J. P. Stevens & Co., Inc.

National Labor Relations Board - Board Decisions

Jun 8, 1971

190 N.L.R.B. 751 (N.L.R.B. 1971)

J P. STEVENS & CO
J. P. Stevens & Co., Inc . and Textile Workers Union
of America , AFL-CIO. Case 10-CA-8409
June 8, 1971
DECISION AND ORDER
BY MEMBERS, FANNING, JENKINS, AND KENNEDY
On December 31, 1970, Trial Examiner Marion C.
Ladwig issued his Decision in the above-entitled pro-
ceeding finding that Respondent had engaged in and
was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that Respondent had not
engaged in certain other unfair labor practices alleged
in the complaint and recommended dismissal as to
them. Thereafter, Respondent and the Charging Party
filed exceptions to the Trial Examiner's Decision, and
the Charging Party also filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the
entire record in the case, and hereby adopts the
findings,' conclusions,' and recommendations' of the
' Respondent argues that its records introduced at the hearing show that
overtime worked by English from May 4 to October 4, 1970, was substan-
tially similar to that worked by other servicemen, and excepts to the Trial
Examiner's failure to mention these records in his Decision Such records
do not refute English's claim that he received no overtime from April 22
until after July 4 while other servicemen continued to do so, and thus, given
the Trial Examiner's credibility resolutions, do not bear upon the events
with which we are concerned here
' The Trial Examiner inadvertently failed to find specifically that Re-
spondent 's discrimination against English violated Section 8(a)(4) of the
Act Thus, although the Trial Examiner concluded that English was dis-
criminated against by Respondent , in part because he attended a Board
hearing for the purpose of testifying on the Union's behalf, and that the
discrimination violated Section 8(a)(3) and (1), the Trial Examiner made no
finding that Respondent also violated Section 8(a)(4). We find that Re-
spondent violated Section 8(a)(4) as well as (3) and (1) by its discrimination
against English
' In its exceptions, the Charging Party requested the Board to grant an
order similar to those granted in prior J P Stevens cases, with some exten-
sion of their scope Upon review of all the relevant factors herein, including
Respondent 's companywide history of extensive unfair labor practices as
reflected by our Decisions in J P Stevens and Co, Inc (I) 157 NLRB 869,
enfd with modifications 380 F 2d 292 (C A 2, 1967), cert denied 389 U S
1005, J. P Stevens and Co, Inc (II), 163 NLRB 217, enfd. with modifica-
tions 388 F 2d 896 (C A 2, 1967), cert denied 393 U S 836, J P. Stevens
& Co, Inc (III), 167 NLRB 266, enfd with modifications 406 F 2d 1017
(C A 4, 1968), J P Stevens & Co., Inc (IV), 167 NLRB 258, enfd with
modifications 406 F 2d 1017 (C A 4, 1968), J P Stevens & Co., Inc (Dub-
lin-Nathaniel Plants) (V), 171 NLRB No 163, enfd 417 F.2d 533 (C A 5,
190 NLRB No. 139
751
Trial Examiner.
Based upon the Trial Examiner's findings of fact, and
upon the record as a whole, we substitute the following
conclusion of law for the Trial Examiner's first conclu-
sion of law:
By discriminatonly reducing the overtime work
afforded serviceman William English on and after
April 22, 1970, Respondent has engaged in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(3), (4), and (1) and Section 2(6) and (7) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, J. P. Stevens
& Co., Inc., Statesboro, Georgia, its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Reducing the amount of overtime work afforded
employees because of their joining, supporting, or ap-
pearing to testify in a Board proceeding on behalf of
Textile Workers Union of America, AFL-CIO, or any
other labor organization.
(b) Denying a wage increase or promotion to em-
ployees for joining, supporting, or testifying in a Board
proceeding on behalf of Textile Workers Union of
America, AFL-CIO, or any other labor organization.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights under Section 7 of the Act.
1969), The Black Hawk Corporation (Stevens VI), 177 NLRB No 120,
enforcement denied in part 431 F 2d 900 (C A 4, 1970), J. P Stevens & Co,
Inc., Gulistan Division (VII), 179 NLRB No 47, enfd 441 F.2d 514 (C A
5), J P Stevens & Co, Inc (VIII), 181 NLRB No 97, enforcement denied
in part 449 F 2d 595 (C A 4), J P Stevens & Co., Inc. (IX), 183 NLRB No.
