one
incident where Latham was improperly away from the
toolcrib area on November 23, the conversation in the
foundry. Even then, he was doing some work, picking up
gloves. Respondent adduced no evidence to indicate that
this absence caused any disruption of work. The other
alleged incidents took place either at the toolcrib or in such
places as Stokes might be expected to frequent, the
lunchroom (before the shift) and the men's room. Both of
those places were within eyeshot of the toolcrib. Finally, I
note the language of the discharge letter prepared by
Rogel. Each numbered paragraph refers to Stokes' union
activity. It asserts that Stokes left his work station, later in
the evening, to engage in union activities, that he was
observed by his supervisor "threatening an employee as to
his vote in the impending election," and that he repeated
that threat toward the end of the shift. None of the reasons
therein are factually accurate. The stress placed upon the
union activity in this letter, and the inaccuracies therein, I
find, evidence Respondent's actual motivation.
ADDITIONAL CONCLUSIONS OF LAW
1. By discharging William Adrian Stokes because of his
union activities and/or because of its mistaken belief that
he had engaged in misconduct in the course of union
activities, Respondent has violated Section 8(a)(1) and (3)
of the Act.
2. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in an unfair
labor practice, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action
designed to effectuate the purposes of the Act.
Respondent will be required to offer William Adrian
Stokes immediate reinstatement to his former position of
employment or, if that position no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, dismissing, if
necessary, anyone who may have been assigned or hired to
perform the work which Stokes had been performing prior
to his termination on November 24, 1976. Additionally,
Respondent shall be required to make Stokes whole for any
loss of earnings that he may have suffered by reason of the
discrimination against him, with backpay to be computed
on a quarterly basis, making deductions for interim
earnings, and with interest to be paid at the rate of 6
percent per annum. F. W. Woolworth Corpany, 90 NLRB
289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716
(1962). I shall also recommend that Respondent post an
appropriate notice.
502
ELKTON DIE CASTING COMPANY
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 4
The Respondent, Elkton Die Casting Company, Inc.,
Elkton, Kentucky, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee in regard to hire, tenure of employment, or any
term or condition of employment in order to discourage
membership or activities in behalf of the International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, or any other labor
organization.
(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 which I find is
necessary to effectuate the policies of the Act:
(a) Offer William Adrian Stokes immediate and full
reinstatement to his former position or, if that position no
longer exists, to a substantially equivalent position.
(b) Make William Adrian Stokes whole for any loss of
earnings he may have suffered by reason of his unlawful
discharge, in the manner set forth in the section of this
Decision entitled "The Remedy."
(c) 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 other records
necessary to analyze and determine the amount of backpay
due under this Order.
(d) Post at its plant copies of the attached notice marked
"Appendix."5 Copies of said notice on forms provided by
the Regional Director for Region 9, after being duly signed
by Respondent's representative, shall be posted by Respon-
dent immediately upon receipt thereof and be maintained
by it for 60 consecutive days in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps it has
taken to comply herewith.
I 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.
I In the event the Board's Order is enforced by a Judgment of the 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we have violated the National Labor
Relations Act and has ordered us to post this notice to our
employees.
The Act gives the employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the purpose
of collective bargaining or other mutual aid or
protection
To refrain from the exercise of any such
activities.
In recognition of these rights, we hereby notify our
employees that:
WE WILL NOT discharge or otherwise discriminate
against any employee because of activity on behalf of
International Union, United Automobile, Aerospace
and Agricultural Implement Workers, UAW, or any
other union.
WE WILL offer William Adrian Stokes reinstatement
to his former job or, if that job no longer exists, to a
substantially equivalent job, and WE WILL make him
whole for any loss of earnings he may have suffered as
a result of his discharge.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of rights
guaranteed them by Section 7 of the Act.
ELKTON DIE CASTING
COMPANY, INC.
503