5, The Black Hawk Corporation (Stevens X), 183 NLRB No 34, and J P
Stevens & Co, Inc, Gulistan Division (XI), 186 NLRB No 34, we are
persuaded that "the conventional remedies would not be adequate to disa-
buse the employees of the effects of Respondent's flagrant conduct" in the
instant case Accordingly, we shall conform our Order herein to that
adopted by the Board and approved by the United States Court of Appeals
for the Fifth Circuit in J. P Stevens (V)
Inasmuch as there has been no evidence or finding in the instant matter
that Respondent committed independent violations of Section 8(a)(1), we
decline to adopt the Charging Party's requested Notice to Employees For
reasons stated in Stevens (VIII), we also deny the Charging Party's request
to extend the scope of the Order herein so as to include all of Respondent's
plants in North Carolina, South Carolina, and Georgia Likewise, we deny
the Charging Party's request for a list of the job classifications, wage rates,
and length of tenure of Respondent's employees because, unlike a list of
employees' names and addresses, such a list will not tend to facilitate the
Union's communication with these employees Moreover, because this case
does not involve a refusal to bargain by Respondent , and in light of our
policy announced in Ex-Cell-O Corporation, 185 NLRB No 20, reversed
and remanded on this point 449 F 2d 1046 (C A D C ), we reject the Charg-
ing Party's request that Respondent make whole all of its employees for
those contractual benefits which speculatively might have accrued to them
had Respondent not committed unfair labor practices and had a collective-
bargaining agreement been concluded
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which we
find necessary to effectuate the policies of the Act:
(a) Pay to William English the amount of earnings
he lost as a result of the reduction in his overtime, plus
interest, as set forth in the section of the Trial Ex-
aminer's Decision entitled "The Remedy."
(b) Promote Tommy Lewis to second-class me-
chanic, effective February 23, 1970, and make him
whole in the manner set forth in the section of the Trial
Examiner's 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, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Upon request of the Union, immediately grant
the Union and its representatives reasonable access, for
a 1-year period, to its bulletin boards and all places
where notices to, employees are customarily posted.
(e) Upon request of the Union, made within 1 year
of the issuance date of this Decision , immediately give
to the Union a list of the names and addresses of all
employees in its Statesboro, Georgia, plant.
(f) Convene during worktime, by departments and
by shifts, all its employees in the said plant, and have
a responsible official of Respondent, at department
supervisor level or above, or a Board agent, read to the
employees the contents of the attached Appendix.
(g) Inform its employees of their rights under the
Act, and assure them that Respondent will not engage
in the conduct from which it is ordered herein to cease
and desist and that Respondent will comply with the
affirmative requirements of this Order, by mailing a
copy of the attached notice marked "Appendix" to
each employee of its Statesboro, Georgia, plant.
(h) Post at the Respondent's plant in Statesboro,
Georgia, copies of the attached notice marked "Appen-
dix."' Copies of said notice, on forms provided by the
Regional Director for Region 10, after being duly
signed by Respondent's representative, shall be posted
by Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(i) 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 here-
with.
IT IS HEREBY FURTHER ORDERED that the com-
plaint herein be, and it hereby is, dismissed insofar as
it alleges violations of the Act not found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity
to present evidence and state their positions , the Na-
tional Labor Relations Board found that we have vi-
olated the National Labor Relations Act and has or-
dered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join , or assist any union
To bargain collectively through represent-
atives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual
aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT deny a wage increase to, refuse
to promote , or otherwise discriminate against any
employee for joining , supporting , or testifying in a
Board Proceeding on behalf of Textile Workers
Union of America, AFL-CIO, or any other labor
organization.
WE WILL NOT reduce the amount of overtime
work afforded to any employee for joining, sup-
porting, or appearing to testify in a Board proceed-
ing on behalf of Textile Workers Union of
America, AFL-CIO, or any other labor organiza-
tion.
WE WILL NOT in any like or related manner
interfere with any employee's exercise of the above
rights.
WE WILL promote Tommy Lewis to second-
class mechanic as of February 23, 1970, and pay
him the increase due him since that date, plus 6
percent interest.
WE WILL pay William English for his lost
overtime , plus 6 percent interest.
° 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 be changed
to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD "
J. P. STEVENS &
Co., INC.
(Employer)
J. P. STEVENS & CO.
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Room 701, Peachtree Building, 730 Peachtree
Street, N.E., Atlanta, Georgia 30308, Telephone 404-
526-5760.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Trial Examiner: This case was tried
at Statesboro, Georgia on October 19-21, 1970,' pursuant to
a charge filed on June 15 (and amended July 27, 1970) by
Textile Workers Union of America, AFL-CIO, herein called
the Union, and pursuant to a complaint issued September 9,
1970. The primary issues are whether the Respondent, J. P.
Stevens & Co., Inc., herein called the Company, reduced one
employee's overtime work and refused to grant two other
employees a wage increase because they joined and supported
the Union, engaged in concerted activity, and/or testified in
an earlier Board proceeding, in violation of Section 8(a)(1),
(3), and (4) of the National Labor Relations Act, as amended.
Upon the entire record, including my observation of the
demeanor of the witnesses, and in the absence of any briefs,
I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
AND THE UNION INVOLVED
The Company, a Delaware corporation, manufactures tex-
tile products at its plant in Statesboro, Georgia, where it
annually ships goods valued in excess of $50,000 directly to
customers located outside the State. I find that the Company
is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
A. Earlier Proceedings
In J. P. Stevens & Co., Inc., Gulistan Division, 179 NLRB
No. 47 (1969), the Board found that the Company "resorted
to a campaign of extensive and egregious unfair labor prac-
tices in its efforts to thwart" the Union's 1968 organizational
drive at the Company's Statesboro plant, and issued a
remedial order which included a requirement that the Com-
pany bargain with the Union. The Board adopted the Trial
Examiner's findings that employee William English signed a
union membership card and participated in a home visit to
get another employee to sign a card, and that both employees
Tommy Lewis and Floyd Miller signed union cards and gave
prounion testimony at the trial against the Company. (Ex-
cerpts from the transcript containing Lewis' and Miller's
testimony, are in evidence.)
' All dates are from July 1969 through June 1970 unless otherwise in-
dicated
753
In the later case of J. P. Stevens & Co., Inc., Gulistan
Division, 186 NLRB No. 34 (1970), employee English was
alleged as a discriminatee, adversely affected by the Com-
pany's unilateral change in its wage structure. English at-
tended the trial on April 21 to testify for the Union, but no
testimony was taken-the facts being stipulated.
The complaint alleges that the Company discriminatonly
"reduced the overtime work afforded" English on and after
April 20 (the date English advised his supervisor he was
attending the trial), and discriminatorily failed and refused to
grant a wage increase to Lewis and Miller.
B. Alleged Discrimination Against English
1. Reduction in his overtime
William English is a serviceman in the winding depart-
ment, working on the B (day) shift servicing the skein and
Savvio winders. The two other servicemen on the B shift are
Leesona serviceman Jerry Rushing and Savvio serviceman
Lewis Johnson.
Because of slack business, the Company in early 1970 had
only one serviceman on the A shift (Leesona serviceman
Hugh Hodges), and two on the C shift (Leesona serviceman
Dean Bateman and Savvio serviceman Charles Campbell).
Bateman quit about the third week in March. It is undisputed
that shortly thereafter, C-Shift Supervisor Robert Buckalooe
approached English on the B shift and (in English's words)
"said that one of our servicemen had quit and they probably
wouldn't hire another one right away because business is slow
and said I will probably be needing you boys on [the day] shift
to work over." About 10 days later, Campbell also quit,
leaving both the Leesona and Savvio jobs vacant. The Savvio
job was vacant for about a week or 10 days, during which
time Buckalooe called on English and other servicemen (in-
cluding Leesona servicemen Hodges and Rushing) to help
cover the Savvio Job. The Leesona job remained vacant over
2 months. Until April 20, Supervisor Buckalooe assigned
English, as well as Savvio serviceman Johnson and Leesona
servicemen Hodges and Rushing, to work part of the over-
time to help cover the Leesona job. (At the time, most of the
plant employees were working a 32-hour week, Monday
through Thursday. Time and a half was paid for overtime
only after 40 hours a week.)
On April 20, English notified B-shift Supervisor Harley
Stringer that he was attending the Board trial. On April 22,
the day after the trial, Stringer refused to allow English to
work overtime on the C-shift.
As credibly testified by English (who impressed me as an
honest, forthright witness), B-shift serviceman Johnson came
to him a few minutes before quitting time and asked him if
he wanted to work in Johnson's place on the C shift that
afternoon. English answered that he would if it was all right
with the supervision. A few minutes later, while English was
standing about 6 or 7 feet away, he overheard Johnson say to
Supervisor Stringer that Johnson had told Supervisor Bucka-
looe "he would work over that afternoon, but he had thought
of something that he had planned to do and asked Mr.
Stringer would it be okay if I worked in his place." Stringer
loudly answered, "Hell, no," without giving any reason.
(Stringer's version of the conversation is discussed later.) A
week or two later, English complained to the plant manager
about not getting English's share of the overtime, and the
plant manager said he would check the payroll record and let
English know the next day. English did not hear from the
plant manager, but was permitted to work extra (on the day
shift) the next two Fridays. As English further credibly tes-
tified, he repeatedly asked Supervisor Buckalooe for more of
the C-shift overtime, but Buckalooe would say he did not
need English that afternoon, or he already had somebody to
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work . English was not offered any more C-shift overtime
until after the July 4 vacation week.
2. Conflicting defenses
When Supervisors Stringer and Buckalooe were called by
the Company to testify , they gave conflicting defenses.
Stringer testified that he tried to equalize the overtime, but
claimed that English was not permitted to work the C-shift
overtime on April 22 because English was not capable of
servicing the Leesona winder . Buckalooe , on the other hand,
claimed that he was repeatedly offering C -shift overtime to
English , but English was refusing to work the overtime. In
fact , Buckalooe testified , "I had such a hard time " trying to
find people to work the overtime, and that English refused the
overtime so often in April and May, "It got to the point that
should I go in there in the afternoon, he was afraid I was
going to ask him. He would turn his head on me ... he
wouldn 't even speak to me." Buckalooe did not impress me
as a candid witness, and I discredit this testimony that Eng-
lish refused the overtime . (English credibly testified that the
only time he turned down any overtime was on October 14,
5 days before the trial herein , when he rode with another
employee and would not have had a ride home if he had
worked over that evening .) I note that Buckalooe later admit-
ted that English had asked him for overtime work , and that
English had worked overtime for him as a Leesona , as well
as a Savvio , serviceman.
Concerning Supervisor Stringer 's April 22 conversation
with serviceman Johnson , Stringer testified that Johnson
"came to me and ... told me that he could not work over as
Mr. Buckalooe had asked him. He wanted to know if it would
be all right if Bill English worked over . I told him no [that
Buckalooe ] needed somebody down there that knew the job
and had experience." When asked questions on cross -exami-
nation about why he was making that decision for Buckalooe,
Stringer testified that Buckalooe "would know that he is not
capable of taking care of the job," and therefore would have
also refused to allow English to substitute for Johnson.
Stringer denied knowledge that English ever worked over-
time as a Leesona serviceman , although later admitted that
he was aware at the time whenever a serviceman on his B shift
worked overtime on another shift . (Stringer, who seemed
quite nervous when testifying , appeared to be attempting to
give testimony which would help the Company 's cause,
rather than to testify candidly.)
Not only did Stringer 's testimony conflict with Bucka-
looe's, but the evidence shows that Stringer was aware that
English was an experienced Leesona serviceman. When
called as a rebuttal witness, English credibly testified that in
February Stringer twice assigned him, for 4 hours each time,
to work as a Leesona serviceman to replace Leesona service-
man Rushing who was absent for a week with the flu . Earlier,
in 1965 and 1966, English had serviced the Leesona winder
on the A shift for over year and had trained another employee
to do the work . While on the A shift , English worked over-
time as a Leesona serviceman on the B shift , and also on the
C shift as requested by Stringer, who was then the C-shift
leadman in the winding department . I discredit the Com-
pany 's testimony to the contrary and find that English was a
well-qualified , experienced Leesona serviceman.
3. Concluding findings
As previously found , one of the supervisors claimed that
serviceman English was not permitted to do the C-shift over-
time work because English was not capable of performing it,
whereas the other supervisor claimed that he continued to
offer the C-shift overtime to English but that English refused
to work it. I discredit both and find that this conflict results
from the supervisors ' attempt to fabricate a defense to conceal
the Company's motivation for discriminating against Eng-
lish. After considering all the evidence , I find that the Com-
pany on April 22 reduced the overtime work afforded service-
man English and refused to allow him to work an amount of
the C-shift overtime equal that worked by serviceman Hodges
and Rushing , because English (a known union member and
supporter) attended the April 21 Board trial for the purpose
of testifying on the Union's behalf. (Johnson, the other ser-
viceman , was not regularly available for the C-shift overtime
because he had an evening part-time job outside the plant.)
I therefore find, as alleged in the complaint , that the Com-
pany discriminated against English because of his union
membership and support , and because he engaged in pro-
tected concerted activity , in violation of Section 8(a)(3) and
(1) of the Act.
C. Denial of Wage Increases
1. New policy
During the 1968 union campaign , all six of the Company's
maintenance mechanics , except Clyde Newton who was then
on military leave , signed union membership cards. However
one of them , Malcolm Mock , later demonstrated his disaffec-
tion with the Union . (He was represented at the earlier Board
proceeding by a local attorney who contended that union
cards signed by Mock and certain other employees should not
be counted toward the Union 's alleged majority .) Two of the
other mechanics , Tommy Lewis and Floyd Miller , demon-
strated their continued union support by testifying on the
Union's behalf at the earlier trial, as previously mentioned.
Around the first of July (about a month after the Trial
Examiner issued his June 6, 1969 , decision in the earlier case,
finding that the Company should be required to bargain on
the basis of a card majority), the Company announced an
increase in the mechanics ' wages, from $2.29 to $2.44 an
hour, and a new policy for future increases . As credibly tes-
tified by mechanic Newton , Plant Superintendent Marshall
McDuffie announced that the top pay for mechanics would
be $2.70 an hour; in order to qualify for that top pay, the
mechanics must be able to weld and to use the lathe, milling
machine, and side grinder (to be able to complete small jobs
when the machinist was tied up ); and Maintenance Super-
visor Joseph Brown would determine in the future when a
raise was deserved . Newton asked McDuffie how the mechan-
ics were supposed to learn to use the lathe and milling ma-
chine, and McDuffie answered , "You [are] just going to have
to learn it when you get a chance to learn and try to get as
much of it as you can." (Earlier , as machinist Jerry Gerrald
credibly testified , McDuffie had asked Gerrald "would I mind
if ... the men ... came to me for assistance " in learning sim-
ple operations on the lathe and milling machine, "and I told
him that I would not mind at all.") The mechanics were
already qualified to use the side grinder, and most of them
performed welding in their work.
Thereafter , the Company granted a 12-cent increase to
mechanic Mock on November 8 and to mechanic Newton on
February 23 , but refused to give an increase to the two union
supporters , mechanics Lewis and Miller . The General Coun-
sel alleges discrimination.
2. Granting of two increases
Following the announcement of the new policy, three of
the mechanics received special instructions from machinist
Gerrald on the use of the lathe and milling machine.
The first was mechanic Lewis. As he credibly testified, he
went to Supervisor Brown sometime later, asked for a raise,
and Brown told him to work with machinist Gerrald "when-
J. P STEVENS & CO.
ever I had a chance and try to learn about lathe and milling
machines." Lewis did. He observed and took instructions
from Gerrald, and made items for production with and with-
out supervision. He estimated that he worked with Gerrald
in excess of 15 times, learning some lathe and milling work.
(Machinist Gerrald, a company witness, confirmed that me-
chanic Lewis did take this instruction from him. However,
Gerrald could not recall accurately when Lewis, and later
Mock and Newton, took the instruction.)
Sometime in October, another mechanic, Newton, asked
Supervisor Brown for a raise. As Newton credibly testified,
"I said I think it was time that we got a raise and he said that
several had put in for a raise and we probably should get
one." Brown also gave mechanic Lewis a somewhat similar
response one time when Lewis was asking for a raise (after
Lewis began going to Gerrald for the special instruction.)
Lewis asked Brown "didn't he think that it was about time
I got a raise and he said he was putting in for all of us a raise
and I would be one of them."
In the latter part of October, mechanic Malcolm Mock
(who could not read and write) began taking machinist Ger-
rald's instruction (despite his inability to make calculations
used in performing some of the simple lathe and milling
work). On November 7, Mock was the first of the mechanics
to receive a 12-cent increase. Other machanics learned about
the increase when Mock asked a mechanic to figure his pay-
check to see if he had been paid correctly. Then Newton (who
had not been taking Gerrald's instruction) went to Supervisor
Brown's office and "asked him why I didn't receive a raise
and he said that he thought Malcolm was more qualified for
the job," and that "I would have to learn a little bit more
about the milling machine and lathe." Later mechanic Lewis
(who had been taking the instruction) returned to Brown's
office: "I just asked him what happened to my raise," and "He
told me he was still working on it and trying to get it."
Several weeks elapsed without any more raises being
granted. Then in the first part of February, mechanic Newton
asked Supervisor Brown again about a raise. Brown "said he
could see what he could do about it," and later told Newton
"to get with Gerrald and work with him as much as I could."
Newton then took the instruction from Gerrald.
Shortly after mechanic Newton talked to Supervisor
Brown, mechanic Lewis again spoke to Brown- "I asked him
about a raise and he said that the plant was having a slack
time and they couldn't give out any raises and he said just as
soon as business picked back up he would put me back in for
a raise ." About a week or two later, on February 23, Newton
received the 12-cent raise, and Brown told Newton it would
be best if I didn't mention it ... to any of the other mechan-
ics, because they would probably get mad at me and him
both."
When called as a defense witness, Supervisor Brown denied
much of the foregoing testimony, and denied any recollection
of seeing mechanic Lewis work on the lathe or milling ma-
chine (although admitted seeing Lewis "stand up and watch
Jerry work"). When asked why he did not give Lewis a raise,
he claimed, "I didn't think that he had put forth any or
enough or any effort as far as running the two machines in
the shop," and that "Tommy has a tendency to, I would say,
if I can say loaf on the job. If you give him a job assignment
he, in my opinion, in some cases he would not complete his
job in time according to what he did or had to do." When
asked how often this happened, he testified, "I don't think I
could answer" whether it was "a lot or a little." He admitted
that he had never given Lewis even a verbal warning. (Unlike
company witness Gerrald and General Counsel witnesses
Lewis and Newton, who impressed me favorably as witnesses,
755
Supervisor Brown appeared to be less than a candid , trust-
worthy witness.)
3. Concluding findings
As found above, Supervisor Brown suggested that me-
chanic Lewis take the special instruction from machinist Ger-
rald, later advised that he was recommending that Lewis be
given a raise, and still later (after mechanic Mock received a
raise) said he was "still working on it and trying to get it" for
Lewis. Then in February, after first putting mechanic New-
ton into a position for getting the raise (by suggesting that
Newton take the special instruction on the lathe and milling
machine), Brown told Lewis that business was too slack for
any further raises at the time. A week or two later, after
Newton took the special instruction, the Company granted
him the same 12-cent raise it had granted Mock, and Brown
advised secrecy (cautioning Newton that "it would be best"
if Newton did not mention the raise to other mechanics.)
After weighing all the evidence, I find that the Company
purposely confined the raises to mechanic Mock (who had
disowned his union support) and mechanic Newton (who had
not signed a union card), and discriminatorily refused to
accept Supervisor Brown's recommendation that mechanic
Lewis be given the same 12-cent raise (and the promotion
from third-class to second-class mechanic) received by New-
ton on February 23, because of Lewis' union membership and
support, and because Lewis testified against the Company in
the earlier Board proceeding, in violation of Section 8(a)(1),
(3), and (4) of the Act. In view of the fact that this matter was
fully litigated at the trial, I find that the discrimination began
on February 23 (when the increase was granted to Newton),
rather than the date alleged in the complaint ("on or about
April 29," which is apparently the date the employees com-
plained to the Union about the matter).
Concerning the alleged discrimination against mechanic
Miller, I discredit Miller's testimony that he did not have the
opportunity, between assigned repair jobs, to train with ma-
chinist Gerrald on the lathe and milling machine. Inasmuch
as Miller did not have this special training, I find that the
General Counsel has failed to prove by a preponderance of
the evidence that the Company violated the Act by failing to
promote Miller.
CONCLUSIONS OF LAW
1. By discriminatorily reducing the overtime work afforded
serviceman William English on and after April 22, 1970, the
Company engaged in unfair labor practices affecting com-
merce within the meaning of Sections 8(a)(3) and (1) and 2(6)
and (7) of the Act.
2. By discriminatorily refusing on February 23, 1970, and
failing thereafter, to grant a wage increase and promotion to
mechanic Tommy Lewis, the Company violated Section
8(a)(1), (3), and (4) of the Act.
3. The General Counsel has failed to prove by a preponder-
ance of the evidence that the Company was discriminatonly
motivated by failing to grant the increase and promotion to
mechanic Floyd Miller.
THE REMEDY
In order to effectuate the policies of the Act, I find it
necessary that the Respondent be ordered to cease and desist
from the unfair labor practices found and from like or related
invasions of the employees' Section 7 rights; to take certain
affirmative action, including the promotion of Tommy Lewis
to second-class mechanic and the payment to Tommy Lewis
and William English of the earnings they lost as a result of
the Respondent's discrimination against them, the backpay
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being computed on a quarterly basis, plus interest at 6 percent [Recommended Order omitted from publication.]
per annum , as prescribed in F W. Woolworth Company, 90
NLRB 289 , and Isis Plumbing & Heating Co., 138 NLRB
716; and to post appropriate notices.